«(Right of establishment – Freedom to provide services – Collection of bets on sporting events in one Member State and transmission by internet to another Member State – Prohibition enforced by criminal penalties – Legislation in a Member State which reserves the right to collect bets to certain bodies)»

Freedom of establishment – Freedom to provide services – Restrictions – National legislation prohibiting, on pain of criminal penalty, the collection of bets without a licence or authorisation – Not permissible – Justification in the public interest – Compliance with the principles of proportionality and non-discrimination – Investigation by the national courts (Arts 43 EC and 49 EC) National legislation which prohibits on pain of criminal penalties the pursuit of the activities of collecting, taking, booking and forwarding offers of bets, in particular on sporting events, without a licence or authorisation from the Member State concerned constitutes a restriction on freedom of establishment and the freedom to provide services provided for in Articles 43 EC and 49 EC respectively, which, to be justified, must be based on imperative requirements in the general interest, be suitable for achieving the objective which they pursue and not go beyond what is necessary in order to attain it and be applied without discrimination.In that connection, it is for the national court to determine whether such legislation, taking account of the detailed rules for its application, actually serves the aims which might justify it, and whether the restrictions it imposes are disproportionate in the light of those objectives.In particular, in so far as the authorities of a Member State incite and encourage consumers to participate in lotteries, games of chance and betting to the financial benefit of the public purse, the authorities of that State cannot invoke public order concerns relating to the need to reduce opportunities for betting in order to justify measures such as those at issue in the main proceedings. Furthermore, where a criminal penalty was imposed on any person who from his home in a Member State connects by internet to a bookmaker established in another Member State the national court must consider whether this constitutes a disproportionate penalty.see paras 65, 69, 72, 76, operative part

JUDGMENT OF THE COURT 6 November 2003 (1)

((Right of establishment – Freedom to provide services – Collection of bets on sporting events in one Member State and transmission by internet to another Member State – Prohibition enforced by criminal penalties – Legislation in a Member State which reserves the right to collect bets to certain bodies))

In Case C-243/01,

REFERENCE to the Court under Article 234 EC by the Tribunale di Ascoli Piceno (Italy) for a preliminary ruling in the criminal proceedings before that court against

on the interpretation of Articles 43 EC and 49 EC,

THE COURT,,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans and J.N. Cunha Rodrigues (Presidents of Chambers), D.A.O. Edward (Rapporteur), R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: S. Alber,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Gambelli and others, represented by D. Agnello; of Mr Garrisi, represented by R.A. Jacchia and A. Terranova; of the Italian Government, represented by A. Cingolo, avvocato dello Stato; of the Belgian Government, represented by P. Vlaemminck; of the Greek Government, represented by M. Apessos; of the Spanish Government, represented by L. Fraguas Gadea; of the French Government, represented by P. Boussaroque, acting as Agent; of the Portuguese Government, represented by A. Barros; of the Finnish Government, represented by E. Bygglin; and of the Commission, represented by A. Aresu and M. Patakia, at the hearing on 22 October 2003,

after hearing the Opinion of the Advocate General at the sitting on 13 March 2003,

gives the following

Community legislation

National legislation

...Article 4aThe penalties laid down in this article shall be applicable to any person who without the concession, authorisation or licence required by Article 88 of [the Royal Decree] carries out activities in Italy for the purpose of accepting or collecting, or, in any case, assisting in the acceptance or collection in any way whatsoever, including by telephone or by data transfer, of bets of any kind placed by any person in Italy or abroad.Article 4b... the penalties provided for by this article shall be applicable to any person who carries out the collection or registration of lottery tickets, pools or bets by telephone or data transfer without being authorised to use those means to effect such collection or registration.

Observations submitted to the Court

The Court's reply

On those grounds,

THE COURT,

in answer to the question referred to it by the Tribunale di Ascoli Piceno by an order of 30 March 2001, hereby rules:

Skouris

Jann

Timmermans

Cunha Rodgrigues

Edward

Schintgen

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 6 November 2003.

R. Grass

V. Skouris

Registrar

President