Ten Criteria for a Lawful Gambling Concession Procedure

What the Court of Justice of the European Union Actually Requires

By Martin Arendts, Attorney-at-Law 

Gambling concessions are not covered by the EU public-procurement directives, and there is no horizontal secondary-law regime for the sector. Yet the Court of Justice of the European Union (CJEU) has, over the last two decades, developed a dense body of criteria that Member States must respect whenever they award concessions or comparable prior authorisations for gambling services. The criteria are derived from Articles 49 and 56 TFEU, the general principle of equal treatment, the ensuing obligation of transparency and the right to effective judicial protection. This post summarises the framework in ten short points.

1. A coherent gambling policy comes first

Any restriction of the freedom to provide gambling services must serve an overriding reason in the public interest – typically consumer protection, prevention of gambling addiction and the fight against crime – and must pursue those objectives in a consistent and systematic manner (Gambelli C-243/01, Rn. 67; Liga Portuguesa C-42/07, Rn. 60–61; Dickinger und Ömer C-347/09, Rn. 55–56). A regime that in reality pursues revenue-maximisation or protects national incumbents cannot be saved by invoking public-interest labels.

2. Transparency is a corollary of equal treatment

Whenever a Member State awards gambling concessions or comparable single authorisations, the principles of equal treatment and non-discrimination generate a duty of transparency (Commission v Italy C-260/04, Rn. 24; Sporting Exchange C-203/08, Rn. 39; Engelmann C-64/08, Rn. 49–50). Its purpose is to enable any interested operator to decide on the basis of full information whether to compete, and to preclude any risk of favouritism or arbitrariness on the part of the licensing authority (Costa und Cifone C-72/10 und C-77/10, Rn. 73).

3. Adequate publicity, in practice a Union-wide call for tenders

The awarding authority must ensure a “degree of advertising sufficient to enable the concession to be opened up to competition and the impartiality of the procedure to be reviewed” (Sporting Exchange C-203/08, Rn. 41; Commission v Italy C-260/04, Rn. 24; Engelmann C-64/08, Rn. 50). Since any gambling concession is in practice of interest to operators established in other Member States, a Union-wide invitation to tender – published in the Official Journal of the European Union and in the specialist media reaching cross-border operators – is the only reliable way to comply. Quiet extensions or renewals without an open procedure are as much a transparency problem as the initial award (Ince C-336/14, Rn. 55, 84–94; Unibet International C-49/16, Rn. 32–47).

4. All rules of the procedure must be clear, precise and unequivocal

The transparency obligation reaches into the drafting of the tender documents. The canonical formula, from Costa und Cifone C-72/10 und C-77/10, Rn. 73, requires that “all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner”, so that a reasonably informed tenderer exercising ordinary care can understand them, interpret them in the same way as every other tenderer, and see the discretion of the authority effectively circumscribed. This standard covers eligibility conditions, award criteria, weighting and sub-criteria, guarantees, exclusion grounds and – as the Court expressly held – the grounds and modalities for withdrawal, non-renewal and penalties (Costa und Cifone, Rn. 78, 89, 92).

5. Award criteria must be objective, non-discriminatory and known in advance

The award must rest on “objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion” (Costa und Cifone C-72/10 und C-77/10, Rn. 56; Engelmann C-64/08, Rn. 55; Sporting Exchange C-203/08, Rn. 50–51). The criteria and their weighting must be fixed and published before the deadline for applications; internal evaluation grids drawn up by the authority after the application deadline do not satisfy the requirement. Requirements that in practice reserve the market to national incumbents amount to indirect discrimination (Engelmann, Rn. 32–40; Sporting Odds C-3/17, Rn. 41–47; Unibet International C-49/16, Rn. 40–47), while meaningful and proportionate financial and technical requirements linked to the object of the concession are permissible (Stanley International Betting C-375/17, Rn. 44–67).

6. Stability of the rules and legitimate expectations

Once the procedure is launched, its substantive conditions and criteria may not be altered in a way that undermines legitimate expectations or has retroactive effects (Global Starnet C-322/16, Rn. 43–51; Berlington Hungary C-98/14, Rn. 76–88). Where the regime is subsequently changed, appropriate transitional periods must be provided.

7. A genuine level playing field between incumbents and new entrants

Incumbents and new entrants must face the same conditions and the same timetable. Rules that protect the commercial positions acquired by existing concessionaires – for example minimum-distance rules for the outlets of new sports-betting concessionaires – are incompatible with Article 56 TFEU, and arguments based on continuity or return on prior investments are not overriding reasons in the public interest (Costa und Cifone C-72/10 und C-77/10, Rn. 62–73 and 84–85; Placanica C-338/04, C-359/04 and C-360/04, Rn. 62–64). Silent prolongations of existing concessions are increasingly scrutinised also under the State-aid rules (General Court, Case T-167/21 EGBA v Commission; CJEU, Case C-59/24 P Kingdom of the Netherlands v EGBA; Commission Decision (EU) 2025/892, La Française des Jeux).

8. Effective judicial protection, with real access to the file

Applicants and unsuccessful tenderers must have access to a court that can genuinely review whether the authority has complied with the transparency, equal-treatment and impartiality obligations (Sporting Exchange C-203/08, Rn. 49–50; Sporting Odds C-3/17, Rn. 51–63; Biasci und Rainbow C-660/11 und C-8/12, Rn. 33–40). That review presupposes meaningful access to the administrative file and, on the sanctioning side, an independent review of any penalties enforcing the licensing regime (Ince C-336/14, Rn. 61–95; Landespolizeidirektion Steiermark C-231/20, Rn. 28, 33 und 45).

9. No penalties for a defective licensing regime

If a concession procedure infringes the requirements set out above, Member States may not enforce the licensing regime by administrative or criminal penalties against operators that provided services without such a licence (Ince C-336/14; Unibet International C-49/16; Landespolizeidirektion Steiermark C-231/20). National courts must, if necessary, disapply the sanctioning provisions.
10. Civil-law and State-liability consequences

A defective concession procedure has downstream effects in civil and liability law. National civil courts deciding on restitution claims or on the validity of gambling contracts must give effect to the transparency and effective-review requirements (European Lotto and Betting and Deutsche Lotto- und Sportwetten C-440/23, judgment of 16 April 2026). Operators unlawfully excluded from a concession procedure may claim damages under the Francovich doctrine, as the CJEU’s criteria constitute rules of EU law intended to confer rights on economic operators.
Practical takeaway

The CJEU’s framework is neither a soft standard nor a merely procedural discipline. It is a substantive body of Union law that governs the design, the operation and the enforcement of gambling concession procedures. Its analytical core is the transparency obligation together with the requirement of ex-ante, clear and objective criteria; the remaining criteria elaborate and reinforce that core. Any Member State opening a gambling market, and any operator considering participation in a concession procedure, is well advised to work through the following short checklist:

•  Is the market opening embedded in a coherent and systematic gambling policy?

• Is the procedure published in a manner that ensures effective, Union-wide access?

• Are all conditions and detailed rules of the procedure drawn up in a clear, precise and unequivocal manner?

• Are the award criteria, their weighting and any sub-criteria fixed and published before the application deadline?

• Are the substantive conditions stable throughout the procedure, and are legitimate expectations respected?

• Are incumbents and new entrants subject to the same conditions and the same timetable?

• Are the substantive access requirements proportionate and objectively linked to the object of the concession?

• Are the procedure and the individual award decisions documented so that both applicants and courts can inspect them?

• Do unsuccessful applicants have an effective judicial remedy, including access to the file?

• Is the sanctioning regime enforcing the licensing scheme itself proportionate and separately reviewable?

Member States that meet these requirements build a solid foundation for their gambling policy. Those that do not will find that the CJEU’s doctrine follows them, in successive references, into every downstream proceeding – administrative, criminal, State-aid and civil.