Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 26 January 2024 – Recreativos Giner Molto S.L. and Others v Conselleria de Hacienda y Modelo Económico de la Generalitat Valenciana

(Case C-60/24)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Valenciana

Parties to the main proceedings

Applicants: Recreativos Giner Molto SL, Valazar 2014 SL. and Valazar 2000 SL.

Defendant: Conselleria de Hacienda y Modelo Económico de la Generalitat Valenciana

Other party: Organización Nacional de Ciegos Españoles (ONCE)

Questions referred

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 Decreto 97/2021, de 16 de julio, del Consell (Executive Decree 97/2021 of 16 July 2021) implementing Article 45(5) and (6) of Ley 1/2020, de 11 de junio, de la Generalitat, de regulación del juego y de prevención de la ludopatía en la Comunidad Valenciana (Law 1/2020 of 11 June 2020 of the Regional Government of Valencia on the regulation of gaming and the prevention of gambling addiction in the Autonomous Community of Valencia; ‘Law 1/2020’) establishing a system of minimum distances of 500 metres between gaming arcades and of 850 metres of separation between gaming arcades 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?

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 arcades 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?

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?

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 arcades and of 850 metres of separation between gaming arcades and educational establishments; (b) retroactive compliance with the distance of 850 metres that must exist between gaming arcades and educational establishments for gaming arcades 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?

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