# C_2004217EN.01001401.xml

| 28.8.2004 | EN | Official Journal of the European Union | C 217/14 |
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28.8.2004

EN

Official Journal of the European Union

C 217/14

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Action brought on 17 June 2004 by the Commission of the European Communities against the Italian Republic

(Case C-260/04)

(2004/C 217/27)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 17 June 2004 by the Commission of the European Communities, represented by K. Wiedner, C. Cattabriga and L. Visaggio, acting as Agents.

The applicant claims that the Court should:

| — | declare that, the Ministry of Finance having renewed 329 licences for the taking of bets on horse races without a prior competitive tendering procedure, the Italian Republic has infringed the general principle of transparency and the obligation to advertise which follow from the provisions of the EC Treaty on the freedom of establishment in Article 43 et seq. and the freedom to provide services in Article 49 et seq.; |
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declare that, the Ministry of Finance having renewed 329 licences for the taking of bets on horse races without a prior competitive tendering procedure, the Italian Republic has infringed the general principle of transparency and the obligation to advertise which follow from the provisions of the EC Treaty on the freedom of establishment in Article 43 et seq. and the freedom to provide services in Article 49 et seq.;

| — | order the Italian Republic to pay the costs. |
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order the Italian Republic to pay the costs.

Pleas in law and main arguments:

Although licences for the services of collection and acceptance of bets on horse races do not come within the scope of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (1), it is however clear from Case C-324/98 Telaustria (2) that the national authorities which award such licences are, none the less, bound to comply with the fundamental rules of the Treaty and, in particular, the principle of non-discrimination on the ground of nationality implied in the provisions of the EC Treaty concerning the freedom of establishment and the freedom to provide services (Article 43 et seq. and Article 49 et seq. respectively).

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The same principles apply both to the award of licences and to their extension and renewal. In Community law extension or renewal of a licence is equivalent to the award of a new licence, which must therefore comply with that law.

The Court made it clear in Case C-275/98 Unitron Scandinavia and 3-S (3) that the principle of non-discrimination on the ground of nationality ‘implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.’

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That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened to competition and the impartiality of procurement procedures to be reviewed.

In the Commission's opinion, it is wholly clear that the principle of transparency referred to above was not observed by the Italian authorities at the time of renewal of the aforementioned 329 licences for the collection and acceptance of bets on horse races to 1 January 2006 in favour of the incumbent holders outside a competitive tendering procedure.

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(1)  OJ L 209 of 24.7.1992, p. 1

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(2)  [2000] ECR I-10745

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(3)  [1999] ECR I-8291, paragraph 31

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