On 28 January 2016, the ECJ held that terms in Italian gaming licences requiring licensees to transfer, free of charge, the rights to tangible and intangible assets constituting network for the management and collection of bets at the expiry or termination of the license to be in breach EU law.
The case concerned the collection of bets for foreign operators through Data Transmission Centres and assessed the fundamental freedoms of establishment and services in Articles 49 and 56 of the Treaty (TFEU).
It is settled law that all measures which prohibit, restrict or make less attractive the exercise of the freedoms of establishment and services must be regarded as restrictions on those freedoms. Exceptions may be permitted on grounds of public policy, public security or public health, or where a provision is applied in a non-discriminatory manner, or is justified by overriding reasons in the public interest such as consumer protection and the prevention of fraud. Notwithstanding the justification, restrictions also must be proportionate and must not go beyond what is necessary in order to achieve the relevant objective.
The European Court has held previously that the objective of combating criminality linked to betting and gambling is capable of justifying restrictions on fundamental freedoms (Biasci). However, in the current case, the Court found that the restrictions were neither non-discriminatory, nor proportionate. The requirement to transfer equipment & network free of charge to the National Monopolies Agency (CMA) or to another licensee was not applied systematically, but rather at the express request of the CMA. The Court held that the compulsory transfer free of charge was contrary to the requirement of proportionality, particularly because the objective of continuity of the services could be attained by less restrictive measures, such as a transfer at market value.
The ECJ therefore held that Articles 49 and 56 of the TFEU protecting the fundamental freedoms of establishment and services must preclude a restrictive national provision, such as that imposed in Italy, in so far as that restriction goes beyond what is necessary to attain the intended objecti