After the annulment of some preventive seizure decrees against its data centers - writes the BETPASSION Legal Team - the Maltese company aims to obtain a ruling from the Supreme Court of Cassation with the appeal lodged against a review order issued in contempt of the principles crystallized by the Court of Justice of the European Union with the "Biasci" sentence of 12 September 2013.
BETPASSION has not only asked to solemnly sanction the correct interpretation of the community sentence. Leveraging on it ratio which founded the preliminary reference to the CJEU by the Council of State last August 20, 2013, another profile of illegitimacy of the tender announced by AAMS in 2012 was censored which should lead the Ermines to appeal again to the Community judge.
To determine an undue further advantage in favor of competitors already present on the market by virtue of procedures carried out in violation of European law, as enshrined in the "Placanica" and "Costa-Cifone" decisions, there is in fact the requirement of a minimum turnover imposed on bookmaker in the two years preceding the application to participate in the tender.
This distinction is not only prejudicial to newly established companies or companies with less economic capacity but also unreasonable, since it cannot be preordained to the achievement of the alleged aim of preventing criminal organizations from gaining access to the gaming chain.
The legal department of BETPASSION has also identified in the latest sentence of the European Court of Justice of 12 September 2013, "Biasci", an operational fallout for all community gaming operators.
The CJEU issued the "Biasci" sentence to answer two questions raised by the Tuscany Regional Administrative Court concerning:
1) theinapplicability in Italian law of the mutual recognition of licenses in the field of gambling;
2) the compatibility with Union law of the police authorization procedure envisaged by article 88 of the TULPS
According to the Court of Giustizia of the European Union, the Italian State is entitled to impose on foreign companies interested in carrying out activities related to gambling through direct contact bookmaker – player, the obligation to obtain a police authorization in Italy in addition to a license issued by the AAMS, even if they already have an equal license issued by another EU Member State.
However, the CJEU appropriately specified, due to the interdependence between police authorization - AAMS concession, that "The lack of police authorization cannot therefore be charged to subjects who have failed to obtain such authorizations due to the fact that the issue of such authorization presupposes the award of a concession, from which the said subjects were unable to benefit in violation of the Union law” (see par. 28, CJEU judgment of 12.9.2013 “Biasci”), unequivocally confirming the outcome already reached with the previous judgments “Placanica” and “Costa-Cifone”.
As for the second question submitted to it, the CJEU solemnly stated that "Articles 43 EC and 49 EC they hinder to national legislation which effectively prevents any cross-border activity in the gaming sector regardless of the form of carrying out the aforementioned activity and, in particular, in cases where there is direct contact between the consumer and the operator and physical control is possible, for public safety purposes, of intermediaries of the company present in the area” (see par. 37, CJEU judgment of 12.9.2013 “Biasci”).
The responses to the two preliminary rulings must be read together to be well understood, bearing in mind that Community jurisprudence is now solid in observing that the fundamental rights enshrined in the Treaty Establishing the European Community can be compressed by Member States only for reasons of public, of public safety e of public health where they are attributable to overriding reasons of general interest.
The key to understanding the "Biasci" judgment, therefore, rests on the consideration that the CJEU, called to answer on the legitimacy of the license ex art. 88 TULPS, has considered both possible operating modes of a bookmaker foreigner in Italy.
Let it be direct modebookmaker – player, which arises when the foreign operator, already holder of a license issued by another Member State, has no intermediary located on Italian territory and offers its services directly to the player: in this case it is known that the bookmaker foreigner must have both an Italian AAMS concession and a police authorisation ex art. art. 88 TULPS
Let it be indirect or cross-border modebookmaker – CED intermediary – player, which occurs when the foreign gaming operator, already the holder of a license issued by another Member State, offers its services online through the intermediation of data centers physically located in the State of the Italian player: in this case the CJEU observes that "there is direct contact between the consumer and the operator and a physical check of the intermediaries is possible, for purposes of public safety (EDC) of the company present in the area".
In other words, in the case of cross-border activity, being possible pursuant to articles 11 and 88 TULPS a physical check for public security purposes of the intermediaries present in the area (the holders of the data processing centers) a second Italian AAMS concession for the bookmaker foreigner as the “objective aimed at preventing these operators from being involved in criminal or fraudulent activities” (see par. 26, CJEU judgment of 12.9.2013 "Biasci") is satisfied by requiring the Italian intermediary to obtain the police license ex art. 88 TULPS, subject to verification of the necessary requirements of morality and incensorship.
Otherwise, in the opinion of the Member States, by preventing any cross-border activity on their territory, they would be legitimated to limit the national gaming market for the protection of the commercial interests of other operators or for unjustified economic reasons, as has already been peacefully established within the Community. It is clear that such a conclusion is incompatible with generally accepted principles of European law.
The conclusion is that the CJEU, with the "Biasci" sentence, has established a principle of a general and directly applicable nature, according to which if the applicant, Centro Elaborazione Dati intermediary, has the requisites of cleanliness and morality prescribed the authorization of police ex art. 88 TULPS must be issued, since the lack of an Italian concession for the agreement cannot arise due to an impediment bookmaker foreigner who limits himself to carrying out cross-border activities through intermediaries present in the territory who, it must be reiterated, may be subject to physical control for purposes of public security.
Finally, the legal department of BETPASSION is carefully evaluating the implications that the "Biasci" sentence reverberates on the phenomenon of blocking of sites Internet ordered by AAMS because it is clear that such conduct, as mentioned above, could constitute a violation of Community law, being capable of preventing any cross-border activity in the gaming sector.
