Unibet International Ltd v Nemzeti Adó- és Vámhivatal Központi Hivatala.
Date: 2017-06-22
32


It should be borne in mind that Article 56 TFEU requires the abolition of any restriction on the freedom to provide services, even if it applies without distinction to national providers of services and to providers from other Member States, if the restriction is liable to prohibit, impede, or render less advantageous the activities of service providers established in another Member State where they lawfully provide similar services (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 51 and the case-law cited).
33


In that regard, the Court has already held that national legislation which prohibits the organisation of games of chance without the prior authorisation of the administrative authorities constitutes a restriction of the freedom to provide services guaranteed by Article 56 TFEU (see, to that effect, judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 39 and the case-law cited).
37


Moreover, it is undisputed that it is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary wholly or partially to prohibit activities concerning the organisation of games of chance, or only to restrict them and to lay down more or less strict supervisory rules for that purpose, the need for and the proportionality of the measures thus adopted having to be assessed solely in relation to the objectives pursued and the level of protection which the national authorities concerned seek to ensure (see, to that effect, judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 46 and the case-law cited).
39


The Court has already held that those objectives may be such as to justify restrictions of fundamental freedoms in the sector of games of chance. A certain number of overriding reasons in the public interest have been recognised by the case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gaming, as well as the general need to preserve public order (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 46).
40


Nevertheless, it is settled case-law that the restrictions imposed by Member States must satisfy the principle of proportionality and that national legislation is appropriate for achieving the objective invoked only if the means used are consistent and systematic (judgments of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 48 and 53, and 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 63).
41


Thus, for such legislation to be justified, even though it derogates from a fundamental freedom, it is clear from the case-law of the Court that a system of concessions and licences for the organisation 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, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 55 and the case-law cited).
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In addition, the public authorities which grant the concessions are required to comply with the obligation of transparency. Accordingly, without necessarily implying an obligation to call for tenders, that obligation of transparency, which applies when the service concession in question may be of interest to an undertaking located in a Member State other than that in which the concession is granted, requires the concession-granting authority to ensure, for the benefit of any potential tenderer, a degree of publicity sufficient to enable the service concession to be opened up to competition and the impartiality of the award procedures to be reviewed (see, to that effect, judgment of 9 September 2010, Engelmann, C‑64/08, EU:C:2010:506, paragraphs 49 and 50).
43


Moreover, the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear and precise and predictable in their effect, especially where they may have negative consequences on individuals and undertakings (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 77 and the case-law cited).
46


As regards, in the second place, national legislation such as that in force on 29 August 2014, the obligation to have carried out an activity of organising games of chance for three years in a Member State does not create an advantage for operators established in the host Member State and could be justified by a general interest objective. However, it is important that the rules in question are applied transparently to all tenderers. It should accordingly be borne in mind that the obligation of transparency, which is a corollary of the principle of equality, is essentially intended 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, so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, so as 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 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 87).
50


In that regard, it is sufficient to recall that, where a restrictive system has been established for games of chance and that system is incompatible with Article 56 TFEU, an infringement of the system by an economic operator cannot give rise to penalties (Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 64 and the case-law cited.)