# C_2023094EN.01001601.xml

| 13.3.2023 | EN | Official Journal of the European Union | C 94/16 |
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13.3.2023

EN

Official Journal of the European Union

C 94/16

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 November 2022 — Associazione Concessionari Bingo — Ascob Srl and Others v Ministero dell’Economia e delle Finanze, Agenzia delle Dogane e dei Monopoli

(Case C-729/22)

(2023/C 94/17)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Associazione Concessionari Bingo — Ascob Srl and Others

Defendants: Ministero dell’Economia e delle Finanze, Agenzia delle Dogane e dei Monopoli

Questions referred

| 1. | ‘Are Directive 2014/23/EU on the award of concession contracts (1) and the general principles deriving from the Treaty, namely Articles 49 and 56 TFEU, to be interpreted as applying to concessions for the operation of a bingo game which were awarded by means of a selective procedure in 2000, have expired and were then repeatedly extended by legislative provisions which entered into force after the Directive’s entry into force and after the expiry of the period prescribed for its transposition?’ |
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1.

‘Are Directive 2014/23/EU on the award of concession contracts (1) and the general principles deriving from the Treaty, namely Articles 49 and 56 TFEU, to be interpreted as applying to concessions for the operation of a bingo game which were awarded by means of a selective procedure in 2000, have expired and were then repeatedly extended by legislative provisions which entered into force after the Directive’s entry into force and after the expiry of the period prescribed for its transposition?’

| 2. | ‘If the first question is answered in the affirmative, does Directive 2014/23/EU preclude an interpretation or application of domestic legislative provisions, or implementing practices based on those provisions, that would deprive the administration of the discretion to initiate, at the request of the interested parties, an administrative procedure to amend the conditions for the exercise of the concessions, with or without a new tender procedure, depending on whether or not the renegotiation of the contractual balance qualifies as a substantial change, in cases where unforeseen and unforeseeable events not attributable to the parties occur that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’ |
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2.

‘If the first question is answered in the affirmative, does Directive 2014/23/EU preclude an interpretation or application of domestic legislative provisions, or implementing practices based on those provisions, that would deprive the administration of the discretion to initiate, at the request of the interested parties, an administrative procedure to amend the conditions for the exercise of the concessions, with or without a new tender procedure, depending on whether or not the renegotiation of the contractual balance qualifies as a substantial change, in cases where unforeseen and unforeseeable events not attributable to the parties occur that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’

| 3. | ‘Does Directive 89/665/EC, (2) as amended by Directive 2014/23/EU, preclude an interpretation or application of domestic national provisions, or implementing practices based on those provisions, under which the legislature or the public administration may make participation in the procedure for the re-award of gaming concessions conditional on the concessionaire’s membership of the technical extension scheme, including in cases where it is not possible to renegotiate the operating conditions of the concession in order to bring them back into equilibrium as a result of unforeseen and unforeseeable events not attributable to the parties that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’ |
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3.

‘Does Directive 89/665/EC, (2) as amended by Directive 2014/23/EU, preclude an interpretation or application of domestic national provisions, or implementing practices based on those provisions, under which the legislature or the public administration may make participation in the procedure for the re-award of gaming concessions conditional on the concessionaire’s membership of the technical extension scheme, including in cases where it is not possible to renegotiate the operating conditions of the concession in order to bring them back into equilibrium as a result of unforeseen and unforeseeable events not attributable to the parties that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’

| 4. | ‘In any event, do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude an interpretation or application of domestic legislative provisions, or implementing practices based on those provisions, that would deprive the administration of the discretion to initiate, at the request of the interested parties, an administrative procedure to amend the conditions for the exercise of the concessions, with or without a new tender procedure, depending on whether or not the renegotiation of the contractual balance qualifies as a substantial change, in cases where unforeseen and unforeseeable events not attributable to the parties occur that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’ |
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4.

‘In any event, do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude an interpretation or application of domestic legislative provisions, or implementing practices based on those provisions, that would deprive the administration of the discretion to initiate, at the request of the interested parties, an administrative procedure to amend the conditions for the exercise of the concessions, with or without a new tender procedure, depending on whether or not the renegotiation of the contractual balance qualifies as a substantial change, in cases where unforeseen and unforeseeable events not attributable to the parties occur that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’

| 5. | ‘Do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude an interpretation or application of domestic national provisions, or implementing practices based on those provisions, under which the legislature or the public administration may make participation in the procedure for the re-award of gaming concessions conditional on the concessionaire’s membership of the technical extension scheme, including in cases where it is not possible to renegotiate the operating conditions of the concession in order to bring them back into equilibrium as a result of unforeseen and unforeseeable events not attributable to the parties that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’ |
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5.

‘Do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude an interpretation or application of domestic national provisions, or implementing practices based on those provisions, under which the legislature or the public administration may make participation in the procedure for the re-award of gaming concessions conditional on the concessionaire’s membership of the technical extension scheme, including in cases where it is not possible to renegotiate the operating conditions of the concession in order to bring them back into equilibrium as a result of unforeseen and unforeseeable events not attributable to the parties that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?’

| 6. | ‘More generally, do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude national legislation such as that at issue in the main proceedings, which imposes upon bingo hall operators the payment of an onerous technical extension fee on a monthly basis that is not provided for in the original concession documents, the amount of which is identical for all types of operator and is amended from time to time by the legislature without any proven relationship to the characteristics or performance of individual concession relationships?’ |
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6.

‘More generally, do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude national legislation such as that at issue in the main proceedings, which imposes upon bingo hall operators the payment of an onerous technical extension fee on a monthly basis that is not provided for in the original concession documents, the amount of which is identical for all types of operator and is amended from time to time by the legislature without any proven relationship to the characteristics or performance of individual concession relationships?’

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(1)  OJ 2014 L 94, p. 1.

(2)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

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