Judgment_paragraph 58 · Criminal proceedings against Marcello Costa and Ugo Cifone (C-72/10, C-77/10)

58As regards more specifically the obligation laid down in Article 38(2) and (4) of the Bersani Decree for new licence holders to observe a minimum distance between their establishments and those already in existence, the effect of that measure is to protect the market positions acquired by the operators who are already established to the detriment of new licence holders, who are compelled to open premises in less commercially attractive locations than those occupied by the former. In consequence, such a measure entails discrimination against the operators which were excluded from the 1999 tendering procedure.