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Judgment of the Court (Third Chamber) of 28 January 2016. Request for a preliminary ruling from the Tribunale di Frosinone. To that end, in view of the impending expiry of a group of licences for the collection of those bets, the Independent Authority for the Administration of State Monopolies [now the Customs and Monopolies Agency, Agenia delle dogane e dei Monopoli, ‘the CMA’] shall immediately, or in any event by 31 July 2012 at the latest, launch a call for tenders for the selection of persons who are to collect such bets with due regard, at the very least, to the following criteria: the possibility of participation for persons already carrying out an activity related to the collection of bets in one of the States of the European Economic Area, as a result of having their legal and operational seat there, on the basis of a valid and effective authorisation issued under the provisions in force in the law of that State and who fulfil the requirements as to reputation, reliability and financial capacity specified by the [CMA], account being taken of the provisions in this matter referred to in Law No 220 [laying down provisions for drawing up the annual and multiannual budget of the State (Stability Law 2011) (legge n.
Reference for a preliminary ruling — Articles 49 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — Judgment of the Court of Justice which declared the national rules on licences for the collection of bets incompatible with EU law — Reorganisation of the system by way of a new call for tenders — Free-of-charge transfer of the rights to use tangible and intangible assets owned by licensees and which constitute their network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality. Judgment of the Court (Third Chamber) of 28 January 2016. Request for a preliminary ruling from the Tribunale di Frosinone. 220 — Disposizioni per la formazione del bilancio annual e pluriennale dello State [legge di stabilita’ 2011) of 13 December 2010 (Ordinary Supplement to the GURI No 297 of 21 December 2010), as amended by Law No 111 of 15 July 2011 (‘the Stability Law 2011’)] and by Decree-Law No 98 of 6 July 2011, converted, after amendment, into statute by Law No 111 of 15 July 2011; the award of a licence, expiring on 30 June 2016, for the collection, exclusively in a physical network, of bets on sporting events, including horse racing, and non-sporting events, from agencies, up to a maximum of 2000, whose sole activity is the marketing of public gambling products, without restriction as to the minimum distances between those agencies or with respect to other collection points, which are already active, for identical bets; the conclusion of a licence agreement whose content is consistent with any other principle laid down by the above-mentioned judgment of the Court of Justice of the European Union of 16 February 2012 and with the compatible national provisions in force regarding public gambling; the possibility of managing agencies in any municipality or province, without numerical limits on a territorial basis or more favourable conditions compared to licensees who are already authorised to collect identical bets or which may, in any event, be favourable to those licensees; (9h) The licensees who are to collect bets referred to in paragraph 9g, whose contracts expire on 30 June 2012, shall continue their collection activities until the date of the conclusion of the licence contracts awarded in accordance with the above paragraph.’ Under Article 1(77) of the Stability Law 2011: ‘In order to ensure a correct balance between public and private interests in the context of the organisation and management of public gaming, in view of the State monopoly in respect of gaming …
…’ Stanley International Betting Ltd, a company incorporated in the United Kingdom and its Maltese subsidiary Stanleybet Malta Ltd, are engaged in the collection of bets in Italy, through operators known as ‘data transmission centres’ (‘DTCs’).
For about 15 years, DTC owners have carried on their activities in Italy on the contractual basis of a mandate, without any licence or police authorisation.
In the first place, it must be recalled that all measures which prohibit, impede or render less attractive the exercise of the freedoms guaranteed by Articles 49 TFEU and 56 TFEU must be regarded as restrictions on the freedom of establishment and/or the freedom to provide services (judgment in Stanley International Betting and Stanleybet Malta, C‑463/13, EU: C:20, paragraph 45 and the case-law cited).
If the restrictive provision at issue in the main proceedings is discriminatory, it may be justified only on the grounds of public interest, public safety or public health, laid down in Articles 51 TFEU and 52 TFEU, which do not include combatting criminality linked to betting and gaming or ensuring the continuity of the lawful activity of collecting bets relied on in the present case (see, by analogy, judgment in Servizi Ausiliari Dottori Commercialisti, C‑451/03, EU: C:208, paragraph 36 and the case-law cited).
By its question, the referring court asks essentially whether Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they preclude a national provision, such as that at issue in the main proceedings, which makes it compulsory for licensees to transfer free of charge, at the time of the cessation of business as a result of the expiry of the licence period or as a result of measures revoking or terminating that licence, the rights to use tangible and intangible assets which they own and which constitute their network for the management and collection of bets.
As a preliminary point, it should be made clear, as the Advocate General observed in points 27 and 28 of his Opinion, that the present case is concerned only with the compatibility with EU law of Article 25 of the draft agreement, and cannot be regarded as being intended to call into question, in its entirety, the new licensing system put in place in Italy in 2012 in the betting and gaming sector.
In the present case, the Italian Government submits that the provision at issue in the main proceedings is justified, as part of the objective of combating criminality linked to betting and gambling, by the interest in ensuring the continuation of the lawful activity of collecting bets in order to curb the growth of parallel illegal activities.
In any event, the identification of the objectives in fact pursued by the national legislation is within the jurisdiction of the referring court (see, to that effect, judgment in Pfleger and Others, C‑390/12, EU: C:201, paragraph 47).