Commission of the European Communities v Italian Republic.
Date: 2007-09-13
18. In that regard it must be remembered that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-282/02 Commission  v Ireland  [2005] ECR I‑4653, paragraph 40, and Case C-514/03 Commission v Spain  [2006] ECR I‑963, paragraph 44).
21. It is common ground that public service concessions are excluded from the scope of Directive 92/50 (see Case C-458/03 Parking Brixen  [2005] ECR I-8585, paragraph 42).
22. The Court has held that, notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the grounds of nationality, in particular (see, to that effect, Telaustria and Telefonadress , cited above, paragraph 60; Case C‑231/03 Coname  [2005] ECR I-7287, paragraph 16; and Parking Brixen , cited above, paragraph 46).
23. The Court then stated that the provisions of the Treaty applying to public service concessions, in particular Articles 43 and 49 EC, and the prohibition of discrimination on grounds of nationality are specific expressions of the principle of equal treatment (see, to that effect, Parking Brixen , cited above, paragraph 48).
24. In that regard, the principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That obligation of transparency which is imposed on the public authority 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 (see, to that effect, Telaustria and Telefonadress , paragraphs 61 and 62, as well as Parking Brixen , paragraph 49, both cited above).
26. In those circumstances, it is necessary to consider whether the renewal may be recognised as an exceptional measure, as expressly provided for in Articles 45 EC and 46 EC, or justified, in accordance with the case-law of the Court, for reasons of overriding general interest (see, to that effect, Case C-243/01 Gambelli and Others  [2003] ECR I-13031, paragraph 60, and Placanica and Others , cited above, paragraph 45).
27. On that point, a certain number of reasons of overriding general interest have been recognised by the case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander on gaming, as well as the general need to preserve public order ( Placanica and Others , cited above, paragraph 46).
28. Although the Member States are free to set the objectives of their policy on betting and gaming and, where appropriate, to define in detail the level of protection sought, the restrictive measures that they impose must nevertheless satisfy the conditions laid down in the case-law of the Court as regards their proportionality ( Placanica and Others , cited above, paragraph 48).
33. In that regard it is for the competent national authorities to show, first, that their legislation addresses an essential interest within the meaning of Articles 45 and 46 EC or an overriding requirement relating to the general interest as laid down in the case-law and, second, that that legislation conforms to the principle of proportionality (see, to that effect, Case C‑41/02 Commission v Netherlands   [2004] ECR I‑11375, paragraph 47; Case C‑38/03 Commission v Belgium  [2005], not published in the ECR, paragraph 20, and Case C‑255/04 Commission v France   [2006] ECR I‑5251, paragraph 29).
35. In addition, as regards the grounds of an economic nature put forward by the Italian Government, such as the need to ensure continuity, financial stability and a proper return on past investments for licence holders, suffice it to point out that those cannot be accepted as overriding reasons in the general interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see, to that effect, Case C‑35/98 Verkooijen  [2000] ECR I‑4071, paragraph 48, and Case C‑388/01 Commission v Italie  [2003] ECR I‑721, paragraph 22).