Stanley International Betting Ltd and Stanleybet Malta Ltd v Ministero dell'Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli di Stato.
Date: 2015-01-22
6. Following, inter alia, the judgment in Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80), the betting and gambling sector was reformed by Decree-Law No 16 of 2 March 2012 laying down urgent provisions related to fiscal simplification, improving effectiveness and reinforcing monitoring procedures (GURI No 52 of 2 March 2012, p. 1), converted, after amendment, into statute by Law No 44 of 26 April 2012 (GURI No 99 of 28 April 2012, Ordinary Supplement No 85, p. 1 et seq.; consolidated text, p. 23 et seq., ‘Decree-Law No 16’).
26. 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 in Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27 and the case-law cited).
27. 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 in Mulders , C‑548/11, EU:C:2013:249, paragraph 28 and the case-law cited).
32. In that regard it should be noted that, although in the judgment in Costa and Cifone (EU:C:2012:80), the Court also examined the Italian legislation’s compliance with the obligation of transparency and the principle of legal certainty, such an examination is not necessary in the present case because, according to the referring court, the provisions at issue in the main proceedings are sufficiently clear and it can no longer be alleged that they were not drawn up in a clear, precise and unequivocal manner.
35. However, as the Court has already held, both the revocation and redistribution of the old licences and the award by public tender of an adequate number of new licences could be appropriate courses of action. In principle, those courses of action are both capable of remedying, at least as regards the future, the unlawful exclusion of certain operators, by allowing them to engage in their activity on the market under the same conditions as existing operators (judgment in Costa and Cifone , EU:C:2012:80, paragraph 52).
37. In accordance with the established case law of the Court, it is for the national legal order to lay down detailed procedural rules to ensure the protection of the rights that operators derive from the direct effect of EU law, provided, however, that those detailed rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgments in Placanica and Others , EU:C:2007:13, paragraph 63, and Costa and Cifone , EU:C:2012:80, paragraph 51).
38. In addition, in order to be consistent with the principle of equal treatment and to meet the obligation of transparency which flows from that principle, an authorisation scheme for betting and gambling must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise by the authorities of their discretion so that it is not used arbitrarily (judgment in Garkalns , C‑470/11, EU:C:2012:505, paragraph 42).
39. As the Court has already held, the very fact that the existing operators were able to commence their activities several years earlier than the operators which were unlawfully excluded, and have accordingly been able to establish themselves on the market with a certain reputation and a measure of customer loyalty, confers on them an unfair competitive advantage. To grant the existing operators ‘even greater’ competitive advantages over the new licence holders has the consequence of entrenching and exacerbating the effects of the unlawful exclusion of the latter from the tendering procedures, and accordingly constitutes a breach of the principle of equal treatment. Such a measure also makes it excessively difficult to exercise the rights conferred by EU law on operators unlawfully excluded from the last call for tenders and, as a consequence, is inconsistent with the principle of effectiveness (see judgment in Costa and Cifone , EU:C:2012:80, paragraph 53).
41. As regards compliance with the principle of equal treatment, it should be noted that, according to the referring court, the provisions at issue in the case in the main proceedings are no longer unclear, apply to all participants, including past licence holders, and also apply to existing licences without giving existing operators ‘even greater’ competitive advantages. While it is true that that assessment is not shared by the appellants in the main proceedings, it should in that regard be noted that it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law or to decide whether the interpretation given by the referring court of those provisions is correct (see, inter alia, judgment in Angelidaki and Others , C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 48 and the case-law cited).
45. 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, inter alia, judgment in Duomo Gpa and Others , C‑357/10 to C‑359/10, EU:C:2012:283, paragraphs 35 and 36 and the case-law cited).
46. Consequently, 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 thus guaranteed by Articles 49 TFEU and 56 TFEU (see judgment in Costa and Cifone , EU:C:2012:80, paragraph 70).
47. It is necessary, however, 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 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 in Digibet and Albers , C‑156/13, EU:C:2014:1756, paragraph 22 and the case-law cited).
48. Thus, it is settled case-law that restrictions on betting and gambling may be justified by overriding reasons in the public interest, such as consumer protection and the prevention of both fraud and incitement to squander money on gambling (judgment in Digibet and Albers , EU:C:2014:1756, paragraph 23 and the case-law cited).
49. Moreover, 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 judgment in Biasci and Others , C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 23).
50. In the present case, as regards the classification as an ‘overriding reason in the public interest’ of the reason given by the national authorities in order to justify the shorter period of validity of the new licences, namely the reorganisation of the licensing system through the alignment of licence expiry dates, it is true that, according to settled case-law, considerations of an administrative nature cannot justify derogation by a Member State from the rules of EU law. That principle applies with even greater force where the derogation in question amounts to preventing or restricting the exercise of one of the fundamental freedoms of EU law (see judgment in Arblade and Others , C‑369/96 and C‑376/96, EU:C:1999:575, paragraph 37 and the case-law cited).
51. However, it is appropriate to bear in mind the specific nature of legislation on betting and gambling, which 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, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected, since the identification of the objectives which are in fact pursued by the national legislation falls, in the context of a case referred to the Court under Article 267 TFEU, within the jurisdiction of the national court (judgment in Digibet and Albers , EU:C:2014:1756, paragraph 24 and the case-law cited).
52. Accordingly, in that specific field, national authorities enjoy a wide measure of discretion when determining what is required in order to ensure consumer protection and the preservation of order in society and — provided that the conditions laid down in the Court’s case-law are in fact met — it is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary to prohibit, wholly or in part, betting and gambling or only to restrict them and, to that end, to lay down more or less strict supervisory rules (see judgment in Digibet and Albers , EU:C:2014:1756, paragraph 32 and the case-law cited).