Criminal proceedings against Marcello Costa and Ugo Cifone.
Date: 2012-02-16
43. In that regard, it should be noted that, according to consistent case‑law, a Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of EU law ( Placanica and Others , paragraph 69). Given that the question referred is intended precisely to establish whether the conditions which were imposed for the award of a licence under the national legislation, and which led Stanley to decline to participate in the tendering procedures at issue in the main proceedings, were contrary to EU law, the relevance of that question for the purposes of deciding the cases before the referring court cannot be called into question.
45. In that connection, it is true that the precision — and even the usefulness — both of the observations submitted by the Governments of the Member States, and the other interested parties, and of the answer given by the Court may depend on sufficient details being provided as to the content and objectives of the national legislation applicable to the cases before the referring court. Nevertheless, in the light of the division of jurisdiction as between the national courts and the Court of Justice, it must be regarded as sufficient that both the subject-matter of the cases before the referring court and the main issues raised for the EU legal order can be understood from the order for reference, in order to enable the Member States to submit their observations in accordance with Article 23 of the Statute of the Court of Justice and to participate effectively in the proceedings before the Court (Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 41). Those requirements are met by the order for reference in both cases.
48. First, that court is called upon to decide whether the measures adopted by the legislature in order to remedy the unlawful exclusion of operators, such as Stanley, from the 1999 tendering procedure are in conformity with EU law. While the referring court finds that the provision made under the Bersani Decree for the award of approximately 16 000 new licences appears at first sight to comply with the requirements laid down by the Court in paragraph 63 of Placanica and Others , it harbours doubts as to the compatibility with EU law of other aspects of the new system, whereby the market positions of operators which obtained a licence under the 1999 tendering procedure are protected against potential competition from operators which were unlawfully excluded from that procedure and were unable to take part in a tendering procedure for the award of licences until 2006. In that connection, the referring court cites in particular the obligation laid down in Article 38(2) and (4) of the Bersani Decree, under which new licence holders must, when setting up their outlets, observe a minimum distance from existing licence holders.
51. First of all, it should be noted that, as the Court held in paragraph 63 of Placanica and Others , it is for the national legal order to lay down detailed procedural rules to ensure the protection of the rights of operators unlawfully excluded from the first tendering procedure, provided, however, that those detailed rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness).
52. In the same paragraph of Placanica and Others , the Court went on to hold that the revocation and redistribution of the old licences or the award by public tender of an adequate number of new licences could be appropriate courses of action. In principle, those courses of action are both capable of remedying, at least as regards the future, the unlawful exclusion of certain operators, by allowing them to engage in their activity on the market under the same conditions as existing operators.
53. That is not the case, however, if the market positions acquired by the existing operators are protected by the national legislation. The very fact that the existing operators have been able to start up several years earlier than the operators unlawfully excluded, and have accordingly been able to establish themselves on the market with a certain reputation and a measure of customer loyalty, confers on them an unfair competitive advantage. To grant the existing operators even greater competitive advantages over the new licence holders has the consequence of entrenching and exacerbating the effects of the unlawful exclusion of the latter from the 1999 tendering procedure, and accordingly constitutes a new breach of Articles 43 EC and 49 EC and of the principle of equal treatment. Such a measure also makes it excessively difficult to exercise the rights conferred by EU law on operators unlawfully excluded from the 1999 tendering procedure and, as a consequence, is inconsistent with the principle of effectiveness.
54. It should be noted in this context that the public authorities which grant betting and gaming licences have a duty to comply with the fundamental rules of the Treaties and, in particular, with Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency (see, to that effect, Case C‑203/08 Sporting Exchange [2010] ECR I‑4695, paragraph 39, and Case C‑64/08 Engelmann [2010] ECR I‑8219, paragraph 49 and the case‑law cited).
55. Without necessarily implying an obligation to call for tenders, that obligation of transparency, which applies if the licence in question may be of interest to an undertaking located in a Member State other than that in which the licence is granted, requires the licensing authority to ensure, for the benefit of any potential tenderer, a degree of publicity sufficient to enable the licence to be opened up to competition and the impartiality of the award procedures to be reviewed ( Commission  v Italy , paragraph 24 and the case‑law cited; Sporting Exchange , paragraphs 40 and 41; and Engelmann , paragraph 50).
56. The award of such licences must therefore be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion (see, to that effect, Engelmann , paragraph 55 and the case‑law cited).
59. As regards possible justifications for such unequal treatment, it is settled law that grounds of an economic nature, such as the objective of ensuring continuity, financial stability or a proper return on past investments for operators who obtained licences under the 1999 tendering procedure, cannot be accepted as overriding reasons in the public interest, justifying a restriction of a fundamental freedom guaranteed by the Treaty ( Commission  v Italy , paragraph 35 and the case‑law cited, and Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraphs 53 to 56).
61. It is true that those objectives — the reduction of betting and gaming opportunities, and the combating of criminality by making the operators active in the sector subject to control and channelling betting and gaming into the systems thus controlled — are among those recognised by case‑law as capable of justifying restrictions on fundamental freedoms in the betting and gaming sector ( Placanica and Others , paragraphs 46 and 52).
62. However, as the Advocate General states in point 63 of his Opinion and as was held by the Court in paragraph 54 of Placanica and Others , as regards the first of those objectives, the betting and gaming sector in Italy has long been marked by a policy of expanding activity with the aim of increasing tax revenue, and no justification can therefore be found in that context in the objectives of limiting the propensity of consumers to gamble or of curtailing the availability of gambling. In so far as the Bersani Decree has significantly increased the number of betting and gaming opportunities still further, as compared with the period under consideration in Placanica and Others , that conclusion is all the more valid in relation to the current situation in that sector.
63. Also, as regards the second objective relied upon, it is settled law that the restrictions imposed by Member States must satisfy the principle of proportionality and that national legislation is appropriate for achieving the objective invoked only if the means used are consistent and systematic ( Placanica and Others , paragraphs 48 and 53).
69. It should be noted first of all that Articles 43 EC and 49 EC require the abolition of all restrictions on freedom of establishment and freedom to provide services — even if those restrictions apply without distinction to national providers of services and to those from other Member States — if they are liable to prohibit, impede or render less attractive the activities of a service provider established in another Member State in which it lawfully provides similar services ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 51 and the case‑law cited).
70. It is common ground that national legislation, such as that at issue in the cases before the referring court, which makes the exercise of an economic activity subject to a licensing requirement and which specifies situations in which the licence is to be withdrawn constitutes an obstacle to the freedoms thus guaranteed by Articles 43 EC and 49 EC.
71. Such restrictions may, however, be recognised as exceptional measures, as expressly provided for in Articles 45 EC and 46 EC, or justified by overriding reasons in the public interest, provided that they comply with the requirements under the case‑law of the Court with regard to their proportionality. A certain number of overriding reasons relating to the public interest have been recognised in that regard by the case‑law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander on betting and gaming, as well as the general need to preserve public order ( Placanica and Others , paragraphs 45, 46 and 48).
72. It follows moreover from the provisions and principles referred to in paragraph 54 above that, when licences such as those in the cases before the referring court are awarded, the licensing authority has an obligation of transparency consisting inter alia in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the licences to be opened up to competition and the impartiality of the procurement procedures to be reviewed ( Commission  v Italy , paragraph 24 and the case‑law cited; Sporting Exchange , paragraphs 40 and 41; and Engelmann , paragraph 50).
73. In that context, the purpose underlying the principle of transparency, which is a corollary of the principle of equality, is essentially to ensure that any interested operator may take the decision to tender for contracts on the basis of all the relevant information and to preclude any risk of favouritism or arbitrariness on the part of the licensing authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner, to make it possible for all reasonably informed tenderers exercising ordinary care to understand their exact significance and interpret them in the same way, and to circumscribe the contracting authority’s discretion and enable it to ascertain effectively whether the tenders submitted satisfy the criteria applying to the relevant procedure (see, to that effect, Case C‑496/99 P Commission  v CAS Succhi di Frutta [2004] ECR I‑3801, paragraph 111, and Case C‑250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I‑11135, paragraphs 45 and 46).
74. The principle of legal certainty requires, moreover, that rules of law be clear, precise and predictable as regards their effects, in particular where they may have unfavourable consequences for individuals and undertakings (see, to that effect, Case C‑17/03 VEMW and Others  [2005] ECR I‑4983, paragraph 80 and the case‑law cited).
76. As the Advocate General states in point 93 of his Opinion, the exclusion of operators whose managers have been convicted of criminal offences can in principle be regarded as a measure which is justified by the objective of combating criminality. As the Court has consistently held, betting and gaming involve a particularly high risk of crime or fraud, given the scale of the earnings and the potential winnings on offer to gamblers ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 63).
77. Withdrawal of the licence, however, constitutes a particularly serious measure for the licensee, a fortiori in circumstances such as those of the cases before the referring court, in which, by virtue of Article 23(6) of the model contract, it leads automatically to forfeiture of a substantial financial guarantee and possible obligations to compensate the AAMS for damage suffered.
78. In order to enable any potential tenderer to assess with certainty the likelihood that such penalties will be applied to it, to preclude any risk of favouritism or arbitrariness on the part of the licensing authority and, lastly, to ensure that the principle of legal certainty is observed, it is therefore necessary for the circumstances in which those penalties will be applied to be set out in a clear, precise and unequivocal manner.
81. In any event, it is settled case‑law that restrictions imposed by national legislation must not go beyond what is necessary to attain the end in view ( Gambelli and Others , paragraph 72). Although it may therefore, in certain circumstances, prove justifiable to take preventive measures against a gaming operator suspected, on the basis of reliable evidence, of being implicated in criminal activities, exclusion from the market through withdrawal of the licence should in principle be regarded as proportionate to the objective of combating criminality only if it is based on a judgment which has the force of res judicata and concerns a sufficiently serious offence. Legislation which provides for operators to be excluded, even temporarily, from the market can be regarded as proportionate only if it provides for an effective legal remedy and compensation for any loss suffered in the event that such exclusion subsequently proves to be unjustified.
83. It should be noted in that context that it is clear from Placanica and Others  (paragraph 70) that the Italian Republic cannot impose criminal penalties for pursuit of the organised activity of collecting bets without a licence or police authorisation on persons linked to an operator which has been excluded from the relevant tendering procedure in breach of EU law. That judgment was delivered on 6 March 2007, that is to say, four months after the deadline of 20 October 2006 set for the submission of applications in the tendering procedure provided for under the Bersani Decree.
89. In that regard, the interpretation of provisions of national law is a matter for the national courts, under the cooperative arrangements established by Article 267 TFEU, not for the Court of Justice ( Placanica and Others , paragraph 36). However, it follows from the case‑law referred to in paragraphs 72 to 74 above that, under EU law, the conditions and detailed rules of a tendering procedure such as that at issue in the cases before the referring court must be drawn up in a clear, precise and unequivocal manner. That is not the case so far as Article 23(3) of the model contract is concerned, even in the light of the additional explanations provided by the AAMS at Stanley’s request.
92. It follows from Articles 43 EC and 49 EC, the principle of equal treatment, the obligation of transparency and the principle of legal certainty that the conditions and detailed rules of a tendering procedure such as that at issue in the cases before the referring court and, in particular, the provisions concerning the withdrawal of licences granted under that tendering procedure, such as those laid down in Article 23(2)(a) and (3) of the model contract, must be drawn up in a clear, precise and unequivocal manner, a matter which it is for the referring court to verify.
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