C 94/16
EN
Official Journal of the European Union
13.3.2023
Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 November 2022 — Associazione Concessionari Bingo — Ascob Srl and Others v Ministero dell’Economia e delle Finanze, Agenzia delle Dogane e dei Monopoli (Case C-729/22) (2023/C 94/17) Language of the case: Italian Referring court Consiglio di Stato
Parties to the main proceedings Applicants: Associazione Concessionari Bingo — Ascob Srl and Others Defendants: Ministero dell’Economia e delle Finanze, Agenzia delle Dogane e dei Monopoli
Questions referred 1.
‘Are Directive 2014/23/EU on the award of concession contracts (1) and the general principles deriving from the Treaty, namely Articles 49 and 56 TFEU, to be interpreted as applying to concessions for the operation of a bingo game which were awarded by means of a selective procedure in 2000, have expired and were then repeatedly extended by legislative provisions which entered into force after the Directive’s entry into force and after the expiry of the period prescribed for its transposition?’ 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, (2) 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 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?’