Case C‑322/16

Global Starnet Ltd

v

Ministero dell’Economia e delle Finanze
and
Amministrazione Autonoma Monopoli di Stato

(Request for a preliminary ruling from the Consiglio di Stato)

(Reference for a preliminary ruling — Freedom to provide services, freedom of establishment, free movement of capital and freedom to conduct a business — Restrictions — Award of new licences for the online operation of gaming — Principles of legal certainty and protection of legitimate expectations — Judgment of the Constitutional Court — Whether or not the national court is obliged to refer a question to the Court of Justice for a preliminary ruling)

Summary — Judgment of the Court (First Chamber), 20 December 2017

1.        Questions referred for a preliminary ruling — Reference to the Court — Obligation to make a reference — Assessing whether national rules are consistent with both EU law and the national Constitution — Judgment of the Constitutional Court of the Member State concerned assessing the constitutionality of those rules — Obligation of the national court of final instance to make a reference for a preliminary ruling)

(Art. 267 TFEU)

2.        Freedom of establishment — Freedom to provide services — Provisions of the Treaty — Scope — National legislation imposing on persons who are already concession holders in the sector of the online operation of legal gaming new conditions for the exercise of their activity by means of an addendum to the existing agreement — Included — Examination, in principle, in relation to only one of the freedoms referred to by the TFEU

(Arts 49 TFEU and 56 TFEU)

3.        Freedom to provide services — Restrictions — Games of chance — National legislation imposing on persons who are already concession holders in the sector of the online operation of legal gaming new conditions for the exercise of their activity by means of an addendum to the existing agreement — Compatibility with Articles 49 TFUE and 56 TFUE — Conditions — Verification by the referring court

(Arts 49 TFEU and 56 TFEU)

1.      Article 267(3) TFEU must be interpreted as meaning that a national court against whose decisions there is no judicial remedy is required, in principle, to refer a question for a preliminary ruling concerning the interpretation of EU law even if, in the course of the same national proceedings, the constitutional court of the Member State concerned has assessed the constitutionality of national rules in the light of regulatory parameters with content similar to rules under EU law.

It follows from the foregoing considerations that the effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of there existing a procedure for review of constitutionality, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 36 and the case-law cited).

Furthermore, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law necessary in order for them to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it (see judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 37 and the case-law cited).

(see paras 23, 24, 26, operative part 1)

2.      See the text of the decision.

(see paras 29-32)

3.      Articles 49 and 56 TFEU and the principle of protection of legitimate expectations must be interpreted as not precluding national legislation such as that at issue in the main proceedings, which imposes on persons who are already concession holders in the sector of the online operation of legal gaming new conditions for the exercise of their activity by means of an addendum to the existing agreement, inasmuch as the referring court considers that that legislation may be justified by overriding reasons relating to the general interest, is suitable for ensuring the attainment of the objectives pursued, and does not go beyond what is necessary in order to achieve those objectives.

In the present case, as is apparent from the text of the national provisions at issue, as the Advocate General points out in point 43 of his Opinion, the aim of those provisions is to improve the profitability and financial soundness of the concession holders and enhance their respectability and reliability, and to combat criminality.

Given the particular nature of the situation linked to betting and gambling, such objectives may be reasons of overriding public interest capable of justifying restrictions of fundamental freedoms, such as those at issue in the main proceedings (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraphs 42 and 43).

(see paras 41, 42, 65, operative part 2)