Daniele Biasci and Others v Ministero dell’Interno and Questura di Livorno (C‑660/11) and Cristian Rainone and Others v Ministero dell’Interno and Others (C‑8/12).
Date: 2013-09-12
21. The Court has ruled previously that, in so far as the national legislation at issue in the main proceedings prohibits – under penalty of criminal sanction – the pursuit of activities in the betting and gaming sector without a licence or police authorisation issued by the State, it constitutes a restriction on the freedom of establishment and the freedom to provide services ( Placanica and Others , paragraph 42 and the case-law cited).
23. As regards the national legislation at issue in the main proceedings, the Court has held previously that only the objective of combating criminality linked to betting and gaming is capable of justifying restrictions on fundamental freedoms under those rules, provided that those restrictions comply with the principle of proportionality and in so far as the means employed are coherent and systematic (see, to that effect, Placanica and Others , paragraphs 52 to 55, and Costa and Cifone , paragraphs 61 to 63).
24. It should be borne in mind in that regard that, according to the Court’s case-law, a licensing system may constitute an efficient mechanism enabling operators active in the betting and gaming sector to be controlled with a view to preventing the exploitation of those activities for criminal or fraudulent purposes (see Placanica and Others , paragraph 57).
25. It is, however, for the referring court to determine whether, in limiting the number of operators active in the betting and gaming sector, the national legislation genuinely contributes to the objective of preventing the exploitation of activities in that sector for criminal or fraudulent purposes. By the same token, it for that court to ascertain whether those restrictions satisfy the conditions laid down by the case-law of the Court as regards their proportionality (see Placanica and Others , paragraph 58).
26. The Court has held previously that the requirement of a police authorisation, by virtue of which operators active in the betting and gaming sector, as well as their premises, must be subject to ex ante controls as well as to ongoing supervision, clearly contributes to the objective of preventing the involvement of those operators in criminal or fraudulent activities and appears to be a measure that is entirely commensurate with that objective (see, to that effect, Placanica and Others , paragraph 65).
28. However, where police authorisations are granted only to licence-holders, irregularities in the licence-granting procedure also vitiates the procedure for granting police authorisations. Consequently, the lack of a police authorisation cannot be held against persons who were unable to obtain authorisations because the grant of an authorisation presupposed the award of a licence – a licence which, contrary to European Union law, those persons were unable to obtain (see Placanica and Others , paragraph 67).
40. The Court has held previously in that regard that, in the light of the wide discretion the Member States have in relation to the objectives they wish to pursue and the level of consumer protection they seek and in the absence of any harmonisation in the sphere of betting and gaming, in the present state of development of European Union law there is no obligation of mutual recognition of authorisations issued by the various Member States (see, to that effect, Joined Cases  C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07 Stoß and Others  [2010] ECR I-8069, paragraph 112, and Case C‑347/09 Dickinger and Ömer [2011] ECR I-8185, paragraphs 96 and 99).
41. Thus, each Member State retains the right to require any operator wishing to offer betting and gaming to consumers in its territory to hold an authorisation issued by its competent authorities, without the fact that a particular operator already holds an authorisation issued in another Member State being capable of constituting an obstacle (see Stoß and Others , paragraph 113).
42. The various Member States do not necessarily have the same technical means available for controlling betting and gaming, and do not necessarily make the same choices in this respect. The fact that a particular level of protection of consumers may be achieved in a particular Member State by applying sophisticated control and monitoring techniques does not allow the conclusion that the same level of protection can be achieved in other Member States which do not have those technical means avail able or have made different choices. A Member State may legitimately wish, moreover, to monitor an economic activity which is carried on in its territory, and that would be impossible if it had to rely on checks done by the authorities of another Member State using regulatory systems which it itself does not control (see, to that effect, Dickinger and Ömer , paragraph 98).