Opinion of the Advocate General — ECLI:EU:C:2024:582
Date: 2024-07-04
Language of the case: Italian
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-728/22 – 1 
Case C-728/22 
Summary of the request for a preliminary ruling pursuant to Article 98 (1) of 
the Rules of Procedure of the Court of Justice 
Date of filing:  
24 November 2022 
Referring court:  
Consiglio di Stato (Italy) 
Date of decision to refer:  
21 November 2022 
Applicants:  
Associazione Nazionale Italiana Bingo – Anib 
Play Game Srl 
Defendants:  
Ministero dell’Economia e delle Finanze (Ministry of Economy and 
Finance) 
Agenzia delle Dogane e dei Monopoli (Customs and Monopolies 
Agency) 
  
Subject of the action in the main proceedings 
Appeal against a judgment of the Tribunale amministrativo regionale del Lazio 
(Regional Administrative Court, Lazio, Italy; ‘the TAR Lazio’) dismissing an 
appeal brought by certain operators of betting activities relating to bingo. That 
appeal sought to annul an administrative measure which, pursuant to a statutory 
provision, imposed a monthly fee on those operators whose concessions had 
expired and were currently covered by a ‘technical extension’ scheme, pending 
the conduct of a new tender procedure for the re-award of the concessions by the 
state. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-728/22 
 
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Subject matter and legal basis of the reference 
Pursuant to the second paragraph of Article 267 TFEU, a request is made for the 
interpretation of certain provisions of European Union law on the freedom of 
establishment and the freedom to provide services, and in particular of Directive 
2014/23/EU, and of the principle of the protection of legitimate expectations, to 
ascertain whether they preclude national legislation under which once concessions 
for the pursuit of bingo gaming activities have expired they must be re-awarded 
by means of a new tender procedure open to all operators in the sector (initially 
scheduled for 2014, subsequently postponed and still not carried out), obliging in 
the meantime the outgoing concessionaires to operate under a ‘technical 
extension’ scheme and to pay the state a monthly fee, subject to various increases, 
as a condition for being able to participate in the new tender procedure, without 
the administration being able to suspend or reduce that fee in order to take account 
of the deterioration in the financial equilibrium of the concessionaires concerned 
as a result of the COVID-19 pandemic. 
Questions referred for a preliminary ruling 
1. ‘Must Directive 2014/23/EU on the award of concession contracts, as well as 
the general principles that follow from the Treaty, namely Articles 15, 16, 20 and 
21 of the Charter of Fundamental Rights of the European Union, Article 3 of the 
Treaty on European Union and Articles 8, 49, 56, 12, 145 and 151 of the Treaty 
on the Functioning of the European Union, be interpreted as applying to 
concessions for the operation of the bingo game which were awarded under a 
selective tender procedure in 2000, expired and were subsequently repeatedly 
extended in their effects by legislative provisions which entered into force after 
the Directive had entered into force and the period for transposition thereof had 
expired?’  
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, 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 
ANIB AND PLAY GAME 
 
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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?’ 
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?’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-728/22 
 
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Provisions of EU law invoked 
Directive 2014/23/EU of the European Parliament and of the Council of 
26 February 2014 on the award of concession contracts 
Article 49 TFEU – freedom of establishment within the European Union 
Article 56 TFEU – freedom to provide services 
Principle of protection of legitimate expectations 
Articles 15, 16, 20 and 21 of the Charter of Fundamental Rights of the European 
Union (hereinafter, ‘the Charter’) 
Article 3 TEU 
Articles 8, 12, 145 and 151 TFEU. 
Provisions of national law relied on 
Article 1, paragraphs 636-638, of Law No 147 of 27 December 2013 – 
Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato 
(legge di stabilità per il 2014) (Law laying down rules for the preparation of the 
annual and multiannual State budget (2014 Stability Law)), hereinafter: ‘Law 
No 147/2013’), including subsequent amendments and additions, and in particular 
those introduced by Law No 208 of 28 December 2015 (hereinafter: ‘Law 
No 208/2015’) and Law No 205 of 27 December 2017 (hereinafter: ‘Law 
No 205/2017’). 
Article 165 of Legislative Decree No 50 of 18 April 2016 (hereinafter: ‘Public 
Contracts Code’). 
Brief description of the facts and procedure 
1 In Italy, the organisation of the game of bingo is a matter for the state alone, 
which regulated it for the first time by Decree No 29 of the Minister for Finance 
of 31 January 2000. The Decree stipulated that the conduct of the relevant gaming 
activities was to be entrusted to holders of concessions awarded by means of a 
selective procedure. The state has entrusted the management of this sector to the 
Agenzia delle dogane e dei monopoli (Customs and Monopolies Agency, Italy; 
hereinafter: ‘the ADM’). 
2 Initially, the duration of the concessions was set at six years, after which the 
concessions could be renewed once, and no fee was to be paid to the state. The 
reason given for not imposing fees was the fact that the operators’ activity in any 
event produced a direct economic benefit for the state, consisting in the so-called 
‘fiscal levy’ imposed on the receipts obtained by the concessionaires from the sale 
of gaming cards. 
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3 In order to ensure compliance with the European principle of competition in the 
award of new concessions or in the re-award of concessions that have expired, the 
Italian legislature decided to organise, following an alignment of the timing of 
most of the concessions that had expired or were about to expire in the years 2013 
and 2014, a single tender procedure open to participation by all operators in the 
sector, which was initially scheduled to take place by 31 December 2014. The 
legislature established that, in the meantime, the outgoing concessionaires (i.e. 
those with concessions that were expiring) should operate under a ‘technical 
extension’ scheme, paying a monthly fee of EUR 2 800 to the state, and that this 
constituted a condition for being able to participate in the future tender, thus 
introducing the principle of fee-paying concessions (Article 1, paragraphs 636-638 
of Law No 147/2013). 
4 In 2015, as the initial deadline for conducting the tender had expired, the 
legislature moved it to 31 December 2016 and extended the technical extension 
scheme to cover the concessions expiring in 2015 and 2016, at the same time 
raising the monthly fee to EUR 5 000 and prohibiting the transfer of the premises 
for the entire period of the technical extension (Law No 209/2015). 
5 In 2017, as the deadline for conducting the tender had again expired, the 
legislature moved it to 30 September 2018 and extended the technical extension 
scheme to cover concessions expiring in 2017 and 2018, at the same time raising 
the monthly fee to EUR 7 500 (Law No 205/2017). 
6 By subsequent legislative measures, the legislature further extended the technical 
extension scheme until 2023, suspended the payment of the fee during the period 
of closure of commercial enterprises due to the COVID-19 pandemic in 2020, 
deferring the amounts due and, finally, set 31 March 2023 as the deadline for 
issuing a new tender procedure. To date, no such invitation to tender has been 
issued. 
7 The applicants manage gaming and betting activities relating to bingo under 
concessions which have expired and are operating under a technical extension 
scheme. They consider that they are experiencing very serious financial 
difficulties, both in relation to the effects of the COVID 19 pandemic and as a 
result of the application of the legislation described above which has, among other 
things, made the concession subject to the payment of fees by imposing a 
mandatory payment of a monthly fee. They submitted to the ADM a request for 
the immediate suspension of the fee until the initial conditions of economic and 
financial balance were reinstated, as well as, in any case, a request for the fees due 
to be recalibrated on the basis of their actual ability to pay.  
8 In particular, the applicants asked the ADM to disapply the above-mentioned legal 
provisions, which the applicants argue are contrary to Articles 15, 16, 20 and 21 
of the Charter, Article 3 TEU and Articles 8, 49, 56, 12, 145 and 151 TFEU. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-728/22 
 
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9 By a memorandum of 18 November 2020, the ADM rejected the request, on the 
grounds that it could not change the effects of a legal order by an administrative 
measure. 
10 The applicants first brought an action against that refusal before the Regional 
Administrative Court, Lazio. That court, having taken into account judgment 
No 49/2021 of the Corte costituzionale (Constitutional Court), which had declared 
certain doubts as to the constitutionality of Law No 205/2017 to be unfounded, 
dismissed the action. 
11 Subsequently, they appealed to the referring court. In particular, the applicants 
allege that the legal provisions implemented by the ADM in the contested decision 
are illegal, in terms of both national constitutional law and European Union law.  
12 They argue that the fact that the technical extension fee has been introduced by a 
legal provision cannot justify a practice that deprives the ADM of the 
discretionary power to adopt administrative acts aimed at rebalancing the 
concessions’ economic and financial operating conditions when these are affected 
by unforeseeable events. In this regard, the measures temporarily suspending the 
payment of this fee introduced by the legislature during the period of closure of 
gaming premises due to the COVID-19 pandemic were, according to the 
applicants, insufficient, since the obligation to pay was not removed but merely 
postponed, and since after reopening activity was significantly reduced while 
operating costs increased. 
13 Moreover, the applicants contend that Article 165 of the Public Contracts Code 
(which transposed Article 43 of Directive 2014/23/EU into Italian law) has been 
infringed, in terms of the failure to renegotiate the economic balance of the 
concession, which – although by its nature it entails a transfer of operating risk to 
the concessionaire, which receives most of its revenue from the sale of services on 
the market – does not exclude the possibility of taking into account, under certain 
conditions, the effects of exceptional operating conditions and of modifying the 
existing relationship between principal and concessionaire. 
Brief description of the grounds for the preliminary reference 
14 The referring court states that, of the two possible referrals envisaged by the 
applicants – referral to the Court of Justice of the European Union (hereinafter, 
also: the ‘Court’) or to the Constitutional Court – priority must be given to the 
former, since it is the court of last instance and since the interpretation of Union 
law is relevant to the ruling on the dispute. 
15 First, the referring court observes that the applicants submitted evidence showing 
that the conditions for the operation of the concessions, in particular the 
sustainability of the operating costs, were seriously compromised following the 
COVID-19 pandemic, whereas the Constitutional Court had ruled, in Judgment 
ANIB AND PLAY GAME 
 
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No 49/2021 on which the TAR Lazio relied, on data from the year 2019, that is to 
say, prior to the health crisis. 
16 Furthermore, although the reopening of gaming premises (which took place 
progressively from May 2021) and the temporary suspension of the obligation to 
pay the fee, accompanied by the payment in instalments of the amounts due 
(without setting them at zero), enabled the activities to survive, those measures 
alone were not capable of improving the situation of the bingo concessionaires 
operating under the technical extension scheme.  
17 Secondly, the referring court indicates that, since these concessions were awarded 
by tender in 2000, then expired and were repeatedly extended by legal provisions, 
the last of which dated back to 2017, it should be possible to apply Directive 
2014/23/EU. In that regard, the referring court recalls the Court’s case-law 
according to which, although ‘the EU legislation applicable to a concession 
contract is, as a rule, that in force when the contracting entity chooses the type of 
procedure to be followed’ and ‘a directive is not applicable if the period 
prescribed for its transposition expired after that point in time’, the fact remains 
that ‘the EU legislation in the light of which that modification must be assessed is 
that in force at the date of that amendment. The Court has stated in that context 
that the fact that the original concession contract was concluded prior to the 
adoption of EU rules on the matter is therefore without consequence in that 
regard’ (judgment of the Court of Justice of 2 September 2021, Sisal and Others, 
C-721/19 and C-722/19, EU:C:2021:672, paragraphs 24 and 28, and the case-law 
cited therein). 
18 Moreover, should the Court consider that the Directive carried out not only an 
approximation of the legislation but an exhaustive harmonisation, ‘a national 
measure in a sphere which has been the subject of full harmonisation … must be 
assessed in the light of the provisions of the harmonising measure and not those of 
the Treaty’ (judgment of the Court of Justice of 2 September 2021, Sisal and 
Others, C-721/19 and C-722/19, EU:C:2021:672, paragraph 32 and the case-law 
cited therein). 
19 The referring court considers, in particular, that Article 43 of Directive 
2014/23/EU, read in the light of the definition of ‘concession’ in Article 5 and the 
principles set out in recitals 75 and 76 to that Directive, is applicable. Pursuant to 
that provision, modifications of existing concessions may take place 
exceptionally, in particular where they are provided for in the initial contract and 
the continuation of the concessionary relationship is impractical for economic or 
technical reasons. 
20 This rule has been transposed into national law, primarily by Article 165 of the 
Public Contracts Code, pursuant to which, since concessions by definition entail 
the transfer of operating risk to the concessionaire, which is remunerated by 
receiving the majority of operating revenue, in order to preserve the economic and 
financial balance of the concession the operating conditions must remain normal. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-728/22 
 
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If they do not, the concession may provide for various adjustments, including in 
the form of public contributions. 
21 The referring court has doubts as to whether the following can be considered 
compatible with Directive 2014/23/EU:  
(a) on the one hand, the ADM’s interpretation of the Italian laws on bingo 
concessions, according to which the administration does not have the power 
to adopt, at the request of the interested parties, measures modifying the 
concessions’ operating conditions, with or without a new tender procedure 
(depending on whether or not the renegotiation of the contractual balance is 
considered a ‘substantial modification’), in cases where unforeseen events 
occur that cannot be attributed to the parties and that significantly affect 
normal operating risk conditions; 
(b) on the other hand, the national laws that have provided for the technical 
extension of concessions which have expired pending the organisation of a 
new tender procedure, making that extension, and the very possibility of 
participating in the future tender procedure, subject to the payment of a 
monthly fee, which has over time been increased significantly. That fee, 
moreover, is fixed in an abstract manner, without any specific assessment of 
the economic conditions of individual concessions, potentially distorting the 
overall balance of the concession. 
22 Thirdly, and finally, in the event that the Court considers that Directive 
2014/23/EU does not apply, the referring court declares that it has doubts as to 
whether the national practice and provisions referred to in the preceding paragraph 
are compatible with the general principles enshrined in Articles 15, 16, 20 and 21 
of the Charter, Article 3 TEU and Articles 8, 49, 56, 12, 145 and 151 TFEU, and 
in particular with the principles of freedom of establishment, freedom to provide 
services and the protection of legitimate expectations. In that regard, it refers to 
the interpretation of those general principles by the Court in its judgment of 
2 September 2021 (Sisal and Others, C-721/19 and C-722/19, EU:C:2021:672). 
23 In that regard, even were it to be granted that the introduction of the scheme for 
the technical extension of the concessions at issue is justified by the need to align 
the expiry dates of existing concessions in order to implement the provisions of 
European Union law under which public concessions must be awarded again, after 
their expiry, by open competitive tender procedures, such a scheme is, in the 
applicants’ view, contrary to Articles 49 and 56 TFEU, since it introduces 
restrictions on the freedom of establishment and the freedom to provide services 
which, as specifically developed and repeated, give rise to doubts as to their real 
necessity, appropriateness, proportionality and usefulness in relation to the 
objective pursued.