Case C‑225/15

Criminal proceedings

against

Domenico Politanò

(Request for a preliminary ruling from the

Tribunale di Reggio Calabria)

‛Reference for a preliminary ruling — Article 49 TFEU — Freedom of establishment — Betting and gambling — Restrictions — Overriding reasons of public interest — Proportionality — Public procurement — Conditions for participating in a call for tenders and assessment of economic and financial standing — Exclusion of the tenderer for not presenting certificates of economic and financial standing issued by two different banks — Directive 2004/18/EC — Article 47 — Applicability’

Summary — Judgment of the Court (Second Chamber), 8 September 2016

1. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context

   (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Public service concession — Excluded — Criteria for distinguishing between a public service contract and a service concession

   (European Parliament and Council Directive 2004/18, Arts 1(2)(a) and (b), 17 and 47)

3. Freedom of establishment — Freedom to provide services — Restrictions — Betting and gaming — National legislation making the participation in a procedure for the grant of concessions for collecting bets subject to the presentation of bank statements proving the operator’s economic and financial standing — Not permissible — Justification — Overriding reasons in the general interest — Objective of combating criminality — Obligation of satisfying the condition of proportionality — Determination by the national court

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 22-24)

2.  Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in particular Article 47, must be interpreted as meaning that national legislation governing the grant of concessions in the field of betting and gambling does not fall within its scope.

   Directive 2004/18 involves procedures for the award of public service contracts and not those relating to service concessions, which are excluded from the scope of that directive pursuant to Article 17 thereof. In that respect, as regards distinguishing between a public service contract and a service concession, while the method of remuneration is one of the determining factors for the classification of a service concession, such a classification implies that the service supplier takes the risk of operating the services in question and that the absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession. Therefore, where a service provider receives no remuneration from the contracting authority and bears the entire risk associated with the activity of collecting and transmitting bets, such a concession cannot be classified as a public contract for services within the meaning of Article 1(2)(a) and (b) of Directive 2004/18.

   (see paras 29, 31-34, operative part 1)

3.  Article 49 TFEU must be interpreted as not precluding a national provision which imposes on operators wishing to respond to a call for tenders for the grant of concessions in the field of betting and gambling the obligation of providing evidence of their economic and financial standing by means of statements issued by at least two banks, without also allowing that standing to be proved by other means, where such a provision is capable of satisfying the conditions of proportionality, which is for the referring court to ascertain.

   The Member States are therefore free to set the objectives of their policy on betting and gambling and, where appropriate, to define in detail the level of protection sought as regards consumer protection and the preservation of order in society. However, the restrictive measures that the Member States impose must satisfy conditions as regards inter alia their justification by overriding reasons in the general interest and their proportionality. In that regard, in relation to a national provision 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 and by the interest in protecting consumers, such an objective may be a reason of overriding public interest capable of justifying a restriction on fundamental freedoms.

   In relation to the question of whether that restriction is suitable for ensuring the attainment of the objective pursued, the obligation of providing bank statements from two banks is manifestly capable of ensuring that the economic operator has an economic and financial standing enabling him to fulfil the obligations he may contract towards winning gamblers. In view of the particular nature of economic activities in the betting and gambling sector, the requirement imposed on tenderers which had been formed for less than two years and whose overall revenues linked to the activity of gaming operator were below two million euros during the two most recent business years to provide appropriate statements issued by at least two banks does not appear to go further than is necessary in order to achieve the objective pursued.

   (see paras 40, 42, 43, 45, 46, 48, 50, operative part 2)