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:
In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows:
2) The issues which arise from the present procedure are, in particular, whether the Treaty rules on the internal market, Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), or the general principle of the protection of legitimate expectations preclude national legislation which lays down new financial, technical and professional requirements applicable to both existing and new concession holders of gaming services.
12) Entertaining doubts as to the compatibility of the contested national legislation with EU law, the Consiglio di Stato (Council of State) decided to stay the proceedings and refer the following questions to the Court:
‘(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 of Justice 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 European Treaties?
(2) In the alternative, in the event that the Court answers the question on the interpretation of Article 267(3) TFEU to the effect that reference for a preliminary ruling is compulsory: do the provisions and principles set out in Article 26 TFEU (the internal market), Article 49 TFEU (freedom of establishment), Article 56 TFEU (freedom to provide services), Article 63 TFEU (free movement of capital) and Article 16 of the Charter ... (freedom to conduct a business) 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 of Justice in the judgment of 14 March 2013 in Agrargenossenschaft Neuzelle, C‑545/11) 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 … by means of an addendum to the existing agreement (and without any period for gradual compliance)?’
24) By its second question, the referring court essentially asks whether the Treaty rules on the internal market, Article 16 of the Charter, or the general principle of the protection of legitimate expectations preclude national provisions such as those at issue, which lay down new financial, technical and professional requirements applicable to both existing and new concession holders of gaming services.
59) A separate examination of the national measures at issue from the angle of Article 16 of the Charter is, in my view, unnecessary.
60) First, there is no specific element or argument, in the order for reference, specifically concerned with a possible breach of Article 16 of the Charter. The order for reference is, indeed, mainly focused on a possible breach of the EU rules on the internal market.
61) Second, as the Court has already held, an examination of the restrictive effects of national legislation on the provision of gaming services from the point of view of, for example, Article 56 TFEU covers also possible limitations on the exercise of the rights and freedoms provided in Articles 15 to 17 of the Charter. A separate examination is thus not necessary. ( 38 )
69) In the light of the above, the answer to the second question should be that, on a proper construction, Articles 49, 56 and 63 TFEU, Article 16 of the Charter, and the general principle of the protection of legitimate expectations, do not preclude national legislation, such as that at issue, which lays down new financial, technical and professional requirements applicable to both existing and new holders of concessions in the field of gaming services.
71) In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows: