"I should like to begin saying that the activities related to gambling are included among both the freedom of installation and the free movement of services (Article 49 ss and art . 56 ss. of the Treaty on Functioning of European Union). Therefore state discriminatory measures against citizens (or companies) of other Member States who intend to settle in that State to do gaming activities which, while remaining in their country, offer services related to gaming in other Member States, are firbidden. In addition, not only openly discriminatory measures are forbidden , but also measures which, without any discriminatory intent and indiscriminately concerning citizens and foreigners, prove to be a restriction on those freedoms. In the light of the jurisprudence of the Court of Justice, restrictive measures are permitted only when justified by imperative reasons of general interest, such as consumer protection and preventing instigation to an excessive expense on gaming and the fight against fraud and criminal activities that can be connected to gaming. Moreover, these measures are admissible if they are suitable for securing those objectives, proportionate to the planned purpose and non-discriminatory and they must be part of a coherent and systematic framework.
The Court, for example, thought that the Italian legislation on administrative concession and the police authorization could not be justified for consumer protection and the fight against excessive expense (but, in case, only for the prevention of fraud and criminal activities), because the Italian State is pursuing, on the contrary, an expansive policy in the gambling field. Likewise the Court, while approving the system of concessions and authorizations regulated by the so-called Bersani decree of 2006, found not justified by imperative reasons of general interest the rule on minimum distances of new gaming locations compared to those of existing licensees, because it is contrary to the principles of equal treatment and effectiveness in the exercise of rights. Often the Court, after declaring the principles of European Union law that must be respected, requires to the national court to verify the correspondence of national legislation to these principles.
As regards regional and local initiatives, such as tax increases to discourage the installation of machines and gaming places (or tax reduction to deactivate them) - apart from the doubts that, according to the Constitution, can rise on the jurisdiction of Regions and local bodies - they, representing restrictions on freedom of installation and free movement of services, can be justified only if they are in compliance with the criteria stated by the Court of Justice in relation to imperative reasons of general interest. In this case they cause serious concerns, resulting not coherent with a state policy that at present seems does not want to limit, but rather wants to stimulate gaming by consumers, for obvious fiscal interests. It should however be noted that a hypothetical illegimitacy of measures in question may be invoked with an appeal to TAR (if needed pressing for a request for preliminary ruling of the Court of Justice), while there is no chance, for the parts involved, to directly contest these measures in front of the Court or of the Court of Justice of the European Union".
What is your opinion on infringement procedures started by the European Commission against some member states which block online gaming?
"These initiatives of the Commission seems to me well-founded on the principles established by the consolidated jurisprudence of the Court of Justice, reaffirmed most recently by the judgment of 12 September 2013, cases C-660/11 and C-8/12, Biasci and others. They, without excluding that national law provides for administrative concessions and police permits to exercize gaming activities, or that it provides for prevention of gaming addiction and consumer protection, require that these objectives are pursued with tools coherent with a general policy of limitation, not of encouragement and incentive of gambling. It is also necessary that the procedures and calls for allotment of concessions are conducted in full transparency. In any case a pure and simply ban of online gaming would be contrary to the mentioned Arts. 49 and 56 of the Treaty. The proceedings started by the Commission aim to achieve a spontaneous adaptation by the involved Member States with the obligations arising from the Union; in lack of them the Commission may refer the matter to the Court of Justice to obtain a declaratory judgment of the failure of the State".
What concret guidelines the European Parliament could adopt for the regulation of online gaming?
" Currently online gaming is not the subject of any European guideline, having been initially excluded from the scope of Directive 2000/31/EC of 8 June 2000 on electronic commerce, and subsequently by Directive 2006/123/EC on services in the internal market, in view of the specific nature of gaming activities, which require the implementation by member States of public order policies and consumer protection. Even the initiatives announced by the Internal Market Commissioner Michel Barnier do not go beyond the possibility of a recommendation. In my opinion, a work of approximation of state legislations would be appropriate, because it could ensure, on one hand, a real freedom of movement of services related to gaming (and the corresponding right of installation), on the other hand, a consumer protection and, more generally, of public interests about the control of activities related to gaming. We should underline that these guidelines could not be adopted by the European Parliament alone, but by it jointly with the Council, on a proposal of the Commission".
What do you think of the measures against sports frauds being examined by Europe? Cooperation between the various authorities proposed by several parties can be enough? Or do you believe that other measures are necessary?
"In a context of European coordination should not miss measures to establish a police and judicial cooperation. In the light of the Lisbon Treaty of 2007, today it is possible to promulgate directives of European Union in penal matters, both to facilitate this cooperation and to establish minimum rules concerning the definition of crimes and sanctions in the particularly serious crime areas having a transnational dimension. These include, among other things, money laundering, corruption, computer crime and organized crime, that is to say crimes which often are linked, in various ways, to sports frauds. Directives in this field may maximize the counter-action needed, which now, in front of criminal phenomena branched at the transnational level and that make extensive use of the network, it is not easy to achieve by the authorities of a single state”.