1 These requests for a preliminary ruling concern the interpretation of Articles 26, 49 and 56 TFEU, and the principles of market unity, equal treatment, uniform treatment and non-discrimination.
2 The requests have been made in proceedings brought by a number of operators of gaming halls, amusement arcades and slot machines - namely the Asociación de Empresarios de Salones de Juego y Recreativos de la Comunidad Valenciana (Anesar-CV) (C‑718/23), Salones Comatel SL, Inversiones Comatel SL, Recreativos del Este SL, the Asociación SOS Hostelería, the Unión de Trabajadores de Salones de Juego (Utsaju) and the Asociación Valenciana de Operadores de Máquinas Recreativas (Asvomar) (C‑719/23), the Asociación Española de Fabricantes de Máquinas Recreativas y de Juego (Asesfam), the Asociación de Empresarios de Máquinas Recreativas de la Comunidad Valenciana (Andemar-CV), the Asociación Provincial de Empresas Comercializadoras de Máquinas Recreativas y de Azar de Alicante (Apromar-Alicante) and the Federación Empresarial de Hostelería de Valencia (C‑720/23), Apuestas Deportivas Valencianas S.A., Codere Apuestas Valencia S.A., Luckia Retail S.A., Mediterránea de Apuestas S.A., Orenes Apuestas CV S.A. and Sportium Apuestas Levante S.A. (C‑721/23), and Recreativos Giner Moltó SL, Valazar 2014 SL and Valazar 2000 SL (C‑60/24) - against the Conselleria d’Hisenda i Model Econòmic de la Generalitat Valenciana (Finance and Economic Model Ministry of the Government of the Community of Valencia, Spain), in the presence of the Organización Nacional de Ciegos Españoles (ONCE) (National Organisation for the Blind, Spain), seeking the annulment of various provisions of regional legislation relating to gaming and the prevention of problem gambling.
3 Article 8 of Ley 1/2020 de la Generalitat, de regulación del Juego y prevención de la ludopatía en la Comunitat Valenciana (Law 1/2020 of the Government of the Community of Valencia on the regulation of gaming and the prevention of problem gambling in the Community of Valencia) of 11 June 2020 (BOE no 253 of 23 September 2020, p. 79980) (‘Law 1/2020’), entitled ‘Limitation of advertising, promotion, sponsorship and commercial information’, states: ‘1. In the area of gaming in the Community of Valencia and with respect to gaming undertakings authorised by the Government of the Community of Valencia, all types of advertising, promotion, sponsorship and any form of commercial communication, including communication carried out electronically through social media, relating to gaming activities and the establishments where they are practised shall be subject to restrictions. 2. The advertising and promotion of gaming outside gaming establishments and static advertising of gaming on public roads or means of transport are prohibited within the Community of Valencia. 3. The free or promotional distribution of products, goods, services or any other action the direct or indirect, primary or secondary objective or effect of which is the promotion of gaming activities shall be restricted by regulation within the scope specified in paragraph 1 of this article. 4. Similarly, the provision free of charge or for below-market prices of tokens, cards, tickets, or other items exchangeable for money, which allow participation in gaming shall be restricted by regulation. 5. In premises where gaming activities are carried on, it shall be mandatory for consumers and users to have at their disposal, in a visible and easily accessible location, leaflets containing information about and the contact details of institutions dedicated to the treatment and rehabilitation of people with addictive disorders associated with gambling. The Ministry of the Government of the Community of Valencia with responsibility for addiction prevention and treatment shall establish the format and content of those leaflets. 6. Publicly owned media outlets with broadcast coverage limited to part or all of the territory of the Community of Valencia shall not broadcast advertisements relating to gaming, whether conducted in person or online. That prohibition shall also include information society services and the broadcasting of programmes and images in which presenters, contributors or guests appear gambling, or mention or show, directly or indirectly, establishments, venues, or premises associated with gambling, except in cases where the objective of those programmes or images is to prevent or to raise awareness about pathological or problem gambling. The Ministry of the Government of the Community of Valencia with responsibility for gaming may authorise exceptions to that restriction in the case of publicly owned gaming or gaming reserved to the State. 7. Lines of support, subsidies and/or tax incentives shall be put in place for sports organisations, associations and media outlets (especially online) that run campaigns related to preventing and combating problem gambling.’
4 Article 45(3)(b), (c) and (e) of that law refers, respectively, to bingo halls, gaming halls and establishments specifically intended for betting.
5 Article 45(5) and (6) of that law provides: ‘5. Establishments falling within the categories mentioned in paragraph 3(c) and (e) of this article may not be located less than 850 meters from an educational centre accredited by the Ministry of the Government of the Community of Valencia with responsibility for education to provide compulsory secondary education, baccalaureate examinations, basic vocational training and professional artistic education. That distance restriction shall not apply to gaming establishments located outside residential areas. 6. Establishments falling within the categories mentioned in paragraph 3(b), (c) and (e) of this article may not be situated less than 500 metres from another establishment falling within one of those categories.’
6 The second transitional provision of that law, in the version in force on the dates the requests for a preliminary ruling were submitted to the Court, was worded as follows: ‘Authorisations granted before the entry into force of the present law shall remain valid for the period for which they were issued. Any renewal or extension of those authorisations after the entry into force of the present law shall be subject to compliance with the requirements laid down in this law and in the implementing regulations, with the exception, however, of the requirement relating to the distance between gaming establishments, regulated by Article 45(6) of the present law.’
7 The tenth transitional provision of Law 1/2020, in the version in force on the dates the requests for a preliminary ruling were submitted to the Court, stated: ‘New authorisations for gaming establishments and new authorisations to operate category B machines or amusement machines with prizes, intended to be installed in establishments in the hotel, restaurant and catering sector or similar, shall be suspended for a maximum period of five years from the entry into force of the present law. If, during the processing of the application for renewal of the authorisation of a gaming establishment, the current location of that establishment does not comply with the distance requirement established in Article 45(5) of the present law, the suspension referred to in the previous paragraph shall not apply to the processing of a new authorisation at another location. During that period, the Ministry of the Government of the Community of Valencia with responsibility for gaming shall coordinate a study to examine the social and public health impact of existing gaming facilities (specific gaming establishments and gaming machines in premises in the hotel, restaurant and catering sector). On the basis of the results of that study, the Ministry of the Government of the Community of Valencia with responsibility for gaming shall propose restrictions in the territory of the Community of Valencia on the number and distribution of gambling establishments and category B machines or amusement machines with prizes intended for hotel, restaurant and catering establishments or similar, taking into account public health, demographic, socio-economic and territorial criteria.’
8 Article 4 of Decreto 97/2021 del Consell, de medidas urgentes para la aplicación de la Ley 1/2020, de 11 de junio de la Generalitat, de regulación del juego y prevención de la ludopatía en la Comunitat Valenciana (Decree 97/2021 of the Government of the Community of Valencia, laying down urgent measures for the application of Law 1/2020 of 11 June 2020 of the Government of the Community of Valencia on the regulation of gaming and the prevention of problem gambling in the Community of Valencia), of 16 July 2021 (Diari Oficial de la Generalitat Valenciana, no9143 of 4 August 2021) (‘Decree 97/2021’), entitled ‘Applications for authorisation to set up new gaming establishments and to open new specific betting premises’, provides: ‘Within the period set out in the first paragraph of the tenth transitional provision of Law 1/2020, applications for new authorisations for new gaming establishments shall be rejected on the ground that they are manifestly unfounded in accordance with the basic rules laid down in [Ley 39/2015 del procedimiento administrativo común de las administraciones públicas (Law 39/2015 on the common administrative procedure of public administrations) of 1 October 2015].’
9 Article 5 of that decree, entitled ‘Authorisations for the renewal of licenses for gaming establishments that do not meet the distance requirement’, provides: ‘1. In order to renew the authorisations of gaming establishments that do not meet the distance requirement laid down in Article 45(5) of Law 1/2020, referred to in the second paragraph of the tenth transitional provision thereof, the owners shall submit to the Territorial Directorate of the Ministry of the Government of the Community of Valencia with responsibility for gaming in the province concerned the relevant documentation in order to process the authorisation for the new location. 2. The gaming establishments referred to in the previous paragraph whose authorisation expires between the date of entry into force of the new Law on the regulation of gaming and 31 October 2021 may remain open on a temporary basis and continue operating at their current location. To that end, before the expiry, they must submit a solemn declaration stating that they are currently in such a temporary situation and that they intend to continue the same activity in the future location and bring to an end the gaming activity in the premises where they are located; that activity may not extend beyond nine months from the date of submission of that declaration. Within one month of receiving the renewal of the authorisation, and in any event not beyond the nine-month limitation, the operator shall definitively close the old premises and inform the Subdirectorate General for Gaming of that fact, which shall remove the premises from the corresponding register. If the permanent closure of the former premises is not voluntarily complied with, the establishment shall be shut down, without prejudice to the imposition of any applicable penalties.’
10 Article 6 of that decree, entitled ‘Procedure for the renewal of licences for gaming halls that do not comply with the distance requirement’, is worded as follows in paragraph 11: ‘Once the operating licence has been granted, the opening of new accredited educational establishments referred to in Article 45(5) of Law 1/2020 shall not lead to the subsequent closure of the gaming halls affected by the distance limitation. However, the renewal of such licences shall be subject to the provisions of that law.’
11 Article 9 of that decree, entitled ‘Procedure for authorising the installation and replacement of gaming machines’, states, in paragraph 1: ‘The installation of category B machines or amusement machines with prizes may be authorized in establishments in the hotel, restaurant and catering sector or similar only when the corresponding operating licence has been received or requested before the entry into force of the law.’
12 Article 18 of Decree 97/2021, entitled ‘Commercial information outside gaming establishments’, provides: ‘1. No advertising may be placed on the façades, windows or display cabinets, and doors of gaming establishments. 2. The following commercial information relating to the gaming establishment shall be displayed on its façades, windows or display cabinets, and doors: (a) the category of the gaming establishment from among those set out in Article 45(3) of Law 1/2020[;] (b) the trade or company name of the establishment, provided that it does not defend, extol or incite the practice of gaming, directly or indirectly, and does not make any allusion to luck, fortune, happiness or any other similar term, expression, acronym or initialism; (c) logotypes, anagrams, representations of images, objects or similar items shall be subject to the limitations set out in point (b) of this paragraph and shall not reproduce any elements related directly or indirectly to gaming, such as roulettes, playing cards, cards, amusement machines and other similar items; (d) any information required by current legislation, such as information relating to the establishment’s opening hours to the public or other mandatory information. 3. Gaming establishments displaying signs, emblems or other similar devices that do not comply with the above provisions shall have a period of three months from the date of entry into force of the present decree to adapt or remove them.’
13 The applicants in the main proceedings brought actions before the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia, Spain), which is the referring court, for annulment of a number of provisions of the legislation adopted by the Comunidad Valenciana (Community of Valencia, Spain) to regulate gaming and prevent problem gambling on the ground that they do not comply with EU law.
14 In particular, the applicants in the main proceedings refer to the articles of Decree 97/2021 which implement Article 8, Article 45(5) and (6), and the second and tenth transitional provisions of Law 1/2020. Article 8 of that law lays down restrictions on advertising and commercial information. Article 45(5) and (6) of that law introduces restrictions on establishment in terms of the minimum distance to be observed between gaming halls and establishments specifically intended for betting, on the one hand, and, on the other, certain educational establishments, namely 850 metres, and between certain gaming establishments themselves, namely 500 metres. The second and tenth transitional provisions of Law 1/2020 provide that operating authorisations granted before the entry into force of that law are to be maintained and that any renewals or extensions of those authorisations are to be subject to the new statutory and regulatory requirements, with the exception of the requirement for a minimum distance between certain gaming establishments. In addition, the tenth transitional provision imposes a moratorium of no more than five years on the grant of new operating authorisations.
15 According to those applicants, those provisions, which are neither necessary nor proportionate, constitute an unjustified restriction on the freedom of establishment and the freedom to provide services.
16 The defendant in the main proceedings, the Finance and Economic Model Ministry of the Government of the Community of Valencia, submits, by contrast, that the provisions in question comply with EU law since they are justified by the objective of protecting consumers and minors, and they satisfy the criterion of proportionality (appropriateness, necessity and proportionality stricto sensu) established in both the national legislation and the settled case-law of the Court.
17 In that context, and in the light of the case-law of the Court, which has set limits on the discretion conferred on the Member States to determine the objectives and instruments of their policy on gambling, the referring court is uncertain whether the provisions contested in the main proceedings are compatible with the principles of EU law. According to that court, the introduction of requirements in terms of minimum distances could be incompatible with EU law, since other pre-existing measures, such as the prohibition on access to, and participation in, gaming imposed on minors and other vulnerable persons, and the prohibition on advertising, are sufficient to attain the objectives pursued. The same conclusion should apply to regional rules requiring compliance with any of those conditions for the renewal of operating authorisations granted previously or a moratorium on the grant of new authorisations for gaming establishments and the operation of certain games in establishments in the hotel, restaurant and catering sector or similar (‘the horeca sector’).
18 That court also raises the question of compliance with the principles of equal treatment and consistency by the restrictions imposed, in so far as they apply only to private operators, to the exclusion of public establishments.
19 In those circumstances, the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24: ‘(1) Must Articles 26, 49 and 56 TFEU, setting out the principles of freedom to conduct a business, freedom of establishment and freedom to provide services, be interpreted as being compatible with national legislation (such as Article 5 of [Decree 97/2021] implementing Article 45(5) and (6) of [Law 1/2020] establishing a system of minimum distances of 500 metres between gaming [establishments] and of 850 metres of separation between gaming [establishments] and educational establishments, when such legislation already has other less restrictive measures, but which may be deemed equally effective in protecting consumers, the public interest and in particular minors: such as (a) the prohibition of access and participation by minors, persons without legal capacity pursuant to a final court judgment, directors of sporting entities and referees of activities on which bets are placed, directors and shareholders of gambling companies, persons carrying weapons or who are intoxicated or under the influence of psychotropic substances, who disturb the conduct of gaming, persons registered in the register of persons banned from having access to gaming; and (b) the prohibition of advertising, promotion or sponsorship and of any type of commercial promotion, including remote methods using social media networks, and of the promotion of gaming outside premises, static advertising on public roads and means of transport, posters or images on any medium? (2) Irrespective of the answer to the above question: must Articles 26, 49 and 56 TFEU be interpreted as precluding national legislation such as that laid down in the second transitional provision of [Law 1/2020], retroactively establishing a mandatory minimum distance of 850 metres between gaming [establishments] and educational establishments for gaming arcades already in place that do not meet that distance requirement, when they request the renewal of their licence or permit following the entry into force of Law 1/2020, because such a requirement is incompatible with the principles referred to above of freedom to conduct a business, freedom of establishment and freedom to pursue a trade or business? (3) Irrespective of the answers to the above questions: must Articles 26, 49 and 56 TFEU be interpreted as precluding national legislation such as that laid down in the tenth transitional provision of [Law 1/2020], establishing a moratorium of five years from the entry into force of that law on the award of new licences or permits for gaming establishments, because such a suspension of permits for a maximum period of five years is incompatible with the principles referred to above of freedom to conduct a business, freedom of establishment and freedom to pursue a trade or business? (4) Irrespective of the answers to the above questions: must Articles 26, 49 and 56 TFEU be interpreted as precluding national legislation such as that laid down in Articles 45(5) and (6) of [Law 1/2020], in so far as they impose obligations only on privately owned gaming arcades but not on publicly owned establishments, which are also not subject to the restrictions on advertising and access controls to which the former are subject, and do not have to comply with the following obligations: (a) compliance with a system of minimum distances of 500 metres between gaming [establishments] and of 850 metres of separation between gaming [establishments] and educational establishments; (b) retroactive compliance with the distance of 850 metres that must exist between gaming [establishments] and educational establishments for gaming [establishments] already in place that do not meet that distance requirement, when they apply for the renewal of their licence or permit following the entry into force of Law 1/2020; (c) a moratorium for a maximum period of five years from the entry into force of Law 1/2020 on the award of new licences or permits for gaming and betting establishments and the operation of slot machines? Do the principles of market unity, of equal and uniform treatment, and of non-discrimination between and for the actors of the gaming sector preclude such provisions of national legislation? Does the situation described constitute an advantage that harms or distorts competition in the sector [of activity concerned]?’
20 The Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia) also decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling in Case C‑720/23: ‘(1) Must Articles 26, 49 and 56 TFEU be interpreted as precluding national legislation such as that set out in Article 9 of [Decree 97/2021] in so far as such legislation makes it impossible to renew licences for the operation of Type B machines that existed prior to the entry into force of [Law 1/2021], following its entry into force, and the tenth transitional provision of Law 1/2020 establishing a moratorium of five years from the entry into force of that law on the award of new licences or permits for gaming establishments and on the award of licences for the operation of Type B machines, because such restrictions are incompatible with the principles referred to above of freedom to conduct a business and freedom of establishment, as well as freedom to carry on activities and access to the markets? (2) Irrespective of the answer to the above question, must Articles 26, 49 and 56 TFEU be interpreted as precluding national legislation such as that set out in Article 9 of Decree 97/2021 and the tenth transitional provision of Law 1/2020 on the regulation of gaming and the prevention of gambling addiction in the Autonomous Community of Valencia, in so far as they have a detrimental impact only on the private sector (hospitality and similar undertakings where they are installed and, indirectly, on the manufacturers of such Type B machines) on whom restrictions on their operation are imposed, but which do not apply to public gaming and betting establishments, which are exempt from such restrictions because of the type of bets and games they promote? Do the principles of market unity and of equal and uniform treatment, and non-discrimination between and for the actors of the gaming sector preclude such provisions of national legislation? Does the situation described constitute an advantage that harms or distorts competition in the sector [of activity concerned]?’
21 By decision of the President of the Court of Justice of 4 January 2024, Cases C‑718/23, C‑719/23, C‑720/23 and C‑721/23 were joined for the purposes of the written and oral procedure, and the judgment.
22 By decision of the President of the Court of Justice of 2 February 2024, those cases and Case C‑60/24 were joined for the purposes of the written and oral procedure, and the judgment.
23 ONCE, the Spanish and Italian Governments and the European Commission submit that the requests for a preliminary ruling are inadmissible on the ground that all the elements of the disputes in the main proceedings are confined within a single Member State, in the present case the Kingdom of Spain. As regards the fourth question in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24, and the second question in Case C‑720/23, ONCE also submits that those questions have no connection with the subject matter of the disputes in the main proceedings. Furthermore, ONCE and the Spanish Government submit that both those questions should in any event be declared inadmissible under Article 94 of the Rules of Procedure of the Court of Justice.
24 In the first place, as regards the admissibility of the requests for a preliminary ruling, in their entirety, it should be borne in mind that the provisions of the FEU Treaty on the freedom of establishment and the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47).
25 However, as is clear from the Court’s settled case-law, where the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States, which justifies the Court giving an answer to the questions put to it in relation to the provisions of the FEU Treaty on the fundamental freedoms, even though the dispute in the main proceedings is confined in all respects within a single Member State (judgment of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 32 and the case-law cited, and of 8 June 2023, Prestige and Limousine, C‑50/21, EU:C:2023:448, paragraph 49).
26 In that regard, it is apparent from the requests for a preliminary ruling and from the referring court’s reply of 23 December 2024 to a request for clarification from the Court of Justice under Article 101 of the Rules of Procedure that the disputes in the main proceedings concern the challenge to a regional law and regulation, which, as general provisions, apply not only to its own nationals but also to undertakings from other Member States wishing to establish themselves in the Community of Valencia, with the result that the present cases in the main proceedings go beyond the national sphere. Consequently, in that regard, an interpretation of those fundamental freedoms, sought by the referring court, is necessary for the resolution of those disputes (see, to that effect, judgment of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 34).
27 In the second place, as regards the admissibility of the fourth question in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24, and of the second question in Case C‑720/23, which is disputed on the ground, first, that the answer to those questions will not be of assistance to the resolution of the disputes in the main proceedings and, second, that the referring court does not provide any explanation as regards the provisions of national law applicable to lotteries and betting organised at national level and the legal rules applicable to ‘public gaming establishments’, it should be pointed out that, according to the settled case-law of the Court of Justice, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court of Justice provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 22 February 2024, Ente Cambiano società cooperativa per azioni, C‑660/22, EU:C:2024:152, paragraph 20 and the case-law cited).
28 Since the order for reference serves as the basis for that procedure, the national court is required, in the order for reference itself, to set out the factual and legislative context of the dispute in the main proceedings and to provide the necessary explanation of the reasons for the choice of the provisions of EU law which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgment of 12 September 2024, Presidenza del Consiglio dei Ministri and Others (Remuneration of honorary judges and Public Prosecutors), C‑548/22, EU:C:2024:730, paragraph 27 and the case-law cited).
29 In that regard, it must be noted that the information provided in the requests for a preliminary ruling must enable, first, the Court of Justice to provide useful answers to the questions referred by the national court and, second, the governments of the Member States and other interested parties to exercise the right conferred on them by Article 23 of the Statute of the Court of Justice of the European Union to submit observations. It is the Court’s duty to ensure that that right is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (judgment of 22 February 2024, Ente Cambiano società cooperativa per azioni, C‑660/22, EU:C:2024:152, paragraph 22 and the case-law cited).
30 Those cumulative requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Rules of Procedure, of which the referring court is supposed, in the context of the cooperation instituted by Article 267 TFEU, to be aware and which it is bound to observe scrupulously. They are also referred to in paragraphs 13, 15 and 16 of the Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1) (judgment of 22 February 2024, Ente Cambiano società cooperativa per azioni, C‑660/22, EU:C:2024:152, paragraph 23 and the case-law cited).
31 It should be noted that, by the fourth question in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24, and the second question in Case C‑720/23, the referring court asks, in essence, whether EU law precludes national legislation which subjects only private gaming establishments, and not public gaming establishments, to certain obligations relating to gaming and the prevention of problem gambling.
32 The referring court does not define the concept of ‘public gaming establishments’ to which it refers, does not provide the national legal framework applicable to those establishments and does not set out any restrictions that may be applicable to those establishments.
33 Furthermore, the restrictions which are the subject of the questions referred for a preliminary ruling, which, in the light of the information set out in the orders for reference, concern casinos, bingo halls, gaming halls, amusement arcades, premises specifically intended for betting and other premises set up for the installation of gaming machines, are not applied depending on the public or private nature of the establishments in which those games are organised or those machines are installed. In that regard, it should be noted that, according to the information provided by the Spanish Government in its observations, the power to regulate games of chance in Spain is shared between the State and the Autonomous Communities. The powers of both are based not on a distinction between ‘public gaming establishments’ and ‘private gaming establishments’, but on the territorial scope of the legislation, which varies on a case-by-case basis depending on the type of gaming concerned. Thus, the power to regulate State lotteries and online games at national level is reserved to the national legislature, while the Autonomous Communities can exercise that power for the other types of games of chance in their respective territories, without distinction as to the public or private nature of the establishments.
34 In that context, the referring court does not explain the reasons which led it to consider that there is a single market for the various types of games of chance, with the result that different rules governing the different types of games of chance would adversely affect competition.
35 In the light of the foregoing considerations, it must be held that the fourth question in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24, and the second question in Case C‑720/23 do not satisfy the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice and must, therefore, be declared inadmissible.
36 By its first three questions in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24, and by the first question in Case C‑720/23, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 26, 49 and 56 TFEU must be interpreted as precluding national legislation which imposes on operators in the gaming sector, first, certain restrictions on the minimum distances to be observed between gaming halls and establishments specifically intended for betting, on the one hand, and on the other, certain educational establishments, and between certain gaming establishments themselves, second, a time limit on the operation of what are known as ‘category B’ slot machines or amusement machines with prizes installed in establishments in the horeca sector and, third, a moratorium on the allocation of new licences or authorisations to operate gaming establishments.
37 With regard to Article 56 TFEU, it should be noted that, when a national measure relates to several fundamental freedoms at the same time, the Court will in principle examine the measure in relation to only one of those freedoms if it appears, in the circumstances of the case, that the other freedoms are entirely secondary in relation to the first and may be considered together with it (judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 29 and the case-law cited).
38 To the extent that the national legislation at issue in the main proceedings sets out the conditions to which operators of certain types of gaming are subject when they seek to establish themselves and obtain the authorisations required to provide such services, that legislation is likely to constitute above all an obstacle to the freedom of establishment, and any possible effects on the freedom to provide services is merely a consequence of any restrictions imposed on the first of those freedoms (see, by analogy, judgment of 8 June 2017, Van der Weegen and Others, C‑580/15, EU:C:2017:429, paragraph 25 and the case-law cited).
39 As regards Article 26 TFEU, it must be observed that it follows from the case files before the Court that the disputes in the main proceedings do not concern the competence of the European Union or its institutions to adopt the measures laid down in that article.
40 In those circumstances, there is therefore no need for the Court to give a ruling with regard to Articles 26 and 56 TFEU.
41 It should be recalled that all measures which prohibit, impede or render less attractive the exercise of freedom of establishment within the meaning of Article 49 TFEU must be considered to be restrictions of that freedom (judgment of 25 April 2024, Edil Work 2 and S.T., C‑276/22, EU:C:2024:348, paragraph 30 and the case-law cited).
42 As is apparent from paragraph 14 above, the contested measures of the national legislation at issue in the main proceedings, which are concerned by the questions referred for a preliminary ruling and set out in paragraph 36 above, impose, first, a distance requirement of 850 metres between gaming halls and premises specifically intended for betting, and certain educational establishments and, second, a distance requirement of 500 metres between the gaming halls, bingo halls and premises specifically intended for betting themselves, third, the obligation for existing gaming halls and betting premises to comply with the first of those requirements in order to obtain the renewal of their authorisation or licence, fourth, the prohibition on renewing authorisations to operate category B slot machines or amusement machines with prizes installed in establishments in the horeca sector after the entry into force of Law 1/2020 and, fifth, a moratorium of no more than five years on the issuing of new authorisations and licences for gaming establishments and the operation of category B slot machines or amusement machines with prizes (together, ‘the measures at issue’).
43 It is common ground that those measures, introduced and imposed on operators in the gambling sector at regional level by Article 45(5) and (6) of Law 1/2020, and by the second and tenth transitional provisions thereof, as supplemented by Articles 4 to 6 and 9 of Decree 97/2021, may make it less attractive or even impossible to exercise the freedom guaranteed by Article 49 TFEU, given that they limit the ability of undertakings to provide certain gaming services as an economic activity in the region concerned or prevent operators already providing such services from making their investments profitable.
44 In addition, the Court has already ruled that legislation of a Member State which makes the exercise of an economic activity subject to a licensing requirement and specifies situations in which the licence is to be withdrawn constitutes an obstacle, in particular, to that freedom (judgment of 19 December 2018, Stanley International Betting and Stanleybet Malta, C‑375/17, EU:C:2018:1026, paragraph 38 and the case-law cited).
45 The measures at issue therefore constitute restrictions on the freedom guaranteed by Article 49 TFEU.
46 It is necessary to assess the extent to which the restrictions introduced by the measures at issue may be permissible as exceptions expressly provided for by the FEU Treaty or justified, in accordance with the Court’s case-law, by overriding reasons relating the public interest (see, to that effect, judgment of 16 March 2023, OL (Extension of Italian licences), C‑517/20, EU:C:2023:219, paragraph 49).
47 Article 52(1) TFEU allows restrictions justified on grounds of public policy, public security or public health. The case-law also identified a certain number of overriding reasons relating to the general interest, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general need to preserve public order, which may also justify restrictions (see, to that effect, judgment of 8 July 2010, Sjöberg and Gerdin, C‑447/08 and C‑448/08, EU:C:2010:415, paragraph 36 and the case-law cited).
48 In that context, it must be recalled that legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. Failing any 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 (judgment of 22 September 2022, Admiral Gaming Network and Others, C‑475/20 to C‑482/20, EU:C:2022:714, paragraph 48 and the case-law cited).
49 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 restrictions that they impose must satisfy the conditions laid down in the case-law of the Court as regards their proportionality (judgment of 14 October 2021, Landespolizeidirektion Steiermark (Gaming machines), C‑231/20, EU:C:2021:845, paragraph 41 and the case-law cited).
50 In the present case, it is apparent from the preamble to Law 1/2020 that the objective of the measures at issue is, first, to reduce the exposure of minors to gaming on their daily routes to educational establishments, since such exposure would lead to the normalisation of gaming establishments as leisure facilities within their group leisure model, second, to reduce the risk of the development of addictive behaviour associated with gaming, in particular among minors in view of the psychological vulnerability of people at that stage of their lives, third, to combat the significant growth in the number of gaming halls and establishments specifically intended for betting in urban areas of the Community of Valencia, fourth, to protect the health of people who are socially more vulnerable and to minimise the social and health risks associated with gaming, fifth, to reduce the spatial concentration of gaming establishments in urban enclaves in order to reduce the risk of the population being overexposed to those games in their daily environment and to promote the balanced, sustainable and healthy development of the urban environment and socio-economic activities and, sixth, to ensure that minors do not have access to category B slot machines or amusement machines with prizes in establishments in the horeca sector.
51 The Finance and Economic Model Ministry of the Government of the Community of Valencia and the Spanish Government argue, more generally, that the aim of the measures at issue is the protection of public health and public security, more particularly the prevention of addictive behaviour associated with gaming, the protection of groups of vulnerable persons and the mitigation of the social impact of gambling and betting.
52 It is apparent from the case-law cited in paragraph 47 above that, given the particular nature of the situation linked to gambling, such objectives are pursued by the contested national legislation and may be reasons of overriding public interest capable of justifying restrictions of fundamental freedoms, such as the restrictions at issue in the main proceedings, provided that they are in fact pursued by the measures at issue, which is a matter for the referring court to verify (see, to that effect, judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraphs 42 and 43 and the case-law cited).
53 It follows that the restrictions on the freedom guaranteed by Article 49 TFEU as a result of the measures at issue appear to be justified in the light of the objectives referred to in paragraphs 50 and 51 above.
54 It is appropriate to examine, in accordance with the case-law cited in paragraph 49 above, the proportionality of the restrictions introduced by the measures at issue, and therefore to determine whether those restrictions are suitable for ensuring the attainment of the objectives pursued and do not go beyond what is necessary in order to achieve them, in particular by ensuring that the national legislation at issue in the main proceedings genuinely reflects a concern to attain those objectives consistently and systematically (judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 51 and the case-law cited).
55 It is for the national court, while taking account of the guidance provided by the Court of Justice, to make that assessment in the context of an overall assessment of all the circumstances (see, to that effect, judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 52 and the case-law cited).
56 In the present case, as regards the first three measures at issue, which concern the minimum distances between gaming halls and establishments specifically intended for betting, on the one hand, and on the other, certain educational establishments, and between certain gaming establishments themselves, it is apparent from the preamble to Law 1/2020 that the Government of the Community of Valencia took those measures on the basis of studies showing the negative effects of minors being overexposed to gaming, and statistics demonstrating that the number of gaming establishments had more than doubled and that the number of establishments specifically intended for betting had quadrupled in the Community of Valencia in the years preceding the adoption of that law. It is thus apparent that those measures were not adopted arbitrarily, but are based on certain specific data.
57 As regards the question whether the measures at issue go beyond what is necessary to attain the objectives pursued, the mere existence of other measures in place, such as the prohibition on access to gaming establishments aimed at minors and the prohibition on advertising for those establishments, raised by the referring court, does not lead to the conclusion that the measures at issue are not necessary to attain those objectives.
58 Moreover, although the general objective of the measures existing prior to the measures at issue is also the protection of public health, they nonetheless affect different aspects of the exposure to gaming. While the measures prohibiting the access of gaming establishments to minors are intended to prevent minors from engaging in gaming, the imposition of minimum distances between such establishments, and between those establishments and certain educational establishments, is intended to prevent the overexposure and normalisation of gaming in the daily lives of minors and other vulnerable sections of the population. Furthermore, although the measure prohibiting advertising is intended to prevent the promotion of gaming, the distance measure between certain gaming establishments is intended to reduce the spatial concentration of those establishments.
59 As regards the applicability of new obligations relating to the distance to gaming halls, betting premises and bingo halls already in operation in order to obtain the renewal of their authorisation or licence, which may lead to a cessation of the activity if the required distance is not complied with, that fact does not necessarily mean that such a measure must be regarded as going beyond what is necessary.
60 In that regard, it should be noted, first, that if the distance obligations applied only to new operators, that would confer on the existing establishments a competitive advantage that would have the effect of hindering even more the access of those new operators to the market (see, by analogy, judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 58).
61 Second, the specific situation of gaming establishments already in operation before the entry into force of the legislation at issue in the main proceedings was taken into consideration in that legislation. In accordance with the second and tenth transitional provisions of Law 1/2020 and Article 5 of Decree 97/2021, the renewal of authorisations to operate those establishments, first, is not subject to compliance with the distance requirement with respect to other gaming establishments and, second, is possible, despite the moratorium on the grant of new authorisations, where the site of such an establishment is moved in order to comply with the distance requirement with respect to an educational establishment referred to in that legislation, a period of time having been granted in order to move those gaming establishments whose authorisation expired before 1 November 2021.
62 As regards the fourth measure at issue, which prevents the renewal of authorisations to operate category B slot machines or amusement machines with prizes installed in establishments in the horeca sector, it appears appropriate to attain the objective pursued without going beyond what is necessary, subject to the checks to be carried out by the referring court. That measure, adopted, like the first three measures at issue, on the basis of studies mentioned in the preamble to Law 1/2020, is intended to prevent minors from gaining access to those machines in places where it is impossible to control access.
63 Finally, in so far as it establishes a moratorium of up to five years on the issue of new authorisations and licences for gaming establishments and the operation of category B slot machines or amusement machines with prizes, the fifth measure at issue is consistent with the objective of protecting public health and seeks to reduce the concentration of gaming establishments following their significant expansion in the Community of Valencia, which was particularly noticeable in the years preceding the adoption of that law and was accompanied by an increase in the number of persons suffering from addictive behaviour towards gaming and an increasing social concern linked to the proliferation of gaming establishments.
64 In that regard, it should be noted that, according to the Court’s settled case-law, it is for the Member States to assess whether it is necessary not only to restrict gambling activities but also to prohibit them, provided that those restrictions are not discriminatory (see, to that effect, judgment of 21 October 1999, Zenatti, C‑67/98, EU:C:1999:514, paragraphs 15 and 16). Thus, the Court has held that, although restrictions on the number of operators may in principle be justified, those restrictions must in any event reflect a concern to bring about a genuine diminution of gambling opportunities and to limit activities in that sector in a consistent and systematic manner (judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 53), a condition which it is for the referring court to ascertain.
65 However, the referring court is uncertain, in that context, whether the mere fact that gaming establishments and category B slot machines or amusement machines with prizes are not totally prohibited may demonstrate that that five-year moratorium is not intended to attain the objective pursued. In that regard, it should be borne in mind that the Court has already held that the fact that certain games of chance are not totally prohibited is not enough to show that the national legislation is not in reality intended to achieve the objectives at which it is purportedly aimed, which must be considered as a whole (see, to that effect, judgment of 21 October 1999, Zenatti, C‑67/98, EU:C:1999:514, paragraph 35).
66 Subject to the checks to be carried out by the referring court, the fifth measure at issue does not therefore appear disproportionate, without it being necessary to examine whether a study on the social and public health impact of existing gaming facilities should be carried out. A Member State is not deprived of the possibility of establishing that an internal restrictive measure satisfies the requirements set out in the Court’s case-law solely on the ground that that Member State is not able to produce studies serving as the basis for the adoption of the legislation at issue (judgment of 8 September 2010, 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 72).
67 In the light of all those considerations, the answer to the first to third questions in Cases C‑718/23, C‑719/23, C‑721/23 and C‑60/24, and the first question in Case C‑720/23 is that Article 49 TFEU must be interpreted as not precluding national legislation which imposes on operators in the gaming sector, first, certain restrictions on the minimum distances to be observed between gaming halls and establishments specifically intended for betting, on the one hand, and on the other, certain educational establishments, and between certain gaming establishments themselves, second, a time limit on the operation of what are known as ‘category B’ slot machines or amusement machines with prizes installed in establishments in the horeca sector, and, third, a moratorium on the allocation of new licences or authorisations to operate gaming establishments, in so far as the national court concludes that those restrictions may be allowed as exceptions expressly provided for by the FEU Treaty or justified by overriding reasons relating to the public interest, are suitable for securing the attainment of the objectives pursued and do not go beyond what is necessary in order to attain those objectives.
68 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.