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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Placanica (Freedom to provide services) [2007] EUECJ C-359/04 (06 March 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C35904.html Cite as: [2007] EUECJ C-359/04, [2007] EUECJ C-359/4 |
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(Freedom of establishment Freedom to provide services Interpretation of Articles 43 EC and 49 EC Games of chance Collection of bets on sporting events Licensing requirement Exclusion of certain operators by reason of their type of corporate form Requirement of police authorisation Criminal penalties)
In Joined Cases C-338/04, C-359/04 and C-360/04,
REFERENCES for a preliminary ruling under Article 234 EC, by the Tribunale di Larino (Italy) (Case C-338/04) and the Tribunale di Teramo (Italy) (Cases C-359/04 and C-360/04), by decisions of 8 July 2004 and 31 July 2004, received at the Court on 6 August 2004 and 18 August 2004 respectively, in the criminal proceedings before those courts against
Massimiliano Placanica (Case C-338/04),
Christian Palazzese (Case C-359/04),
Angelo Sorricchio (Case C-360/04),
composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Lenaerts (Presidents of Chambers), J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Schiemann (Rapporteur), G. Arestis, A. Borg Barthet and M. Ilešič, Judges,
Advocate General: D. Ruiz'Jarabo Colomer,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 7 March 2006,
after considering the observations submitted on behalf of:
Mr Placanica and Mr Palazzese, by D. Agnello, avvocatessa,
Mr Sorricchio, by R.A. Jacchia, A. Terranova, I. Picciano and F. Ferraro, avvocati,
the Italian Government, by I.M. Braguglia, acting as Agent, assisted by A. Cingolo and F. Sclafani, Avvocati dello Stato (Cases C-338/04, C-359/04 and C-360/04),
the Belgian Government, initially by D. Haven and subsequently by M. Wimmer, acting as Agents, assisted by P. Vlaemminck and S. Verhulst, advocaten (Case C-338/04),
the German Government, by C.'D. Quassowski and C. Schulze'Bahr, acting as Agents (Case C-338/04),
the Spanish Government, by F. Díez Moreno, acting as Agent (Cases C-338/04, C-359/04 and C-360/04),
the French Government, by G. de Bergues and C. Bergeot'Nunes, acting as Agents (Case C-338/04),
the Austrian Government, by H. Dossi, acting as Agent (Cases C-338/04, C-359/04 and C-360/04),
the Portuguese Government, by L.I. Fernandes and A.P. Barros, acting as Agents (Cases C-338/04, C-359/04 and C-360/04), assisted by J.L. da Cruz Vilaça, advogado (Case C-338/04),
the Finnish Government, by T. Pynnä, acting as Agent (Case C-338/04),
la Commission of the European Communities, by E. Traversa, acting as Agent (Cases C-338/04, C-359/04 and C-360/04),
after hearing the Opinion of the Advocate General at the sitting on 16 May 2006,
gives the following
Legal context
Licences
Police authorisation
Criminal penalties
'1. Any person who unlawfully participates in the organising of lotteries, betting or pools reserved by law to the State or to entities operating under licence from the State shall be liable to a term of imprisonment of 6 months to 3 years. Any person who organises betting or pools in respect of sporting events run by CONI, or by organisations under the authority of CONI, or by UNIRE shall be liable to the same penalty. Any person who unlawfully participates in the public organising of betting on other contests between people or animals, or on games of skill, shall be liable to a term of imprisonment of 3 months to 1 year and a minimum fine of ITL 1 000 000. ...
2. Any person who advertises competitions, games or betting organised in the manner described in paragraph 1, albeit without being an accomplice to an offence defined therein, shall be liable to a term of imprisonment of up to 3 months and a fine of between ITL 100 000 and ITL 1 000 000.
3. Any person who participates in competitions, games or betting organised in the manner described in paragraph 1, albeit without being an accomplice to an offence defined therein, shall be liable to a term of imprisonment of up to 3 months or a fine of between ITL 100 000 and ITL 1 000 000.
...
4a. The penalties laid down in this article shall be applicable to any person who, without the concession, authorisation or licence required by Article 88 of [the Royal Decree], carries out activities in Italy for the purposes of accepting or collecting, or, in any case, of assisting the acceptance or in any way whatsoever the collection, including by telephone or by data transfer, of bets of any kind accepted by any person in Italy or abroad.
...'
Case-law of the Corte suprema di cassazione
The main proceedings and the questions referred for a preliminary ruling
The award of licences
Stanley International Betting Ltd
Data transmission centres
The reference for a preliminary ruling from the Tribunale di Larino (Case C-338/04)
'Does the Court of Justice consider Article 4(4a) of Law No 401/89 to be compatible with the principles enshrined in Article 43 [EC] et seq. and 49 [EC] concerning the freedom of establishment and the freedom to provide cross-border services, having regard to the difference between the interpretation emerging from the decisions of the Court ... (in particular the judgment in Gambelli and Others) and the decision of the Corte Suprema di Cassazione, Sezione Uniti, in Case No 23271/04? In particular, the Court is requested to rule on the applicability in Italy of the rules on penalties referred to in the indictment and relied upon against [Mr] Placanica.'
The references for a preliminary ruling from the Tribunale di Teramo (Cases C-359/04 and C-360/04)
'The District Court [of Teramo] needs to know, in particular, whether [the first paragraph of Article 43 EC and the first paragraph of Article 49 EC] may be interpreted as allowing the Member States to derogate temporarily (for 6 to 12 years) from the freedom of establishment and the freedom to provide services within the European Union, and to legislate as follows, without undermining those Community principles:
allocating to certain persons licences for the pursuit of certain activities involving provision of services, valid for 6 or 12 years, on the basis of a body of rules which excluded from the tender procedure certain kinds of (non-Italian) competitors;
amending that system, after subsequently noting that it was not compatible with the principles enshrined in Articles 43 [EC] and 49 [EC], so as to allow in future the participation of those persons who had been excluded;
not revoking the licences granted on the basis of the earlier system which, as stated, infringed the principles of freedom of establishment and of free movement of services or setting up a new tender procedure pursuant to the new rules which now comply with the abovementioned principles;
continuing, on the other hand, to bring criminal proceedings against anyone carrying on business via a link with operators who, [despite] being entitled to pursue such an activity in the Member State of origin, were nevertheless unable to seek an operating licence precisely because of the restrictions contained in the earlier licensing rules, later repealed?'
Admissibility of the questions referred for a preliminary ruling
The questions referred for a preliminary ruling
the obligation to obtain a licence;
a method of awarding those licences, by means of a tender procedure excluding certain types of operator and, in particular, companies whose individual shareholders are not always identifiable at any given moment;
the obligation to obtain a police authorisation; and
criminal penalties for failure to comply with the legislation at issue.
The licensing requirement
The tender procedures
The police authorisation requirement
The criminal penalties
1. National legislation which prohibits the pursuit of the activities of collecting, taking, booking and forwarding offers of bets, in particular bets on sporting events, without a licence or a police authorisation issued by the Member State concerned, constitutes a restriction on the freedom of establishment and the freedom to provide services provided for in Articles 43 EC and 49 EC respectively.
2. It is for the national courts to determine whether, in so far as national legislation limits the number of operators active in the betting and gaming sector, it genuinely contributes to the objective of preventing the exploitation of activities in that sector for criminal or fraudulent purposes.
3. Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which excludes and, moreover, continues to exclude from the betting and gaming sector operators in the form of companies whose shares are quoted on the regulated markets.
4. Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes a criminal penalty on persons such as the defendants in the main proceedings for pursuing the organised activity of collecting bets without a licence or a police authorisation as required under the national legislation, where those persons were unable to obtain licences or authorisations because that Member State, in breach of Community law, refused to grant licences or authorisations to such persons.
Costs
On those grounds, the Court (Grand Chamber) hereby rules:
1. National legislation which prohibits the pursuit of the activities of collecting, taking, booking and forwarding offers of bets, in particular bets on sporting events, without a licence or a police authorisation issued by the Member State concerned, constitutes a restriction on the freedom of establishment and the freedom to provide services, provided for in Articles 43 EC and 49 EC respectively.
2. It is for the national courts to determine whether, in so far as national legislation limits the number of operators active in the betting and gaming sector, it genuinely contributes to the objective of preventing the exploitation of activities in that sector for criminal or fraudulent purposes.
3. Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which excludes and, moreover, continues to exclude from the betting and gaming sector operators in the form of companies whose shares are quoted on the regulated markets.
4. Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes a criminal penalty on persons such as the defendants in the main proceedings for pursuing the organised activity of collecting bets without a licence or a police authorisation as required under the national legislation, where those persons were unable to obtain licences or authorisations because that Member State, in violation of Community law, refused to grant licences or authorisations to such persons.
[Signatures]
* Language of the case: Italian.