62006CC0347_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The effectiveness, even indeed the principle of legality, of Community law can conflict with the requirements of the principle of legal certainty. It may thus be necessary to reconcile or arbitrate the divergent interests they pursue in order to satisfy their respective requirements. Striking that balance, which is already delicate when the confrontation is between two Community rules, may prove even more difficult when it brings into play a Community rule of law and a national rule of law. The principle of primacy does not always appear to be the most appropriate instrument for resolving that potential conflict since the principle of legal certainty, whilst it is a general principle of law common to the majority of national legal systems, is also a general principle of Community law. In other words, the questions referred for a preliminary ruling require an examination of the extent of the obligations imposed by Community law in the context of rendering contrary national law compatible therewith.
2. That is the background to the questions referred for a preliminary ruling by the Tribunale amministrativo regionale per la Lombardia sezione staccata di Brescia (Lombardy Regional Administrative Court, Separate Chamber for Brescia) (Italy) (‘the TAR’). The national court essentially asks the Court to rule on the implications of the principles of equal treatment, non-discrimination and transparency arising from Articles 43 EC and 49 EC as well as those of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (2) (‘Directive 2003/55’), in the light of concessions for the distribution of natural gas originally granted without any competitive tendering procedure. More specifically, the main proceedings concern national legislation establishing a transitional period, twice rescheduled, intended to bring the concessions to an end early, in order to comply with the supposed requirements of Community law.
I – The facts in the main proceedings, the national legal background and the reference for a preliminary ruling
3. The applicant in the main proceedings, ASM Brescia SpA (‘ASM Brescia’), holds a concession for the natural gas distribution service in the Comune di Rodengo Saiano (Municipality of Rodengo Saiano) (‘the municipality’) pursuant to an agreement concluded with the municipality on 27 February 1984 without any competitive tendering procedure for potential operators. The concession was due to expire on 31 December 2029. The Italian legislature wished, however, upon transposition of Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas, (3) to bring forward the expiry of concessions granted without any competitive tendering procedure.
4. To that end, on 23 May 2000, it adopted Legislative Decree No 164 (4) (‘Decree No 164/2000’), which established the principle of the freedom of activities involving the import, export, transport and allocation, distribution and sale of gas. It laid down that, thenceforth, distribution, classified as a municipal public service, was to be entrusted, pursuant to Article 14 of Decree No 164/2000, to concession-holders selected exclusively by a call for tenders for a maximum period of 12 years.
5. In order to speed up the award by calls for tenders of existing concessions, Article 15(5) and (7) of Decree No 164/2000 states:
‘5. With regard to gas distribution activities, concessions in existence on the date of entry into force of this decree, and also those entrusted to companies created by the transformation of current operators, shall continue until the date of expiry provided for, if that date falls before the time-limits fixed by paragraph 7 for the transitional period. Concessions in existence for which no expiry date has been set, or for which an expiry date has been set after the end of the transitional period, shall continue until the end of the transitional period. ...
…
7. The transitional period referred to in paragraph 5 shall be of five years running from 31 December 2000. …’
6. Article 15(7) of Decree No 164/2000 provides, moreover, that the end of the transitional period may be extended for a maximum of five years, that is until 2010, subject to compliance with certain conditions set out therein.
7. The length of the transitional period was amended for the first time in 2004, when Article 1(69) of Law No 239 of 23 August 2004 laid down that thereafter ‘… [t]he transitional period referred to in Article 15(5) [of Decree No 164/2000] shall come to an end by 31 December 2007, without prejudice to the right of the local concession-granting authority to extend for one year, within six months of the date of entry into force of this decree, the term of the transitional period where grounds of general public interest have been established. ...’
8. In view of the complexity of the system introduced and the uncertainties to which it gives rise concerning the length of the transitional period during which concessions granted without any competitive tendering procedure must come to an end, the legislature adopted a further decree in 2005, Decree-Law No 273 of 30 December 2005 (‘Decree No 273/2005’).
9. The dispute between the applicant, ASM Brescia, and the municipality with which it is contractually linked reveals the ambiguities of those successive laws. The lack of agreement between the parties as to the end of the transitional period and, consequently, as to the expiry of the concession in question, led the applicant to bring an action for annulment against the municipality’s resolution of 19 July 2005 fixing the expiry of the concession at 31 December 2005.
10. By protective order of 18 October 2005, the TAR dismissed the application seeking suspension of the operation of the contested decision.
11. Decree No 273/2005, which entered into force in the course of the main proceedings, should have clarified the situation. It states in Article 23(1) that the expiration of the transitional period is to be automatically deferred until 31 December 2007 and that it may be extended by two years – until 31 December 2009 provided that at least one of the requirements laid down in Article 15(7) of Decree No 164/2000 is fulfilled. On the basis of that decree, the applicant thus considered that its concession should not have come to an end until 31 December 2007 at the earliest or even 31 December 2009 at the latest.
12. The applicability of Decree No 273/2005 to the dispute having been recognised, the Consiglio di Stato (Council of State) (Italy) granted, by protective order of 21 February 2006, the suspension of the operation of the contested decision.
13. Although that question had been resolved, the fact remained that the TAR, which was called upon to examine the substance of the dispute, had doubts as to compatibility with Community law of the extension of the transitional period, during which concessions which should initially have come to an end after that transitional period, had their terms shortened.
14. The Tribunale amministrativo regionale per la Lombardia sezione staccata di Brescia decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is an automatic and generalised extension till 31 December 2007 of current concessions for the distribution of natural gas, originally granted without any previous tender procedure, compatible with Articles 43 EC, 49 EC and 86(1) EC and the principles of equal treatment, non-discrimination and transparency?
(2) Are subsequent automatic extensions till 31 December 2009 of current concessions for the distribution of natural gas, originally granted without any previous tender procedure, compatible with Articles 43 EC, 49 EC and 86(1) EC and the principles of equal treatment, non-discrimination and transparency in the following cases:
(a) when the holder of the concession has carried out a merger enabling it to serve a number of customers twice as great as the larger of the merged companies was able to;
(b) when the holder of the concession has acquired more than 100 000 final users, or it distributes more than 100 million cubic metres of gas a year or its field of operations is at least as great as the whole territory of the province;
(c) when at least 40% of the concession-holder’s share capital has been transferred to private shareholders?
(3) Is the extension of current concessions for the distribution of natural gas, both in the case described in the first question and in the cases described in the second, compatible with recitals 4, 8, 10 and 18 in the preamble to Directive 2003/55/EC of 26 June 2003, and with Article 23(1) thereof, Article 10 EC and the principles of reasonableness and proportionality, having particular regard to:
(a) the fact that the States are obliged to attain the objective of liberalising the market in natural gas before the deadline of 1 July 2007;
(b) the fact that the States are prohibited from adopting or maintaining in force domestic legislation incompatible with the liberalisation of the market in natural gas;
(c) the fact that the States are obliged to set a reasonable term for the duration of the transitional period and subject it to objective requirements?’
15. By those questions, the national court raises the question, essentially, of the scope of the obligations imposed on Member States by the Treaty and by the relevant provisions of Directive 2003/55 concerning the concession contracts concluded without a competitive tendering procedure.
II – Reformulation and admissibility of the questions referred for a preliminary ruling
16. Since the way in which the questions referred by the national court are formulated might lead to confusion, it is necessary to state at the outset that the national legislation to which the case in the main proceedings relates does not effect the postponement of the concessions’ expiry but provides for their early expiry, structured in the context of a transitional period. The postponement laid down by the national law giving rise to the case in the main proceedings does not actually concern the length of the concession but that of the transitional period laid down in order to bring the concession to an end early.
17. Subject to that reservation, shared by the parties, the Court is actually asked to determine, first, whether Community law precludes the grant of a transitional period to the undertakings concerned in order to bring to an end early concession contracts concluded without any competitive tendering procedure and, second, according to which detailed rules may the competent national authorities extend or modify the length of such a transitional period.
18. Understood thus, the admissibility of the questions referred must be accepted, since they call for an interpretation of Community law which could prove useful in resolving the dispute in the main proceedings. (5)
III – Examination of the questions referred for a preliminary ruling
A – Initial observations on the applicable provisions
19. In its first two questions the national court refers to the interpretation of the provisions of primary law, in particular Articles 43 EC, 49 EC and 86(1) EC, and cites, in its third question, the provisions of Directive 2003/55 concerning common rules for the internal market in natural gas. It is, however, desirable, in my opinion, to begin this analysis with an examination of the applicability of the provisions of secondary legislation to the dispute. While the factual and legal circumstances concerned are to be excluded from the scope of Directive 2003/55, the obligations linked to the fundamental freedoms resulting from Articles 43 EC, 49 EC and 86(1) EC will be decisive for the resolution of this case.
20. In addition, although the national court refers to a ‘concession’ for the distribution of the natural gas service, it should be borne in mind that that term has an independent definition in Community law. It is, thus, for the national court to verify whether the contract concluded between the municipality and ASM Brescia comes within the definition of ‘service concession’, resulting from the Court’s case-law, (6) which adopts the definition set out in the interpretative communication of the Commission of the European Communities according to which ‘there is a concession when the operator bears the risk involved in operating the service in question (establishing and exploiting the system), obtaining a significant part of revenue from the user, particularly by charging fees in any form. As is the case for works concessions, the way in which the operator is remunerated is a factor which helps to determine who bears the exploitation risk.’ (7)
21. Although the contract in question falls within that definition, Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (8) cannot be invoked. That directive expressly excludes service concessions from its scope. By contrast, since Directive 2003/55 specifically concerns common rules for the internal market in natural gas, the national court may legitimately raise a question as to the interpretation of its provisions and whether they may be relied on in the main proceedings.
B – The third question: the applicability of Directive 2003/55 to the main proceedings
22. The adoption of the first directives on electricity in 1996 and on gas in 1998 was intended to achieve the completion of the internal market, which presupposed that public monopolies other than those concerning infrastructure would be abandoned in favour of free and undistorted competition in those fields. However, those directives allowed the Member States a certain discretion in terms of market opening, organisation of access to the network and market regulation. The Commission stated that ‘[p]ractice demonstrates that this situation leads to distortion of competition, as some Member States’ markets are more open to effective competition than others’. (9) Directive 2003/55 was adopted in that context in order to introduce progressively the total opening-up of the natural gas market, by enabling consumers freely to choose their suppliers and suppliers freely to deliver to their customers. (10) The objective of that new directive is to adopt ‘concrete provisions … to ensure a level playing field and to reduce the risks of market dominance and predatory behaviour, ensuring non-discriminatory transmission and distribution tariffs, through access to the network on the basis of tariffs published prior to their entry into force, and ensuring that the rights of small and vulnerable customers are protected’. (11) To that end, Directive 2003/55 abolished the option for Member States to negotiate access to the gas networks and obliges them to separate legally the operation of the transmission and distribution systems from other parts of the business.
23. None the less, even before examining whether the directive precludes the introduction of a transitional period during which the service concessions in dispute must be terminated early, it is necessary to examine, first of all, the extent of the obligations imposed on Member States by that directive. More specifically, should that text be regarded as imposing on Member States an obligation to bring such concessions to an end early and, only if so, from what moment is that obligation imposed and according to what detailed rules?
24. With regard to the first point, all the parties agree that there is nothing in Directive 2003/55 which indicates that there is an obligation to bring the disputed concessions to an end early. However, the national court raises the question of the relevance, particularly, of Article 23(1)(c) of Directive 2003/55 which might, in its view, impose such an obligation on Member States from 1 July 2007. That article stipulates: ‘Member States shall ensure that the eligible customers are … from 1 July 2007, all customers.’ It follows from this that, by that deadline, all customers are to be presumed, in accordance with Community law, to have access to the supplier of their choice for the purchase of natural gas.
25. However, the interpretation of that provision suggested by the national court appears to me to be wrong as regards contracts for the distribution of natural gas. That article relates, in fact, only to the supply and not to the distribution of natural gas. Therefore, no obligation can be inferred from that provision for the Member States to put an end to distribution contracts granted without any competitive tendering procedure. As the Commission has rightly pointed out, the deadline of 1 July 2007 applied to supply contracts cannot be transposed to distribution contracts, short of legislating instead of the Community legislature.
26. In addition, no other provision of Directive 2003/55 expressly supports an obligation to terminate existing concessions early. The articles of Directive 2003/55 which refer to the distribution of natural gas, in particular Article 4(2) and Articles 11 and 18, are restricted principally to providing for the designation of distribution system operators having regard to considerations of efficiency and economic balance (Article 11) according to objective and non‑discriminatory criteria (Article 4(2)). Moreover, the operators are to ensure third-party access to the system without discrimination and with complete transparency with regard to the tariffs and the calculation methods applied (Article 18).
27. Consequently, in the light of the foregoing considerations, it is impossible to infer from the wording of that text alone any obligation on Member States to terminate early the disputed distribution concessions which were granted before its adoption. Notwithstanding that statement, it is necessary to add that Directive 2003/55 none the less does not preclude such termination. The fact remains that the abovementioned provisions of Directive 2003/55 do not enable it to be determined whether Community law precludes national legislation such as that at issue in the main proceedings.
28. Therefore, the answer to the third question referred must be that Directive 2003/55 does not require the early termination of gas distribution contracts originally granted without any competitive tendering procedure, but it cannot be held that it expressly precludes such a possibility.
29. However, according to the Court’s settled case‑law, non‑application of the provisions of secondary legislation does not preclude the application of ‘the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the grounds of nationality, in particular’. (12) Further, ‘the provisions of the Treaty applying to public service concessions, in particular Articles 43 EC and 49 EC, and the prohibition of discrimination on grounds of nationality are specific expressions of the principle of equal treatment’. (13) In other words, the selection of the concession-holder must comply with the principles of the Treaty. Consequently, the reply to the questions referred by the national court must be sought on the basis of those principles intended to guarantee, in the main proceedings, the objective of free movement.
C – The first two questions
30. Where the national court asks the Court of Justice whether Community law precludes the establishment and extension of a transitional period in order to bring to an end concessions originally granted in breach of the principles of transparency and equal treatment such as stem from Articles 43 EC and 49 EC, (14) it effectively raises two problems in relation to free movement.
31. Although in the context of a reference for a preliminary ruling the Court should restrict itself to an abstract interpretation of Community law, it must nevertheless provide the national court with the information needed to adjudicate in the dispute. In that regard, the Court has repeatedly held that it is competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine the compatibility of its national legislation with Community law. (15) In my opinion, it is necessary in the present case to set out the different stages in the legal reasoning which the national court will have to follow in order to decide the case in the main proceedings.
32. From that point of view, answering the questions referred involves determining, initially, whether national legislation – which provides for the maintenance in force of existing concessions until the expiry of a transitional period introduced for the purpose of bringing those concessions to an end early – constitutes an obstacle to the freedom to provide services and the freedom of establishment and, if so, to examine, subsequently, whether such a restriction may nevertheless be accepted as an exceptional measure expressly provided for in Articles 45 EC and 46 EC, or justified, in accordance with the Court’s case-law, by overriding requirements relating to the public interest.
33. For the sake of completeness, it should also be pointed out that there is a link between the national legislation at issue in this case and intra‑Community trade inasmuch as operators established in other Member States might be interested in participating in the distribution of gas in Italy. The questions referred thus fall within the scope of Community law, although all the elements of the dispute in the main proceedings are confined to a single Member State. (16)
1. The existence of an obstacle
34. The requirements which stem from Articles 43 EC and 49 EC and from the principles of equal treatment, non‑discrimination and transparency have been set out repeatedly by the Court in relation to concession contracts, in particular in the judgments in Telaustria and Telefonadress, Coname
and Parking Brixen .
35. First, the judgment in Telaustria and Telefonadress
laid down the principle of a minimum obligation of transparency on the contracting authority which consists ‘in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed’. (17) That requirement, which stems from the fundamental rules of the Treaty, in general, and the principle of non‑discrimination, in particular, does not require systematic recourse to a call for tenders but is limited to requiring a sufficient degree of advertising.
36. That position was later confirmed in more detail by the judgment in Coname, which specifically concerned the grant of a concession for the operation of the public gas distribution service. The Court ruled, in that case, that a concession cannot be granted without complying with the requirements of transparency. In addition, the direct grant of a concession, without the possibility for any undertaking established in another Member State to gain access to relevant information concerning the concession for the purpose of expressing its interest, is contrary to the principles which stem from Articles 43 EC and 49 EC.
37. Those decisions lay down the principle that thereafter the grant of any concession be subject to at least a minimum level of competition, by ensuring compliance with a minimum obligation of transparency and equal treatment in order to comply with the objective of removing obstacles to the freedom to provide services.
38. Furthermore, the Court has defined the obligations on Member States concerning the conclusion of any new service concession. In the judgment in Parking Brixen, the Community judicature concluded that ‘the Member States must not maintain in force national legislation which permits the award of public service concessions without their being put out to competition since such an award infringes Article 43 EC or 49 EC or the principles of equal treatment, non‑discrimination and transparency’. (18) In other words, the absence of any possibility of putting out to competition concessions which are to be newly granted constitutes an obstacle to the freedom to provide services and/or that of establishment. Likewise, it held that the renewal of a public service concession without inviting competing bids between the potential operators also constituted an infringement of Articles 43 EC and 49 EC. (19) It is thus established that any award of a new concession and any renewal of an existing concession without a sufficient degree of advertising constitute a breach of the principles of freedom of movement.
39. However, that interpretation relates only to the decision to award and/or to renew a concession. The interpretation thus extracted by the Court applies not to concessions
of services, as such, but to decisions
to award or renew them, so that it could be argued that it would be wrong to extend that interpretation, previously formulated by the Court, in particular in Coname, to concessions originally granted without being put out to tender where they have not expired, so that there would be neither a decision to award nor a decision
to renew on the part of the contracting authority.
40. However, in my opinion, the case in the main proceedings may be distinguished from that case, in that the Italian legislature acted and its action had the same effect as a decision to renew a concession. Although the Italian legislature intended to pursue the objective of early termination of service concessions originally granted without any tendering procedure, nevertheless in the legislation at issue it provided for them to be maintained in force until the expiry of a transitional period which it defined. Therefore, the effect of such legislative action is to restrict access to gas distribution for any potential operator from another Member State for the entire duration of the transitional period which it introduced. Such legislation therefore constitutes a restriction on the freedom to provide services and/or that of establishment in not enabling potential operators established in other Member States to obtain access to those concessions.
41. Furthermore, even if the Court did not agree with me on that point, in my view the classification as an obstacle should be maintained. The objective pursued by the freedom to provide services and the freedom of establishment entails, in any event, the opening-up to competition of existing concessions originally granted in breach of the rules of the Treaty. Such concessions, concluded generally for an extremely long period, maintain the traditional operators in a privileged position. They are an obstacle, above all, to any new entrant on the market. The potential operators from other Member States are thus prevented, for the entire duration of the concession granted in breach of Community law, from penetrating the relevant market. They thus represent, by their nature, and by their intrinsic quality, a brake on access to the relevant market by protecting the positions acquired by national operators.
42. Such a restriction, even where there is no decision to award or to renew a concession which fails to comply with minimal putting-out to competition, is to be considered as being attributable to the Member State concerned. It is for Member States to adopt the necessary measures to bring their national law into conformity with Community law. It follows both from Article 86(1) EC, where a public undertaking with exclusive or special rights is concerned, and from the second paragraph of Article 10 EC, read in conjunction with Articles 43 EC and 49 EC, where the concession-holder does not fall within the situation referred to in Article 86 EC, that States are under an obligation to eliminate all measures contrary to the Treaty, in order to ensure the effectiveness of Community law. It follows from this that Member States are required not only to guarantee the putting-out to competition for potential operators when awarding distribution service concessions or renewing them, but also to do everything so that concessions originally granted without being put out to competition are rendered compliant with Community law.
43. Such an interpretation is implicit in the judgments in Telaustria and Telefonadress, Parking Brixen
and Coname, so that it was binding on Member States from the outset. The interpretation extracted by the Community judicature in those judgments forms part of Articles 43 EC and 49 EC, it ‘clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of entry into force’. (20) Had the Court wished, because of exceptional circumstances linked with the requirements of legal certainty, to limit in time the effects of that interpretation, it would have had to provide for such a limitation in the same judgment as ruled on the interpretation sought. (21) Since it did not do so, the interpretation extracted by the Community judicature continues to have retroactive effect.
44. In short, it appears that the Court, in the case‑law cited above, laid down the principle that any award or renewal of a public service concession must fulfil a minimum obligation of transparency and equal treatment, in the same way as it precludes the maintenance in force of a concession granted in breach of the principles of non‑discrimination and transparency, (22) inasmuch as those decisions constitute restrictions on the freedom to provide services and the freedom of establishment.
45. However, if the classification as an obstacle can be upheld, it is still necessary to examine whether the restriction at issue in the main proceedings can be justified by overriding reasons relating to the public interest.
2. Possible justifications for restricting freedom of movement
46. National measures which restrict the exercise of the fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four conditions: they must be applied in a non‑discriminatory manner; they must be justified by overriding reasons relating to the public interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective. (23)
47. Concerning the existence of overriding reasons relating to the public interest, inasmuch as the exceptions provided for by the Treaty are not applicable to the present case, the parties essentially base their arguments on the principles of legal certainty and the protection of legitimate expectations to justify the introduction of a transitional period.
48. It is possible to regard the principle of legal certainty as one of the overriding reasons relating to the public interest which Member States may claim applies. The Court has had occasion to point out that that principle, which forms part of the Community legal order, applies not only to the Community institutions, but also to the Member States when they exercise the powers conferred on them by Community law. (24)
49. On that basis, the principle of legal certainty and, more specifically, the principle of the stability of legal relations represent a convincing justification for the introduction of transitional measures.
50. Protecting the stability of legitimately established legal relations appears to me to find a certain echo in the context of the public service concessions concluded prior to Telaustria and Telefonadress
to the point of justifying transitional measures with the object of allowing a reasonable period during which conformity with Community law will have to be achieved.
51. In the present case, the concession at issue was granted in 1984. As the judgment in Telaustria and Telefonadress
was not delivered until 2000, the parties could thus, at the time when the concession was granted in 1984, legitimately, until that judgment intervened, hold the view that they were not in breach of Community law.
52. In those circumstances and in the light of the negative consequences of such case‑law with retroactive effect, particularly for a concession-holder who has invested significantly, thereby justifying the grant of a long-term contract, the introduction of transitional measures, with the object of limiting the adverse effect on existing contractual arrangements and thus of complying with the principle of legal certainty, may constitute an overriding reason relating to the public interest.
53. In support of that argument, the Court thus held that where ‘the Community regulations in question … leave the competent national authorities a sufficiently wide margin of appreciation to enable them to apply those rules in a manner consistent with the requirements of the protection of fundamental rights’, (25) then ‘the Member States must, as far as possible, apply those rules in accordance with those requirements’. (26) Concerning the service concessions and pending the intervention of the Community legislature in that specific field, Member States may be considered to have a discretion which is sufficiently wide to authorise them to take into account the requirements connected with legal certainty in the context of the application of the principle of the minimal opening-up of such contracts to competition.
54. It will, however, be for the national court to assess whether the conditions for the grant of a transitional period comply with objective, transparent and non-discriminatory criteria and that those measures remain proportionate to the objective pursued. (27)
55. It follows from the foregoing that the answer to the first two questions referred must be as follows:
Articles 43 EC and 49 EC and the principles of equal treatment, non‑discrimination and transparency are to be interpreted as precluding a public authority from providing for the maintenance in force of concessions originally granted without any competitive tendering procedure for the duration of a transitional period which it sets, even with the objective of bringing those concessions to an end early, since such a measure constitutes an obstacle to the freedom to provide services and the freedom of establishment. However, such a restriction may be justified by overriding reasons relating to the public interest linked to legal certainty and, in particular, the stability of legal relations. It will be for the national court to satisfy itself that the grant of such transitional measures fulfils those conditions, which it should do on the basis of objective, transparent and non-discriminatory criteria, and that those measures remain proportionate to the objective pursued.
IV – Conclusion
56. In view of the foregoing considerations, I suggest that the Court reply as follows to the questions referred by the Tribunale amministrativo regionale per la Lombardia sezione staccata di Brescia:
(1) Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC does not require the early termination of gas distribution contracts originally granted without any competitive tendering procedure, but it cannot be held that it expressly precludes such a possibility.
(2) Articles 43 EC and 49 EC and the principles of equal treatment, non-discrimination and transparency are to be interpreted as precluding a public authority from providing for the maintenance in force of concessions originally granted without any competitive tendering procedure for the duration of a transitional period which it sets, even with the objective of bringing those concessions to an end early, since such a measure constitutes an obstacle to the freedom to provide services and the freedom of establishment. However, such a restriction may be justified by overriding reasons relating to the public interest linked to legal certainty and, in particular, the stability of legal relations. It will be for the national court to satisfy itself that the grant of such transitional measures fulfils those conditions, which it should do on the basis of objective, transparent and non-discriminatory criteria, and that those measures remain proportionate to the objective pursued.
(1) .
(2)
–	OJ 2003 L 176, p. 57.
(3)
–	OJ 1998 L 204, p. 1.
(4)
–	GURI No 142 of 20 June 2000.
(5)
–	See, to that effect, Case C‑324/98 Telaustria and Telefonadress
[2000] ECR I‑10745.
(6)
–	See, on that point, Telaustria and Telefonadress, paragraph 57; Case C‑231/03 Coname
[2005] ECR I‑7287, paragraph 16; Case C‑458/03 Parking Brixen
[2005] ECR I‑8585, paragraph 42; Case C‑410/04 ANAV
[2006] ECR I‑3303, paragraph 17; and Case C‑260/04 Commission
v Italy
[2007] ECR I‑7083, paragraph 21.
(7)
–	Commission interpretative communication on concessions under Community law (OJ 2000 C 121, p. 2, point 2.2).
(8)
–	OJ 2004 L 134, p. 114. It replaces Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).
(9)
–	Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a directive of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 96/92/EC and concerning the common position of the Council on the adoption of a directive of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (SEC(2003) 161 final).
(10)
–	Recital 4 in the preamble to Directive 2003/55. See, also, Case T‑87/05 EDP
v Commission
[2005] ECR II‑3745. paragraph 110.
(11)
–	Recital 2 in the preamble to Directive 2003/55.
(12)
–	See, inter alia, Telaustria and Telefonadress, paragraph 60; Parking Brixen, paragraph 49; Coname, paragraph 16; and Commission
v Italy, paragraph 22.
(13)
–	Parking Brixen, paragraph 48, and Commission
v Italy, paragraph 23.
(14)
–	The application of Articles 43 EC and 49 EC is perfectly justified inasmuch as the concession was concluded by a municipal authority acting in its capacity as a public authority. Therefore, the principles of freedom of movement, arising from those articles apply. See the confirmation of this analysis, which accordingly excludes the application of Article 81 EC to concession contracts such as those at issue, in Case 30/87 Bodson
[1988] ECR 2479, paragraph 18.
(15)
–	See, inter alia, Case C‑292/92 Hünermund and Others
[1993] ECR I‑6787, paragraph 8, and Case C‑380/05 Centro Europa 7
[2008] ECR I‑0000, paragraph 50.
(16)
–	See the Court’s reconciling interpretation on that point, Case C‑87/94 Commission
v Belgium
[1996] ECR I‑2043, paragraph 33; Parking Brixen, paragraph 55; and Centro Europa 7, paragraph 66.
(17)
–	Paragraph 62.
(18)
–	Paragraph 52, confirmed by ANAV, paragraph 22.
(19)
–	See, inter alia, Commission
v Italy, paragraph 25. That case concerned the renewal of concessions for the operation of betting on horse races which had occurred without a call for tenders. The Court held that such a renewal ‘precludes the opening-up to competition of the licences and review of the impartiality of the procurement procedures’.
(20)
–	Case 61/79 Denkavit italiana
[1980] ECR 1205, paragraph 16; Case C‑453/00 Kühne & Heitz
[2004] ECR I ‑ 837, paragraph 21; Joined Cases C‑453/02 and C‑462/02 Linneweber and Akritidis
[2005] ECR I‑1131, paragraph 41; and Case C‑292/04 Meilicke and Others
[2007] ECR I‑1835, paragraph 34.
(21)
–	Case 309/85 Barra and Others
[1988] ECR 355, paragraph 13; Case 24/86 Blaizot and Others
[1988] ECR 379, paragraph 28; Case C‑163/90 Legros and Others
[1992] ECR I‑4625, paragraph 30; Case C‑415/93 Bosman
[1995] ECR I‑4921, paragraph 142; Case C‑437/97 EKW and Wein & Co.
[2000] ECR I‑1157, paragraph 57; and Meilicke and Others, paragraph 36.
(22)
–	The Commission shares that opinion. See also to that effect, although the authors deduce such an obligation from the terms of Directive 2003/55, Bouquet, G. and Buttery, E., ‘Vers la fin du droit de préférence accordé aux concessionnaires de transport et de distribution d’électricité et de gaz’ (‘Towards the end of the right of preference accorded to concession-holders for transmission and distribution of electricity and gas’), AJDA, 2006, p. 964, particularly p. 968.
(23)
–	Case C‑55/94 Gebhard
[1995] ECR I‑4165, paragraph 37; Case C‑212/97 Centros
[1999] ECR I‑1459, paragraph 34 ; Case C‑424/97 Haim
[2000] ECR I‑5123, paragraph 57; and Case C‑248/06 Commission
v Spain
[2008] ECR I‑0000, paragraph 32.
(24)
–	See, inter alia, Case C‑381/97 Belgocodex
[1998] ECR I‑8153, paragraph 26; Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep
[2004] ECR I‑5337, paragraph 57; and Case C‑376/02 ‘Goed Wonen’
[2005] ECR I‑3445, paragraph 32.
(25)
–	Case 5/88 Wachauf
[1989] ECR 2609, paragraph 22.
(26)
–	Ibid., paragraph 19.
(27)
–	See, inter alia, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others
[2007] ECR I‑1891, paragraph 49, and Centro Europa 7, paragraph 103.