Article 15 - Freedom to choose an occupation and right to engage in work
Article 16 - Freedom to conduct a business
Article 17 - Right to property
Key facts of the case:
Reference for a preliminary ruling — Freedom to provide services, freedom of establishment, free movement of capital and freedom to conduct a business — Restrictions — Award of new licences for the online operation of gaming — Principles of legal certainty and protection of legitimate expectations — Judgment of the Constitutional Court — Whether or not the national court is obliged to refer a question to the Court of Justice for a preliminary ruling.
Outcome of the case:
On those grounds, the Court (First Chamber) hereby rules:
1) This request for a preliminary ruling concerns the interpretation of Articles 26, 49, 56, 63 and 267 TFEU, Article 16 of the Charter of Fundamental Rights of the European Union and the general principle of the protection of legitimate expectations.
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12) In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. May Article 267(3) TFEU be interpreted as meaning that the court of final instance is not unconditionally obliged to refer a question on the interpretation of EU law for a preliminary ruling if, in the course of the proceedings in question, the Corte costituzionale (Constitutional Court) assessed the [constitutionality] of the national rules, in essence on the basis of the regulatory parameters which the Court is being asked to interpret, even though they are formally different in that they derive from provisions of the Constitution rather than from provisions of the Treaties?
2. In the alternative, if the Court should answer the question on the interpretation of Article 267(3) TFEU to the effect that reference for a preliminary ruling is mandatory: do the provisions and principles set out in Articles [26, 49, 56 and 63 TFEU] and Article 16 … of the Charter of Fundamental Rights, and the general principle of the protection of legitimate expectations [which is among the fundamental principles of the European Union, as stated by the Court in the judgment of 14 March 2013 in Agrargenossenschaft Neuzelle (C‑545/11, EU:C:2013:169)] preclude the adoption and application of national regulations [Article 1(78)(b) subsections 4, 8, 9, 17, 23 and 25, of Law No 220/2010] which lay down new requirements and obligations for concession holders in the sector of the online operation of legal gaming, including existing concession holders, by means of an addendum to the existing agreement (and without any period for gradual compliance?’
14) At the outset, it should be noted that the national court, before referring a question to the Court for a preliminary ruling, raised, before the Corte costituzionale (Constitutional Court), the question whether the provisions of national law which are also the subject of the second question referred are constitutional. The Corte costituzionale (Constitutional Court) ruled, in reply to that question, on the compatibility of those provisions, not with EU law but with the provisions of the Italian Constitution, that the referring court regarded as constituting, in essence, the same regulatory parameters as Articles 26, 49, 56 and 63 TFEU and Article 16 of the Charter of Fundamental Rights as well as the principles of legal certainty and protection of legitimate expectations.
25) The fact that the Corte costituzionale (Constitutional Court) gave a ruling on the compatibility of the provisions of national law, which are also the subject of the second question referred for a preliminary ruling, with the provisions of the Italian Constitution which the referring court regarded as constituting, in essence, the same regulatory parameters as Articles 26, 49, 56 and 63 TFEU and Article 16 of the Charter of Fundamental Rights has no bearing on the obligation, laid down in Article 267 TFEU, to refer questions concerning the interpretation of EU law to the Court of Justice.
27) By its second question, the referring court asks, in essence, whether Articles 26, 49, 56 and 63 TFEU, Article 16 of the Charter of Fundamental Rights, and the principle of protection of legitimate expectations must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes on persons who are already concession holders in the sector of the online operation of legal gaming, new conditions for the exercise of their activity by means of an addendum to the existing agreement.
34) It follows that the second question must be answered only in so far as concerns Articles 49 and 56 TFEU, Article 16 of the Charter of Fundamental Rights and the principle of protection of legitimate expectations.
44) Moreover, it should be noted that, when a Member State relies on overriding requirements in the public interest in order to justify rules liable to obstruct the exercise of the freedom of establishment and the freedom to provide services, such justification must also be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter of Fundamental Rights. Thus, the national legislation in question can fall under one of the justifications provided for only if it is compatible with those principles and those rights (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 74 and the case-law cited).
45) In the present case, the referring court asks whether the principles of legal certainty and the protection of legitimate expectations, and the freedom to conduct a business laid down in Article 16 of the Charter of Fundamental Rights, preclude national legislation, such as that at issue in the main proceedings referred to in paragraph 28 of the present judgment, which imposes on persons who are already concession holders in the sector of the online operation of legal gaming, new conditions for the exercise of their activity by means of an addendum to the existing agreement.
50) As the Court has previously held, examination of the restriction represented by national legislation from the point of view of Articles 49 and 56 TFEU also covers possible limitations of the exercise of the rights and freedoms laid down in Articles 15 to 17 of the Charter of Fundamental Rights, so that a separate examination of the freedom to conduct a business is not necessary (see, to that effect, judgments of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 60, and of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 91).
