Criminal proceedings against Rosanna Laezza.
Date: 2016-01-28
21


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


The Court has already ruled that legislation of a Member State 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of an economic activity subject to a licensing requirement and which specifies situations in which the licence is to be withdrawn, constitutes an obstacle to the freedoms thus guaranteed by Articles 49 TFEU and 56 TFEU (judgment in Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 46 and the case-law cited).
25


In the second place, although the Court has already recognised a certain number of overriding reasons in the public interest which may justify a restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU, those objectives cannot be relied upon to justify discriminatory restrictions (see, to that effect, judgment in Blanco and Fabretti, C‑344/13 and C‑367/13, EU:C:2014:2311, paragraph 37).
26


If the restrictive provision at issue in the main proceedings is discriminatory, it may be justified only on the grounds of public interest, public safety or public health, laid down in Articles 51 TFEU and 52 TFEU, which do not include combatting criminality linked to betting and gaming or ensuring the continuity of the lawful activity of collecting bets relied on in the present case (see, by analogy, judgment in Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU:C:2006:208, paragraph 36 and the case-law cited).
31


Thirdly, it must be determined whether the restriction on the freedoms guaranteed by Articles 49 TFEU and 56 TFEU, constituted by the provision at issue in the main proceedings, may be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 51 TFEU and Article 52 TFEU, which are also applicable in the area of freedom to provide services by virtue of Article 62 TFEU or, if the referring court finds that that provision is applied in a non-discriminatory manner, whether it is justified by overriding reasons in the public interest (see, to that effect, judgment in Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 22 and the case-law cited), such as consumer protection and the prevention of both fraud and incitement to squander money on gambling (judgment in HIT and HIT LARIX.C‑176/11, EU:C:2012:454, paragraph 21 and the case-law cited).
32


In that connection, as regards the Italian legislation relating to betting and gambling, the Court has held previously that the objective of combating criminality linked to betting and gambling is capable of justifying restrictions on fundamental freedoms under those rules (see, to that effect, judgment in Biasci and Others, C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 23).
33


In the present case, the Italian Government submits that the provision at issue in the main proceedings is justified, as part of the objective of combating criminality linked to betting and gambling, by the interest in ensuring the continuation of the lawful activity of collecting bets in order to curb the growth of parallel illegal activities.
34


Such an objective may be a reason of overriding public interest capable of justifying a restriction on fundamental freedoms, such as that at issue in the main proceedings.
35


In any event, the identification of the objectives in fact pursued by the national legislation is within the jurisdiction of the referring court (see, to that effect, judgment in Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 47).
36


Fourthly, it must be determined whether the restriction at issue in the main proceedings is suitable for ensuring the attainment of the objective pursued and does not go beyond what is necessary in order to achieve that objective, given that such restrictive national legislation fulfils that condition only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgment in HIT and HIT LARIX.C‑176/11, EU:C:2012:454, paragraph 22 and the case-law cited).
37


In that connection, it should be recalled that it is for the referring court, taking account of the indications given by the Court of Justice, to verify, in an overall assessment of the circumstances surrounding the grant of the new licences, whether the restrictions imposed by the Member State concerned satisfy the conditions laid down in the Court’s case-law concerning their proportionality (see, to that effect, judgment in Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 40 and the case-law cited).
43


Moreover, it must be underlined that the lack of transparency of the provision at issue in the main proceedings is likely to undermine the principle of legal certainty. That provision, which provides that the transfer free of charge of the rights to use assets which constitute the network for the management and collection of bets is not imposed systematically, but only ‘[a]t the express request of the CMA’, does not specify the conditions and detailed rules pursuant to which such an express request must be made. The conditions and detailed rules of a call for tenders, such as that at issue in the main proceedings, must be drawn up in a clear, precise and unequivocal manner (see, to that effect, judgment in Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 92 and the operative part).