1.

With the present request for a preliminary ruling, the Court is once again asked to assess whether certain aspects of the Italian legislation in the betting and gaming sector are compatible with the Treaty rules on the internal market as well as with some general principles of EU law. ( 2 )

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.

3.

Article 1, paragraph 77 of Legge del 13 dicembre 2010 n. 220, Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2011) (Law No 220/2010 of 13 December 2010, Measures for the annual and multiannual budget) ( 3 ) provides:

‘In order to ensure a balance between public and private interests in the organisation and management of gambling activities, taking into account the State’s monopoly in this sector, … and the principles, including those set out by the European Union, of applying competitive selection in order to reinforce the fight against irregular or illegal gaming in Italy, as well as furthering consumer protection, in particular the protection of minors, the maintenance of public order, the fight against under-age gaming and the permeation of organised crime … The Agenzia delle Dogane e dei Monopoli [Italian Customs and Monopolies Agency, “the AAMS”] will update, without delay, the model agreement giving authorisation to concessions for public gaming and the collection of public wagers not conducted online.’

4.

Article 1(78) of Law No 220/2010 introduced new obligations for holders of concessions for public gaming and the collection of public wagers not conducted online, requiring in particular:

5.

Article 1(78)(b), subsection 23, introduced penalties for failure to meet the obligations laid down in the concession agreement.

6.

The requirements for holders of concessions laid down in Article 1(78) of Law 220/2010 were implemented by an Interdepartmental Decree issued on 28 June 2011 by the Director of the AAMS (‘the AAMS Decree’). ( 4 ) Those requirements, the aim of which was to improve the profitability and financial soundness of the concession holders and enhance their respectability and reliability, were imposed both on existing and new concession holders.

7.

The company B Plus Giocolegale Ltd, now Global Starnet Ltd (‘Global Starnet’), is the holder of a concession from the AAMS for the implementation and operation of an online network for legal gaming. It participated in the programme, set up by Decree Law No 39/2009, that allowed concession holders to conduct trials and subsequently launch particular gaming systems. Participation in that trial programme gave the concession holders the right to be granted a renewal of the concessions.

8.

Following the entry into force of Law 220/2010 and of the AAMS Decree, Global Starnet brought an action before the Tribunale Amministrativo Regionale Lazio (Regional Administrative Court, Lazio, Italy, ‘the TAR Lazio’) for annulment of that decree on the ground that its rights as a concession holder had been unlawfully affected. It also sought damages and annulment of the call for tenders published by the AAMS for the grant of a concession for services relating to the creation and operation of an online network for legal gaming. Global Starnet’s claims were based on both national law and EU law.

9.

The TAR Lazio upheld, in part, the action insofar as it related to national law, but concluded that there had been no infringement either of the Italian Constitution, or of EU law. Global Starnet brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy).

10.

In its judgment No 4371 of 2 September 2013, the Consiglio di Stato (Council of State) upheld, in part, the appeal brought by Global Starnet. In addition, taking the view that doubts arose as to the constitutionality of Article 1(79) of Law 220/2010, the Consiglio di Stato (Council of State) referred the matter to the Corte Costituzionale (Constitutional Court, Italy).

11.

By judgment of 31 March 2015, n. 56, the Corte Costituzionale (Constitutional Court) decided that the national provision at issue did not infringe the Italian constitution and referred the case back to the Consiglio di Stato (Council of State).

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:

13.

By its first question, the referring court essentially asks whether the fact that a constitutional court of a Member State has declared a national measure compatible with the constitution has any bearing on the obligation, imposed on national courts of last instance under Article 267 TFEU, to refer a question concerning the interpretation of EU law to the Court, when the national rules forming the basis of the constitutional court’s assessment are similar to the relevant EU rules.

14.

The answer to this question is, in my view, rather straightforward.

15.

In line with the observations submitted by the Czech and Italian Governments and the Commission, I consider that the fact that a constitutional court has declared a national measure compatible with the constitution cannot have any effect on national courts’ rights or obligations laid down under Article 267 TFEU. That is so regardless of whether the provisions or principles of the national constitution interpreted by the constitutional court display similarities with certain EU provisions or principles.

16.

In the first place, it is to be borne in mind that, according to settled case-law, the fact that the court of a Member State can submit a question on the constitutionality of a national measure to the constitutional court, or the fact that such a question has been asked, has no bearing on that court’s right or, as the case may be, its obligation, to make a reference under Article 267 TFEU. Indeed, national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions of interpretation or validity of EU law provisions necessitating a decision on their part. ( 5 )

17.

The Court has also stated that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice by reason of the fact that a declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. ( 6 ) National legislation which prevents national courts, before and/or after submitting a question on constitutionality, from exercising their right or fulfilling their obligation to refer a question under Article 267 TFEU is thus incompatible with EU law. ( 7 ) National courts must, therefore, be free, if they consider that a higher court’s legal ruling could lead it to deliver a judgment contrary to EU law, to refer to the Court of Justice the relevant questions on the interpretation of EU law. ( 8 )

18.

These principles apply a fortiori where the constitutional court has not interpreted EU law but confined its ruling to issues of interpretation of national law. In accordance with the Cilfit ( 9 ) case-law, a national court of last instance may refrain from making a preliminary reference only if the conditions of acte clair or of acte éclairé are met. That is so because, in those circumstances, the national court may legitimately take the view that the correct application of EU law is so obvious that it leaves no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. ( 10 )

19.

However, it is difficult to see how the interpretation of a Member State’s domestic law by the national constitutional court can contribute to dispelling any doubts regarding the correct interpretation of EU law. Despite being intimately intertwined at various levels, the legal systems of the Member States and that of the Union remain fundamentally distinct. In particular, as the Court has pointed out in Cilfit, ( 11 ) even when they use the same (or similar) concepts, those concepts may not have the same meaning.

20.

The interpretation of Article 267 TFEU proposed in this Opinion is not called into question by the fact — mentioned in the order for reference — that individuals may, in accordance with the Francovich ( 12 ) and Köbler ( 13 ) case-law, obtain compensation for breaches of EU law on the part of national courts. As the Commission has correctly pointed out, the possibility of invoking with success, under certain circumstances, Member State liability in case of judicial errors is only a remedy of last resort. An action for Member State liability aims only to make good the damage caused by a breach of EU law, but does not serve the aim of ensuring the uniform application of EU law pursued by Article 267 TFEU.

21.

As the Court has emphasised in Opinion 2/13, the judicial system conceived by the EU Treaties has its cornerstone in the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another — specifically between the Court of Justice and the courts and tribunals of the Member States — has the object of securing uniform interpretation of EU law. ( 14 ) Therefore, an interpretation different from that proposed here would lessen the effectiveness of Article 267 TFEU.

22.

Nor do I see any increased risk of abuses by the parties, as feared by the referring court. The preliminary ruling procedure is a procedure which is completely independent of any initiative by the parties. ( 15 ) Although the parties may suggest to the national court that it should refer one or more questions to the Court of Justice and the content of those questions, it is for the national court alone to decide whether and, if so, what questions are to be referred to the Court. Under the system established by Article 267 TFEU, the national court is required to play a key role in filtering the parties’ proposals to make a reference and, as the case may be, the questions of interpretation or validity of EU law that it is necessary to put to the Court.

23.

Accordingly, the answer to the first question should be that the fact that a constitutional court of a Member State has declared a national measure compatible with the constitution has no bearing on the obligation, imposed on national courts of last instance under Article 267 TFEU, to refer a question concerning the interpretation of EU law to the Court, even if the national rules forming the basis of the constitutional court’s assessment are similar to the relevant EU rules.

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.

25.

That question should be answered in the negative.

26.

The thrust of Global Starnet’s criticism is that Law 220/2010 introduced new requirements for concession holders that are applicable also to existing concessions. Global Starnet does not contest the fact that the Italian authorities can introduce those requirements for concession holders in general, but only that they can apply those requirements also to concession holders already active in the market.

27.

In which case, Global Starnet essentially complains of the creation of a possible obstacle — especially in the form of higher costs — to the performance of the activities of the service providers already established in Italy and providing services for Italian customers. It does not claim that those requirements may dissuade undertakings established abroad from either establishing themselves in Italy, or from providing cross-border gaming services.

28.

Against that background, legitimate doubts arise as to whether the situation complained of is not purely internal to Italy and thus falls outside the scope of the rules on the internal market. Indeed, according to settled case-law, the provisions of the FEU Treaty on freedom of establishment, freedom to provide services and the free movement of capital do not apply to a situation which is confined in all respects within a single Member State. ( 16 ) More specifically, the Court has held that national measures, the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State, do not normally fall within the scope of Article 56 TFEU. ( 17 ) In my view, the same principle should apply, mutatis mutandis, with respect to Articles 49 and 63 TFEU.

29.

Any possible effect of the measures in question on intra-Union trade in services would appear, therefore, too uncertain and indirect for those measures to be regarded as being capable of hindering any fundamental freedom. ( 18 ) Against that backdrop, Articles 26, 49, 56 and 63 TFEU do not seem applicable in the main proceedings.

30.

However, at the hearing the Commission advocated a very broad interpretation of Article 49 TFEU, arguing that the mere fact that the applicant in the main proceedings is a non-Italian company suffices to trigger the application of that provision. In essence, the Commission contends that since the national provisions at issue may have restrictive effects on the carrying-out of the economic activity concerned in Italy, those provisions constitute obstacles to the freedom of establishment. The Commission refers to the CaixaBank France case, ( 19 ) in support of its arguments.

31.

Yet, far from corroborating the Commission’s contentions, that case rather supports the opposite view.

32.

Indeed, in CaixaBank France, Advocate General Tizzano thoroughly explained why the interpretation advocated by the Commission is not correct. In particular, after a detailed analysis of the case-law, he stated that it was ‘difficult to describe national measures that regulate the pursuit of an economic activity without directly affecting access to that activity and without discriminating either in law or in fact between national and foreign operators as restrictions contrary to the Treaty for the sole reason that they reduce the economic attractiveness of pursuing that activity’. He took the view that, ‘where the principle of non-discrimination is respected … a national measure cannot be described as a restriction on the freedom of movement … unless, in the light of its purpose and effects, the measure in question directly affects market access’. ( 20 )

33.

Against that background, after considering the facts of the case, he came to the conclusion that the national measures at issue in that procedure were such as to place the subsidiaries of foreign banks in a less favourable situation de facto than French banks and thus constituted a restriction on the freedom of establishment prohibited by the Treaty. ( 21 ) The judgment of the Court seems to fully endorse that analysis. The Court pointed to the de facto discriminatory aspects of those measures, explaining how they could negatively affect access to the French market by subsidiaries of foreign banks. ( 22 )

34.

Conversely, there is nothing in the case file that suggests that the national provisions at issue may have any effect on intra-Union trade. In any event, even if the Court were to consider that, although the facts of the case seem confined to one Member State, certain cross-border effects of the provisions in question cannot be ruled out, ( 23 ) those provisions would still be compatible with the EU rules on the internal market, for the reasons that I shall explain below.

35.

First, it must be determined which among the FEU Treaty provisions on the internal market referred to by the Consiglio di Stato (Council of State) falls to be applied in the present proceedings. That court refers, indistinctively, to a number of them: Articles 26, 49, 56 and 63 TFEU.

36.

It seems to me that, if the case were to be regarded as not confined to the Italian territory, it would have to be examined in the light of Article 49 TFEU. The national provisions at issue, in fact, limit the possibility for undertakings of providing gaming services in Italy.

37.

Contrariwise, Articles 26, 56 and 63 TFEU appear irrelevant in the present proceedings. Indeed, Article 26 TFEU does not seem to have, at least as concerns the facts of this case, any prescriptive content additional to that of Articles 49, 56 and 63 TFEU. In turn, Article 56 TFEU is inapplicable insofar as the activities regulated require an establishment in Italy. Finally, a separate analysis of the national provisions at issue under Article 63 TFEU does not appear warranted: if anything, the possible effects on cross-border movement of capital are accessory to, and indissociable from, the restrictive effects that the measures in question may have on the provision of services for which that capital is used. ( 24 )

38.

That said, as concerns the existence of a restriction under Article 49 TFEU, I would observe that all measures which prohibit, impede or render less attractive the exercise of the freedoms guaranteed by that provision must be regarded as restrictions on the freedom of establishment. ( 25 )

39.

Therefore, unless the Court finds their effects to be confined to Italy, it would have to conclude that the national provisions at issue constitute a restriction for the purpose of Article 49 TFEU. Indeed, the introduction of more burdensome requirements to obtain concessions for gaming services might dissuade foreign undertakings from establishing themselves in Italy to provide gaming services.

40.

Next, it must be examined whether the restriction to the freedom of establishment may be justified. In that regard, according to settled case-law, legislation on betting and gaming is one of the areas in which there are significant moral, religious and cultural differences between the Member States. Failing any harmonisation on the issue at EU level, the Member States enjoy wide discretion as regards choosing the level of consumer protection and the preservation of order in society which they deem the most appropriate. ( 26 )

41.

The Member States are therefore free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the level of protection sought. ( 27 ) In particular, Member States are entitled to seek a particularly high level of protection in this field. ( 28 ) However, the restrictive measures that the Member States impose must satisfy the conditions laid down in the case-law of the Court as regards, inter alia, their justification by overriding reasons in the general interest and their proportionality. ( 29 )

42.

Accordingly, in order to ascertain whether the restrictions can be justified it is necessary, on the one hand, to identify the objectives pursued by the national provisions at issue and, on the other hand, to determine whether those provisions are consistent with the principle of proportionality.

43.

On the first point, as is apparent from the text of the national provisions at issue and the order for reference, the aim of those provisions was especially to improve the profitability and financial soundness of the concession holders and enhance their respectability and reliability, and combating criminality.

44.

Given the particular situation in which concession holders operate, those are — without doubt — legitimate objectives that may allow a restriction under Article 49 TFEU. The Court has consistently held that the aim of ensuring that providers of betting and gaming services have an economic and financial standing that enables them to fulfil the obligations they may contract towards winning gamers may constitute a reason of overriding public interest capable of justifying a restriction on fundamental freedoms. ( 30 ) A similar conclusion was reached by the Court as regards the objective of combating criminality linked to betting and gaming. ( 31 )

45.

As concerns the second point, it must be determined, in the first place, whether the national provisions at issue are appropriate for contributing to the achievement of those objectives and, then, whether they go beyond what is necessary to that end.

46.

With regard to the first of those aspects, I take the view that requirements such as the obligation to keep the debt ratio below a set limit, and the need to apply for prior authorisation for use of profits for purposes other than investment in the activities covered by the concession, are clearly and directly linked to the objective of improving the profitability and financial soundness of the concession holders. The requirement regarding the use of profits also seems to me related, at least to some extent, to the objective of combating criminality linked to betting and gaming. Indeed, the measure appears apt to ensure that the funds deriving from gaming and betting activities are not channelled towards other activities of a different nature.

47.

The requirement of prior authorisation for operations entailing subjective changes in the concession holder, and for the transfers of shareholdings held by the concession holder that may lead to a reduction in the capital adequacy ratio, are also functional to the abovementioned objective of guaranteeing the viability of concession holders. Indeed, those measures are manifestly intended to ensure that the necessary technical, economic and financial standing of concession holders is achieved not only when the concessions are granted, but also that that standing remains unaffected throughout the duration of the concession. Again, nor do objectives of public order and public security appear to be foreign to these requirements. In fact, they are also intended to avoid the possibility that undertakings that may not meet the ethical and professional standards might, directly or indirectly, obtain the concessions by acquiring a concession holder.

48.

As concerns, then, the aspect of proportionality stricto sensu, I shall call to mind that it is generally for the referring court to determine whether, in the light of all the evidence before it, the national provisions at issue do not go further than is necessary in order to achieve the objective pursued. ( 32 )

49.

In order to provide the referring court with the most useful answer possible, the Court may decide, however, to give information on the factors that must guide that court’s analysis. While keeping in mind the discretion which the Italian authorities enjoy in this field, the following factors seem of potential relevance.

50.

First, the obligation to keep the debt ratio below a set limit — provided that that limit is reasonable and not out of proportion to the likely liability of that undertaking towards its customers — does not appear to be an insurmountable requirement for a reliable operator wishing to exercise the activity of collecting bets. Nothing in the case file suggests that less restrictive measures could have been as effective in pursuing the stated aims.

51.

Second, the referring court should take into account the fact that the national provisions at issue do not lay down a total prohibition as concerns the operations referred to in Article 1(78)(b), subsections 8, 9 and 17 of Law 220/10, but only make them subject to a system of prior authorisation. The restrictive impact of those provisions, which merely introduce a form of public supervision of certain transactions, is thus limited. That said, I would call to mind that, according to settled case-law, a system of prior administrative authorisation must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily. ( 33 )

52.

The Commission argues, however, that a system of simple notification might have been less restrictive in that regard. Nevertheless, I fail to see how such a system would permit the achievement of the objectives sought by the Italian legislature with the same level of effectiveness as the provisions at issue. It is clear that a system of prior authorisation gives the authority the power to react immediately to transactions which it deems problematic, by not allowing those transactions to take place or by requesting more information before taking any decision in that regard. Conversely, a system of notification only serves the purpose of informing the authorities that certain transactions have been or will be carried out, but does not give any specific power of intervention to those authorities.

53.

Finally, as regards the introduction of penalties in case of breach of the new requirements by concession holders, I take the view that they appear to be the necessary companion to the new requirements introduced by the provisions at issue. Indeed, their purpose is to ensure that operators comply with those requirements. Therefore, whether the penalties provided in the national provisions at issue are compatible with the EU rules on free movement depends mainly on two factors. First, if the requirements on which those penalties are based are in breach of Article 49 TFEU, then the penalties too would be incompatible with EU law. ( 34 ) Second, even if the requirements were to be compatible with EU law, the penalties might still be incompatible with EU law because of breach of the principle of proportionality. That would be so if the penalty is so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaties. ( 35 )

54.

Concluding on this point, as for the first of those factors, I have already stated that, in my view, the new requirements do not breach Article 49 TFEU. As for the second factor, it is for the national court to verify it, not least as the order for reference does not include any detailed information on the nature and amount of those penalties.

55.

The referring court also puts emphasis on the fact that the national legislation at issue does not provide, for the benefit of the existing concession holders, for any period of ‘gradual compliance’ with the new requirements.

56.

I must admit that I am somewhat perplexed by that statement. Indeed, it emerges from the very text of Article 1(79) of Law No 220/2010 that existing concession holders have 180 days to sign the addendum to the existing agreement that will include the new requirements. Global Starnet confirmed this at the hearing.

57.

To my mind, a six-month period can hardly be regarded as short or of little significance.

58.

In any event, it is for the national court to assess the adequacy of that period, taking into account that, in the case-law of the Court, whether a transitory period is — in a situation such as that in the main proceedings — necessary before the entry into force of new restrictions depends on a global assessment of all relevant circumstances. In other words, the Court has not ruled that EU law requires national legislation always to provide a transitory period in order to allow economic operators to adapt to a change of policy in a given area of law. ( 36 ) This is also true with regard to betting and gaming services. ( 37 )

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 )

62.

Lastly, I do not see how a claim based on legitimate expectations could, under EU law, be deemed to be well founded.

63.

At the outset, I would call to mind that any such expectation may arise only where a person has received precise, unconditional and consistent assurances originating from authorised and reliable sources. ( 39 ) That implies, on the one hand, that the expectations relating to a particular situation deserving protection under EU law are created by an EU institution ( 40 ) or other body acting as ‘agent’ of the Union (for example, national authorities charged with the task of transposing or implementing EU law) ( 41 ) and, on the other hand, that those expectations are also frustrated by an EU institution or other body acting as ‘agent’ of the Union. ( 42 )

64.

However, in the present case, none of those conditions seems fulfilled. On the one hand, no assurance has been provided by an EU institution or body, or by national authorities acting as agent of the Union. On the other hand, there has been no EU measure that has affected the situation of the applicant in the main proceedings. Indeed, questioned at the hearing, Global Starnet confirmed that: (i) the alleged assurances derive merely from the existence of a given national legislation (that existing before the adoption of the national provisions at issue), and (ii) the alleged violation stems from the mere adoption of the national provisions at issue.

65.

Accordingly, the situation which is in question in the main proceedings, including relating to this issue, does not show any significant aspect of EU relevance. In these circumstances, a claim based on legitimate expectations — if one were to be available — could, at most, be based on national law. At any rate, the conditions required under EU law for such a claim to be successfully invoked are manifestly not satisfied.

66.

Indeed, the Court has consistently stated that, failing any clear and express engagement by the competent authority, a prudent and circumspect investor cannot have any expectation that an existing situation that can be altered by the competent authorities in the exercise of their discretionary power will be maintained. ( 43 ) However, no such clear and express engagement may, as mentioned above, be found in the present case.

67.

That seems to me all the more true in the present case, since Global Starnet agreed to take part in a trial programme in exchange for the right to have its concessions renewed automatically. In my opinion, the reason for having a trial period is precisely to test, during a specific period, the functioning of new services and the effectiveness and adequacy of the rules governing them. It is therefore to be expected — and a prudent economic operator should be aware thereof — that those rules might be amended after the trial phase.

68.

I also note, finally, that the Court has ruled that, at least in certain circumstances, the Italian authorities were required to ensure that both old and new concession holders be subject to the same conditions, in order to ensure that they have equal opportunities in the market. ( 44 ) Against that background, and in the light of the sensitive nature of gaming and betting services, an operator cannot presume that, for the whole duration of its concessions (and even less when its concessions are renewed), no revision whatsoever of the rules governing those activities may be made. In other words, the mere fact that certain rules (especially of a technical nature, such as those at issue in the main proceedings) are amended — including with respect to existing concession holders — cannot automatically result in a breach of legitimate expectations.

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.

70.

Concluding on this point, it seems useful to stress again that, if anything, the adoption of the measures at issue may raise issues under Italian administrative or contract law — which is a matter for the Italian courts to rule on. On the basis of the information included in the case file, and in the light of the arguments submitted by Global Starnet, I see no issue of the incompatibility of those measures with EU law.

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: