It posed this question: Is there incompatibility (with the repercussions that that has in Italian law) between Article 43 et seq. and Article 49 et seq. of the EC Treaty regarding freedom of establishment and freedom to provide cross-border services, on the one hand, and, on the other, domestic legislation such as the provisions contained in Article 4(1) et seq., Article 4a and Article 4b of Italian Law No 401/89 (as most recently amended by Article 37(5) of Law No 388/00 of 23 December 2000) which prohibits on pain of criminal penalties the pursuit by any person anywhere of the activities of collecting, taking, booking and forwarding offers of bets, in particular bets on sporting events, unless the requirements concerning licences and authorisations prescribed by domestic law have been complied with?

In his Opinion, Advocate General Alber considers that the data transmission centres were not secondary establishments of the British undertaking, but operated by providing services (point 87); he therefore suggested a reply limited to the freedom to provide services.

In Zenatti the Court used similar terms to hold, at paragraph 37, that it was for the national court to verify whether the national legislation was justified and whether the restrictions which it imposed did not appear disproportionate. In his Opinion in Gambelli and Others, Advocate General Alber states that it has hitherto been left to the national courts to make that assessment, but that it is a task which they clearly find difficult (point 116).

According to the judgment of the Corte suprema di cassazione, this was because the national legislation was not justified: on the one hand, it did not ensure the preservation of public order, since, instead of reducing the opportunities for betting, it expanded betting and increased the number of persons authorised to pursue that activity; and, on the other hand, it was likewise not designed to increase public safety, because it provided no means of preventing the infiltration of criminal associations. The Tribunale di Prato took the view that those restrictions on the Community freedoms were imposed solely in the financial interests of the State.

Judgments of Sezione III No 124 of 27 March 2000, Foglia, rv. 216223; No 7764 of 4 July 2000, Vicentini, rv. 216986; and No 36206 of 6 October 2001, Publiese, rv. 220112.

This has been included as Annex 6 to the observations submitted by Mr Placanica and may be consulted on: http://www.ictlex.net/index.php/2004/04/26/cass-su-sent-11104/.

The Consiglio di Stato (Council of State) expressed itself in the same terms in decisions of 1 March 2005 (N. 5203/2005, Appeal NRG.4587 of 2004) and 14 June 2005 (N. 5898/2005, Appeal NRG. 2715 of 1998).

The Tribunale di Teramo has brought further subtle distinctions to that disagreement by introducing new aspects, as I have already pointed out. The controversy has been noted by academic legal writers; Botella, A.S., La responsabilité du juge national, Revue trimestrielle de droit européen, No 2, 2004, p. 307, mentions possible disagreements between different legal orders or between courts within the same jurisdiction, and cites a French example.

Paragraphs 66, 71, 73 and 75 in particular.

Advocate General Léger, in his Opinion in Case C-224/01 Köbler [2003] ECR I-10239, points out that, in 1975, in its opinion on the European Union, the Court suggested that the Treaty should contain an appropriate guarantee to protect the rights of individuals in the event of the infringement of Article 234 EC by a supreme court (footnote 125).

Ossenbühl, F., Der Entwurf eines Staatsvertrages zum Lotteriewesen in Deutschland — Verfassungs- und europarechtliche Fragen, Deutsches Verwaltungsblatt, July 2003, pp. 892, argues that, although the national courts may review the truthfulness of the excuses used by the Member States to justify the national restrictions, and the observance of the principle of proportionality, the Court of Justice has not completely abandoned that review, and he considers it incorrect to presume that the Court has delegated that responsibility.

Order in Case 69/85 Wünsche [1986] ECR 947, paragraph 15; judgments in Case 14/86 Pretore di Salò [1987] ECR 2545, paragraph 12; and Case C-466/00 Kaba II [2003] ECR I-2219, paragraph 39, in which the Immigration Adjudicator raised a question identical to that referred for a ruling in Case C-356/98 Kaba I [2000] ECR I-2623, with some of whose conclusions she disagreed.

Case C-129/00 Commission v Italy [2003] ECR I-14637.

The Commission has been reluctant to bring actions against Member States for failure to fulfil obligations attributable to their courts, Cobreros Mendazona, E., La responsabilidad por actuaciones judiciales. El último gran paso en la responsabilidad de los Estados por el incumplimiento del derecho comunitario, Revista Española de Derecho Europeo, No 10, 2004, especially pp. 291 to 299; on the background, see Ortúzar Andéchaga, L., La aplicación judicial del derecho comunitario, Trivium, Madrid, 1992, pp. 184 and 185.

Even though the Court of Justice, if necessary, examines the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see Foglia, paragraphs 21 and 27; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 17; Case C-379/98 Preussen Elektra [2001] ECR I-2099, paragraph 39; Case C-340/99 TNT Traco [2001] ECR I-4109, paragraph 31; and Case C-293/03 My [2004] ECR I-12013, paragraph 25.

Martin Rodriguez, P., La responsabilidad del Estado por actos judiciales en derecho comunitario, Revista de Derecho Comunitario Europeo, No 19, 2004, p. 859, points out the difficulty of attributing failure to fulfil Community obligations in relation to that matter, since it would have to be attributed to the legislature, which approves the provision establishing the discriminatory element, to the executive, in so far as the Austrian Administration should have given priority to the provisions of Community law, or to the judicial power, as in fact happened, for not giving effective protection to the rights granted to the citizen by Community law.

Simon, D., The Sanction of Member States' Serious Violations of Community Law, in O'Keefe, ed., Judicial Review in European Law. Liber Amicorum Lord Slynn of Hadley, Kluwer, The Hague, 2000, pp. 275 et seq.

Köbler classifies these cases as exceptional (paragraph 53).

Case 166/73 Rheinmühlen Düsseldorf [1974] ECR 33. It concerned applications for export refunds which had been rejected by the German Intervention Board for cereals and grains and upheld in legal proceedings before the Hessisches Finanzgericht (Finance Court, Hesse). In the appeal, the Bundesfinanzhof (Federal Finance Court) referred several questions for a preliminary ruling; after they had been answered (Case 6/71 Rheinmühlen Düsseldorf [1971] ECR 823) it allowed the appeal in part, remitting the case to the court at first instance for a fresh judgment; however, before delivering that judgment, the Hessisches Finanzgericht referred questions to the Court of Justice by an order which was appealed before the Bundesfinanzhof which, in turn, again referred questions to the Court of Justice, the subject of the ruling which I have cited — the questions referred by the Hessisches Finanzgericht were considered in Case 146/73 Rheinmühlen Düsseldorf [1974] ECR 139.

Although the selection lends itself to discussion, a legislative change may establish that it is for courts of last instance to make references for a preliminary ruling, as happens in certain sectors (Article 68 EC).

The Code of Hammurabi, at the height of the Babylonian Empire during the eighteenth century B.C., frequently resorted to ordeal by water: the accused was thrown into the river and, if he survived, he was declared innocent.

A draw is normally used to select the members of a jury or to appoint legal experts. On occasions, extreme solutions are found, as in the case U.S. v William Holmes, in which, following a shipwreck, the crew had thrown 14 passengers over the side of an overloaded lifeboat; the court held that everyone — sailors and passengers — should have participated in the dramatic draw to choose the victims.

The bet is often used merely to provoke or ridicule a companion, as when Don Quixote taunts his squire with: I should be prepared to bet you a goodly sum, Sancho, ... that now you are talking away without anyone to stop you, you do not feel a single pain anywhere in your body (Cervantes Saavedra, M., El ingenioso hidalgo Don Quijote de la Mancha, Part II, Chapter XXVIII, translated by John Rutherford, Penguin books, London 2001).

Kant, I., refers to these aspects when he says that childhood games — playing ball, tug-of-war, running races, playing soldiers — all provide diversion and aid personal development; later, men play their games, chess and cards, just to win; and finally, a citizen tries his luck in society with roulette or dice; all these games are driven, unconsciously, by human nature (Anthropologie in pragmatischer Hinsicht, 1798).

Dostoevsky, F., who was noted for gambling, gives a masterly portrayal of those who are caught in its net: ... in gambling circles it is well known that a player caught in that passionate struggle against chance can sit for twenty-four hours at a stretch without lifting his eyes from the cards or the roulette table (The Gambler, free translation), adding that I realised, suddenly, that it was no longer the money that mattered, but the desire to take risks, the sense of adventure in acting contrary to all logic. I have thought a lot about it since then and come to the conclusion that if the spirit has experienced a great many sensations, instead of being sated, it grows more excited, and demands stronger and stronger sensations, and stronger and stronger ones, until it finally falls from exhaustion (free translation). The same sentiment is expressed in the text of Gabriel y Galan J.A. ... admittedly, he spent all day thinking about money, dependent on it, living at its pace, and yet, like all gamblers, he felt no attachment to the money, only to the chips ... (Muchos años después, free translation). Chateaubriand, F. admits to a similar feeling on losing most of the cash he had just been lent: I had never gambled before: the play produced a kind of painful intoxication in me; if the passion had seized me completely, it would have turned my brain (Mémoires d'outre-tombe, translated by A.S. Kline, 2005).

The protagonist of Dostoevsky's novel muses: Why should gambling be worse than any other way of acquiring money, such as trade, for example? True, out of a hundred gamblers, only one can win, but... what does that matter to me, if I feel fated to win? (The Gambler, free translation).

D. Juan Tenorio, José Zorrilla's famous character, voices this concern when, after winning a bet, he is challenged by the loser, to whom he responds: You mean that, because I won the bet and you lost it, you still want to end the day with a fight? (D. Juan Tenorio, free translation).

He relies on Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 22.

Korte, S., Das Gambelli-Urteil des EuGH, Neue Zeitschrift für Veraltungsrecht, 2004, p. 1449, writes that such threats of retribution for organising betting activities constitute an obstacle to the services market.

Korte, S., op. cit., p. 1451.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (OJ 2000 L 178, p. 1).

Proposal for a Directive of the European Parliament and of the Council on services in the internal market (COM(2004) 2 final).

For the moment, the debate is running its course. The French courts recently met problems similar to those of their Italian colleagues in connection with bets on horse races organised on the Internet by Zeturf, a company registered in Malta; the Cour d'appel (Court of Appeal), Paris, by judgment of 4 January 2006, confirmed the judgment of the Tribunal de grande instance (Regional Court ), Paris, and — without referring a question to the Court of Justice for a preliminary ruling — held that the national legislation was compatible with Community law; this has already attracted criticism (Verbiest, T., Paris hippiques en ligne; la Cour d'appel de Paris confirme la condemnation de Zeturf, Droit et Nouvelles Technologies, http://www.droit-technologie.org/l_2.asp?actu_id=11501_2.asp?actu_id=1150).

For example, the confrontation between the United States and Antigua, which was settled by the report of the Appellate Body of that Organisation, United States — Measures affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted on 7 April 2005.