Case C‑375/17
Stanley International Betting Ltd and Stanleybet Malta Ltd
v
Ministero dell’Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli
(Request for a preliminary ruling from the Consiglio di Stato)
(Reference for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment and freedom to provide services — Games of chance — Concession for management of the computerised Lotto and other fixed-odds numerical games according to the sole concessionaire model — Restriction — Overriding reasons in the public interest — Proportionality)
Summary — Judgment of the Court (Second Chamber), 19 December 2018
Approximation of laws — Procedures for the award of concession contracts — Directive 2014/23 — Temporal application — Decision of the contracting authority choosing the type of procedure to be followed for the award of a contract which is adopted before the transposition deadline of that directive — Inapplicability of the directive
(European Parliament and Council Directive 2014/23)
Freedom to provide services — Freedom of establishment — Restrictions — Games of chance — National legislation providing, for the concession for management of the computerised Lotto and other fixed-odds numerical games, a sole concessionaire model, and, for other games, prediction games and betting, a multiple concessionaire model — Lawfulness — Condition — Verification by the national court
(Arts 49 and 56 TFEU)
Freedom to provide services — Freedom of establishment — Restrictions — Games of chance — National legislation providing, for the concession for management of the computerised Lotto and other fixed-odds numerical games, a high basic contract value — Lawfulness — Condition — Verification by the national court
(Arts 49 and 56 TFEU)
Freedom to provide services — Freedom of establishment — Restrictions — Games of chance — Withdrawal of the concession for management of the computerised Lotto and other fixed-odds numerical games — Withdrawal in the event of indictment due to the commission of an offence in connection with the activity for which the concession was awarded — Possibility, for the contracting authority, to pronounce the withdrawal in the absence of a final judgment under conditions strictly regulated by law — Lawfulness
(Arts 49 and 56 TFEU)
Freedom to provide services — Freedom of establishment — Restrictions — Games of chance — Provision, contained in a model concession contract, providing for the withdrawal of the concession for management of the computerised Lotto and other fixed-odds numerical games — Withdrawal in the event of indictment due to the commission of an offence in connection with the activity for which the concession was awarded — Withdrawal, in the event of infringement, by the concessionaire, of the rules on the prevention of irregular, unlawful and covert gaming — Lawfulness — Condition — Verification by the national court
(Arts 49 and 56 TFEU)
See the text of the decision.
(see paras 34-36)
Articles 49 and 56 TFEU must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which provide, for the concession for management of the computerised Lotto and other fixed-odds numerical games, a sole concessionaire model, unlike other games, prediction games and betting, to which a multiple concessionaire model applies, provided that the national court establishes that the national rules actually pursue, in a consistent and systematic manner, the objectives relied on by the Member State concerned.
Such a divergence in legal regimes is not, in itself, capable of affecting the suitability of such a sole concessionaire model for achieving the objective of preventing citizens from being incited to squander money on gambling and of combating addiction to the latter, for which it was established (see, by analogy, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 23 and the case-law cited).
However, a system of dual organisation of the market for games of chance may be contrary to Article 56 TFEU if it is found that the competent authorities pursue policies seeking to encourage participation in games of chance other than those covered by the sole concessionaire model rather than to reduce opportunities for gambling and to limit activities in that area in a consistent and systematic manner so that the aim of preventing incitement to squander money on gambling and of combating addiction to the latter, which was at the root of the establishment of the sole concessionaire model, can no longer be effectively pursued by means of the sole concessionaire model (see, by analogy, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 24 and the case-law cited). Such a dual system, on the other hand, is compatible with Article 56 TFEU, since the referring court establishes that the rules restricting the freedom to provide services actually pursue, in a consistent and systematic manner, the objectives relied on by the Member State concerned (see, to that effect, judgment of 28 February 2018, Sporting Odds, C‑3/17, EU:C:2018:130, paragraph 33).
(see paras 50-53, operative part 1)
Articles 49 and 56 TFEU and the principles of non-discrimination, transparency and proportionality must be interpreted as meaning that they do not preclude national rules and the relevant implementing acts, such as those at issue in the case in the main proceedings, which provide, for the concession for management of the computerised Lotto and other fixed-odds numerical games, a high basic contract value, provided that that value is formulated in a clear, precise and unambiguous manner and that it is objectively justified, which is for the national court to determine.
(see para. 64, operative part 2)
See the text of the decision.
(see paras 77-80)
Articles 49 and 56 TFEU must be interpreted as not precluding a provision, such as that at issue in the main proceedings, contained in a model concession contract relating to a call for tenders and which provides for the withdrawal of the concession for management of the computerised Lotto and other fixed-odds numerical games:
–
for any type of offence in relation to which indictment is provided for and which, because of its nature, seriousness, method of commission and connection with the activity for which the concession was awarded, the contracting authority takes the view that it is such as to preclude the concessionaire possessing the requisite reliability, professionalism and moral quality,
–
or if the concessionaire infringes the rules on the prevention of irregular, unlawful and covert gaming and, in particular, where the concessionaire itself, or a company controlled by or linked to it, wherever located, markets other games comparable to the computerised Lotto and other fixed-odds numerical games, without possessing the requisite licence,
provided that those clauses are justified and are proved to be proportionate to the objective pursued and comply with the principle of transparency, which is for the national court to determine in the light of the guidance set out in the present judgment.
It should be added, however, that in examining the proportionality of those clauses, the referring court must also take into account the fact that the withdrawal of the concession contract of an economic operator cannot be regarded as proportionate in the case where the national legislation provides neither an effective legal remedy nor compensation for any loss suffered in the event that such withdrawal subsequently proves to be unjustified (see, by analogy, judgment of 16 February 2012, Costa and Cifone, C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 81).
(see paras 83, 85, operative part 3)