Criminal proceedings against Domenico Politanò.
Date: 2016-09-08
22


In that regard, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred 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 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 26 and the case-law cited).
23


It is also settled case-law that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that 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).
30


According to the case-law of the Court, it follows from a comparison of the definitions of a public service contract and a service concession provided, respectively, by Article 1(2)(a) and (d) and by Article 1(4) of Directive 2004/18 that the difference between a public service contract and a service concession lies in the consideration for the provision of services. A service contract involves consideration which, although it is not the only consideration, is paid directly by the contracting authority to the service provider, while, for a service concession, the consideration for the provision of services consists in the right to exploit the service, either alone, or together with payment (see judgment of 10 March 2011, Privater Rettungsdienst und Krankentransport Stadler, C‑274/09, EU:C:2011:130, paragraph 24 and the case-law cited).
31


It also follows from that case-law that, while the method of remuneration is, therefore, one of the determining factors for the classification of a service concession, such a classification implies that the service supplier takes the risk of operating the services in question and that the absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession (see, to that effect, judgment of 10 March 2011, Privater Rettungsdienst und Krankentransport Stadler, C‑274/09, EU:C:2011:130, paragraph 26 and the case-law cited).
37


First of all, it is settled case-law 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 (see judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 45 and the case-law cited).
39


Next, it is appropriate to bear in mind that legislation on betting and gambling is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of harmonisation on the issue at EU level, the Member States enjoy a wide discretion as regards choosing the level of consumer protection and the preservation of order in society which they deem the most appropriate (see, to that effect, judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraphs 51 and 52 and the case-law cited).
40


The Member States are therefore free to set the objectives of their policy on betting and gambling and, where appropriate, to define in detail the level of protection sought. However, 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 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 59 and the case-law cited).
41


It is appropriate, therefore, to determine whether a restriction, such as that 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 justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (judgment of 12 June 2014, Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 22 and the case-law cited).
42


In the present case, the Italian Government submits that the restrictive provision at issue 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 and by the interest in protecting consumers. Thus, it is essential that the economic and financial capacities of concession holders enable them to carry out their activity on the market over the longer term.
43


In that regard, it is worthwhile bearing in mind that 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 (see, to that effect, judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraphs 34 and 35). The Court has, moreover, previously held that the objective of combating criminality linked to betting and gambling is capable of justifying restrictions on fundamental freedoms under restrictive rules (see, to that effect, judgments of 12 September 2013, Biasci and Others, C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 23, and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 32).
44


However, it is still necessary to determine 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, including by ensuring that the national legislation at issue genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, judgment of 12 July 2012, HIT and HIT LARIX, C‑176/11, EU:C:2012:454, paragraph 22 and the case-law cited).
46


The obligation of providing statements from two banks is manifestly capable of ensuring that the economic operator has an economic and financial standing enabling him to fulfil the obligations he may contract towards winning gamblers. In that regard, the Court has previously held that the requirement for a share capital of a certain amount may prove to be of use in order to ensure such an economic and financial standing (see, to that effect, judgment of 15 September 2011, Dickinger and Ömer, C‑347/09, EU:C:2011:582, paragraph 77).
47


Furthermore, it must be determined whether, given the wide discretion enjoyed in the non-harmonised area of betting and gambling by national authorities for determining what is required in order to ensure consumer protection and the preservation of order in society (see, to that effect, judgment of 12 June 2014, Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 32 and the case-law cited), the obligation of producing two statements from two different banks does not go beyond what is necessary in order to achieve the objective pursued, as such an assessment must be carried out solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure (see judgment of 15 September 2011, Dickinger and Ömer, C‑347/09, EU:C:2011:582, paragraph 46 and the case-law cited).
49


However, 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 of 12 June 2014, Digibet and Albers, C‑156/13, EU:C:2014:1756, paragraph 40 and the case-law cited).