Brussels, 31/10/2011 (Agence Europe) - Some elements of the Italian system of licences and authorisation for organising games of chance and gathering sports bets remain incompatible with EU law, in the view of Advocate General Pedro Cruz Villalon in his opinion delivered on Thursday 27 October in joined Cases C-72/10 and C-77/10.
The Court has already ruled on this issue in the Gambelli and Placanica cases in 2003 and 2007 (Cases C-243/01 and Joined Cases C-338/04, C-359/04 and C-360/04, see EUROPE 8581 and 9381). At the time, it took the view that Italian law infringed freedom to provide services and freedom of establishment as it excluded from the gambling sector, operators - including from other member states - which were capital companies whose shares were quoted on official markets. Since then, Italy has amended its legislation, awarding 16,000 new licences since 2006, but keeping the old licences in place. In the two new cases (see above), the Court has to respond to the questions put by the Italian Supreme Court of Appeal (Corte Suprema di Cassazione) on whether the new Italian system is in line with Articles 49 and 56 of the Treaty (freedom of establishment and freedom of provision of services).
The advocate general responds to the questions point by point, taking the view that national rules which give clear protection to holders of licences awarded at an earlier date on the basis of a procedure which illegally excluded some operators and which de facto ensures the maintenance of commercial positions gained on the basis of such a procedure contravene the above-mentioned articles. He says that this system restricts, in particular, the activity of new operators in that it prevents new licence holders from locating their kiosks within a specified distance of those already in existence. It is also likely to discourage or prevent all cross-border operations (including by foreign operators) since it makes provision for the forfeiture of the gambling licence in the event of the licence holder exercising cross-border activity in the gambling sector, no matter the form that this activity takes, including when direct contact between the consumer and the operator is possible and intermediaries of the company within the country may be subject to physical checks. The advocate general is here referring to the cases in point which relate to two individuals who, on behalf of the UK company Stanley International Betting Ltd, manage “data transmission centres” which allow punters direct access to the Stanley servers in the United Kingdom and other member states to place bets, thereby circumventing the Italian monopoly on gambling.
However, he decided that the rule which only allows the kinds of gambling set out in a catalogue or on a list and penalises proposing any other kind of gambling with forfeiture of the licence is in line with EU law, so long as the gambling list is established on the basis on criteria which are “objective, non-discriminatory and known in advance” and against which there can be legal challenge.
Finally, he decided that forfeiture of the licence was reasonable so long as it followed protective measures or criminal measures against the licence holder, his legal representative or his administrators in regard to types of misdemeanour linked to gambling and clearly defined (this refers particularly to misdemeanours related to activities of criminal organisations and more generally misdemeanours that could damage confidence in the State Monopoly Autonomous Administration). (FG/transl.rt)