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CJEU - Joined cases C 72/10 and C 77/10 / Judgment

Criminal proceedings against Marcello Costa, and Ugo Cifone

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
European Court of Justice (Fourth Chamber)
Type:
Decision
Decision date:
16/02/2012
Key facts of the case:
 
Italian legislation having made the provision of betting and gaming subject to prior granting of a licence was found, in a previous judgement, to have barred an UK operator from such a licence in breach of EU law (see this Judgment, para 13; C-338/04, Ruling No 3). The amendments made by subsequent legislation, however, had not been such as to motivate the operator to apply for a licence; it continued, nevertheless, to provide its services, by local partners who, in turn, were prosecuted, according to national law by which the provision of the said services without a licence constituted a criminal offence. Having doubts as to compatability of that national law with the Articles 43, 49 TEC the court of appeal decided to refer to CJ. Parallel proceedings before the administrative court are still pending (see Judgment, para 26).
 
Results (sanctions) and key consequences of the case:
  1. 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. 
  2. Articles 43 EC and 49 EC must be interpreted as precluding the imposition of penalties for engaging in the organised activity of collecting bets without a licence or police authorisation on persons who are linked to an operator which was excluded, in breach of European Union law, from an earlier tendering procedure, even following the new tendering procedure intended to remedy that breach of European Union law, in so far as that tendering procedure and the subsequent award of new licences have not in fact remedied the exclusion of that operator from the earlier tendering procedure. 
  3. 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(2)(a) and (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.