Unareti SpA v Ministero dello Sviluppo Economico and Others.
Date: 2019-03-21
19


That court explains that it is required to reconcile the opening of the market in question to competition with the protection of contractual relationships already created. For that purpose that court considers it necessary for the Court to interpret the ‘relevant provisions of EU law’ and the principle of legal certainty, in particular, with regard to the judgments of 17 July 2008, ASM Brescia (C‑347/06, EU:C:2008:416, paragraph 71), and of 12 December 2013, Test Claimants in the Franked Investment Income Group Litigation (C‑362/12, EU:C:2013:834, paragraph 44), in order to know whether they preclude amendments brought by the ministerial decrees challenged.
22


Pursuant to that article, in addition to the text of the questions referred to the Court for a preliminary ruling, a request for a preliminary ruling must contain: (i) a summary of the subject matter of the dispute and the relevant findings of fact or, at least, an account of the facts on which the questions are based, (ii) the content of any national provisions applicable to the dispute in the main proceedings and, where appropriate, the relevant national case-law, and (iii) a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (judgment of 26 May 2016, NN (L) International, C‑48/15, EU:C:2016:356, paragraph 22).
27


Furthermore, the Court has held that, even if a public service concession does not fall within the scope of the directives relating to the various categories of public contracts (see, in particular, judgment of 21 July 2005, Coname, C‑231/03, EU:C:2005:487, paragraph 16), it is clear from primary EU law that public authorities, when they plan to award such a concession, are bound to comply with the fundamental rules of the FEU Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular (see, to that effect, in particular, judgment of 7 December 2000Teleaustria and Telefonadress, C‑324/98, EU:C:2000:669, paragraph 60).
28


More specifically, 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 (see, to that effect, judgment of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 59 and the case-law cited).
29


Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 and 56 TFEU (see, to that effect, judgment of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 60 and the case-law cited).
34


In that context, it should be noted that, although, under EU law, the principle of legal certainty is binding on every national authority, that is only when that authority is responsible for implementing EU law (see, to that effect, judgment of 17 July 2008, ASM Brescia, C‑347/06, EU:C:2008:416, paragraph 65 and the case-law cited).
36


That feature of the case in the main proceedings distinguishes it from those mentioned by the referring court which gave rise to the judgments of 17 July 2008, ASM Brescia (C‑347/06, EU:C:2008:416, paragraph 71), and of 12 December 2013, Test Claimants in the FrankedInvestment Income Group Litigation (C‑362/12, EU:C:2013:834), in which the principle of legal certainty was applicable having regard to the existence of obligations deriving from EU law, pursuant to which the competent national authorities had to, respectively, justify a difference in treatment derogating from the rules mentioned in paragraphs 27 to 29 of the present judgment and reimburse the taxes received in violation of EU law.