Dagnino (LEXIA), defender of Coral: "The technical extension regime conflicts with European law and damages, in particular, small dealers"
The hearing at the Court of Justice of the European Union is underway to assess the compatibility with Community law of the fee for the technical extension of bingo hall concessions. The question arrived at the table of the Luxembourg judges after the preliminary ruling from the Council of State which deemed the doubts about the conformity of the national rules with European legislation to be well founded, in particular with the directive on concessions and with the rules of the Treaty on the functioning of the European Union which provide for freedom of establishment and freedom to provide services.
Since 2013, operators have been waiting for the start of tender procedures for the awarding of concessions. Pending the publication of the notice, the legislator introduced a concession fee, the value of which over time has progressively grown to exceed 8000 euros per month. Furthermore, the transfer of premises has been prohibited and a further restrictive provision has been introduced by virtue of which all those who do not accept the extension can no longer participate in the future tender for new concessions. In order not to exit the market, therefore, all expired licensees are obliged to pay the fee.
In the panel of lawyers who support the non-compliance of national legislation with EU law, the lawyer Alexander Dagnino, managing partner of LEXIA, and defender of Coral Srl. “We have always supported – declares Dagnino – the thesis of the non-compliance of the technical extension fee with European law. Over the years, this provision has manifested itself as only formally 'technical', given that it has become a regressive tax, because it weighs more heavily on small dealers. We are confident that the Luxembourg Court can agree with the thesis put forward by us."
On the other hand, the European Commission also speaks in favor of non-compliance and in its observations has corroborated the arguments of the defense of bingo halls from many points of view. The extension, as the Commission observes, in contrast with article 49 of the Treaty on the functioning of the EU, "constitutes a substantial modification of the content of the relevant concession contracts" and "determines discrimination to the detriment of those operators who, although interested , cannot have access to these concessions in the absence of a tender procedure". Finally, the national legislation would not be compliant since, unless a coherent systematic objective of the State is ascertained, it provides "the obligation for the concessionaire to accept the conditions covered by this legislation in order to be able to participate in a new tender procedure for the re-awarding of the concessions in question".
At the end of the hearing, the Advocate General at the Court of Justice of the EU announced that he will file his conclusions on 4 July 2024. The decision of the Court of Justice will then be awaited.
