9.11.2013
EN
Official Journal of the European Union
C 325/5
Judgment of the Court (Third Chamber) of 12 September 2013 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Toscana — Italy) — Daniele Biasci and Others v Ministero dell’Interno, Questura di Livorno
(Joined Cases C-660/11 and C-8/12) (1)
(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)
2013/C 325/07
Language of the case: Italian
Referring court
Tribunale amministrativo regionale per la Toscana
Parties to the main proceedings
(Case C-660/11)
Applicants: Daniele Biasci, Alessandro Pasquini, Andrea Milianti, Gabriele Maggini, Elena Secenti, Gabriele Livi
Defendants: Ministero dell’Interno, Questura di Livorno
Other party to the proceedings: SNAI — Sindacato Nazionale Agenzie Ippiche SpA
(Case C-8/12)
Applicants: Cristian Rainone, Orentino Viviani, Miriam Befani
Defendants: Ministero dell’Interno, Questura di Prato, Questura di Firenze
Other parties to the proceedings: SNAI — Sindacato Nazionale Agenzie Ippiche SpA, Stanley International Betting Ltd, Stanleybet Malta Ltd
Re:
Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Toscana — Freedom of movement of persons — Freedom to provide services — Activity of collecting bets — Domestic legislation making the exercise of that activity conditional upon the obtaining of a public security authorisation and permit issued by the national authorities — Non-recognition of authorisations and permits issued by foreign authorities — Whether compatible with Articles 43 EC and 49 EC (now Articles 49 TFEU and 56 TFEU)
Operative part of the judgment
1.
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.
2.
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 European Union law, has excluded a category of operators from the award of licences to engage in a particular economic activity and which seeks to remedy that breach by putting out to tender a significant number of new licences, from protecting the market positions acquired by the existing operators, by providing inter alia that a minimum distance must be observed between the establishments of new licence holders and those of existing operators.
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 such as that at issue in the cases before the referring court and, in particular, the provisions concerning the withdrawal of licences granted under that tendering procedure, such as those laid down in Article 23(3) of the model contract, must be drawn up in a clear, precise and unequivocal manner, a matter which it is for the referring court to verify.
National legislation which in fact precludes all 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, is contrary to Articles 43 EC and 49 EC. It is for the referring court to verify whether that is the case as regards Article 23(3) of the model contract.
3.
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.
(1) OJ C 73, 10.03.2012.
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