Today, the Court of Justice of the European Union (CJEU) ruled on the case Politano (C-225/15), concerning Italian secondary legislation that excludes operators from tender proceedings if they failed to provide a declaration from two different banks proving their financial capacity. The CJEU judgment follows the Advocate General's opinion that the proportionality test is required to determine the necessity and consistency also of requirements established by national secondary legislation on the award of gambling licences to EU-based operators.
The CJEU reiterated that Member States have to ensure that measures defining the award of licences are in compliance with the fundamental freedoms of EU law to guarantee access to and exercise of operators' economic activities in the EU under proportionate and non-discriminatory conditions. It is now for the Italian national court to verify if the requirements at question, given all the circumstances of the case, are suitable and necessary to achieve the aim of the Italian secondary legislation by reasons of overriding public interest, according to the CJEU's proportionality test.
The CJEU ruled that:
It is "necessary to determine whether the restriction at issue in the main proceedings issuitable for ensuring the attainment of the objective pursued and does not go beyond what is necessary in order to achieve that objective [of combating criminality and protecting consumers by ensuring that the licensees' economic and financial capacities enable them to carry out their activity over a longer term], including by ensuring that the national legislation at issue genuinely reflects a concern to attain it in a consistent and systematic manner" (para 44).
The requirement "imposed on tenderers which had been formed for less than two years and whose overall revenues […] 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" (para 48).
The CJEU stated that "such an assessment must be carried out solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure" (para 47). The restriction will only be justified "where such a provision is capable of satisfying the conditions of proportionality laid down by the case-law of the Court, which is for the referring court to ascertain" (para 50).
Maarten Haijer, Secretary General of EGBA, underlines:
"The CJEU has recalled that national legislation prohibiting, impeding or rendering less attractive the offer of games of chance within the single market are in violation of the freedom of establishment and the freedom to provide services. Member States must reconsider the proportionality of requirements under primary as well as under secondary legislation".
Conformity of the Italian legislation on games of chance with EU law has been disputed several times before the CJEU, which has created consistent case law on the subject, including most recently, about the conditions imposed on operators for the tender proceedings launched in 2012, that gave rise to the preliminary judgments of 22 January 2015, Stanley International Betting and Stanleybet Malta (C-463/13) and 28 January 2016, Laezza (C-375/14).