OPINION OF ADVOCATE GENERAL
WAHL
delivered on 16 June 2016 (1)
Case C‑225/15
Domenico Politanò
(Request for a preliminary ruling from the Tribunale di Reggio Calabria (District Court, Reggio Calabria, Italy))
(Reference for a preliminary ruling –Article 49 TFEU — Freedom of establishment — Principles of equivalence and of effectiveness — Betting and gaming — Restrictions — Conditions of participation in the call for tenders and assessment of economic and financial standing — Exclusion of tenderer for failure to submit certificates of economic and financial standing issued by two separate banks — Overriding reasons of public interest — Proportionality — Applicability of Article 47 of Directive 2004/18/EC)
1. The present request for a preliminary ruling concerns the interpretation of Article 49 TFEU, the principles of equal treatment and effectiveness and Article 47 of Directive 2004/18/EC. (2) It forms part of the long series of references to the Court for a preliminary ruling involving various aspects of the Italian legislation in the betting and gaming sector, (3) and, in particular, the conditions imposed on tenderers in the tendering procedure launched in 2012 (4) (also referred to as ‘the Monti contract notice’) at issue in the cases giving rise to the judgments of 22 January 2015, Stanley International Betting and Stanleybet Malta (C‑463/13, EU:C:2015:25), and of 28 January 2016, Laezza (C‑375/14, EU:C:2016:60).
2. In accordance with what is now a familiar pattern in contentious matters, that request was submitted in the context of criminal proceedings against the applicant in the main proceedings, Mr Politanò, for failure to comply with the Italian legislation governing the collection of bets on sporting or other events. Mr Dominico Politanò, who is accused, first, of not having the necessary authorisation to exercise the activity of collecting and transmitting bets under national law and, second, of not being linked with an operator holding a concession, maintains, in essence, that the obligations imposed on the company applying for a concession to which he is linked, under the Administrative Rules annexed to the Monti contract notice, are contrary to a number of rules and principles of EU law.
3. The present case gives the Court the opportunity to specify the factors to be taken into account and the obligations placed on the national courts when they prepare a request for a preliminary ruling — in particular, in the description of the relevant factual and legal framework — so that the Court may be able to provide them with a helpful answer. It also provides the opportunity for the Court to redefine the terms of the debate in which we must engage here and to recall the need for the Court not to be led to rule on questions originating primarily in the attempt of certain operators to avoid certain criminal penalties and not in the desire to ensure the effectiveness of EU law.
I – Legal framework
A – EU law
4. In the words of Article 1(2)(a) and (d) of Directive 2004/18:
‘(a) “Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
…
(d) “Public service contracts” are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.’
5. Article 1(4) of Directive 2004/18 provides:
‘“Service concession” is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.’
6. Article 17 of that directive, entitled ‘Service concessions’, provides:
‘Without prejudice to the application of Article 3, this Directive shall not apply to service concessions as defined in Article 1(4).’
7. Article 47 of that directive, entitled ‘Economic and financial standing’, is worded as follows:
‘1. Proof of the economic operator’s economic and financial standing may, as a general rule, be furnished by one or more of the following references:
(a) appropriate statements from banks or, where appropriate, evidence of relevant professional risk indemnity insurance;
(b) the presentation of balance sheets or extracts from balance sheets, where publication of the balance sheet is required under the law of the country in which the economic operator is established;
(c) a statement of the undertaking’s overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, in so far as information on such turnovers is available.
2. An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing an undertaking by those entities to that effect.
3. Under the same conditions, a group of economic operators as referred to in Article 4 may rely on the capacities of participants in the group or of other entities.
4. Contracting authorities shall specify, in the contract notice or in the invitation to tender, which reference or references mentioned in paragraph 1 they have chosen and which other references must be provided.
5. If, for any valid reason, the economic operator is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate.’
B – Italian law
8. The Italian regulatory framework is now well known to the Court, which, as I mentioned in the introduction to this Opinion, has on a number of occasions been led to rule on the compatibility with EU law of the Italian regulatory provisions governing the collection of bets.
9. The Italian legislation essentially provides that participation in the organising of betting and gaming, including the collection of bets, is subject to possession of a licence and a police authorisation.
10. Under Article 88 of Royal Decree No 773 of 18 June 1931 approving a consolidated version of the laws on public security, (5) as amended by Article 37(4) of Law No 338 of 23 December 2000, (6) a police authorisation is granted only where a licence has been obtained from the Agenzia della Dogane e dei Monopoli di Stato (State Customs and Monopolies Agency, ‘the ADM’). That police authorisation entitles holders to collect bets within a particular area. Failure to obtain a licence therefore precludes obtaining a police authorisation. Engaging in the activity of collecting bets in the absence of a licence or police authorisation is punishable as a criminal offence.
11. In 1999 the Italian authorities awarded under a public tendering procedure 1 000 licences for the management of sports betting operations. At the same time, 671 new licences were granted, also by public tender, for the management of bets on horse racing events and 329 existing licences were automatically renewed. Under the legislation in force at that date, operators in the form of capital companies whose shares were quoted on the regulated markets were excluded from participating in tendering procedures, since in their case the precise identification of individual shareholders was not possible on an ongoing basis. That exclusion was held to be unlawful under Articles 43 EC and 49 EC in the judgment in Placanica and Others, (7) in particular.
12. Decree-Law No 223 (8) reformed the betting and gaming sector in Italy with the aim of bringing it into line with the requirements arising under EU law. That decree provided for the award of some 16 300 new betting and gaming licences in addition to the other licences granted in 1999.
13. Following, in particular, the judgment in Costa and Cifone, (9) the betting and gaming sector was again reformed by Decree-Law No 16. (10)
14. So far as the organisation of calls for tender for the award of licences for the collection of bets is concerned, Article 10(9g) and (9h) of the 2012 Decree-Law provides:
‘9g As part of a reform of the legislation relating to public gambling, including that relating to the collection of bets on sporting events, including horse racing, and non-sporting events, the provisions of the present paragraph have the aim of promoting that reorganisation, through an initial alignment of the expiry dates of the licences for the collection of bets in question, while observing the requirement that the national rules on the selection of persons who, on behalf of the State, collect bets on sporting events, including horse racing, and non-sporting events, are adjusted to the principles laid down by the judgment of the Court of Justice of the European Union of 16 February 2012, [Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80)]. To that end, in view of the impending expiry of a group of licences for the collection of those bets, the [ADM] shall immediately, and in any event by 31 July 2012 at the latest, initiate a call for tenders for the selection of persons who are to collect such bets with due regard, at the very least, to the following criteria:
(a) the possibility of participation for persons already carrying out an activity related to the collection of bets in one of the States of the European Economic Area, as a result of having their legal and operational seat there, on the basis of a valid and effective authorisation issued under the provisions in force in the law of that State and who fulfil the requirements as to reputation, reliability and financial standing specified by the Independent Authority for the Administration of State Monopolies, account being taken of the provisions in this matter referred to in Law No 220 [(11)] … and in Decree-Law No 98 of 6 July 2011, converted, after amendment, into statute by Law No 111 of 15 July 2011;
(b) the award of a licence, expiring on 30 June 2016, for the collection, exclusively in a physical network, of bets on sporting events, including horse racing, and non-sporting events, from agencies, up to a maximum of 2 000, whose sole activity is the marketing of public gambling products, without restriction as to the minimum distances between those agencies or with respect to other collection points, which are already active, for identical bets;
(c) provision, as a price component, for a basic contract value of EUR 11 000 for each agency;
(d) the conclusion of a licence agreement whose content is consistent with any other principle laid down in the abovementioned judgment of the Court of Justice of the European Union of 16 February 2012 and with the compatible national provisions in force regarding public gambling;
(e) the possibility of managing agencies in any municipality or province, without numerical limits on a territorial basis or more favourable conditions by comparison with licensees who are already authorised to collect identical bets or which may, in any event, be favourable to those licensees;
(f) the lodging of deposits consistent with the provisions of Article 24 of Decree-Law No 98 of 6 July 2011, converted, after amendment, into statute by Law No 111 of 15 July 2011.
9h The licensees who are to collect bets referred to in paragraph 9g, whose contracts expire on 30 June 2012, shall continue their collection activities until the date of the conclusion of the licence contracts awarded in accordance with the above paragraph. The following paragraphs are repealed: paragraphs 37 and 38 of Article 24 of Decree-Law No 98 of 6 July 2011, converted, after amendment, into statute by Law No 111 of 15 July 2011, subparagraph e of paragraph 287 of Article 1 of Law No 311 of 30 December 2004, and subparagraph e of paragraph 4 of Article 38 of [Decree-Law No 223 of 4 July 2006 laying down urgent measures for economic and social revival, for the control and rationalisation of public expenditure, and providing for initiatives in relation to tax revenue and the combating of tax evasion], converted, after amendment, into statute by Law No 248 of 4 August 2006.’
15. The provisions of that decree were implemented through tendering procedures held by the ADM during the course of 2012. Under Article 3.2 of the Administrative Rules annexed to the Monti contract notice, tenderers which had been formed for less than two years and whose overall revenues linked to the activity of gaming operator were below two million euros during the two most recent business years were required to submit appropriate statements issued by at least two banks, in order to prove their economic and financial standing.
16. Directive 2004/18 was transposed into Italian law by Legislative Decree No 163/2006 of 12 April 2006 (Ordinary Supplement to GURI No 100 of 2 May 2006), which codifies the rules governing public procurement.
17. In accordance with Article 41 of that decree-law, the conditions to be satisfied in order to prove the economic and financial standing to carry out the service are to be specified by the contracting authority. However, according to that article, a candidate who, for valid reasons, is unable to submit the requisite bank or accounting references may prove his economic and financial standing by any other document which the contracting authority considers appropriate.
II – The facts of the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
18. On 6 February 2015, following checks carried out by a team of administrative police from the Questura (police headquarters) of Reggio Calabria (Italy) in the business premises called ‘Betuniq’ in Polistena (Italy) managed by Mr Politanò and affiliated to the Maltese company UniqGroup Ltd, the competent authorities established that the activity of collecting bets was being carried out there without a concession, authorisation or a licence.
19. By decision of 13 February 2015, the Giudice delle indagini preliminari (judge responsible for preliminary investigations) of the Tribunale di Palmi (District Court, Palmi, Italy) made an order against Mr Politanò, ordering the preventive sequestration of the assets used for that activity.
20. Mr Politanò brought an action against that decision before the referring court, claiming that certain clauses of the Monti contract notice were incompatible with Articles 49 TFEU and 56 TFEU.
21. Thus, according to the applicant in the main proceedings, his conduct does not constitute an offence, since the collecting of bets on sporting events on behalf of UniqGroup must be considered to be lawful, in so far as the national legislation is contrary to Articles 49 TFEU and 56 TFEU.
22. Mr Politanò maintains that UniqGroup was excluded from the 2012 call for tenders, even though it had duly submitted a request to participate, on the ground that it had not submitted two certificates of economic and financial standing issued by two different banks, as required by Article 3.2 of the Administrative Rules annexed to the Monti contract notice. He states that UniqGroup has challenged that contract notice before the Italian administrative courts in that that contract notice contained no arrangement for foreign undertakings which, for valid reasons, are unable to submit the financial guarantees required by that contract notice.
23. According to the referring court, a tendering procedure involving gaming operators established in different countries, such as that at issue in the main proceedings, was necessarily required to comply with the principle arising under Article 47 of Directive 2004/18, in particular the possibility of evaluating economic and financial standing ‘by any other document which the contracting authority considers appropriate’.
24. The need for the administration to impose strict conditions for participation necessarily had to be reconciled with the principle of the widest possible participation in the tendering procedure, and any person concerned should be guaranteed the possibility of proving his economic and financial standing by any other document considered appropriate.
25. It follows that the competent authority was required to state expressly the other criteria deemed appropriate and effective for the purpose of demonstrating the requisite standing, so that each tenderer could in any event effectively prove that he had the requisite standing.
26. The referring court considers that, in this instance, the Administrative Rules annexed to the Monti contract notice did not allow UniqGroup to prove its economic and financial standing in any other way. It therefore does not appear that companies such as that involved in the main proceedings benefited from clear and evident opportunities to prove, due account being taken of the public interest at stake, their economic soundness and their creditworthiness.
27. In those circumstances, the Tribunale di Reggio Calabria (District Court, Reggio Calabria) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Must Article 49 TFEU, as well as the principles of equal treatment and effectiveness, be interpreted as precluding national legislation in the field of betting and gambling which provides for the organisation of a fresh call for tenders (as governed by Article [10(9g)] of Law No 44 of 26 April 2012) for the award of licences that includes clauses excluding from the tendering procedure undertakings which have failed to meet the condition relating to economic and financial standing as a result of the failure to provide for criteria other than the requirement of two bank references from two separate banks?
2. Must Article 47 of Directive 2004/18 … be interpreted as precluding national legislation in the field of betting and gambling which provides for the organisation of a fresh call for tenders (as governed by Article [10(9g)] of Law No 44 of 26 April 2012) for the award of licences [that includes clauses excluding from the tendering procedure undertakings which have failed to meet the condition] relating to economic and financial standing, as a result of the failure to provide for alternative documentation and options, as laid down under international legislation?’
28. Written observations have been submitted by the Italian, Belgian, German and Polish Governments and by the European Commission.
29. A hearing was held on 13 April 2016, in which Mr Politanò, the Italian and Belgian Governments and the Commission took part.
III – Analysis
30. As was already the position in the Laezza case (judgment of 28 January 2016, C‑375/14, EU:C:2016:60), the present case does not concern the legality of the 2012 Decree-Law, but a different measure, situated downstream, contained in the Administrative Rules supplementing the Monti contract notice. (12)
31. Although the Court may usefully benefit from the information obtained from the judgment of 28 January 2016 in Laezza (C‑375/14, EU:C:2016:60) as regards the analysis grid that should be employed, the present case relates to a different provision, concerning the obligation which the Monti contract notice places on new tenderers to provide evidence of their financial soundness by statements issued by at least two banks, if they are unable to prove a turnover of a minimum amount of two million euros over two years.
32. Before all else, I must address the issue of admissibility, which is questioned by certain interveners.
A – Admissibility
33. The Italian Government and, as regards the second question, the Commission submit that the request for a preliminary ruling should be declared inadmissible, since the order for reference does not describe the factual background in sufficient detail to enable the Court to give a useful answer.
34. I largely share the concerns expressed by the interveners.
35. The information supplied by the referring court seems to me to be incomplete in many respects and, to a certain degree, might be considered not to satisfy the requirements consistently stated by the Court. In that regard, it is well established that the decision for reference must give the precise reasons which prompted the national court to raise the question of the interpretation of EU law and to consider it necessary to refer a question to the Court for a preliminary ruling. (13)
36. As regards the first question, and following on from the questions which I raised in my Opinion in Laezza, (14) the question thus referred appears to be based on factual representations that are not directly supported by the documents in the main proceedings. (15)
37. First of all, it is not easy to determine on what grounds the measure at issue, namely the possibility for a tenderer in the Monti contract notice procedure to prove his economic and financial standing by ‘producing appropriate statements issued by at least two banks’ is directly challenged in the main proceedings. Unlike the situations at issue in the Costa and Cifone (16) and Stanley International Betting and Stanleybet Malta cases, (17) it is not the reorganisation of the system through a fresh call for tenders — in the present case the call for tenders arranged following intervention by the legislature in the form of the 2012 Decree-Law — in its entirety that is called in question. In that context, it is for the referring court alone to determine whether, in the light of the relevant rules of national law, the measure at issue may indeed have a bearing on the position of the applicant in the main proceedings under criminal law. (18)
38. Next, it is difficult to understand to what extent the rule at issue constituted for UniqGroup, to which the applicant in the main proceedings seems to be linked, a real barrier to its participation in the Monti contract notice procedure.
39. As is apparent from the case-file, and as stated at the hearing, the reason why UniqGroup, to which the applicant in the main proceedings is allegedly linked, was unable to provide a certificate from another bank is unexplained. On that point, the referring court merely observed that ‘by email of 15 January 2013, the Banca di Valletta explained that it was unable to provide any statement other than those [already provided] … as it was required to comply with the standards applicable in Malta’. That observation, which states only the reasons why that bank could not supply more precise information, has no bearing on the reason why UniqGroup was unable to obtain a statement from another bank.
40. In addition, it seems to me — and it was confirmed at the hearing — that the applicant in the main proceedings, as conveyed on this point by the referring court, is more concerned with challenging the constraints faced by UniqGroup in Malta when obtaining the requisite certificates than with challenging the obligation for tenderers in the Monti contract notice procedure to supply those certificates.
41. Furthermore, it is apparent from the file that UniqGroup was excluded from the call for tenders not only because it had not produced the two requisite certificates but also because the content of the only certificate produced was insufficient. Thus, even on the assumption that the obligation for persons wishing to participate in the call for tenders at issue to produce statements from two banks must be condemned from the viewpoint of compliance with EU law, it would not assist the case put forward by the applicant in the main proceedings. I would point out, moreover, that the referring court has not mentioned, in that context, the other possible means whereby UniqGroup could, if necessary, have demonstrated its economic and financial capacity.
42. As regards the second question, it is even less easy to understand the reason why Directive 2004/18 constitutes a relevant provision in the present case. For my part, I find it difficult to understand the assertion in the order for reference that ‘the applicant reasonably submits that, as this was [a] … tender, in which gambling operators from different countries were competing, it was necessary to comply with the principle arising from Article 47 of Directive 2004/18’. I shall return to this point in the observations below.
43. In such circumstances, the formal validity of the order for reference may seriously be in doubt and the question referred may, as a result, be regarded as inadmissible. Although it is for the national court alone to assess, in the light of the particular circumstances of the case, the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, and the stage in the proceedings at which those questions should be referred, (19) the Court must also have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (20) In particular, the referring court is required, at least, to explain the factual circumstances on which the questions for a preliminary ruling are based. (21)
44. However, the Court may, following the approach taken in the past, (22) decide, on the basis of a comprehensive assessment of the requirements placed on the national court, that the decision for referral sufficiently describes the legal and factual context of the main proceedings and that the information supplied by that court enables the scope of the questions referred to be determined. The Court might, in that regard, take the view that the referring court’s questions are based therefore on the assumption that, for the purposes of imposing a criminal penalty, Mr Politanò cannot be faulted for not holding a licence — and hence a police authorisation — in the context of a call for tenders organised according to rules and conditions that are contrary to EU law. (23)
45. Thus I shall concentrate in the following observations on the answers which must in my view be given to the substance of the questions referred.
B – Substance
46. I shall examine first of all whether Directive 2004/18, in particular Article 47, may preclude the measure at issue, and then address the question whether that measure is consistent with freedom of establishment and the principles of effectiveness and equivalence.
1. First aspect (second question): the applicability of Directive 2004/18
47. I shall not linger over this aspect of the order for reference, which does not seem to me to raise any particular difficulty.
48. As I mentioned earlier, the referring court has called in question the compatibility of the measure at issue, namely the measure requiring a tenderer to prove his financial solvency by producing two bank certificates, with Article 47 of Directive 2004/18 without explaining the reasons that prompted it to do so.
49. To my mind, there is scarcely any doubt that that directive, in particular Article 47, does not apply in the main proceedings, which relate to a system of concessions which cannot be qualified as ‘public contracts’ within the meaning of Article 1(2)(a) of Directive 2004/18 or as ‘public works concessions’ within the meaning of Article 1(3) of that directive.
50. It is important to bear in mind that Directive 2004/18 applies only to service contracts, that is to say, to contracts for pecuniary interest concluded between a contracting authority and an economic operator, having as their object the provision of the services referred to in Annex II to that directive (see Article 1(2)(d) of Directive 2004/18). Conversely, in accordance with Article 17, Directive 2004/18 is not to apply to service concessions, which are defined as contracts of the same type as a public service contract except for the fact that the consideration for the provision of services referred to consists solely in the right to exploit the service in question, together with payment or without payment. (24)
51. It appears that the concession relating to the organisation of bets, such as that at issue in the main proceedings, is not a public contract for services within the meaning of Article 1(2)(d) of Directive 2004/18. Not only is the ‘service’ referred to here not provided on behalf of the contracting authority, but, in addition, the economic operator-tenderers receive no remuneration from public funds. Furthermore, the tenderer bears the entire risk associated with the activity of collecting and transmitting bets.
52. More generally, it should be borne in mind that, as EU law currently stands, service concession contracts are not governed by any of the directives designed to harmonise the field of public procurement. (25) Those contracts might, on the other hand, fall within the scope of Directive 2014/23/EU, (26) which entered into force on 23 June 2014 and was to be transposed into national law by 18 April 2016. Although that directive has not been relied on and in fact does not appear to have been applicable at the material time, it is interesting to note that, under Article 38(1) of that directive, ‘contracting authorities and contracting entities shall verify the conditions for participation relating to the professional and technical ability and the financial and economic standing of the candidates or tenderers, on the basis of self-declarations, reference or references to be submitted as proof in accordance with the requirements specified in the concession notice’ (emphasis added).
53. Ultimately, Directive 2004/18 is therefore not applicable in the present case and there is thus no need to consider whether the measure at issue is consistent with Article 47 of that directive.
2. Second aspect: the existence of a restriction incompatible with the freedom of establishment enshrined in Article 49 TFEU and with the principles of equal treatment and effectiveness
54. The first question, which is central to the case referred to the Court, asks the Court to determine whether the measure at issue, which provides that the tenderer must prove his economic and financial standing by producing appropriate statements issued by at least two banks, constitutes an unjustified and disproportionate restriction of freedom of establishment.
55. First of all, and although it is not the Court’s place to call into question the referring court’s interpretation of the relevant national law, I must say that I am perplexed by the way in which the obligations imposed on tenderers for the purpose of establishing their economic and financial standing are presented.
56. The referring court seems to proceed from the assumption that failure to comply with the requirement to submit two statements of ad hoc opening of credit from at least two banks justifies in itself the exclusion from participation in the Monti contract notice procedure of tenderers established for less than two years. Owing to that requirement, ‘historic’ operators are alleged to benefit from an advantage by comparison with operators who have not yet benefited from concessions, contrary to EU law.
57. However, if I confine myself to a simple reading of the provision at issue, provided for in point 3.2 of the Administrative Rules annexed to the contract notice, it appears that that requirement is laid down for only as an alternative to the obligation for the tenderer to show that the overall revenues linked with the activity of gaming operator have not been below two million euros during the last two business years completed before the date of submission of the application. (27)
58. That having been said, and in accordance with the analysis grid traditionally employed for the purpose of determining whether a restrictive measure is consistent with the freedoms provided for in the FEU Treaty, I shall examine the problem referred to the Court in three stages, by, first, identifying a restriction imposed in a discriminatory manner; second, evaluating the reasons put forward in support of the restriction; and, third, examining the proportionality of the measure at issue.
59. In the first place, it is appropriate to ascertain whether the provision at issue constitutes a potential restriction of the freedom of establishment enshrined in Article 49 TFEU and, if so, whether it was imposed in a discriminatory manner.
60. In view of the broad definition of what, according to the Court’s case-law, constitutes ‘a restriction’, in particular in the betting and gaming sector where all measures which appear, directly or indirectly, to be disadvantageous to economic operators wishing to engage in the activity of collecting bets have been held to be restrictive, (28) I am of the view that that question should be answered in the affirmative.
61. Indeed, the measure at issue, which imposes on tenderers in the Monti contract notice procedure particular obligations in order to demonstrate their financial soundness, is likely to influence the possibilities of participating in that call for tenders and, thus, potentially constitutes a restriction on freedom of establishment. (29)
62. As the Commission has pointed out in its observations, because the potential tenderer concerned is required to adduce evidence of his financial soundness by means of statements issued by at least two banks, he is required to establish a banking credit relationship with two separate operators. That is a condition that not all new tenderers are able to satisfy, because compliance with that condition is not essential for the exercise of their activities in other contexts and because it may give rise to particular problems.
63. As to whether that restriction was imposed in a discriminatory manner, it must be stated that it has not been established — or, to my mind, even claimed — that the measure at issue was imposed only on operators taking part in the 2012 call for tenders who are established in other Member States. On the contrary, it seems clear from the evidence submitted to the Court that the measure at issue was imposed on all operators who wished to take part in the call for tenders launched in 2012, irrespective of their place of establishment.
64. Likewise, and in the absence of information to the contrary, it appears that the requirement to submit statements from two banks is applied in the same way to all participants in that call for tenders.
65. In the second place, it is necessary to ascertain whether the grounds on which the national authorities rely in order to justify the obligations imposed on tenderers in order to demonstrate their financial solvency are of such a kind as to justify that restriction.
66. In that regard, it is well established that restrictions on betting and gaming 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. As regards the Italian legislation on betting and gaming, the Court has held that the general objective of combating criminality linked to betting and gaming is capable of justifying restrictions under the applicable national legislation, (30) provided that those restrictions satisfy the principle of proportionality and in so far as the means put in place in that regard are examined in a global, consistent and systematic manner. (31)
67. It is incumbent, in particular, on the Member States concerned to ensure that the means put in place in the context of a system of concessions are appropriate for ensuring access to and the exercise of the economic activity in the sector concerned in equivalent conditions and in an effective manner.
68. In the present case, I would point out that it is not the system of concessions taken as a whole that is at issue, but the obligations imposed on tenderers, under point 3.2 of the Administrative Rules annexed to the Monti contract notice, to establish their economic and financial soundness.
69. To my mind, there is scarcely any doubt that those requirements, which are intended not only to channel the supply of betting and gaming — and, in fact, to limit organised crime and fraud linked with the clandestine organisation of gambling — but also to exercise a certain amount of control in the interest of gamblers, pursue a legitimate objective. I recall on that point that the Court has already referred to an Italian Government inquiry which shows that ‘the activities of clandestine betting and gaming, prohibited as such, are a considerable problem in Italy, which it may be possible to solve through the expansion of authorised and regulated activities’. (32)
70. Therefore, in the third and last place, the question arises whether the measure at issue was imposed in accordance with the principle of proportionality.
71. I shall address, first, the question of the appropriateness of the measure at issue, and then, second, the question of its proportionality.
72. As regards, first of all, the appropriateness of the obligation at issue, it seems quite clear to me that bank statements, such as those required by the provisions at issue, are capable of establishing the tenderer’s financial capacity to exercise the activity of collecting bets in the event that such activity should be entrusted to him.
73. Like the requirement, referred to in the Dickinger and Ömer case, (33) that the holder of a betting and gaming monopoly must have share capital of a certain amount, the obligation to provide statements from two banks is capable of ensuring that the economic operator has a financial capacity that will enable him to meet his obligations towards winning gamblers.
74. As the Belgian Government stated in its written submissions, any efficient and coherent rules in relation to betting and gaming necessarily contain provisions to ensure that tenderers have the necessary financial standing.
75. As regards, next, the proportionality of the measure at issue, it will be recalled that it is for the referring court, in principle, to determine whether, in the light of all the evidence before it, the measure at issue does not go further than is necessary in order to achieve the objective pursued. (34) That is all the more so when the decision for reference contains little information in that respect.
76. In order to provide the referring court with the most useful answer possible, the Court might however give the following information on the factors that must guide the analysis.
77. In the first place, it is for the national court to determine whether obtaining the requisite bank statements is liable to entail particular financial burdens or real organisational difficulties for undertakings which intend to participate in a tendering procedure with a view to obtaining a concession to operate in the betting and gaming sector.
78. In this instance, I would observe that there is no reason to conclude that the obligation to produce two statements issued by European banks is an insurmountable requirement for a reliable operator wishing to engage in the activity of collecting bets. On that aspect, I recall that the referring court merely indicated that the applicant in the main proceedings had been unable ‘for valid reasons’ to submit the two bank references required. However, it is possible to have doubts as to the nature of those reasons and to wonder whether the real reason for the applicant’s claimed inability to produce those references does not in reality lie in the fact that its financial credibility is lacking. It is apparent from the case file that the sole reference submitted by UniqGroup was not in any event capable of establishing its economic and financial standing.
79. In the second place, it is for the national court to examine whether, in the light of the obligations actually imposed on tenderers, it may be alleged that, having regard to the discretion which Member States must be recognised as enjoying when organising the betting and gaming sector, the requirement at issue goes further than is necessary.
80. On the latter point, it seems to me to be appropriate to point out that the particular nature of economic activities in the betting and gaming sector, which is consistently recognised by the Court and which, moreover, explains why that sector has not yet been the subject of harmonisation measures, must allow the Member States to put in place appropriate instruments of such a kind as to make the activity secure both from the point of view of consumer protection and in order to prevent fraud and the development of criminal activities.
81. In such a context, to my mind the contracting authorities cannot be criticised for not being satisfied with just any statements and certificates for the purposes of being sure of the economic and financial standing of applicants for concessions. Statements from banks, such as those required by the measure at issue, are in principle more reliable than those originating with the applicant for a concession in the betting and gaming sector.
IV – Conclusion
82. In the light of the foregoing developments, I propose that the Court should answer the questions submitted by the Tribunale di Reggio Calabria (District Court, Reggio Calabria, Italy) as follows:
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in particular Article 47, does not apply to national legislation governing, in the betting and gaming sector, the tendering procedure for the grant of concessions, such as that referred to in the main proceedings.
The freedom of establishment enshrined in Article 49 TFEU and the principles of equivalence and effectiveness must be interpreted as meaning that they do not preclude national legislation which, for the purpose of granting concessions in the betting and gaming sector, excludes from the tendering procedure operators who have been unable to provide statements from two separate banks, in so far as that condition satisfies the principle of proportionality. It is for the national court to ascertain whether such a requirement is, in the light of all of the circumstances of the case, justified and proportionate to the objective pursued.