delivered on 7 April 2022 (1)

Joined Cases C‑475/20 to C‑482/20

Admiral Gaming Network Srl (C‑475/20)

Agenzia delle Dogane e dei Monopoli,

Ministero dell’Economia e delle Finanze,

Presidente del Consiglio dei Ministri,

IGT Lottery SpA, formerly Lottomatica Holding Srl

with the participation of

Lottomatica Videolot Rete SpA,

Associazione concessionari apparecchi da intrattenimento – ACADI

and

Cirsa Italia SpA (C‑476/20)

Gamenet SpA (C‑478/20)

NTS Network SpA (C‑479/20)

Sisal Entertainment SpA (C‑480/20)

Snaitech SpA, formerly Snai SpA (C‑482/20)

Agenzia delle Dogane e dei Monopoli

with the participation of

Coordinamento delle associazioni per la tutela dell’ambiente e dei diritti degli utenti e consumatori (Codacons) (C‑476/20, C‑478/20, C‑480/20 and C‑482/20),

Se. Ma. di Francesco Senese (C‑476/20, C‑478/20 and C‑479/20),

Associazione concessionari apparecchi da intrattenimento – ACADI (C‑476/20, C‑478/20 and C‑479/20),

Criga Soc. cons. arl (C‑478/20),

NAZ Srl unipersonale, formerly Replay Srl (C‑480/20),

Presidenza del Consiglio dei Ministri (C‑480/20 and C‑482/20),

Giog Srl (C‑482/20),

Codere Network SpA (C‑482/20)

and

Codere Network SpA (C‑477/20)

Agenzia delle Dogane e dei Monopoli,

Presidenza del Consiglio dei Ministri,

Se. Ma. di Francesco Senese

with the participation of

Associazione concessionari apparecchi da intrattenimento – ACADI

(Requests for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

References for a preliminary ruling – Freedom of establishment – Article 49 TFEU – Freedom to provide services – Article 56 TFEU – Restrictions – Betting and gambling – Licences for the collection of bets – National legislation reducing the commissions payable to licence holders – Principle of legitimate expectations

1.The present requests for a preliminary ruling have been submitted by the Consiglio di Stato (Council of State, Italy) in sets of proceedings between companies responsible for the management of betting and gambling using slot machines in Italy (‘licence holders’) and the Agenzia delle dogane e dei monopoli (Customs and Monopolies Agency, Italy) concerning a piece of national legislation reducing, on a one-off basis, the State resources made available to those licence holders.

2.By its questions, the referring court seeks to ascertain whether the national legislation at issue in the main proceedings amounts to a restriction on the freedom of establishment (Article 49 TFEU) or the freedom to provide services (Article 56 TFEU), on the one hand, and on the principle of legitimate expectations, on the other. If so, the referring court asks whether such a restriction is (i) justified by overriding reasons in the public interest and (ii) proportionate to the objectives pursued.

II. Legal framework: Italian law

3.Article 14 of Law No 23 of 11 March 2014 (2) provides:

‘1. The government is authorised to implement, by means of the legislative decrees referred to in Article 1, the reorganisation of the provisions in force relating to public gaming, reorganising all the rules in force into a code of provisions on gaming, without prejudice to the organisation model based on the system of licences and permits, in so far as this is indispensable for the protection of legitimate expectations, public policy and public security, for the balancing of the interests of the Treasury against local interests and against wider interests relating to public health, for the prevention of money laundering, and in order to guarantee the regular payment of tax levies on gaming.

…

(g) revision of the commissions and fees payable to licence holders and other operators according to a progressivity criterion connected with stake collection volumes;

…’

4.Article 1(649) of Law No 190 of 23 December 2014 (3) states:

‘For the purpose of contributing to the improvement of public finance objectives, and in anticipation of a more organic reorganisation of the amount of the commissions and fees payable to licence holders and other supply chain operators within the networks for the collection of stakes on behalf of the State, in implementation of Article 14(2)(g) of [the Delegation Law], the reduction, on an annual basis, starting from 2015, in the State resources made available, by way of fees, to the licence holders and other persons who, in accordance with their respective competences, are engaged in the management and collection of stakes using the machines referred to in Article 110(6) of [Royal Decree No 773 of 18 June 1931] shall be set at 500 million euros. Consequently, from 1 January 2015:

(a) the entire amount of the stakes collected using the machines referred to above, net of the winnings paid out, shall be paid to licence holders by supply chain operators. Licence holders shall communicate to the Agenzia delle dogane e dei monopoli the names of the supply chain operators who do not make such payment, including for the purposes of a possible subsequent complaint to the competent judicial authority;

(b) licence holders, in performing the public duties assigned to them, in addition to what is ordinarily paid to the State by way of taxes and other charges payable under the legislation in force and on the basis of licensing agreements, shall also pay annually the sum of 500 million euros, by April and October of each year; each licence holder shall pay a share in proportion to the number of machines allocated to it as at 31 December 2014. The number of machines referred to in Article 110(6)(a) and (b) of [Royal Decree No 773 of 18 June 1931] allocated to each licence holder, as well as the way in which the payment is to be made, shall be established by a decision of the Director of the Agenzia delle dogane e dei monopoli, adopted by 15 January 2015 at the latest, subject to checks. By a similar decision, provision shall be made, from 2016, subject to regular checks, for potential amendments to the number of machines referred to above;

(c) licence holders, in performing the public duties assigned to them, shall divide the sums remaining, available as commissions and fees, among other supply chain operators, renegotiating the contracts relating thereto and paying the commissions and fees due exclusively in view of the conclusion of the renegotiated contracts.’

5.Article 1(649) of the 2015 Stability Law was implemented by Directorial Decree No 388 of 15 January 2015. (4)

6. Article 1(920) of Law No 208 of 28 December 2015 (5) repealed that provision, while Article 1(921) of that law established that that provision ‘… is to be interpreted as meaning that the reduction, on an annual basis, in the State resources made available, by way of fees, to licence holders and other persons who, in accordance with their respective competences, are engaged in the management and collection of stakes using the machines referred to in Article 110(6) of [Royal Decree No 773 of 18 June 1931] applies to each supply chain operator in proportion to its involvement in the distribution of the fees, on the basis of the corresponding contractual arrangements, taking into account the duration of those arrangements in 2015’.

III. The disputes in the main proceedings, the questions referred and the proceedings before the Court

7.By means of licensing agreements concluded in 2013 following a call for tenders published in 2011, the licence holders were made responsible for the management of the machines at issue in the main proceedings. (6) That call for tenders fixed, in particular, the conditions for determining those licence holders’ fees.

8.Pursuant to Article 1(649) of the 2015 Stability Law, which provided for a reduction in the State resources made available to licence holders by an amount of 500 million euros per year, [divided] on the basis of the number of machines allocated (‘the levy at issue’), the Amministrazione Autonoma dei Monopoli di Stato (Independent Authority for the Administration of State Monopolies, Italy), by Directorial Decree No 388 of 15 January 2015, estimated the number of machines allocated to each licence holder for 2015 and wrote off the amounts owed as a result. Article 1(920) and (921) of the 2016 Stability Law subsequently confined the levy at issue to 2015 only and divided that levy among all supply chain operators, and no longer solely among the licence holders.

9.The licence holders brought actions before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) against the levy at issue, inasmuch as it has significantly reduced their profit margin and is unlawful on the ground that the provisions it is implementing are contrary to EU law or the Italian Constitution.

10.Since the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) dismissed those actions by judgments of 1 August 2019, (7) the licence holders each brought an appeal before the Consiglio di Stato (Council of State), which decided, in each of the disputes in the main proceedings, to stay the proceedings and to refer the following questions, which are worded in identical terms in all the cases concerned, to the Court of Justice for a preliminary ruling:

(1)‘(1) Is the introduction of a provision, such as that contained in Article 1(649) of [the 2015 Stability Law], which reduces commission and fees only in respect of a specific and limited category of operator, namely operators of games played on gaming machines, and not in respect of all operators in the gaming sector, compatible with the exercise of the freedom of establishment guaranteed by Article 49 TFEU and with the exercise of the freedom to provide services guaranteed by Article 56 TFEU?

(2)Is the introduction of a provision such as the abovementioned provision contained in Article 1(649) of [the 2015 Stability Law], which for economic reasons alone reduced the fee agreed to in a licensing agreement concluded between a company and an Italian State authority during the term of that agreement, compatible with the EU-law principle of the protection of legitimate expectations?’

11.The Court decided to join those cases for the purposes of the written and oral parts of the procedure and of the judgment, on account of the connection between them, and to submit a question to the referring court in order to clarify whether those cases concern a purely internal situation falling outside the scope of EU law.

12.Written observations were submitted by the licence holders, the Italian Government, and the European Commission. Those parties also made oral submissions at the hearing which took place on 27 January 2022.

13.Before examining the substance of the questions referred for a preliminary ruling, it seems prudent to dispel any doubts with regard to the jurisdiction of the Court to rule on those questions.

14.Although the licence holders are all Italian companies and the circumstances of the present cases seem prima facie to be confined within a single Member State, namely Italy, it suffices to note that some of those companies are controlled by companies in other Member States (8) and that, as the Commission emphasised in its written observations and at the hearing, ‘reverse’ discrimination is prohibited by Italian law. (9)

15.I therefore consider that the Court has jurisdiction to answer the questions referred for a preliminary ruling.

B. The first question

16.By its first question, the referring court seeks to ascertain, in essence, whether Articles 49 and 56 TFEU preclude a piece of national legislation, such as that at issue in the main proceedings, which reduces by 500 million euros, in respect of 2015, the commissions of a single category of operators in the betting and gambling sector, namely operators in the area of the sector concerned with games played on slot machines (licence holders and retailers).

17.The referring court, first, considers that the national legislation at issue in the main proceedings imposed an economic levy, with retroactive effect, on licence holders, which amounts to a restriction on the freedoms guaranteed by Articles 49 and 56 TFEU and, second, has doubts as to whether that restriction is justified by overriding reasons in the public interest, in so far as it appears to be inspired solely by reasons connected with the improvement of public finance objectives.

18. In the following points, I will examine whether the national legislation at issue in the main proceedings amounts to a restriction on the freedom of establishment or the freedom to provide services guaranteed by Articles 49 and 56 TFEU (Section 1) and, if so, I will specify the conditions under which such a restriction may be justified by overriding reasons in the public interest (Section 2), from the point of view of there being such a justification (Section 2(a)) and the proportionality of the national legislation at issue in the main proceedings in the light of the objectives pursued (Section 2(b)), before providing an answer to the first question (Section 3).

1. The existence of a restriction on the freedoms guaranteed by Articles 49 and 56 TFEU

19.According to the Court’s settled case-law, all measures that prohibit, impede or render less attractive the exercise of the freedoms guaranteed by Articles 49 and 56 TFEU must be regarded as restrictions on the freedom of establishment or the freedom to provide services. (10) (11)

20.In this instance, as is noted by the Commission, it seems obvious to me that the reduction in the State resources made available to licence holders, after the licences were granted, is such as to affect the profitability of the investments made by those licence holders and render less attractive the exercise of betting and gambling activities. (12)

Moreover, that finding does not seem to me to have been really challenged by any of the parties to the disputes in the main proceedings. (13) The Italian Government, in particular, has argued, in that regard, that the levy at issue has had a minimal impact on licence holders, which, in any event, does not prevent that levy from amounting to a restriction on the fundamental freedoms. (14)

I therefore take the view that the national legislation at issue in the main proceedings is such as to amount to a restriction on the freedoms guaranteed by Articles 49 and 56 TFEU.

According to the Court’s settled case-law, legislation on betting and gambling is one of the areas in which there are significant moral, religious and cultural differences between the Member States. Failing any harmonisation on the issue at EU level, the Member States enjoy a wide discretion as regards choosing the level of consumer protection and the preservation of order in society which they deem the most appropriate. The Member States are, therefore, free to set the objectives of their policy on betting and gambling and, where appropriate, to define in detail the level of protection sought. However, the restrictive measures that the Member States impose must satisfy the conditions laid down in the case-law of the Court as regards, inter alia, their justification by overriding reasons in the public interest and their proportionality. (15)

Accordingly, in order to examine whether the national legislation at issue in the main proceedings may be justified, it is necessary to determine, first, whether that legislation, in the light of its objectives, serves overriding reasons in the public interest and, second, whether the relevant provisions comply with the principle of proportionality.

(a) The existence of overriding reasons in the public interest

With regard to the objectives pursued by the national legislation at issue in the main proceedings, I note that Article 1(649) of the 2015 Stability Law introduced the levy at issue, first, ‘for the purpose of contributing to the improvement of public finance objectives’ and, second, ‘in anticipation of a more organic reorganisation of the amount of the commissions and fees payable to licence holders and other supply chain operators within the networks for the collection of stakes on behalf of the State, in implementation of [the Delegation Law]’.

So far as concerns, first, the improvement of public finance objectives, I note that the Court has repeatedly held that the objective of maximising public revenue alone cannot permit a restriction on the freedom to provide services. (16) The sole declared aim of the levy at issue – the improvement of public finance objectives – does not therefore constitute a valid justification for the restriction entailed by the national legislation at issue in the main proceedings.

However, the Court has also held that the fact that a restriction on betting and gambling activities incidentally benefits the budget of the Member State concerned does not mean that the restriction may not be justified in so far as it, from the outset, in fact pursues objectives relating to overriding reasons in the public interest, which it is for the national court to verify. (17)

In that regard, the Italian Government, in its written observations and at the hearing, has argued that, beyond the wording of the relevant provisions, they form part of a broader context of restoring the balance within the betting and gambling sector. In that context, the national legislation at issue in the main proceedings also pursues the objective of reducing the profitability of betting and gambling activities in order to combat the spread of illegal gaming activities and to protect the most vulnerable sections of the population from effects associated with betting and gambling, in particular the risk of addiction to gambling.

It seems to me that such objectives, in so far as they are relevant in this instance, may prima facie amount to overriding reasons in the public interest capable of justifying a restriction on the freedom of establishment or the freedom to provide services.

That being said, it is for the referring court, which, in its requests for a preliminary ruling, did not note the existence of such objectives, to identify the objectives in fact pursued by the national legislation at issue in the main proceedings (18) and, more specifically, to verify whether that legislation also pursues, in addition to the declared aim of improving public finance objectives, the aims of preventing the spread of illegal gaming activities and protecting the most vulnerable sections of the population from the risk of addiction to gambling.

So far as concerns, second, the reorganisation of commissions and fees referred to in Article 1(649) of the 2015 Stability Law, I note that Article 14 of the Delegation Law effectively authorised the government to implement the reorganisation of the provisions then in force relating to public gaming, including the revision of the commissions and fees payable to licence holders and other supply chain operators in the betting and gambling sector, ‘according to a progressivity criterion connected with stake collection volumes’.

However, subject to the verifications which it is for the referring court to carry out, it does not seem to me that such general reorganisation was pursued by the national legislation at issue in the main proceedings. As is apparent from the wording of Article 1(649) of the 2015 Stability Law, that legislation is to take effect in anticipation of that reorganisation and for the purpose of improving public finance objectives (and not reorganising commissions and fees). (19) In addition, the levy at issue was determined not according to a progressivity criterion connected with stake collection volumes laid down by the Delegation Law, but according to a fixed amount divided among licence holders (20) on the basis of the number of machines managed, irrespective of the profitability of those machines. (21)

(b) The proportionality of the restriction in the light of the objectives pursued

According to the Court’s settled case-law, the restrictions imposed by the Member States must be suitable for ensuring attainment of the objective pursued and not go beyond what is necessary in order to attain that objective. It should also be recalled in this connection that national legislation is suitable for ensuring attainment of the objective relied on only if it in fact reflects a concern to attain it in a consistent and systematic manner. (22)

It is also settled case-law that it is the Member State wishing to rely on an objective capable of justifying the restriction on the freedom to provide services which must supply the court called on to rule on that question with all the evidence of such a kind as to enable the court to be satisfied that the measure does indeed comply with the requirements deriving from the principle of proportionality. (23)

In this instance, it is for the referring court to verify, on the basis of the evidence provided by the Member State in question, whether the national legislation at issue in the main proceedings, reducing the profitability of betting and gambling activities, (i) is necessary to attain, in a consistent and systematic manner, the additional objectives referred to by the Italian Government, that is to say, those relating to preventing the spread of illegal gaming activities and protecting the most vulnerable sections of the population from the risk of addiction to gambling, (24) and (ii) does not go beyond what is necessary in order to attain those objectives.

To that end, the referring court must carry out an overall assessment of the circumstances surrounding the adoption and implementation of the national legislation at issue in the main proceedings. In my view, it cannot be overlooked that that legislation (despite being of a temporary and partial nature, relating to only one specific, albeit very lucrative, sub-sector within the wider betting and gambling sector), (25) far from being an isolated measure, forms part of the broader framework defined by the 2015 Stability Law and concerns the adoption of several measures, including measures relating to the improvement of public finance objectives, in completely different areas.

3. The answer to be given to the first question

In the light of all of the foregoing, I propose that the answer to the first question should be that a piece of national legislation which reduces, on a one-off basis, the State resources made available to holders of licences for betting and gambling using slot machines amounts to a restriction on the freedom of establishment or the freedom to provide services guaranteed by Articles 49 and 56 TFEU respectively, inasmuch as it is such as to render less attractive the exercise of betting and gambling activities using slot machines.

Such a restriction may nevertheless be justified by overriding reasons in the public interest, in so far as the national court concludes, following an overall assessment of the circumstances surrounding the adoption and implementation of that legislation, that it in fact pursues, in a consistent and systematic manner, objectives relating to the public interest, such as those of preventing the spread of illegal gaming activities and protecting the most vulnerable sections of the population from the risk of addiction to gambling. The mere fact that a restriction on betting and gambling activities refers to the improvement of public finance objectives does not preclude that restriction from being regarded as in fact pursuing from the outset objectives relating to the public interest or from pursuing them in a consistent and systematic manner.

By its second question, the referring court seeks to ascertain, in essence, whether the principle of the protection of legitimate expectations precludes a piece of national legislation, such as that at issue in the main proceedings, which for economic reasons alone reduces the fee agreed to in a licensing agreement between a company and the administration of the Member State concerned during the term of that agreement.

The referring court has doubts as to whether the national legislation at issue in the main proceedings is compatible with that principle, given that it has an impact on already ongoing licensing agreements and appears to be unforeseeable for a careful and attentive entrepreneur. (26)

According to the Court’s settled case-law, the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, inter alia, that rules of law be clear, precise and predictable in their effect, especially when they may have adverse consequences for individuals and undertakings. However, an economic operator may not place reliance on there being no legislative amendment whatever, but can call into question only the arrangements for the implementation of such an amendment. (27)

It is also settled case-law that the principle of the protection of legitimate expectations may be relied on by any economic operator on whose part national authorities have created reasonable expectations. However, where a prudent and circumspect economic operator could have foreseen the adoption of a measure likely to affect his, her or its interests, he, she or it cannot plead that principle if the measure is adopted. Moreover, economic operators cannot justifiably claim a legitimate expectation that an existing situation which may be altered by the national authorities in the exercise of their discretionary power will be maintained. (28)

It is for the referring court alone to determine whether a piece of national legislation such as that at issue in the main proceedings is compatible with the principle of the protection of legitimate expectations, as the Court of Justice, when giving a preliminary ruling under Article 267 TFEU, has jurisdiction only to provide the national court with all the criteria for the interpretation of EU law which may enable it to determine the issue of compatibility. The referring court may take into account, for that purpose, all relevant factors which are apparent from the terms, objectives or general scheme of the legislation concerned. (29)

In that regard, I note, first of all, that, as has been pointed out in point 23 of the present Opinion, Member States enjoy a wide discretion with regard to their policy on betting and gambling. Furthermore, the betting and gambling sector has been the subject of constant and varied interventions by the Italian legislature in recent years. (30)

Next, while the 2011 call for tenders laid down specific rules for determining the fees payable to licence holders, who were awarded licences in 2013, I note that, as is argued by the Italian Government, the contractual relationship between economic operators and public authorities connected with the licensing system is a dynamic one which allows for interventions on the part of the State justified by objectives relating to the public interest, especially if, subject to verification by the referring court, the national legislation at issue in the main proceedings in fact pursues the objectives of combating the spread of illegal gaming activities and protecting the most vulnerable sections of the population from the risk of addiction to gambling, in accordance with what is set out in points 30 and 32 of the present Opinion.

Lastly, as is argued by the Italian Government, the Delegation Law, adopted in 2014, provided for the revision of the commissions and fees payable to licence holders and other operators. (31)

It is therefore true that the levy at issue imposed on licence holders amounted to an amendment at very short notice to the conditions laid down in the licensing agreements. (32) However, it seems to me that the evolving and de facto uncertain nature of betting and gambling legislation, as well as the temporary nature of the levy at issue and, subject to verification by the referring court, its limited impact on the profitability of the investments made by licence holders, ensure that the legislative intervention in question is far from being so exceptional or unforeseeable as to create, in the minds of licence holders, a legitimate expectation that the conditions provided for in their licencing agreements will remain unchanged. (33)

In conclusion, I consider that it is for the referring court, taking into account all the foregoing factors and any other circumstances relevant to the disputes before it, to examine whether the licence holders, as prudent and circumspect [economic] operators, had sufficient information on the basis of which they could expect that there would be an amendment, such as the levy at issue, to the national legislation at issue in the main proceedings.

Consequently, I propose that the answer to the second question should be that the principle of the protection of legitimate expectations does not preclude, in principle, a piece of national legislation which reduces, for a given year and in respect of limited amounts, the fee agreed in a licencing agreement regarding betting and gambling using slot machines. It is, however, for the referring court to examine, in the context of a specific assessment of all the relevant circumstances, whether that principle has been observed in the disputes in the main proceedings.

In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Consiglio di Stato (Council of State, Italy) for a preliminary ruling as follows:

A piece of national legislation which reduces, on a one-off basis, the State resources made available to holders of licences for betting and gambling using slot machines amounts to a restriction on the freedom of establishment or the freedom to provide services guaranteed by Articles 49 and 56 TFEU respectively, inasmuch as it is such as to render less attractive the exercise of betting and gambling activities using slot machines.

Such a restriction may nevertheless be justified by overriding reasons in the public interest, in so far as the national court concludes, following an overall assessment of the circumstances surrounding the adoption and implementation of that legislation, that it in fact pursues, in a consistent and systematic manner, objectives relating to the public interest, such as those of preventing the spread of illegal gaming activities and protecting the most vulnerable sections of the population from the risk of addiction to gambling. The mere fact that a restriction on betting and gambling activities refers to the improvement of public finance objectives does not preclude that restriction from being regarded as in fact pursuing from the outset objectives relating to the public interest or from pursuing them in a consistent and systematic manner.

2.The principle of the protection of legitimate expectations does not preclude, in principle, a piece of national legislation which reduces, for a given year and in respect of limited amounts, the fee agreed in a licencing agreement regarding betting and gambling using slot machines. It is, however, for the referring court to examine, in the context of a specific assessment of all the relevant circumstances, whether that principle has been observed in the disputes in the main proceedings.

Original language: French.

Legge n. 23 – Delega al Governo recante disposizioni per un sistema fiscale più equo, trasparente e orientato alla crescita (Law No 23 – Delegation to the government laying down rules for a fairer, more transparent and growth-oriented tax system) of 11 March 2014 (GURI No 59 of 12 March 2014) (‘the Delegation Law’).

Legge n. 190 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2015) (Law No 190 laying down rules for the preparation of the annual and multiannual State budget (2015 Stability Law)) of 23 December 2014 (Ordinary Supplement to GURI No 300 of 29 September 2014) (‘the 2015 Stability Law’).

Decreto direttoriale n. 388 dell’Amministrazione Autonoma dei Monopoli di Stato (AAMS) (Directorial Decree No 388 of the Independent Authority for the Administration of State Monopolies) of 15 January 2015 (prot. n. 4076/RU) [(‘Directorial Decree No 388 of 15 January 2015’)].

Legge n. 208 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2016) (Law No 208 laying down rules for the preparation of the annual and multiannual State budget (2016 Stability Law)) [of 28 December 2015] (Ordinary Supplement to GURI No 302 of 30 December 2015) (‘the 2016 Stability Law’).

More specifically, amusement with prize (AWP) and video lottery terminal (VLT) machines.

In the course of the proceedings, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) referred a question regarding the constitutionality of Article 1(649) of the 2015 Stability Law to the Corte costituzionale (Constitutional Court, Italy), which, following the entry into force of the 2016 Stability Law, which repealed that provision, referred the matter back to the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) so that it might re-examine the relevance of that question. The Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) then dismissed the actions, ruling, in essence, that the entry into force of Article 1(920) and (921) of the 2016 Stability Law had resolved all legal defects of the relevant provisions.

Furthermore, another licence holder affected by the levy, namely Global Starnet Ltd, which is itself a foreign company, brought an action against Directorial Decree No 388 of 15 January 2015, which gave rise to a subsequent request for a preliminary ruling (Case C‑463/21) which has been stayed pending the decision to be taken in the present joined cases.

In that regard, I note that the Court has repeatedly declared that it has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (see judgment of 21 November 2019, Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:999, paragraph 36 and the case-law cited)). Furthermore, in this instance, none of the parties to the disputes really challenges either the jurisdiction of the Court or the admissibility of the questions referred.

I note, in passing, that betting and gambling services may be provided both through a permanent establishment and in the context of a one-off supply of services and that, in this instance, it is not necessary to draw a distinction between the freedom of establishment and the freedom to provide services.

See judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 35 and the case-law cited).

I note that the discussion between the parties concerned above all questions relating to the existence of justifications based on overriding reasons in the public interest and the proportionality of the national legislation at issue in the main proceedings in the light of the objectives pursued.

It is settled case-law that the concept of a ‘restriction’ on the fundamental freedoms is not subject to a de minimis rule (see inter alia, to that effect, judgment of 3 December 2014, De Clercq and Others (C‑315/13, EU:C:2014:2408, paragraph 61 and the case-law cited)).

See judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraphs 39 and 40 and the case-law cited).

See judgment of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 60 and the case-law cited).

See judgment of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 61 and the case-law cited).

See judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 43 and the case-law cited).

Moreover, that legislation affects only a part of the betting and gambling sector, namely the part relating to slot machines.

The levy at issue was then divided among all the supply chain operators pursuant to Article 1(920) and (921) of the 2016 Stability Law.

Furthermore, without prejudice to the verifications which it is for the referring court to carry out, it is not apparent from the evidence in the file that that reorganisation was subsequently carried out.

See judgment of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 64 and the case-law cited).

See judgment of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 65 and the case-law cited).

Provided that it in fact pursues those objectives, which it is for the referring court to verify (see points 28 to 30 of the present Opinion).

That legislation was in force for only one year (2015) and concerned only betting and gambling connected with the use of slot machines.

Moreover, according to that court, the exceptional nature of that measure does not call into question the need for an answer to the question referred, since the scope of that question is considerable and the national legislature could adopt a new and identical measure.

See judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraphs 46 and 47). In particular, the principle of legal certainty does not require that there be no legislative amendment, requiring as it does, rather, that the national legislature take account of the particular situations of economic operators and provide, where appropriate, adaptations to the application of the new legal rules (see judgment of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 79 and the case-law cited).

See judgment of 15 April 2021, Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others (C‑798/18 and C‑799/18, EU:C:2021:280, paragraph 42 and the case-law cited).

See, inter alia, judgment of 15 April 2021, Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) and Others (C‑798/18 and C‑799/18, EU:C:2021:280, paragraph 43 and the case-law cited).

Those numerous interventions on the part of the Italian legislature have regularly been the subject of references for a preliminary ruling from the Italian courts (see, in particular, judgments of 21 October 1999, Zenatti (C‑67/98, EU:C:1999:514); of 6 November 2003, Gambelli and Others (C‑243/01, EU:C:2003:597).

of 6 March 2007, Placanica and Others (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133); of 16 February 2012, Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80); of 28 January 2016, Laezza (C‑375/14, EU:C:2016:60); of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985); of 19 December 2018, Stanley International Betting and Stanleybet Malta (C‑375/17, EU:C:2018:1026); and of 2 September 2021, Sisal and Others (C‑721/19 and C‑722/19, EU:C:2021:672)).

(<span class="coj-note"><a id="t-ECR_62020CC0475_EN_01-E0031" href="#c-ECR_62020CC0475_EN_01-E0031">31</a></span>) Although that law provided for the revision of the commissions and fees at issue according to a progressivity criterion connected with the collection volumes of stakes payable to licence holders and that, as I have noted in points 28 and 29 of the present Opinion and subject to verification by the referring court, the national legislation at issue in the main proceedings does not form part of such an overall revision, the fact remains that the Italian legislature had expressed its intention to intervene again in the sector in question.

(<span class="coj-note"><a id="t-ECR_62020CC0475_EN_01-E0032" href="#c-ECR_62020CC0475_EN_01-E0032">32</a></span>) In that regard, I note that, in principle, an economic operator who has made costly investments in order to comply with the scheme adopted previously by the legislature could see his, her or its interests considerably affected by the withdrawal of that scheme before the date announced, all the more so if that withdrawal takes place suddenly and unforeseeably, without leaving him, her or it enough time to adapt to the new legal situation (see judgment of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 87 and the case-law cited)).

(<span class="coj-note"><a id="t-ECR_62020CC0475_EN_01-E0033" href="#c-ECR_62020CC0475_EN_01-E0033">33</a></span>) In my view, those circumstances also reduce the need for an ‘adjustment period’, as referred to in the case-law cited in footnote 32 of the present Opinion.