Advocate General Fennelly recommended that the Court should hold that national rules granting special rights to certain undertakings to take bets on sporting events are compatible with Community law if they are imposed with the aim of counteracting the harmful effects of betting
Mr Zenatti runs a centre in Italy for the exchange of information on bets. He acts as an intermediary in Italy for a British bookmaking company by passing on bets placed by Italian clients on sporting events abroad by fax or via Internet and by passing on results to those clients.
In 1997, the Questore di Verona (the public prosecutor) ordered Mr Zenatti to cease these activities, as they infringed Italian rules which prohibited the organisation of betting, except in the case of two sporting organisations. These organisations were permitted to organise betting in order to fund their public interest activities.
National judicial proceedings resulted in an appeal by the Questore to the Consiglio di Stato (Council of State) which asked the Court of Justice for a preliminary ruling on the interpretation of the Community rules on freedom to provide services in view of the Italian legislation on betting.
The Advocate General, acting with complete independence and impartiality, assists the Court by analysing the circumstances and the legal issues arising in the case and makes a recommendation to the Court on the answers which, in his view, it should give to the questions submitted by the national court or tribunal. His Opinion is not binding on the Court.
The Advocate General first concluded that the activity of taking bets by bookmakers as well as the activity of transmitting bets to a bookmaker and results of bets to the customers is an economic activity within the meaning of the Treaty. Furthermore, this activity was not subject to harmonised rules at Community level.
According to the Advocate General, the restriction on the organised provision of betting services is prohibited by Community law unless justified by the public interest. Public interest criteria would not necessarily be the same in each Member State. Factors that could be taken into account include the social and cultural characteristics particular to individual Member States, as well as the varied attitudes to gambling which exist amongst them.
The raising of funds for socially useful projects was not an acceptable justification for such a restriction, because of its economic character. The protection of consumers from fraud was an acceptable public interest objective, but only if the national court established that they were not sufficiently protected by the rules applicable to the British bookmakers. It was also permissible to restrict the provision of betting services on social policy grounds, in order to counter its harmful moral and financial effects. The restriction must enable the intended aim to be achieved and must not go beyond what is necessary to achieve that object. It would be inconsistent with such a social policy aim if the sporting organisations with special rights to organise betting were not also required to try to reduce demand for betting.
There will now be a subsequent undetermined period of deliberation by the judges of the Court of Justice (in which the Advocate General takes no part) before a judgment is delivered.
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