Judgment of the Court of 13 May 2024 in Case E-8/23 – Trannel International Limited v Staten v/Kultur- og likestillingsdepartementet (the Norwegian State, represented by the Ministry of Culture and Equality) (Directive 2014/23/EU – Article 5(1)(b) – Exclusive right – Horse race betting – Services concessions – Contract for pecuniary interest – Administrative authorisation)
Date: 2024-05-13
Institutions: EFTA Court
Subjects: European Economic Area, Norway, administrative transparency, animal show, award of contract, foundation, game of chance, principle of legal certainty, public procurement, service concession








C_202405661EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5661


19.9.2024







            JUDGMENT OF THE COURT
         
of 13 May 2024
         
in Case E-8/23
Trannel International Limited v Staten v/Kultur- og likestillingsdepartementet (the Norwegian State, represented by the Ministry of Culture and Equality)



(Directive 2014/23/EU – Article 5(1)(b) – Exclusive right – Horse race betting – Services concessions – Contract for pecuniary interest – Administrative authorisation)


(C/2024/5661)

In Case E-8/23, Trannel International Limited v Staten v/Kultur- og likestillingsdepartementet (the Norwegian State, represented by the Ministry of Culture and Equality) – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by by Oslo District Court (Oslo tingrett), concerning the interpretation of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, in particular Article 5(1)(b) and Article 10(1) thereof, the Court, composed of Páll Hreinsson, President, Bernd Hammermann and Michael Reiertsen (Judge-Rapporteur), Judges, gave judgment on 13 May 2024, the operative part of which is as follows:






1.


In order to determine whether an award of an exclusive right to offer horse race betting to a foundation organised in a manner similar to that of Stiftelsen Norsk Rikstoto constitutes a services concession within the meaning of Article 5(1)(b) of Directive 2014/23/EU on the award of concession contracts, regard must be had to whether the right is subject to a contract concluded in writing for pecuniary interest between one or more economic operators and one or more contracting authorities, having as its object a concession for services, in return for consideration and to the benefit of the acquiring authority, which is legally binding on both parties and which is legally enforceable. Administrative authorisation schemes by which an authorisation is granted to an economic operator, and which regulate and establish the conditions for the exercise of the activity whilst the economic operator remains free to withdraw from the provision of the service, the provision of which cannot be legally enforced, are not within the scope of Directive 2014/23/EU.










2.


The entry into force of Directive 2014/23/EU has not changed the distinction between services concessions falling within the scope of Directive 2014/23/EU and administrative authorisation schemes falling outside the scope of that directive.










3.


The fact that any profits of the party awarded the exclusive right are controlled by the State through regulations, to the benefit of third parties, is not in and of itself relevant for the assessment of whether the arrangement at issue constitutes a services concession within the meaning of Directive 2014/23/EU.










4.


The organisational structure of the entity awarded an exclusive right to offer horse race betting, such as a foundation such as in the present case, is not relevant for the assessment of whether the arrangement constitutes a services concession within the meaning of Directive 2014/23/EU.










5.


It is not of significance for the exception in Article 10(1) of Directive 2014/23/EU that national legislation on which the exclusive right is based does not specifically name the holder of the right or that the foundation that is awarded an exclusive right has also been awarded that right uninterruptedly under previous national legislation.






ELI: http://data.europa.eu/eli/C/2024/5661/oj
ISSN 1977-091X (electronic edition)