Opinion of the Advocate General — ECLI:EU:C:2007:193
Date: 2007-03-29
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment Community law – Principles – Equal treatment – Discrimination on grounds of nationality (Arts 43 EC and 49 EC) Public authorities concluding public service concession contracts are bound to comply with the fundamental rules of the EC Treaty, especially Articles 43 and 49 EC, and the prohibition of discrimination on grounds of nationality in particular, as being a specific expression of the general principle of equal treatment. The principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed. It follows that a Member State which renews licences for horse-race betting operations without inviting any competing bids fails to fulfil its obligations under Articles 43 and 49 EC and, in particular, infringes the general principle of transparency and the obligation to ensure a sufficient degree of advertising. The renewal of such licences without putting them out to tender cannot be justified by the need to discourage the development of clandestine activities for collecting and allocating bets, since it is not an appropriate means of attaining that objective and goes beyond what is necessary in order to preclude operators in the horse-race betting sector from engaging in criminal or fraudulent activities. In addition, grounds of an economic nature, such as the need to ensure continuity, financial stability and a proper return on past investments for licence holders, cannot be accepted as overriding reasons in the general interest justifying a restriction of a fundamental freedom guaranteed by the Treaty. (see paras 22-24, 31, 34-35, 38, operative part)