Stanley International Betting Ltd and Stanleybet Malta Ltd v Ministero dell'Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli.
Date: 2018-12-19
28


In that regard, it should be borne in mind that, according to settled case-law, questions on the interpretation of EU law enjoy a presumption of relevance. 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 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 22 and the case-law cited).
29


According to settled case-law, the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 27 and the case-law cited).
34


As a preliminary point, it should be observed that, according to settled case-law, established in the field of public procurement and applicable by analogy as regards service concessions, the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time (see, by analogy, judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83 and the case-law cited).
38


As the Court has repeatedly held, legislation of a Member State, such as that at issue in the main proceedings, 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 guaranteed in Articles 49 and 56 TFEU (judgments of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 70, and of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 46).
40


For the purpose of that assessment, it should be recalled that, in the absence of harmonisation in the field of games of chance at EU level, the Member States remain free to set the objectives of their policies in this respect, while enjoying a wide discretion as regards choosing the level of consumer protection and the preservation of order in society which they deem the most appropriate, 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 (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraphs 39 and 40 and the case-law cited).
41


Consequently it is necessary to determine whether such a restriction may be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 51 and 52 TFEU, which are also applicable in the area of freedom to provide services by virtue of Article 62 TFEU, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 47 and the case-law cited).
43


In this respect, as the Court has previously pointed out in its case-law on games of chance, consumer protection and the prevention of both fraud and incitement to squander money on gambling can be categorised as overriding reasons of public interest justifying restrictions on fundamental freedoms deriving from Articles 49 and 56 TFEU (see, to that effect, judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, point 48 and the case-law cited).
44


In contrast, as is also clear from the Court’s case-law, administrative inconvenience as well as economic reasons do not constitute grounds that can justify a restriction on a fundamental freedom guaranteed by EU law (see, to that effect, judgment of 30 June 2011, Zeturf, C‑212/08, EU:C:2011:437, paragraphs 48 and 52 and the case-law cited).
45


However, the identification of the objectives in fact pursued by the national legislation is, in the context of a case referred to the Court under Article 267 TFEU, within the jurisdiction of the referring court (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 47 and the case-law cited).
46


It is also for the referring court, while taking account of the information provided by the Court, to determine whether the restrictions imposed by the Member State concerned satisfy the conditions laid down in the Court’s case-law as regards their proportionality (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 48 and the case-law cited).
48


It follows from the Court’s case-law that, unlike the introduction of free, undistorted competition in a traditional market, the presence of that kind of competition in the very specific market of games of chance, that is to say, between several operators authorised to run the same games of chance, is liable to have detrimental effects, owing to the fact that those operators would be led to compete with each other in inventiveness to make what they offer more attractive than what their competitors offer, and thereby to increase consumers’ expenditure on gaming and the risks of their addiction (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 46 and the case-law cited).
50


Such a divergence in legal regimes is not, in itself, capable of affecting the suitability of such a sole concessionaire model for achieving the objective of preventing citizens from being incited to squander money on gambling and of combating addiction to the latter, for which it was established (see, by analogy, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 23 and the case-law cited).
51


However, a system of dual organisation of the market for games of chance may be contrary to Article 56 TFEU if it is found that the competent authorities pursue policies seeking to encourage participation in games of chance other than those covered by the sole concessionaire model rather than to reduce opportunities for gambling and to limit activities in that area in a consistent and systematic manner so that the aim of preventing incitement to squander money on gambling and of combating addiction to the latter, which was at the root of the establishment of the sole concessionaire model, can no longer be effectively pursued by means of the sole concessionaire model (see, by analogy, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 24 and the case-law cited).
52


Such a dual system, on the other hand, is compatible with Article 56 TFEU, since the referring court establishes that the rules restricting the freedom to provide services actually pursue, in a consistent and systematic manner, the objectives relied on by the Member State concerned (see, to that effect, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 33).
56


It is also settled case-law that, when awarding licences such as that at issue in the main proceedings, 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 (judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 72 and the case-law cited).
57


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, first, make it possible for all reasonably informed tenderers exercising ordinary care to understand their exact significance and interpret them in the same way and, second, 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 (judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 73 and the case-law cited).
66


In that regard, it should be noted that the Court has validated the use of the system of concessions in the sector of games of chance, considering that it may constitute an efficient mechanism enabling operators active in the sector of games of chance to be controlled with a view to preventing the exploitation of those activities for criminal or fraudulent purposes (see, to that effect, judgment of 12 September 2013, Biasci and Others, C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 24 and the case-law cited).
71


As regards, in the first place, the withdrawal clause of the concession contract by reason of the referral to a court provided for in Article 30(2)(h) of the model contract, it is clear from the case-law of the Court that, in the specific field of games of chance, the exclusion of an economic operator by reason of the commission of an offence in relation to the subject matter of the activity granted as a concession may, in principle, be considered to be a measure justified by the objective of the fight against crime (see, to that effect, judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 76 and the case-law cited).
72


However, the withdrawal of a concession being a particularly serious measure for the concessionaire, the latter must be able to assess with certainty the likelihood of such a penalty being imposed on it. To that end, it is necessary that the circumstances in which that penalty can be applied be formulated in a clear, precise and unambiguous manner (see, to that effect, judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraphs 77 and 78).
76


As regards whether that clause also satisfies the requirements of the principle of proportionality, it is settled case-law that restrictions imposed by national legislation must not go beyond what is necessary to attain the end in view (judgment of 6 November 2003, Gambelli and Others, C‑243/01, EU:C:2003:597, paragraph 72). Therefore, although the contracting authorities must, in principle, be able to rule on the withdrawal of a concession contract in the event that the reliability of the concessionaire is called into question, in particular, because of the commission of an offence related to the subject matter of the activity for which the concession is granted, that option must nevertheless be strictly limited so that it is proportionate to the objective of the fight against crime.
83


It should be added, however, that in examining the proportionality of those clauses, the referring court must also take into account the fact that the withdrawal of the concession contract of an economic operator cannot be regarded as proportionate in the case where the national legislation provides neither an effective legal remedy nor compensation for any loss suffered in the event that such withdrawal subsequently proves to be unjustified (see, by analogy, judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 81).