The Council of State in jurisdiction (Seventh Section) has issued an order on the request for clarification from the Court of Justice of the European Union pursuant to Article 94 of the Rules of Procedure before the Court, in the 2022 appeal, proposed by Ascob - Association Bingo concessionaires and the properties of some bingo halls, represented and defended by lawyers Matilde Tariciotti e Luke Jacob, against the Ministry of Economy and Finance, for the reform of the sentence of the Regional Administrative Court for Lazio rendered between the parties.
The text of the Ordinance
” (…) Having seen the conclusions of the parties as per the minutes;
I- With ordinance no. 10263 of 21 November 2022, this Section asked the Court of Justice of the European Union to rule on
preliminary ruling, pursuant to art. 267 TFEU, on the interpretation and application of articles. 49 and 56 TFEU relating to freedom of establishment
and the freedom to provide services, as well as on the principles of legal certainty, protection of legitimate expectations and effectiveness of judicial protection, as well as on the interpretation of some provisions of Directives 2014/23/EU and 89/665/EEC.
More specifically, the questions referred were the following:
“If Directive 2014/23/EU on the award of concession contracts, as well as the general principles deducible from the Treaty, and in particular the articles. 49 and 56, TFEU must be interpreted in the sense that they apply to management concessions for the Bingo game which were awarded with a selective procedure in the year 2000, expired and were then repeatedly extended in terms of effectiveness with provisions laws that came into force after the entry into force of the directive and the expiry of its transposition deadline".
"in the event that the first question is answered in the affirmative, if Directive 2014/23/EU precludes an interpretation or application of internal legislative provisions, or application practices on the basis of the provisions themselves, such as to deprive the Administration of discretionary power to initiate, at the request of the interested parties, an administrative procedure aimed at modifying the conditions of exercise of the concessions, with or without calling for a new award procedure depending on whether or not it qualifies as a substantial modification to the renegotiation of the contractual balance, in cases where events occur that are not attributable to the parties, unforeseen and unforeseeable, which significantly impact the normal conditions of operational risk, as long as these conditions persist and for the time necessary to possibly restore the original conditions for the exercise of the concessions".
“If Directive 89/665/EC, as amended by Directive 2014/23/EU, precludes an interpretation or application of internal national rules, or application practices on the basis of the rules themselves, such that the Legislator or the Public Administration can make participation in the procedure for the re-allocation of gaming concessions conditional on the concessionaire's adhesion to the technical extension regime, even in the event that the possibility of renegotiating the conditions for exercising the concession is excluded in order to bring them back into balance, as a consequence of events not attributable to the parties, unforeseen and unforeseeable, which significantly impact the normal conditions of operational risk, as long as these conditions persist and for the time necessary to possibly restore the original conditions for the exercise of the concessions".
“If, in any case, the articles. 49 and 56 of the TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of legitimate expectations preclude an interpretation or application of internal legislative provisions, or application practices on the basis of the provisions themselves, such as to deprive the Administration of discretionary power to initiate, at the request of the interested parties, an administrative procedure aimed at modifying the conditions of exercise of the concessions, with or without calling for a new award procedure depending on whether or not it qualifies as a substantial modification to the renegotiation of the contractual balance, in cases where events occur that are not attributable to the parties, unforeseen and unforeseeable, which significantly impact the normal conditions of operational risk, as long as these conditions persist and for the time necessary to possibly restore the original conditions for the exercise of the concessions".
“If the articles. 49 and 56 of the TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of legitimate expectations preclude an interpretation or application of internal national rules, or application practices on the basis of the rules themselves, such that the Legislator or the Public Administration may condition participation in the procedure for the re-allocation of gaming concessions to the concessionaire's adhesion to the technical extension regime, even in the event that the possibility of renegotiating the conditions for exercising the concession is excluded in order to bring them back into balance, in consequence of events not attributable to the parties, unforeseen and unforeseeable, which significantly affect the normal conditions of operational risk, for as long as these conditions persist and for the time necessary to possibly restore the original conditions for the exercise of the concessions".
“6. If, more generally, the articles. 49 and 56 of the TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of legitimate expectations, preclude national legislation (such as that which is relevant in the main dispute, which requires the managers of Bingo halls to pay a costly technical extension fee on a monthly basis not foreseen in the original concession documents, of an identical amount for all types of operators and modified from time to time by the legislator without any demonstrated relationship with the characteristics and performance of the individual concession relationship".
II.- In order to assess the admissibility of the referral, the Court asked the referring judge for documented clarifications regarding certain facts of the
main opinion:
“Taking into account the object of the requests for a preliminary ruling, aimed at the interpretation of Articles 49, 56 and 63 TFEU, and in light of the requirements established by Article 94 of the Rules of Procedure, as specified in points 9 and 14 to 20 of the Recommendations for the attention of the national judges, relating to the submission of requests for a preliminary ruling, the referring judge is asked to indicate, in a detailed manner, in which respects the concessions in question present a certain cross-border interest pursuant to the jurisprudence of the Court (see, among others, judgment of 14 July 2016, Promoimpresa and Others, C-458/14 and C-67/15, EU:C:2016:558, paragraphs 65 and 66) and, therefore, a element of connection with the aforementioned freedoms of movement".
I III.- This national judge for preliminary rulings responds to the aforementioned request for clarification in the ways illustrated below.
In general it should be stated:
that the first of the questions referred concerns the applicability of Directive 2014/23/EU on the award of contracts to the case in question
of concession;
that the second and third questions were articulated only for the case in which Directive 2014/23/EU is applicable to the matter of
cause;
that the fourth, fifth and sixth questions were articulated for the case in which Directive no. 23 is not applicable (but the general principles referred to in Articles 49, 56 and 63 of the TFEU still apply).
This national referring judge, in accordance with point 18 of the new text of the Recommendations for the attention of national judges, relating to the submission of requests for preliminary rulings, clarifies his point of view on the questions referred to the Court of Justice and indicates the reasons why believes that prevailing elements support the applicability of the provisions of Directive 2014/23/EU (the interpretation and application of the relevant provisions of Union law remaining however reserved to the Court itself).
Where the Court of Justice concludes that the provisions of the 'Services Directive' do not apply in the matter in question, this
The referring national judge sets out below the reasons why (responding to the request for clarification formulated by the Court itself)
believes that in the case in question concessions characterized by a cross-border interest are relevant.
IV.- The first preliminary question asks to establish whether the provisions of the Directive are applicable to the concessions in question
2014/23/EU. Where the question is answered positively (and this Judge believes that relevant arguments point in this sense), no
seems to arise at the root of the problem for the referring judge to indicate in a detailed manner in which aspects the concessions present a
certain cross-border interest pursuant to the jurisprudence of the Court: this is because they would find specific application in the case in question
provisions of an EU Directive.
However, for the sake of completeness, the elements which, in the opinion of the referring judge, allow the classification of the
concessions being examined as service concessions pursuant to the definition contained in the art. 5, par. 1, letter b) of Directive 2014/23/EU:
These are not simple administrative authorization or license provisions for the exercise of an economic activity;
Instead, it appears to be contracts/agreements accessing the concession provision through which the administration
contracting authority obtains the benefits of providing a specific service, ensuring remuneration to the provider (Sentence of
14 July 2016, Promoimpresa, joined cases C-458/14 and C-67/15, EU:C:2016:558, points 46-48);
In particular, the concessionaires' fee consists of the right to manage said games for the benefit of end users and its amount is given
from the collection deriving from the sale of the cards (therefore from the management of the service), deducting the tax levy, the winnings and the share that
it is up to the person in charge of centralized control of the game;
It would therefore fully fall within the definition referred to in the cit. art. 5 of directive no. 2014/23/EU, according to which: "a contract of title
onerous stipulated in writing by virtue of which one or more contracting authorities or one or more contracting entities entrust the supply and management of services other than the execution of works referred to in letter a) to one or more economic operators, where the consideration consists solely in the right to manage the services covered by the contract or in this right accompanied by a price";
Recital (35) of the directive in question seems to exclude from its scope of application only concessions exercised on
basis of an exclusive right granted through a non-public procedure;
In the case under examination, the concessions were awarded to several operators following a European public tender;
Even with regard to value, the concessions under examination would appear to fall within the scope of application of the aforementioned directive, since
given that the value of a concession is given by the "total turnover of the concessionaire generated for the entire duration of the contract, net of VAT, estimated by the contracting authority or contracting body, as consideration [...] for the services covered by the concession […]”. Therefore, if the value of the concession is represented by the total gaming collection (i.e. the total sums played by end users) over the duration of the concession, we have that "taking into account the collection data, even if only monthly ( from 300 thousand to 500 thousand euros per month), which the appellants provided in the context of the first instance judgment (see doc. no. 15 file 13st instance), there is no doubt that the value of the concessions for which the dispute is certainly higher than the thresholds of community relevance. Furthermore, even having regard only to the bingo revenues (therefore the collection, net of the tax levy and the players' winnings) which emerge, at least in relation to the appellants from the appraisal filed under doc. n. 500.000 of the file. of first degree, the conclusions do not change. In particular, even from the aforementioned appraisal, revenues emerge which fluctuate annually between 700.000 and 5.186.000 euros and which, if multiplied by the years of duration of the concession (or in this case) of the onerous extension (ten years) certainly lead on average to a value exceeding €28" (see brief filed by the appellants on 2023 October XNUMX). In particular, from data from the Italian research body Eurispes
relating to the year 2018, it emerges that the gross revenues of the 203 Bingo halls active in Italy as of 31 December 2018, deriving from the sale of cards, amounted to approximately 273 million euros, or on average 1,346 million euros per year for each room. Since the original duration of
concessions for which the dispute was equal to six years, it follows that, on average, the revenues of a Bingo hall in the aforementioned six-year period was
equal to over 8 million euros (a value well above the relevance threshold established for the concessions);
V.- In relation to the subject of the three requests for a preliminary ruling aimed at the interpretation of Articles 49, 56 and 63 TFEU, for the
where the problem of demonstrating the existence of cross-border interest actually arises, the following can be deduced.
First of all, it is worth remembering again that the concessions being discussed and the extension regime to which they have been subject for ten years now were assigned through a public community tender, in which national operators, but also operators belonging to other member countries of the Union. And this is clear from the tender notice that was announced in 2000, received by the office of official publications of the European Communities on 22 November 2000.
The concessions being extended are currently held by national operators, but also by operators who, despite being formally national,
they are companies that belong to groups located in other Member States of the Union (e.g. Austria, Spain). This factual circumstance
it demonstrates the existence of a certain cross-border interest on the basis of concrete data (and not only on the basis of the general and abstract characteristics of the concessions in question).
It cannot be ruled out that citizens of other Member States have been or are interested in making use of the freedoms recognized by the Treaty (in
particular: freedom to provide services and freedom of establishment) in order to carry out the said activity in the national territory, being said
legislation applicable without distinction to national citizens as well as to those of other member states, with effects that are not limited to national law.
From this point of view, the Court of Justice has specified (sentence of 14 November 2013 in case C-221/12, Belgacom) that an interest
cross-border can certainly exist even without it being necessary for an economic operator to have actually demonstrated his
interest. This occurs specifically when the dispute concerns the lack of transparency that characterized the procedure, in
since, in such a case, economic operators established in other Member States do not have a real possibility to demonstrate theirs
interest in obtaining custody (see in this sense, the ruling of 21 July 2005 in case C-231/03 Coname, point 18, as well as the ruling
of 13 October 2005, in case C-458/03, Parking Brixen, in ECR pag. I8585, paragraph 55).
In particular, in this case, which is perfectly suited to the case under examination, there are two consequences likely to have a
cross-border relevance, as also observed by the European Commission in its memorandum:
- the first consequence is represented by the fact that "it (ed. the national legislation) continues to prevent, uninterruptedly since 2013,
the announcement of a competition procedure for the awarding of concessions, disadvantaging operators established in other Member States, who are prevented by the regulation in question from expressing their interest in managing Bingo halls in Italian territory, an interest which cannot be excluded." - The second consequence is constituted by the fact that "the regulation in question obliges the current concessionaires to continue to manage the Bingo halls under the technical extension regime in order to be able to participate in a new procedure for the re-assignment of the concessions", so since "it is It is likely that at least some of the current concessionaires are owned by operators established in other Member States or in any case have the possibility of becoming such, it can be considered that this second type of effect of the national legislation at issue in the main proceedings also has a cross-border relevance".
It is also worth adding that, according to the jurisprudence of the Court of Justice "the existence of a certain cross-border interest, [...] can result, [...] from the economic importance of the agreement whose conclusion is foreseen, from the place of its execution (see in this sense, ASM Brescia ruling, cit., paragraph 62 and cited case law) or by technical characteristics (see, by analogy, ruling of 15 May 2008, SECAP and Santorso, C-147/06 and C- 148/06, ECR page I-3565, point 24)”.
From this perspective, two aspects must be considered:
firstly, the volume of business generated by gaming collections, which - as already highlighted - amounts to a turnover of sums
in any case higher than €5.186.000,00 for the entire duration of the relationship (this is an element which in itself represents a serious index,
objective and positively appreciable in terms of importance and attractiveness of the business economic activity);
secondly, the specific characteristics of the exercise of said economic activity, which would seem to reward the largest companies, often organized into business groups, especially foreign ones. This is supported by the fact that the European Commission, in its observations, also noted that from 2014 to today, some operators have increased their number of concessions, to the detriment of others, probably precisely due to the onerous extension regime, the whose fee affects all licensees equally regardless of their gaming collection capacity.
VII- The requested clarifications, provided as illustrated above, are transmitted pursuant to the Information Note regarding the proposition of
requests for a preliminary ruling from national judges 2011/C 160/01 in the GUCE 28 May 2011 and new
Recommendations for the attention of national judges relating to the submission of requests for a preliminary ruling 2019/C 380/01 in
GUCE 8 November 2019, to the Registry of the Court by registered mail, a copy of the documents of the proceedings, including this
order.
PQM
The Council of State in jurisdiction, Seventh Section.
1) submits the clarifications indicated in the justification;
2) arranges for the documents to be transmitted to the Court of Justice of the European Union pursuant to art. 267 of the Treaty on the Functioning of the European Union;
3) confirms the already ordered suspension of the trial until the conclusion of the judgment on the preliminary questions and subject, to the outcome, of
any further ruling on the matter, regarding and regarding expenses".
