Promoimpresa srl and Others v Consorzio dei comuni della Sponda Bresciana del Lago di Garda e del Lago di Idro and Others.
Date: 2016-07-14
28


In that regard, it should be borne in mind that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 6 October 2015 in Târșia, C‑69/14, EU:C:2015:662, paragraph 12 and the case-law cited).
29


In particular, it is not for the Court of Justice, in the context of the judicial cooperation established by Article 267 TFEU, to call into question or to verify the accuracy of the interpretation of national law made by the national court, as such interpretation falls within the exclusive jurisdiction of that court. Thus, the Court, when a question is referred to it by a national court, must base itself on the interpretation of national law as described to it by that court (judgment of 6 October 2015 in Târșia, C‑69/14, EU:C:2015:662, paragraph 13 and the case-law cited).
30


Furthermore, the Court may refuse to rule on questions referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 6 October 2015 in Târșia, C‑69/14, EU:C:2015:662, paragraph 14 and the case-law cited).
46


In that regard, the Court notes that a services concession is characterised, inter alia, by a situation in which the right to operate a particular service is transferred by the contracting authority to the concessionaire and that the latter enjoys, in the framework of the contract which has been concluded, a certain economic freedom to determine the conditions under which that right is exercised and, in addition, is, to a large extent, exposed to the risks of operating the service (see, to that effect, judgment of 11 June 2009 in Hans & Christophorus Oymanns, C‑300/07, EU:C:2009:358, paragraph 71).
47


However, in the cases in the main proceedings, as the Commission notes, the concessions do not concern the provision of a particular service by the contracting entity, but an authorisation to exercise an economic activity on State-owned land. It follows that the concessions at issue in the main proceedings do not fall within the category of service concessions (see, by analogy, judgment of 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraphs 26 to 28).
59


As a preliminary point, the Court notes that a national measure in a sphere which has been the subject of full harmonisation at EU level must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (judgment of 30 April 2014 in UPC DTH, C‑475/12, EU:C:2014:285, paragraph 63 and the case-law cited).
61


As has already been held with regard to Article 14 of that directive, which establishes a list of requirements that are ‘prohibited’ within the framework of the exercise of freedom of establishment, the Court considers that Articles 9 to 13 of Directive 2006/123 provide for exhaustive harmonisation concerning the services falling within their scope (see, by analogy, judgment of 16 June 2015 in Rina Services and Others, C‑593/13, EU:C:2015:399, paragraphs 37 and 38).
64


In that regard, it has been held that public authorities are bound, when they envisage granting a concession which is outside the scope of the directives on the various categories of public contracts, to comply with the fundamental rules of the TFEU, in general, and the principle of non-discrimination, in particular, (see, to that effect, judgment of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraphs 57 and 58 and the case-law cited).
65


More particularly, since such a concession is of certain cross-border interest, its award, without any transparency, to an undertaking located in the Member State to which the contracting authority belongs, amounts to a difference in treatment to the detriment of undertakings which might be interested in that concession and which are located in other Member States. Such a difference in treatment is, in principle, prohibited by Article 49 TFEU (see, by analogy, judgments of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraphs 59 and 60, and 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 37).
66


First of all, it should be noted that the existence of certain cross-border interest must be assessed on the basis of all the relevant factors, such as the financial value of the contract, the place where it is to be performed or its technical features, and having regard to the particular characteristics of the contract concerned (see, to that effect, judgments of 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 29 and the case-law cited, and 17 December 2015 in UNIS and Beaudout Père et Fils, C‑25/14 and C‑26/14, EU:C:2015:821, paragraph 30).
68


However, in Case C‑67/15, the referring court has not provided the Court with the findings of fact needed to establish that there is certain cross-border interest. As is clear from Article 94 of the Rules of Procedure, a request for a preliminary ruling must contain a summary of the facts on which the questions are based and indicate the connection, inter alia, between those facts and the questions. Accordingly, the findings of fact enabling the Court to ascertain whether there is certain cross-border interest should be made by the referring court before the questions are referred to the Court (see, to that effect, judgment of 17 December 2015 in UNIS and Beaudout Père et Fils, C‑25/14 and C‑26/14, EU:C:2015:821, paragraph 28).
71


Lastly, in so far as the Italian Government claims that the renewals resulting from the operation of the national legislation aim to allow concessionaires to recoup the cost of their investments, it must be noted that such a difference in treatment may be justified by overriding reasons in the public interest, inter alia, by the need to comply with the principle of legal certainty (see, to that effect, judgments of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 64, and 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 38).
72


It has therefore been held in relation to a concession awarded in 1984, although the Court had not established at that time that contracts with certain cross-border interest might be subject to a duty of transparency, that the principle of legal certainty requires that the termination of such a concession be coupled with a transitional period enabling the contracting parties to untie their contractual relations on acceptable terms, inter alia, from an economic point of view (see, to that effect, judgments of 17 July 2008 in ASM Brescia, C‑347/06, EU:C:2008:416, paragraphs 70 and 71, and 14 November 2013 in Belgacom, C‑221/12, EU:C:2013:736, paragraph 40).
73


However, the concessions at issue in the main proceedings were awarded when it had already been established that contracts with certain cross-border interest were subject to a duty of transparency, so that the principle of legal certainty cannot be relied on in order to justify a difference in treatment prohibited on the basis of Article 49 TFEU.