Joined Cases C‑660/11 and C‑8/12

Daniele Biasci and Others

v

Ministero dell’Interno
and
Questura di Livorno (C‑660/11)

and

Cristian Rainone and Others

v

Ministero dell’Interno and Others (C‑8/12)

(Requests for a preliminary ruling
from the Tribunale amministrativo regionale per la Toscana)

(Freedom of establishment — Freedom to provide services — Articles 43 EC and 49 EC — Betting and gaming — Collection of bets — Conditions of authorisation — Requirement of police authorisation and a licence — National legislation — Mandatory minimum distances between bet collection points — Cross-border activities analogous to those covered by the licence — Prohibition — Mutual recognition of betting and gaming licences)

Summary — Judgment of the Court (Third Chamber), 12 September 2013

1.        Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation –Justification in the public interest — Combating criminality — Examination by the national courts

(Arts 45 EC, 46 EC and 55 EC)

2.        Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation — Requirement of police authorisation in addition to a State-issued licence — Lawfulness

(Arts 43 EC and 49 EC)

3.        Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation — Refusal to issue a licence or authorisation, contrary to EU law — Award of new licences by way of remedy — Obligation for new operators to observe a minimum distance between establishments — Not permissible

(Arts 43 EC and 49 EC)

4.        Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation — Conditions for withdrawal of licences granted following a tendering procedure — Obligation to state those conditions in a clear and precise manner — Observance of the principles of equal treatment and legal certainty — Examination by the national court

(Arts 43 EC and 49 EC)

5.        Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation –National legislation prohibiting all cross-border activities — Not permissible — Licence-holder established in a Member State marketing games using data transmission sites located outside the territory of that State — Examination by the national court

(Arts 43 EC and 49 EC)

6.        Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — Mutual recognition of betting and gaming licences issued by Member States — None

(Arts 43 EC and 49 EC)

1.        See the text of the decision.

(see paras 21-25)

2.        Articles 43 EC and 49 EC must be interpreted as not precluding national legislation which requires companies wishing to pursue activities linked to gaming and betting to obtain a police authorisation in addition to a licence issued by the State in order to pursue such activities and which restricts the grant of such authorisation inter alia to applicants who already hold such a licence.

The requirement of a police authorisation, by virtue of which operators active in the betting and gaming sector, as well as their premises, must be subject to ex ante controls as well as to ongoing supervision, clearly contributes to the objective of preventing the involvement of those operators in criminal or fraudulent activities. Moreover, the fact that an operator must have both a licence and a police authorisation in order to access the market in question is not, per se, disproportionate in the light of the objective pursued by the national legislature, which is to combat criminality linked to betting and gaming.

(see paras 26, 27, operative part 1)

3.        Articles 43 EC and 49 EC and the principles of equal treatment and effectiveness must be interpreted as precluding a Member State which, in breach of EU law, has excluded a category of operators from the award of licences for undertaking an economic activity and seeks to remedy that breach by putting out to tender a significant number of new licences, from protecting the market positions acquired by the pre-existing operators, by providing, inter alia, for minimum distances between the establishments of new licence holders and those of pre-existing operators.

(see paras 32, 38, operative part 2)

4.        It follows from Articles 43 EC and 49 EC, the principle of equal treatment, the obligation of transparency and the principle of legal certainty that the conditions and detailed rules of a tendering procedure in respect of betting and gaming and, in particular, the provisions concerning the withdrawal of licences granted at the end of such a tendering procedure must be drawn up clearly, precisely and unambiguously, a matter which it is for the national court to verify.

(see paras 33, 38, operative part 2)

5.        Articles 43 EC and 49 EC must be interpreted as precluding national legislation which does not permit any cross-border activity in the betting and gaming sector, irrespective of the form in which that activity is undertaken and, in particular, in cases where there is the possibility of direct contact between consumer and operator and where physical checks for police purposes can be made of an undertaking’s intermediaries who are present on national territory. It is for the national court to verify whether that is the case as regards national legislation which provides for withdrawal of a licence for the collection of bets when the licence-holder markets, directly or indirectly on the territory of the Member State concerned using data transmission sites located outside that State’s territory, games analogous to public games or to other games managed by the competent national authority or games which are prohibited under that Member State’s law.

(see paras 37, 38, operative part 2)

6.        Articles 43 EC and 49 EC must be interpreted as meaning that, under the current state of EU law, the fact that an operator holds, in the Member State in which it is established, an authorisation permitting it to offer betting and gaming does not prevent another Member State, while complying with the requirements of EU law, from making such a provider offering such services to consumers in its territory subject to the holding of an authorisation issued by its own authorities.

In the light of the wide discretion the Member States have in relation to the objectives they wish to pursue and the level of consumer protection they seek and in the absence of any harmonisation in the sphere of betting and gaming, in the present state of development of EU law there is no obligation of mutual recognition of authorisations issued by the various Member States. The various Member States do not necessarily have the same technical means available for controlling betting and gaming, and do not necessarily make the same choices in this respect. The fact that a particular level of protection of consumers may be achieved in a particular Member State by applying sophisticated control and monitoring techniques does not allow the conclusion that the same level of protection can be achieved in other Member States which do not have those technical means available or have made different choices. A Member State may legitimately wish, moreover, to monitor an economic activity which is carried on in its territory, and that would be impossible if it had to rely on checks done by the authorities of another Member State using regulatory systems which it itself does not control.

(see paras 40-43, operative part 3)