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 Italys 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 Stanleys 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 ECJs Gambelli decision rendered in 2003, in its decision no. 23271/04, the Italian court held that it was not the (national) judges 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 ECJs Advocate General published his comprehensive legal opinion on the case . He came to the conclusion that the bookmakers 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.
