Opinion of the Advocate General — ECLI:EU:C:2016:122
Date: 2016-02-25
Language of the case: Italian
Subject matter: Competition;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

summary of the facts on which the questions are based and indicate the connection, inter alia, between those facts and the questions. Accordingly, the findings of fact enabling the Court to ascertain whether there is certain cross-border interest should be made by the referring court before the questions are referred to the Court (see, to that effect, judgment of 17 December 2015 in UNIS and Beaudout Père et Fils, C‑25/14 and C‑26/14, EU:C:2015:821, paragraph 28). 69 In those circumstances, the first question referred for a preliminary ruling in Case C‑67/15 is inadmissible. 70 As regards Case C‑458/14, the Court finds that legislation, such as that at issue in the main proceedings, in the light of the extension that it introduces, delays the award of the concessions through a transparent tender procedure to such an extent that it must be found that such legislation introduces a difference in treatment to the detriment of undertakings located in another Member State which might be interested in those concessions, which is prohibited, in principle, by Article 49 TFEU. 71 Lastly, in so far as the Italian Government claims that the renewals resulting from the operation of the national legislation aim to allow concessionaires to recoup the cost of their investments, it must be noted that such a difference in treatment may be justified by overriding reasons in the public interest, inter alia, by the need to comply with the principle of legal certainty (see, to that effect, judgments of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 64, and 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 38). 72 It has therefore been held in relation to a concession awarded in 1984, although the Court had not established at that time that contracts with certain cross-border interest might be subject to a duty of transparency, that the principle of legal certainty requires that the termination of such a concession be coupled with a transitional period enabling the contracting parties to untie their contractual relations on acceptable terms, inter alia, from an economic point of view (see, to that effect, judgments of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraphs 70 and 71, and 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 40). 73 However, the concessions at issue in the main proceedings were awarded when it had already been established that contracts with certain cross-border interest were subject to a duty of transparency, so that the principle of legal certainty cannot be relied on in order to justify a difference in treatment prohibited on the basis of Article 49 TFEU. 74 It follows from the foregoing considerations that Article 49 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which permits the automatic extension of existing concessions of State-owned property for tourist and leisure-oriented business activities, in so far as those concessions are of certain cross-border interest. Costs 75 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 (Fifth Chamber) hereby rules: 1. Article 12(1) and (2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as precluding a national measure, such as that at issue in the main proceedings, which permits the automatic extension of existing authorisations of State-owned maritime and lakeside property for tourist and leisure-oriented business activities, without any selection procedure for potential candidates. 2. Article 49 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which permits the automatic extension of existing concessions of State-owned property for tourist and leisure-oriented business activities, in so far as those concessions are of certain cross-border interest. [Signatures] * Language of the case: Italian.