Costa (Freedom of establishment) [2012] EUECJ C-72/10 (16 February 2012)

Costa (Freedom of establishment) [2012] EUECJ C-72/10 (16 February 2012)

Articles 43 EC and 49 EC, the principles of equal treatment, effectiveness, transparency, and legal certainty preclude a Member State from protecting the market positions of existing operators by imposing minimum distance requirements or unclear grounds for licence withdrawal, where such measures perpetuate the effects of an earlier unlawful exclusion from a licensing procedure. Penalties for operating without a licence cannot be imposed on persons linked to an operator unlawfully excluded from a previous tendering procedure, if the new procedure does not effectively remedy the exclusion.

Citation
[2012] EUECJ C-72/10
Parties
Defendant: Mr Costa; Defendant: Mr Cifone; Interested Party: Stanley International Betting Ltd; Regulatory Authority: AAMS (Independent Authority for the Administration of State Monopolies); Respondent: Italian Government
Jurisdiction
European Union
Judgment Date
16 February 2012
Procedural Posture
Preliminary Ruling (joined Cases C 72/10 and C 77/10) / Judgment of the Court of Justice of the European Union
Outcome
References for a preliminary ruling answered; national rules precluding.
Legal Topics
Freedom of Establishment, Freedom to Provide Services, Licensing of Betting and Gaming, Non Discrimination, Transparency in Public Procurement, Principle of Legal Certainty
European Union Law Criminal Law Administrative Law Freedom of Establishment Freedom to Provide Services Licensing of Betting and Gaming Non Discrimination Transparency in Public Procurement +1 more

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Parties

Mr Costa

Defendant

Mr Cifone

Defendant

Stanley International Betting Ltd

Interested Party

AAMS (Independent Authority for the Administration of State Monopolies)

Regulatory Authority

Italian Government

Respondent

Procedural Posture

Preliminary Ruling (joined Cases C 72/10 and C 77/10) / Judgment of the Court of Justice of the European Union

Legal Issues

  1. 1 Whether national rules establishing a state monopoly and a system of licences and authorisations for betting, which protect existing licence holders and restrict new entrants, are compatible with Articles 43 EC and 49 EC (freedom of establishment and freedom to provide services)
  2. 2 Whether penalties for operating without a licence can be imposed on persons linked to operators unlawfully excluded from previous tendering procedures, even after new procedures are held

Ratio Decidendi

Articles 43 EC and 49 EC, the principles of equal treatment, effectiveness, transparency, and legal certainty preclude a Member State from protecting the market positions of existing operators by imposing minimum distance requirements or unclear grounds for licence withdrawal, where such measures perpetuate the effects of an earlier unlawful exclusion from a licensing procedure. Penalties for operating without a licence cannot be imposed on persons linked to an operator unlawfully excluded from a previous tendering procedure, if the new procedure does not effectively remedy the exclusion.

Court Disposition

References for a preliminary ruling answered; national rules precluding.

Orders

  • Articles 43 EC and 49 EC preclude national rules protecting existing operators' market positions by minimum distance requirements after unlawful exclusion of others from licensing.
  • Penalties for operating without a licence cannot be imposed on persons linked to an operator unlawfully excluded from a previous tendering procedure, if the new procedure does not remedy the exclusion.