Global Starnet Ltd v Ministero dell'Economia e delle Finanze and Amministrazione Autonoma Monopoli di Stato.
Date: 2017-12-20
17


In that regard, it must be borne in mind that, in the context of the cooperation between the Court and the national courts established in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need of a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, when the question put by the national court concerns the interpretation of EU law, the Court is, in principle, bound to give a ruling. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 7 July 2016, Muladi, C‑447/15, EU:C:2016:533, paragraph 33).
21


It should be noted that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right, or escape the obligation under Article 267 TFEU, to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law exercising the right conferred on it by Article 267 TFEU to refer to the Court questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 34 and the case-law cited).
22


The Court has concluded from all the above considerations that the functioning of the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU requires, as does the principle of primacy of EU law, the national court to be free to refer to the Court for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 35 and the case-law cited).
23


It follows from the foregoing considerations that the effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of there existing a procedure for review of constitutionality, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 36 and the case-law cited).
24


Furthermore, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it (see judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 37 and the case-law cited).
25


The fact that the Corte costituzionale (Constitutional Court) gave a ruling on the compatibility of the provisions of national law, which are also the subject of the second question referred for a preliminary ruling, with the provisions of the Italian Constitution which the referring court regarded as constituting, in essence, the same regulatory parameters as Articles 26, 49, 56 and 63 TFEU and Article 16 of the Charter of Fundamental Rights has no bearing on the obligation, laid down in Article 267 TFEU, to refer questions concerning the interpretation of EU law to the Court of Justice.
30


That being said, the Court has ruled that legislation of a Member State which makes the exercise of an economic activity subject to a licensing requirement and specifies situations in which the licence is to be withdrawn, constitutes an obstacle to the freedoms guaranteed by Articles 49 and 56 TFEU (judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 22 and the case-law cited).
31


Furthermore, as regards the applicability of Articles 34 and 35 TFEU, it should be noted that the business of operating gaming machines, irrespective of whether or not it is separable from activities relating to the manufacture, importation and distribution of such machines, cannot come within the scope of those articles relating to the free movement of goods (judgment of 11 September 2003, Anomar and Others, C‑6/01, EU:C:2003:446, paragraph 56).
35


It must be borne in mind that all measures that prohibit, impede or render less attractive the exercise of the freedoms guaranteed by Articles 49 and 56 TFEU must be regarded as restrictions of the freedom of establishment and/or the freedom to provide services (see judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 45 and the case-law cited).
39


It must be borne in mind that legislation on betting and gambling is one of the areas in which there are significant moral, religious and cultural differences between the Member States. Failing any harmonisation on the issue at EU level, the Member States enjoy a wide discretion as regards choosing the level of consumer protection and the preservation of order in society which they deem the most appropriate (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 39 and the case-law cited).
40


The Member States are, therefore, free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the level of protection sought. However, the restrictive measures that the Member States impose must satisfy the conditions laid down in the case-law of the Court as regards, inter alia, their justification by overriding reasons in the general interest and their proportionality (judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 40 and the case-law cited).
42


Given the particular nature of the situation linked to betting and gambling, such objectives may be reasons of overriding public interest capable of justifying restrictions of fundamental freedoms, such as those at issue in the main proceedings (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraphs 42 and 43).
43


In any event, identification of the objectives in fact pursued by the national legislation falls within the jurisdiction of the referring court (see, to that effect, judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 35).
44


Moreover, it should be noted that, when a Member State relies on overriding requirements in the public interest in order to justify rules liable to obstruct the exercise of the freedom of establishment and the freedom to provide services, such justification must also be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter of Fundamental Rights. Thus, the national legislation in question can fall under one of the justifications provided for only if it is compatible with those principles and those rights (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 74 and the case-law cited).
46


It must be pointed out that the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear, precise and predictable in their effect, especially when they may have adverse consequences on individuals and undertakings (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 77 and the case-law cited).
47


However, a trader may not place reliance on there being no legislative amendment whatever, but can call into question only the arrangements for the implementation of such an amendment (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 78 and the case-law cited).
48


In that regard, it should be noted that the national legislature must provide a transitional period of sufficient length to enable traders to adapt or a reasonable compensation system (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 85 and the case-law cited).
50


As the Court has previously held, examination of the restriction represented by national legislation from the point of view of Articles 49 and 56 TFEU also covers possible limitations of the exercise of the rights and freedoms laid down in Articles 15 to 17 of the Charter of Fundamental Rights, so that a separate examination of the freedom to conduct a business is not necessary (see, to that effect, judgments of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 60, and of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 91).
51


As regards the proportionality of the measures laid down in Article 1(78)(b), subsections 4, 8, 9, 17, 23 and 25, of Law No 220/2010, it is to be determined whether those measures are suitable for ensuring the attainment of the objectives pursued and do not go beyond what is necessary in order to achieve them, in particular ensuring that the national legislation at issue in the main proceedings genuinely reflects a concern to attain those objectives consistently and systematically (judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 44).
52


In that connection, it should be recalled that it is for the referring court, taking account of the indications given by the Court, to verify, in an overall assessment of all the circumstances, whether the restrictions at issue in the main proceedings satisfy the conditions set out in the Court’s case-law concerning their proportionality (judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 49 and the case-law cited).
58


The measure laid down in subsection 25 of Article 1(78)(b) of Law No 220/2010, namely, the obligation for the concession holder, when he ceases his activity, to continue the ordinary management of the activities covered by the concession until the transfer of its management and operation to the new concession holder, is capable of ensuring the continuation of the lawful activity of collecting bets in order to curb the growth of parallel illegal activities and, therefore, may well contribute to combating crime (see, to that effect, judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraphs 33 and 34).
60


As regards the measure laid down in Article 1(78)(b), subsection 23, of Law No 220/2010, namely, the imposing of sanctions in the form of penalties, in the case of breach of contractual clauses which may be attributed to the concession holder, including in the event of an involuntary breach, it should be noted that penalties are not compatible with EU law if the conditions determining their application are themselves contrary to EU law (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 69). The penalties must not go beyond what is strictly necessary for the objectives pursued and a penalty must not be so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaty (see, to that effect, judgment of 5 July 2007, Ntionik and Pikoulas, C‑430/05, EU:C:2007:410 paragraph 54).
61


In order to assess whether a penalty is consistent with the principle of proportionality, account must be taken, inter alia, of the nature and the degree of seriousness of the infringement which the penalty is intended to sanction and of the means of establishing the amount of the penalty (see, to that effect, judgments of 8 May 2008, Ecotrade, C‑95/07 and C‑96/07, EU:C:2008:267, paragraphs 65 to 67; and of 20 June 2013, Rodopi-M 91, C‑259/12, EU:C:2013:414, paragraph 38).
63


Furthermore, it should be noted that the Court has previously held that the imposition of a system of strict liability is not disproportionate in relation to the objectives pursued if that system is such as to encourage the persons concerned to comply with the provisions of a regulation and where the objective pursued is a matter of public interest that may justify the introduction of such a system (judgment of 9 February 2012, Urbán, C‑210/10, EU:C:2012:64, paragraph 48).