Criminal proceedings against Sebat Ince.
Date: 2016-02-04
43


Where a company established in a Member State pursues the activity of collecting bets through the intermediary of an economic operator established in another Member State, any restrictions imposed on the activities of that operator come within the scope of the freedom to provide services (see, by analogy, judgment in Gambelli and Others, C‑243/01, EU:C:2003:597, paragraph 46).
48


In that regard, it should be pointed out that, according to the 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 breach of EU law. Given that Question 1(b) and (c) seeks to establish whether the conditions imposed for the award of an authorisation under the national legislation were contrary to EU law, the relevance of that question for the purposes of resolving the dispute before the referring court cannot be called into question (see, to that effect, judgment in Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 43).
52


In that regard, it should be recalled at the outset that, in accordance with the principle of the precedence of EU law, provisions of the Treaties and directly applicable measures of the institutions have the effect, in their relations with the internal law of the Member States, merely by entering into force, of rendering automatically inapplicable any conflicting provision of national law (see judgments in Simmenthal, 106/77, EU:C:1978:49, paragraph 17; Factortame and Others, C‑213/89, EU:C:1990:257, paragraph 18; and Winner Wetten, C‑409/06, EU:C:2010:503, paragraph 53).
53


The Court has held that, by reason of the primacy of directly applicable EU law, national legislation concerning a public monopoly on bets on sporting competitions which, according to the findings of a national court, comprises restrictions that are incompatible with the freedom of establishment and the freedom to provide services, because those restrictions do not contribute to limiting betting activities in a consistent and systematic manner, cannot continue to apply during a transitional period (see judgments in Winner Wetten, C‑409/06, EU:C:2010:503, paragraph 69, and Stanleybet International and Others, C‑186/11 and C‑209/11, EU:C:2013:33, paragraph 38).
54


However, the refusal to allow a transitional period in the event of incompatibility of national legislation with Article 56 TFEU does not necessarily lead to an obligation for the Member State concerned to liberalise the market in games of chance if it finds that such a liberalisation is incompatible with the level of consumer protection and the preservation of order in society which that Member State intends to uphold. Under EU law as it currently stands, Member States remain free to undertake reforms of existing monopolies in order to make them compatible with FEU Treaty provisions, inter alia by making them subject to effective and strict controls by the public authorities (see judgment in Stanleybet International and Others, C‑186/11 and C‑209/11, EU:C:2013:33, paragraph 46).
55


In any event, if the Member State concerned should find that a reform of an existing monopoly, with a view to making it compatible with Treaty provisions, is not feasible and that a liberalisation of the market in games of chance is the better measure for ensuring the level of consumer protection and the preservation of order in society which that Member State intends to uphold, it will be required to observe the fundamental rules of the Treaties, including Article 56 TFEU, the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency. In such a case, the introduction in that Member State of a system of prior administrative authorisation for the provision of certain types of games of chance must 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 so that it is not used arbitrarily (see judgments in Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 90, and Stanleybet International and Others, C‑186/11 and C‑209/11, EU:C:2013:33, paragraph 47).
59


In such circumstances, it cannot be excluded that private operators may not be in a position to know either the procedure to be followed for requesting an authorisation for organising and intermediating sporting bets or the conditions under which they will be granted or refused an authorisation. Such lack of precision does not enable the operators concerned to be apprised of the extent of their rights and obligations deriving from Article 56 TFEU, with the result that the system in question must be regarded as being contrary to the principle of legal certainty (see, by analogy, judgments in Église de scientologie, C‑54/99, EU:C:2000:124, paragraph 22; Commission v France, C‑483/99, EU:C:2002:327, paragraph 50; and Festersen, C‑370/05, EU:C:2007:59, paragraph 43).
63


As regards the consequences of such an incompatibility, it must be recalled that 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 (see judgments in Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 69; Stoß and Others, C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraph 115; and Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 43).
64


Such a prohibition, which stems from the principle of the primacy of EU law and from the principle of sincere cooperation laid down in Article 4(3) TEU, is binding, within the sphere of their areas of competence, on every organ of the Member State concerned, including the criminal prosecution authorities (see, to that effect, judgment in Wells, C‑201/02, EU:C:2004:12, paragraph 64 and the case-law cited).
67


As a preliminary point, it must be borne in mind that a breach of the notification obligation laid down in Article 8(1) of Directive 98/34 constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals (see, inter alia, judgment in Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 48 and the case-law cited).
68


In that regard, it should be emphasised that, as the Advocate General noted in point 60 of his Opinion, even though Article 8(1) of that directive requires the entire draft of a law containing technical regulations to be communicated to the Commission (see, to that effect, judgment in Commission vItaly, C‑279/94, EU:C:1997:396, paragraphs 40 and 41), the non-applicability which results from the breach of that obligation extends not to all of the provisions of such a law, but only to the technical regulations contained therein.
70


According to that latter provision, the concept of ‘technical regulation’ encompasses four categories of measures, namely (i) ‘technical specifications’ within the meaning of Article 1.3 of Directive 98/34, (ii) ‘other requirements’ as defined in Article 1.4 of that directive, (iii) ‘rules on services’ as referred to in Article 1.5 of that directive, and (iv) ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’.
71


It would appear, first of all, that the Treaty on gaming does not contain any provision falling within the first category of technical regulations, namely the concept of ‘technical specification’ within the meaning of Article 1.3 of Directive 98/34. That concept concerns exclusively national measures which refer to the product or its packaging as such and thus lay down one of the characteristics required of a product (see judgments in Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 28, and Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 19). The Treaty on gaming, however, regulates the organisation and intermediation of sporting bets without referring to the products which may be involved in such activities.
72


For the same reason, the Treaty on gaming likewise cannot contain provisions falling within the second category of technical regulations, namely the concept of ‘other requirements’ within the meaning of Article 1.4 of that directive, as that concept concerns the life cycle of a product after it has been placed on the market.
74


According to Article 1.5 of that directive, ‘rules on services’ consist of every requirement of a general nature relating to the taking-up and pursuit of the service activities referred to in Article 1.2 of that directive, which include ‘any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’.
76


With regard, by contrast, to the provisions of the Treaty on gaming other than those relating to an ‘Information Society service’, within the meaning of Article 1.2 of Directive 98/34, such as the provisions introducing the obligation to obtain an authorisation to organise or collect sporting bets and the impossibility of issuing such an authorisation to private operators, these do not constitute ‘technical regulations’ within the meaning of Article 1.11 of that directive. National provisions which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical regulations within the meaning of that provision (see, to that effect, judgment in Lindberg, C‑267/03, EU:C:2005:246, paragraph 87).
83


Having regard, in particular, to that second objective, it is important that the economic operators of a Member State be informed of draft technical regulations adopted by another Member State and of their temporal and territorial scope, so as to enable them to be apprised of the extent of the obligations that may be imposed on them and to anticipate the adoption of those texts by adapting, if necessary, their products or services in a timely manner.
86


It should be recalled, as a preliminary point, that public authorities concluding service concession contracts are obliged to comply with the fundamental rules of the Treaty in general, including Article 56 TFEU and, in particular, with the principles of equal treatment and non-discrimination on the ground of nationality, and with the consequent obligation of transparency (see, to that effect, judgment in Sporting Exchange, C‑203/08, EU:C:2010:307, paragraph 39 and the case-law cited).
87


In that context, that obligation of transparency, which is a corollary of the principle of equality, is designed essentially to ensure that any interested operator may take the decision to tender for contracts on the basis of all relevant information and to ensure the elimination of any risk of favouritism or arbitrariness on the part of the licensing authority. It implies that all the conditions and detailed rules governing the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question (judgment in Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 73 and the case-law cited).
88


It is ultimately a matter for the referring court, which alone has jurisdiction to assess the facts and interpret the national legislation, to examine, in the light of those principles, whether the factors which it has set out, taken individually or through their combined effect, are capable of bringing into question the compliance of a procedure for granting licences to organise sporting bets, such as that at issue in the main proceedings, with the principles of equal treatment and non-discrimination on grounds of nationality and the consequent obligation of transparency.
92


In that regard, it should be emphasised that, as has been noted in paragraphs 53 to 55 of the present judgment, the Court held, in the judgment in Stanleybet International and Others (C‑186/11 and C‑209/11, EU:C:2013:33, paragraphs 38, 46 and 47), that national legislation concerning a public monopoly on sporting bets which, according to the findings of a national court, comprises restrictions that are incompatible with the freedom of establishment and the freedom to provide services, cannot continue to apply during a transitional period. The refusal to allow a transitional period does not, however, oblige the Member State concerned to liberalise the market in games of chance, that State also being able to reform the existing monopoly in order to make it compatible with EU law or to replace it with a system of prior administrative authorisation based on objective, non-discriminatory criteria which are known in advance.