Judgment;Summary — ECLI:EU:C:2019:233
Date: 2019-03-21
Language of the case: Italian
Court formation: First Chamber
Subject matter: Internal market - Principles
Procedure: Reference for a preliminary ruling
Origin: Italy

summary of the subject matter of the dispute and the relevant findings of fact or, at least, an account of the facts on which the questions are based, (ii) the content of any national provisions applicable to the dispute in the main proceedings and, where appropriate, the relevant national case-law, and (iii) a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (judgment of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 22). 23 It is clear from the wording of the order for reference that it satisfies those conditions as it sets out, to the requisite legal standard, the facts of the dispute in the main proceedings, mentioned in paragraphs 13 to 15 of the present judgment and because it informs the Court as to the relevant national legal framework, set out in paragraphs 4 to 12 of the present judgment, which allows the Court to understand the reasons, mentioned in paragraphs 16 to 19 of the present judgment, which led the referring court to seek the interpretation of EU law on public service concessions and the principle of legal certainty in the dispute in the main proceedings. 24 It follows that the reference for a preliminary ruling is therefore admissible. Consideration of the question referred 25 By its question, the referring court asks essentially whether EU law on public service concessions, read in the light of the principle of legal certainty, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which amends the basic criteria for calculating the amount of the reimbursement to be paid to holders of natural gas distribution concessions awarded without any competitive tendering procedure due to the early termination of those concessions in order to re-allocate them following a competitive tendering procedure. 26 It must be recalled that, with regard to public service concessions, the secondary EU law applicable in the main proceedings, that is Article 24 of Directive 2009/73, merely provides that Member States are to designate, for a period of time to be determined by them having regard to considerations of efficiency and economic balance, one or more distribution plant operators. 27 Furthermore, the Court has held that, even if a public service concession does not fall within the scope of the directives relating to the various categories of public contracts (see, in particular, judgment of 21 July 2005, Coname, C‑231/03, EU:C:2005:487, paragraph 16), it is clear from primary EU law that public authorities, when they plan to award such a concession, are bound to comply with the fundamental rules of the FEU Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular (see, to that effect, in particular, judgment of 7 December 2000 Teleaustria and Telefonadress, C‑324/98, EU:C:2000:669, paragraph 60). 28 More specifically, since such a concession is of certain cross-border interest, its award, without any transparency, to an undertaking located in the Member State to which the contracting authority belongs, amounts to a difference in treatment to the detriment of undertakings which might be interested in that concession and which are located in other Member States (see, to that effect, judgment of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 59 and the case-law cited). 29 Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 and 56 TFEU (see, to that effect, judgment of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 60 and the case-law cited). 30 Having noted that, it must be observed that the rules set out in paragraphs 26 to 29 of the present judgment relate to the obligations imposed on contracting authorities when awarding a public service concession for natural gas distribution, in particular where it has a certain cross-border interest. 31 That is neither the aim nor the effect of the ministerial decrees challenged in the main proceedings, which concern only the basic criteria for calculating the reimbursement laid down by national law, namely Article 15(5) of the Legislative Decree No 164 of 23 May 2000, in the version applicable in the main proceedings, for the benefit of holders of existing concessions awarded without a prior public tendering procedure and which have been terminated early in order to reallocate them following a public tendering procedure solely on the basis of national law, specifically Article 14 of that legislative decree, since Directive 2009/73 does not contain any objections to the existing gas distribution concessions. 32 It follows that the objection to the existing concessions, the consequences of which are partly determined by the ministerial decrees challenged in the main proceedings, does not derive from the EU law on public service concessions for the distribution of natural gas. 33 Furthermore, the amendment of the basic criteria introduced by those decrees, which aim in certain cases to limit the possibility for the recipient of the reimbursement to refer to the clauses in the concession agreement or to Royal Decree No 2578 of 15 October 1925, cannot in itself constitute a difference in treatment to the detriment of undertakings which might be interested in services, such as those operated by Unareti which are situated in the territory of a Member State other than Italy. Such an amendment to the basic criteria applies without distinction to undertakings with their registered office in Italy and those having their registered office in another Member State. 34 In that context, it should be noted that, although, under EU law, the principle of legal certainty is binding on every national authority, that is only when that authority is responsible for implementing EU law (see, to that effect, judgment of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 65 and the case-law cited). 35 As stated in paragraphs 32 and 33 of the present judgment, by terminating the existing concessions early and by adopting the ministerial decrees challenged in the main proceedings, the Italian authorities have failed to act in accordance with their obligation to apply EU law. 36 That feature of the case in the main proceedings distinguishes it from those mentioned by the referring court which gave rise to the judgments of 17 July 2008, ASM Brescia (C‑347/06, EU:C:2008:416, paragraph 71), and of 12 December 2013, Test Claimants in the Franked Investment Income Group Litigation (C‑362/12, EU:C:2013:834), in which the principle of legal certainty was applicable having regard to the existence of obligations deriving from EU law, pursuant to which the competent national authorities had to, respectively, justify a difference in treatment derogating from the rules mentioned in paragraphs 27 to 29 of the present judgment and reimburse the taxes received in violation of EU law. 37 It is clear from all of the following considerations that the answer to the question referred is that EU law on public service concessions, read in the light of the principle of legal certainty, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which amends the basic criteria for the calculation of the reimbursement to which holders of natural gas distribution concessions awarded without any competitive tendering procedure are entitled on account of the early termination of those concessions in order to reallocate them after being put out for tender. Costs 38 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (First Chamber) hereby rules: EU law on public service concessions, read in the light of the principle of legal certainty, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which amends the basic criteria for the calculation of the reimbursement to which holders of natural gas distribution concessions awarded without any competitive tendering procedure are entitled on account of the early termination of those concessions in order to reallocate them after being put out for tender. [Signatures] * Language of the case: Italian.