The European Court of Justice (ECJ) today pronounced its
long-awaited decision in the joined cases Placanica et al. (Cases C-338/04,
C-359/04 and C-360/04).
Italy may not prosecute Massimiliano, Placanica and others for facilitating
betting without an Italian licence. This is the ruling issued today by the ECJ. The ECJ stated that Italy’s licensing regime had breached Community
principles regarding freedom of establishment and freedom to provide services.
Stanley Leisure, a company listed on the London Stock Exchange, was a company
that was excluded from the call for tender issued by the Italian authorities, when in 1999, the
latter issued 1,000 licenses for sports betting and 671 new licences for horse
events (329 existing licences were automatically renewed). Stanley operated in Italy through data transmission centres
("centri trasmissione dati"), run by independent operators with contractual
links to Stanley, allowing bettors access to Stanley’s servers.
Three of the Italian operators who provided this service were Placanica, Palazzese and Sorricchio.
In 2004, these operators were charged with collecting bets without police
authorisation and were brought before the Tribunale di Larino
and the Tribunale di Teramo. The Italian
Courts referred the case to the ECJ to clarify if the Italian legislation on
betting and gaming is compatible with Community principles. The reason for
bringing these cases before the ECJ was a decision pronounced by the Italian
Cassation Court (Corte suprema di cassazione). Despite the ECJ’s Gambelli
decision rendered in 2003, in its decision no. 23271/04, the Italian court held
that it was not the (national) judge’s task to decide on the adequacy and the
proportionality of criminal sanctions. The license granted to the British
bookmaker could only be attributed territorial character.
On 16 May 2006, the ECJ’s Advocate General published his
comprehensive legal opinion on the case . He came to the conclusion that the
bookmaker’s surveillance in his country of origin was sufficient. The Italian
approach to invoke the territorial character of the bookmaker's permit was in
violation of the principle of full and accurate transposition of Community law.
The ECJ provided that ‘moral, religious or cultural factors’
may be reasonable and justifiable restrictions on freedom of establishment and
freedom to provide services, however, at the same time, Italy was pursuing a
policy of ‘expanding activity in the betting and gaming sector'. The Italian
Government's argument that its licensing regime did protect players and also
protected the betting and gambling industry from exploitation ‘for
criminal purposes’ was deemed by the ECJ to go beyond what is necessary to achieve
the objective of preventing the exploitation of the industry for criminal
purposes. It also provided that arguing that a specific number of
licences is enough for the whole territory is not a sufficient defence and that
the licensing regime still acted as an obstacle to the freedom of establishment
and freedom to provide services.
See also:
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