1 These requests for a preliminary ruling concern, principally, the interpretation of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1), and Articles 49 and 56 TFEU.
2 Those requests were made in the context of a dispute between, on the one hand, two professional groups of undertakings that manage bingo gaming activities in Italy and undertakings in that business sector, namely the Associazione Nazionale Italiana Bingo - Anib, Play Game Srl (C‑728/22), Associazione Concessionari Bingo - Ascob Srl, B&B Srl, TM Srl, Better Now Srl, Bingo Adda Srl, Bingo Baccara Srl, Bingo Boing Srl, Bingo Bon Srl, Bingobrescia Srl, Bingo Bul Srl, Bingo Centrum Srl, Bingo Dolomiti Srl, Bingo Gallura Srl, Bingo Globo Srl Unipersonale, Bi.Pa. Srl, Bingo Ritz Somalia Srl, Bingo Seven Monza Srl, Bingo Star Rovigo Srl, Bingo Time Trentino Srl, Borgaro Bingo Srl, Dora Srl, Eden Srl, Eliodoro Srl, Eurogela Giochi Srl, Euronissa Giochi Srl, Fiore Srl, Hippobingo Firenze Srl, Hippogroup Cesenate SpA, Hippogroup Modena Srl, Iris Srl, Kristal Palace Srl, Le Casinò Srl, AT e Bingo Srl Unipersonale in Amministrazione Giudiziaria, Milano Giochi Srl, Mondo Bingo Srl, Progetto Bingo Srl, Romulus Srl, Tutto Gioco Srl (C‑729/22) and Coral Srl (C‑730/22), and, on the other hand, the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finances, Italy) and the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy; ‘ADM’) concerning the validity of the ‘technical extension’ scheme by which the Italian government extended the duration of the validity of certain concessions and, as consideration for it doing so, established (i) an obligation requiring the concessionaires concerned to pay a monthly fee, the amount of which was subsequently increased, (ii) a prohibition on them transferring their premises, and (iii) an obligation requiring them to accept extensions in order to be permitted to participate in any procedure to be awarded those concessions again in the future.
3 Recitals 52, 75,76 and 87 of Directive 2014/23 state: ‘(52) The duration of a concession should be limited in order to avoid market foreclosure and restriction of competition. In addition, concessions of a very long duration are likely to result in the foreclosure of the market, and may thereby hinder the free movement of services and the freedom of establishment. However, such a duration may be justified if it is indispensable to enable the concessionaire to recoup investments planned to perform the concession, as well as to obtain a return on the invested capital. Consequently, for concessions with a duration greater than five years the duration should be limited to the period in which the concessionaire could reasonably be expected to recoup the investment made for operating the works and services together with a return on invested capital under normal operating conditions, taking into account specific contractual objectives undertaken by the concessionaire in order to deliver requirements relating to, for example, quality or price for users. … … (75) Concession contracts typically involve long-term and complex technical and financial arrangements which are often subject to changing circumstances. It is therefore necessary to clarify the conditions under which modifications of a concession during its performance require a new concession award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. A new concession procedure is required in the case of material changes to the initial concession, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that concession. This is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure. Modifications of the concession resulting in a minor change of the contract value up to a certain level value should always be possible without the need to carry out a new concession procedure. … (76) Contracting authorities and contracting entities can be faced with external circumstances that they could not foresee when they awarded the concession, in particular when the performance of the concession covers a long period. In those cases, a certain degree of flexibility is needed to adapt the concession to the circumstances without a new award procedure. The notion of unforeseeable circumstances refers to circumstances that could not have been predicted despite reasonably diligent preparation of the initial award by the contracting authority or contracting entity, taking into account its available means, the nature and characteristics of the specific project, good practices in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value. However, this cannot apply in cases where a modification results in an alteration of the nature of the overall concession, for instance by replacing the works to be executed or the services to be provided by something different or by fundamentally changing the type of concession since, in such a situation, a hypothetical influence on the outcome may be assumed. … … (87) Since the objective of this Directive, namely the coordination of laws, regulations and administrative provisions of the Member States applying to certain concession procedures cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at [EU] level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.’
4 Article 1 of that directive, headed ‘Subject matter and scope’, provides, in paragraph 1: ‘This Directive establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, whose value is estimated to be not less than the threshold laid down in Article 8.’
5 Article 5 of that directive, headed ‘Definitions’, states: ‘For the purposes of this Directive the following definitions apply: (1) “concessions” means works or services concessions, as defined in points (a) and (b): … (b) “services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment. The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both. The concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject matter of the concession. The part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible.’
6 According to its heading, Article 8 of Directive 2014/23 makes provision for the threshold and methods for calculating the estimated value of concessions. In particular, the first subparagraph of paragraph 2 of that provision states that: ‘the value of a concession shall be the total turnover of the concessionaire generated over the duration of the contract, net of VAT, as estimated by the contracting authority or the contracting entity, in consideration for the works and services being the object of the concession, as well as for the supplies incidental to such works and services’.
7 Article 18 of that directive, headed ‘Duration of the concession’, provides: ‘1. The duration of concessions shall be limited. The contracting authority or contracting entity shall estimate the duration on the basis of the works or services requested. 2. For concessions lasting more than five years, the maximum duration of the concession shall not exceed the time that a concessionaire could reasonably be expected to take to recoup the investments made in operating the works or services together with a return on invested capital taking into account the investments required to achieve the specific contractual objectives. …’
8 Article 43 of that directive, headed ‘Modification of contracts during their term’, provides: ‘1. Concessions may be modified without a new concession award procedure in accordance with this Directive in any of the following cases: (a) where the modifications, irrespective of their monetary value, have been provided for in the initial concession documents in clear, precise and unequivocal review clauses, which may include value revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the concession; (b) for additional works or services by the original concessionaire that have become necessary and that were not included in the initial concession where a change of concessionaire: (i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial concession; and (ii) would cause significant inconvenience or substantial duplication of costs for the contracting authority or contracting entity. However, in the case of concessions awarded by a contracting authority, for the purposes of pursuing an activity other than those referred to in Annex II, any increase in value shall not exceed 50% of the value of the original concession. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive; (c) where all of the following conditions are fulfilled: (i) the need for modification has been brought about by circumstances which a diligent contracting authority or contracting entity could not foresee; (ii) the modification does not alter the overall nature of the concession; (iii) in the case of concessions awarded by contracting authority, for the purposes of pursuing an activity other than those referred to in Annex II, any increase in value is not higher than 50% of the value of the initial concession. Where several successive modifications are made, this limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive; (d) where a new concessionaire replaces the one to which the contracting authority or the contracting entity had initially awarded the concession as a consequence of either: (i) an unequivocal review clause or option in conformity with point (a); (ii) universal or partial succession into the position of the initial concessionaire, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; or (iii) in the event that the contracting authority or contracting entity itself assumes the main concessionaire’s obligations towards its subcontractors where this possibility is provided for under national legislation; (e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4. Contracting authorities or contracting entities having modified a concession in the cases set out under points (b) and (c) of this paragraph shall publish a notice to that effect in the Official Journal of the European Union. Such notice shall contain the information set out in Annex XI and shall be published in accordance with Article 33. 2. Furthermore, and without any need to verify whether the conditions set out under points (a) to (d) of paragraph 4 are met, concessions may equally be modified without a new concession award procedure in accordance with this Directive being necessary where the value of the modification is below both of the following values: (i) the threshold set out in Article 8; and (ii) 10% of the value of the initial concession. However, the modification may not alter the overall nature of the concession. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications. 3. For the purpose of the calculation of the value referred to in paragraph 2 and points (b) and (c) of paragraph 1, the updated value shall be the reference value when the concession includes an indexation clause. If the concession does not include an indexation clause, the updated value shall be calculated taking into account the average inflation in the Member State of the contracting authority or of the contracting entity. 4. A modification of a concession during its term shall be considered to be substantial within the meaning of point (e) of paragraph 1, where it renders the concession materially different in character from the one initially concluded. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met: (a) the modification introduces conditions which, had they been part of the initial concession award procedure, would have allowed for the admission of applicants other than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the concession award procedure; (b) the modification changes the economic balance of the concession in favour of the concessionaire in a manner which was not provided for in the initial concession; (c) the modification extends the scope of the concession considerably; (d) where a new concessionaire replaces the one to which the contracting authority or contracting entity had initially awarded the concession in other cases than those provided for under point (d) of paragraph 1. 5. A new concession award procedure in accordance with this Directive shall be required for other modifications of the provisions of a concession during its term than those provided for under paragraphs 1 and 2.’
9 Article 51 of the directive, headed ‘Transposition’, provides, in paragraph 1: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. They shall forthwith communicate to the [European] Commission the text thereof. …’
10 Article 54 of Directive 2014/23, headed ‘Entry into force’, provides: ‘This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Directive shall not apply to the award of concessions tendered or awarded before 17 April 2014.’
11 The game of bingo was initially governed in Italy by decreto n. 29 - Regolamento recante norme per l’istituzione del gioco ‘Bingo’ ai sensi dell’articolo 16 della legge 13 maggio 1999, n. 133 (Decree No 29 - Regulation laying down rules for the establishment of the game of Bingo within the meaning of Article 16 of Law No 133 of 13 May 1999, No 133) of 31 January 2000 (GURI No 43 of 22 February 2000), which gave the Minister for Economy and Finance the power to define the detailed rules and the time for playing and make decisions concerning the payment of remuneration, charges and income payable on any basis whatsoever, including those to be allocated to the organisers of competitions.
12 In practice, the concessions, which were awarded at the end of a selection procedure implemented following the adoption of that decree, did not stipulate that a monthly fee was to be paid. However, a tax levy was imposed on the bingo tickets sold.
13 The duration of those concessions was set at six years; those concessions could be renewed only once, in accordance with the provisions of Article 2(1)(e) of that decree.
14 In 2013, when the first concessions granted under that decree were approaching the point of expiry, the issue of whether the method of awarding concessions was compatible with EU law was raised, since EU law requires a call for tenders to be published in which any eligible undertaking may participate equally. According to the Italian legislature, bringing the method of awarding concessions provided for by national law in line with EU law nevertheless involved a ‘gradual alignment over time’ of the starting dates of all concessions in the sector concerned.
15 Consequently, the decision was made to introduce the technical extension scheme for concessions which had expired, thereby allowing the concessionaires to continue to exercise their activities provisionally, so that, once all the concessions had expired, award procedures could be launched on the same date for all of those concessions.
16 Article 1(636) and (637) of legge n. 147 - Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2014) (Law No 147 relating to the provisions for drawing up the annual and plurennial budget of the State (Stability Law 2014)) of 27 December 2013 (GURI No 302 of 27 December 2013, Ordinary Supplement No 87)(‘Law No 147/2013’) provides: ‘636. In order to reconcile the [EU law] principle that public concessions must be awarded or awarded again, after their expiry, by having recourse to competitive selection procedures, with the need to pursue, as regards gaming concessions for the collection of bingo stakes, the gradual alignment over time of those concessions, the [ADM] shall, in 2014, award new concessions in respect of those expiring in 2013 and 2014 in accordance with the following guiding principles: (a) introduction of the principle that concessions for the collection of bingo stakes shall entail the payment of a fee and setting of a minimum consideration threshold for the award of each concession at EUR 200000; (b) duration of concessions of six years; (c) payment of a sum in the amount of EUR 2800 in respect of each month or fraction of a month of more than fifteen days and in an amount of EUR 1400 in respect of each fraction of less than fifteen days, by the outgoing concessionaire who also intends to participate in the call for tenders for the award of the new concession, in respect of each month, or fraction of a month, during which the expired concession relationship is extended and, in any event, until the date on which the new concession that is to be awarded again is granted; (d) payment of the sum referred to in point (a) in two halves of an equal amount, the first on the date of submission of the application to participate in the tender procedure for the award of a new concession and the second on the date of the grant of the new concession, at the end of the procedure for selecting competitors; (e) determination to the effect that the amount of the bank or insurance guarantee to be provided by the concessionaire, for the duration of the concession, in favour of the public administration for the purpose of ensuring that the subjective and objective requirements, the levels of service and the performance of the agreed contractual obligations are met shall be the total annual sum of EUR 300000. 637. The Executive Decree of the [ADM], which must be adopted before the end of May 2014, shall lay down all implementing provisions necessary to ensure that, every two years, in accordance with the guiding principles set out in paragraph 636, competitive procedures are launched for the award of new concessions to replace existing concessions for the collection of bingo stakes, the last of which is due to expire in 2020.’
17 According to the referring court, the technical extension scheme also introduced a prohibition banning holders of concessions which had expired who did not wish to participate in that scheme by bearing the cost associated with it from participating in the tendering procedure to be awarded a new concession in respect of the concession concerned.
18 The technical extension scheme was first amended in 2015, by Article 1(934) of legge n. 208 - Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2016) (Law No 208 relating to the provisions for drawing up the annual and plurennial budget of the State (Stability Law 2016)) of 28 December 2015 (GURI No 302 of 30 December 2015 - Ordinary Supplement No 70), the effect of which was, inter alia, to broaden the scope of the technical extension scheme to cover concessions expiring in 2015 and 2016, to push the deadline for the awarding of the concessions concerned back from 31 December 2014 to 31 December 2016 and, consequently, to lengthen the duration of those concessions, to increase the amount of the monthly fee payable by the operators under that scheme from EUR 2800 to EUR 5000 for each month or fraction of a month of more than 15 days and from EUR 1400 to EUR 2500 for each fraction of less than 15 days, and to prohibit the transfer of premises for the duration of the technical extension.
19 Decreto legislativo n. 50 - Codice dei contratti pubblici (Legislative Decree No 50 establishing the Public Procurement Code) of 18 April 2016 (GURI No 91 of 19 April 2016) transposed Directive 2014/23 into Italian law.
20 Article 1(636) and (637) of Law No 147/2013 was amended again in 2017, on this occasion by legge n. 205 - Bilancio di previsione dello Stato per l’anno finanziario 2018 e bilancio pluriennale per il triennio 2018-2020 (Law No 205 on the estimated State budget for the financial year 2018 and the plurennial budget for the three-year period 2018-2020), of 27 December 2017 (GURI No 302 of 29 December 2017, Ordinary Supplement No 62) (‘Law No 205/2017’), the effect of which was to broaden the scope of the scheme to concessions expiring in 2017 and 2018, to push back the established deadline for launching the tendering procedure for the award of new concessions from 31 December 2016 to 30 September 2018, and to increase the amount of the monthly fee payable under that scheme from EUR 5000 to EUR 7500 in respect of each month or fraction of a month of more than 15 days and from EUR 2500 to EUR 3500 in respect of each fraction of less than 15 days.
21 Article 1(636) to (638) of Law No 147/2013 was subsequently amended in 2018, 2019 and 2020, the effect of which, in each case, was to extend the application of the technical extension scheme to concessions that had not expired. In particular, legge n. 178 - Bilancio di previsione dello Stato per l’anno finanziario 2021 e bilancio pluriennale per il triennio 2021-2023 (Law No 178 on the State budget for the 2021 financial year and the plurennial budget for the three-year period 2021-2023) of 30 December 2020 (GURI No 322 of 30 December 2020, Ordinary Supplement No 46) set 31 March 2023 as the date of expiry of the period for launching the tender procedure for awarding concessions, that is to say, after the date of expiry of the last bingo concession.
22 Subsequent to the facts at issue in the main proceedings, Article 1 was further amended in 2022, with a view not only to extending the application of the technical extension scheme until 31 December 2024, but also to increasing the monthly fee payable in respect of each month or fraction of a month of more than 15 days to EUR 8625.
23 The actions in the main proceedings have been brought by two professional groups of undertakings which manage bingo gaming activities and by undertakings in that business sector.
24 Faced with financial difficulties resulting both from the effects of the COVID-19 pandemic and from the application of the national legislation which had, in essence, made the concessions entail the payment of a fee, the appellants in the main proceedings submitted to the ADM requests seeking, inter alia, the immediate suspension of the monthly fee payable under the technical extension scheme, as far as concerns the amount of that fee as set by Law No 205/2017, until such time as the economic and financial balance of those concessions prevailing before that pandemic had been restored and, in the case of some of them, in the alternative, the amendment of that fee, so as to take account of each concessionaire’s actual capacity to pay.
25 On 9 July and 18 November 2020, respectively, in Case C‑729/22 and in Case C‑728/22, the ADM refused those requests on the ground, inter alia, that it could not amend, by means of an administrative measure, the amount of that fee since it was set by national legislation.
26 The appellants in the main proceedings brought actions before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) against the refusal of those requests. Those actions were dismissed as unfounded in the light of judgment No 49/2021 of the Corte costituzionale (Constitutional Court, Italy), which dismissed doubts similar to those in the present cases regarding the issue of whether the national legislation at issue in the main proceedings is consistent with the Costituzione della Repubblica Italiana (Constitution of the Italian Republic).
27 The appellants in the main proceedings brought an appeal against those two judgments before the Consiglio di Stato (Council of State, Italy), which is the referring court, claiming, inter alia, that the fact that the monthly fee payable under the technical extension scheme is provided for by the national legislation cannot justify depriving the ADM of any discretion to adopt administrative acts intended to rebalance the economic and financial conditions for the operation of the concessions, where those conditions are affected by unforeseeable events. Otherwise, the legal relationships arising from concessions for the exercise of the activities of taking and managing bets would unfairly be treated less favourably than those organised exclusively by means of a contract. In addition, the fact that it is impossible to renegotiate the economic balance of a concession is contrary to EU law because, although the award of a concession entails, by its very nature, a transfer of the operating risk to the concessionaire, the fact remains that, in the case of exceptional operating conditions, EU law requires that it be possible to modify the concession relationship while the concession is being performed.
28 The referring court points out, first of all, that the appellants in the main proceedings have submitted evidence establishing that the conditions for operating the concessions, in particular the sustainability of their operating costs, were seriously compromised by unforeseen and unforeseeable events, in particular as a result of the COVID-19 pandemic, whereas, in its judgment No 49/2021, the Corte costituzionale (Constitutional Court) ruled on situations that arose prior to the health crisis resulting from that pandemic.
29 Next, the referring court expresses doubts as to whether the following are compatible with EU law: first, having recourse to national legislation in order to amend certain elements of concession contracts, where having recourse to such an instrument deprives the ADM of any power to modify the concessions concerned in the event of unforeseen and unforeseeable event and events not attributable to the parties, which significantly affect the normal conditions of the operating risk of those concessions and, second, the various laws adopted in that respect in order to modify those concessions where they provide for the extension of those concessions while making that extension, and the possibility of participating in future tender procedures, subject to payment of a monthly fee, and may thus alter the overall balance of each concession.
30 Lastly, the referring court submits that, even if the introduction of the technical extension scheme were justified by the need to align the expiry dates of the concessions at issue in the main proceedings in order to launch new award procedures, such a scheme appears to be contrary to Articles 49 and 56 TFEU, since it raises doubts as to whether it is genuinely necessary, appropriate and proportionate in relation to that objective.
31 In those circumstances, in Case C‑728/22, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Directive [2014/23], as well as the general principles that follow from the [Treaties], namely Articles 15, 16, 20 and 21 of the Charter of Fundamental Rights of the European Union [(“the Charter”)], Article 3 of the [TEU] and Articles 8, 49, 56, 12, 145 and 151 [TFEU], be interpreted as applying to concessions for the operation of the bingo game which were awarded under a selective tender procedure in 2000, expired and were subsequently repeatedly extended in their effects by legislative provisions which entered into force after [that directive] had entered into force and the period for transposition thereof had expired? (2) If the first question is answered in the affirmative, does Directive [2014/23] 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 [modification], 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], as amended by Directive [2014/23], 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 [which has] 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 [modification], 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? (6) More generally, 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 national legislation such as that at issue in the main proceedings, which imposes upon bingo hall operators the payment of an onerous technical extension fee on a monthly basis that is not provided for in the original concession documents, the amount of which is identical for all types of operator and is amended from time to time by the legislature without any proven relationship to the characteristics or performance of individual concession relationships?’
32 In Case C‑729/22, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Are Directive [2014/23] and the general principles deriving from [the Treaties], and in particular Articles 49 and 56 TFEU, to be interpreted as applying to concessions for the management of bingo 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 [that 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] 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 [modification], 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], as amended by Directive [2014/23], 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 [which has] 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 [modification], 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? (6) More generally, 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 national legislation such as that at issue in the main proceedings, which imposes upon bingo hall operators the payment of an onerous technical extension fee on a monthly basis that is not provided for in the original concession documents, the amount of which is identical for all types of operator and is amended from time to time by the legislature without any proven relationship to the characteristics or performance of individual concession relationships?’
33 In Case C‑730/22, Coral, a company which operates bingo halls under a concession, brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) against a measure adopted in 2018 by the ADM, in application of Law No. 205/2017, which, pending the award of new concessions, set the monthly fee payable by the concessionaires under the technical extension scheme at EUR 7500.
34 In support of that action, that company claimed that the increase in that fee was unreasonable and unjustified, in view of the fact that, whereas the concession which it had been awarded was initially free of charge, that fee had been unilaterally introduced by the Italian legislature and increased continuously. It also alleged that the ADM had wrongfully had recourse to the technical extension scheme since 2013, and that that scheme infringed, inter alia, the principles of free competition and non-discrimination and restricted the freedom of private economic initiative.
35 The Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) raised issues before the Corte costituzionale (Constitutional Court) as to whether the national legislation at issue in the main proceedings was compatible with the Constitution of the Italian Republic.
36 In its judgment No 49/2021, the Corte costituzionale (Constitutional Court) found that that national legislation was consistent with the Constitution of the Italian Republic and Articles 16, 20 and 21 of the Charter.
37 In the light of that judgment, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) dismissed that action in its entirety.
38 Coral then brought an appeal against the judgment of the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) before the referring court on the ground, inter alia, that the technical extension scheme entailed excessive amendments to the concessions during their term, and thereby exceeded the limits authorised in particular in Article 43 of Directive 2014/23.
39 In its defence, the ADM submits, inter alia, that the technical extension scheme is intended to allow existing concessionaires, all of whom are subject to the same conditions in the context of technical extension, to participate in a new tender procedure, as required by EU law.
40 In that context, the referring court states that it has doubts as to whether the technical extension scheme is compatible with Directive 2014/23, since it makes such extension, and the possibility of participating in future tender procedures, subject to the payment of a monthly fee, without any specific evaluation of the economic conditions of each concession and potentially alters the overall balance of each concession.
41 In that regard, that court states that, although the very concept of a concession presupposes the existence of an operational risk, the Italian legislature, in the present case, significantly altered the very structure of the operating costs of the bingo sector, by introducing a monthly fee mechanism. Furthermore, that amendment did not take place on the basis of an unforeseeable event not attributable to the parties, but resulted from the unilateral decision of the legislature.
42 The referring court points out that, should the Court find that Directive 2014/23 is not applicable to Case C‑730/22, it also has doubts as to whether the national legislation at issue in the main proceedings is compatible with Articles 49 and 56 TFEU and with certain general principles of EU law. Even if the introduction of the technical extension scheme were justified by the need to align the expiry dates of the current concessions for the purposes of awarding new concessions after the current ones expire by public competitive tender procedures, such a scheme appears to be contrary to Articles 49 and 56 TFEU, since it introduces restrictions on the freedom of establishment and the freedom to provide services which raise doubts as to whether they are genuinely necessary, sufficient and proportional vis-à-vis the objective pursued.
43 In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Does Directive [2014/23], where it is considered to be applicable and, in any event, the general principles deriving from Articles 26, 49, 56 and 63 TFEU as interpreted and applied by the case-law of the [Court], in particular in the light of the principle of non-discrimination, the principle of proportionality and the protection of competition and the free movement of services and capital, preclude the application of national rules under which the national legislature or the public administration may, during the so-called “technical extension” renewed several times in the last decade in the sector of gaming concessions, unilaterally affect ongoing relations, introducing the obligation to pay fees for the concessions, which were originally not due, and subsequently increasing the fees on several occasions, and always setting them as a fixed amount for all concessionaires irrespective of turnover, as well as imposing further constraints on the activities of concessionaires such as prohibiting the transfer of premises and making participation in the future procedure for the re-award of concessions subject to participation by the operators in the extension?’
44 The Court sent the referring court a request for clarification, to which it replied by three orders dated 31 October 2023, which were sent to the Court on 16 November 2023. In those orders, the referring court stated that, even though it had doubts as to whether Directive 2014/23 was applicable, certain factors, which it deemed to be of great importance, supported the view that it was applicable and that, therefore, in essence, it was only in the alternative that the interpretation of Articles 49, 56 and 63 TFEU was sought.
45 Among those factors of great importance, the referring court referred in particular to the fact that, first, the rights to operate granted under the concessions were not mere administrative authorisations or licences, but rather service concessions, as defined in Article 5 of Directive 2014/23 and, second, all the concessions concerned had generated a turnover above the threshold laid down in Article 8 of that directive.
46 The Commission submits that the national legislation at issue in the main proceedings does not allow a clear conclusion to be drawn as regards the legal nature of the concessions concerned, since the only relevant factor mentioned in the orders for reference is that those concessions do not confer an exclusive right on concessionaires. The answer, in particular to the first two questions in Cases C‑728/22 and C‑729/22, is necessary only if those rights constituted service concessions, within the meaning of Article 5 of Directive 2014/23, and not mere administrative licences.
47 In that regard, the Court notes that, according to settled case-law, the referring court is the only court with jurisdiction to find the facts in the case before it and to interpret national law (see, to that effect, judgment of 17 October 2024, NFŠ, C‑28/23, EU:C:2024:893, paragraph 31 and the case-law cited). Consequently, where the questions submitted to the Court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 7 February 2023, Confédération paysanne and Others (In vitro random mutagenesis), C‑688/21, EU:C:2023:75, paragraph 32).
48 The Court may refuse to rule on a question referred by a national court for a preliminary ruling 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 7 February 2023, Confédération paysanne and Others (In vitro random mutagenesis), C‑688/21, EU:C:2023:75, paragraph 33).
49 Although, in the requests for a preliminary ruling, in order to refer to the rights to operate at issue in the main proceedings, the referring court used the concept of ‘concession’ without, however, specifying whether that concept was used in the sense given to it in EU law, it is unambiguously clear from the answer given by the referring court to the request for clarification sent by the Court that, first, the rights to operate the concessions at issue in the main proceedings satisfy the substantive conditions to be classified as service concessions within the meaning of Article 5(1)(b) of Directive 2014/23. Second, those concessions all reach the value threshold laid down in Article 8 of Directive 2014/23 in order to come within the scope of that directive.
50 Consequently, the Court deems it appropriate to provide answers to those requests based on the premiss that the rights to operate at issue in the main proceedings constitute concessions, within the meaning of Article 5(1)(b) of Directive 2014/23, and that those concessions reach the threshold laid down in Article 8 of that directive.
51 The Commission submits that the first questions in Cases C‑728/22 and C‑729/22 are, in part, inadmissible, in so far as they concern the interpretation of provisions, such as Articles 8, 12, 145 and 151 TFEU, in respect of which the referring court has not provided any explanations such as to enable the Court and any interveners to understand how those provisions are relevant to the resolution of the disputes in the main proceedings.
52 In that regard, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice of which the national court is presumed to be aware (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 21).
53 Thus, it is particularly essential, as is stated in Article 94(c) of the Rules of Procedure, that the reference for a preliminary ruling itself contain a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 22).
54 In Case C‑728/22, although the referring court asks the Court to interpret Article 3 TEU, Articles 8, 12, 26, 145 and 151 TFEU and Articles 15, 16, 20 and 21 of the Charter, it does not provide any specific explanation as to the relevance of those articles to the first question in that case. It follows that the first question in Case C‑728/22 is inadmissible in so far as it concerns the interpretation of those articles.
55 By contrast, in the light of the specific explanations in the request for a preliminary ruling in Case C‑728/22, the first question in that case must be regarded as admissible in so far as it concerns the interpretation of Directive 2014/23 and of Articles 49 and 56 TFEU.
56 As regards Case C‑729/22, the first question referred is worded differently from that in Case C‑728/22, since it concerns the interpretation only of the provisions of Directive 2014/23 and of Articles 49 and 56 TFEU. The request for a preliminary ruling in that case contains sufficient explanations of the reasons which led the referring court to ask the Court about the interpretation of those provisions and articles, with the result that that question must be regarded as admissible in its entirety.
57 Furthermore, given that, as stated in paragraph 49 of the present judgment, the referring court starts from the premiss that the rights to operate which were granted to the appellants in the main proceedings in Cases C‑728/22 and C‑729/22 satisfy the substantive conditions to be classified as service concessions, within the meaning of Article 5(1)(b) of Directive 2014/23, the Court infers from this, as the Advocate General observed in points 43 and 44 of her Opinion, that those questions relate more specifically to the temporal scope of that directive.
58 Consequently, the Court understands that, by the first questions in Cases C‑728/22 and C‑729/22, the referring court asks, in essence, whether Directive 2014/23 and Articles 49 and 56 TFEU must be interpreted as being applicable ratione temporis to concession contracts, within the meaning of Article 5(1)(b) thereof, which were awarded before the entry into force of that directive, but which were extended by legislative provisions which introduced, as consideration, (i) an obligation incumbent on the concessionaires concerned to pay a monthly fee, the amount of which was subsequently increased, (ii) a prohibition banning the concessionaires concerned from transferring their premises, and, (iii) an obligation incumbent on the concessionaires concerned to accept those extensions in order to be authorised to participate in any procedure to be awarded those concessions again in the future.
59 In that regard, the Court recalls that, in the event of a modification of a concession contract, the EU legislation applicable to that modification is that in force at the date of that modification; the fact that the original concession contract was concluded prior to the entry into force of EU rules on the matter is therefore without consequence in that regard (see, to that effect, judgments of 18 September 2019, Commission v Italy, C‑526/17, EU:C:2019:756, paragraph 60, and of 2 September 2021, Sisal and Others, C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 28). However, the provisions of a directive which lay down a period for transposition which expired after that date are inapplicable, unless that directive has already been transposed into national law by the date of publication of the concession modification (see, to that effect, judgment of 19 December 2018, Stanley International Betting and Stanleybet Malta, C‑375/17, EU:C:2018:1026, paragraphs 34 and 35).
60 Since Article 51(1) of Directive 2014/23 provides that that directive must be transposed by 18 April 2016 at the latest, that directive must be regarded as being applicable to any modification to a concession contract made after that date.
61 In the present case, as noted in paragraph 24 of the present judgment, the requests submitted to the ADM by the appellants in Cases C‑728/22 and C‑729/22 relate to the modifications introduced by Law No 205/2017. According to the information provided to the Court, those modifications consisted of renewing the technical extension scheme and extending it to cover concessions expiring in 2017 and 2018, while increasing the amount of the monthly fee payable under that scheme.
62 Consequently, while the obligations incumbent on the concessionaires concerned under Law No 205/2017 were also present in the technical extensions adopted previously, the fact remains that the modification of the concession contracts made pursuant to that law had the effect of extending all of those obligations and, more generally, of extending the technical extension scheme to which concessionaires are currently subject.
63 Such modifications were adopted after the deadline for transposing Directive 2014/23. For that reason, that directive applies not only to the increase of the amount of the fee which occurred after the adoption of Law No 205/2017, but also to all of the aspects of the technical extension scheme, some of which were indeed also present in prior extensions, but were renewed on the basis of Law No 205/2017. Consequently, it is Article 43 of that directive that is the provision in respect of which, from the adoption of Law No 205/2017, the compatibility with EU law of a modification consisting of the extension of the duration of a services concession in exchange for (i) an obligation to pay a fee, (ii) a prohibition on transferring premises and (iii) an obligation to accept any extension of concessions, must be assessed.
64 Moreover, it is apparent from the wording of Article 43 of Directive 2014/23 that that directive provides for exhaustive harmonisation of national provisions regarding the circumstances in which, first, concession contracts may be modified without it being necessary to organise a new concession award procedure in accordance with the rules laid down by that directive, and, second, such an award procedure is required in the event of modification of the terms of the concession (see, to that effect, judgment of 7 November 2024, Adusbef (Pont Morandi), C‑683/22, EU:C:2024:936, paragraph 51).
65 A national measure in a sphere which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of the harmonising measure concerned and not those of primary law, such as Articles 49 and 56 TFEU (see, to that effect, judgment of 2 September 2021, Sisal and Others, C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 32).
66 Consequently, in a situation such as those at issue in the main proceedings, there is no need to assess the compatibility of national provisions which - like the ones resulting from the adoption of Law No 205/2017 - were adopted after the transposition of Directive 2014/23 and, in any event, after 18 April 2016, also in the light of Articles 49 and 56 TFEU, since such provisions must be assessed exclusively in the light of Article 43 of that directive.
67 In the light of all the above, the answer to the first questions in Cases C‑728/22 and C‑729/22 is that Directive 2014/23 must be interpreted as being applicable ratione temporis to concession contracts, within the meaning of Article 5(1)(b) thereof, which were awarded before the entry into force of that directive, but which were extended by legislative provisions which introduced, as consideration, (i) an obligation incumbent on the concessionaires concerned to pay a monthly fee, the amount of which was subsequently increased, (ii) a prohibition banning the concessionaires concerned from transferring their premises, and, (iii) an obligation incumbent on the concessionaires concerned to accept those extensions in order to be authorised to participate in any procedure to be awarded those concessions again in the future, to the extent that those legislative provisions themselves entered into force after the deadline for transposing that directive. In that situation, Articles 49 and 56 TFEU must be interpreted as meaning that they are not applicable.
68 First of all, the Court notes that, in so far as, in the single question in Case C‑730/22, the referring court refers to Article 26 TFEU without providing any specific explanation as to the relevance of that article to the resolution of the dispute in the main proceedings, that question must be regarded as inadmissible in so far as it concerns the interpretation of that article for the reasons set out in paragraphs 50 and 51 of the present judgment. However, in the light of the explanations set out in the request for a preliminary ruling submitted in that case, that question must be regarded as admissible in so far as it concerns the interpretation of Directive 2014/23 and Articles 49 and 56 TFEU. That said, in view, first, of what is noted in paragraph 65 of the present judgment and, second, of the fact that the act at issue in Case C‑730/22 was adopted pursuant to Law No 205/2017, there is no need to interpret those articles of the TFEU.
69 Next, although, in the single question in Case C‑730/22, the referring court does not refer to any specific provision of Directive 2014/23 and although Article 18 of that directive could also have been relevant in the light of the circumstances of the case at issue in the main proceedings, it follows from the explanations provided in the order for reference that that question relates exclusively to the interpretation of Article 43 of that directive and to the interpretation of the principles of non-discrimination, proportionality and the protection of competition.
70 In that regard, it is apparent from the information provided to the Court that although the appellant in the main proceedings in Case C‑730/22 criticises the provisions relating to the technical extension scheme which appeared in prior extensions, the fact remains that the dispute in the main proceedings concerns only the measures adopted on the basis of Law No 205/2017 by which the constituent elements of the pre-existing extension scheme were renewed and the amount of the fee payable as consideration was increased. As was found in paragraphs 62 to 63 of the present judgment, Article 43 of Directive 2014/23 is the provision in the light of which, from the adoption of Law No 205/2017, all of the applicable elements of the technical extension scheme must be examined, even though some of those elements were also present in earlier extensions.
71 Lastly, although,, as Coral points out in its written observations, for the purposes of interpreting Directive 2014/23, account must be taken of the principles of non-discrimination, proportionality and the protection of competition, it must be stated that the referring court refers to those principles either in connection with Articles 49 and 56 TFEU, which have been found not to be applicable in the case at issue in the main proceedings, or in a manner which is insufficiently precise for the Court to be able to adopt a position on the interpretation of those principles as sought.
72 Therefore, the Court understands that, by the single question in Case C‑730/22, the referring court asks, in essence, whether Article 43 of Directive 2014/23 must be interpreted as precluding the national legislature from being able to extend unilaterally, by legislative provisions which entered into force after the deadline for transposing that directive, the duration of the service concession and, when doing so, from being able, as consideration, (i) to increase the amount of a flat-rate fee payable by all concessionaires concerned, irrespective of their turnover, (ii) to maintain a prohibition banning the transfer of their premises and (iii) to retain an obligation to accept those extensions in order for those concessionaires to be authorised to participate in any procedure for a new award of those concessions in the future.
73 In that regard, as is recalled in paragraph 64 of the present judgment, Article 43 of Directive 2014/23 provides for exhaustive harmonisation of the circumstances in which, on the one hand, concessions may be modified without it being necessary, for that purpose, to organise a new concession award procedure in accordance with the rules laid down by that directive, and, on the other hand, such an award procedure is required in the event of modification of the terms of the concession (see, to that effect, judgment of 7 November 2024, Adusbef (Pont Morandi), C‑683/22, EU:C:2024:936, paragraph 51).
74 It is not apparent from the wording of Article 43 that it covers only modifications made following negotiations between the concessionaire and the contracting authority, to the exclusion of modifications imposed unilaterally by legislative means. In that context, the fact that recital 75 of Directive 2014/23 states that a substantial modification of the concession attests to the parties’ intention to renegotiate the essential terms of that concession cannot limit the scope of Article 43, as is evident from its clear wording.
75 Consequently, the fact that the modifications referred to by the referring court in the single question in Case C‑730/22 were decided unilaterally by the Italian legislature must be regarded as irrelevant for the purposes of applying Directive 2014/23.
76 By contrast, it must be borne in mind that Article 43 of Directive 2014/23 precludes any modification to the conditions of performance of a concession, whether unilateral or consensual, which is carried out without new award procedures, unless that modification comes within one of the situations envisaged in Article 43(1) or (2) of that directive.
77 Where, as in the case in the main proceedings, a modification, such as the introduction of the obligation to pay a fee, is decided upon as consideration for other obligations, such as the extension of the duration of the concession concerned, the assessment of whether it is possible to make such a modification on the basis of Article 43(1) and (2) of Directive 2014/23 must be carried out in the light of all of the effects of that modification, since those effects are indissociable from each other.
78 Consequently, it is in the light of all the effects brought about by a modification, such as the modification envisaged by the referring court in its question, that it must be determined whether that modification falls within one of the situations envisaged in Article 43(1) or (2) of that directive.
79 As regards, in the first place, Article 43(1)(a) of Directive 2014/23 and having regard to the situation envisaged by the referring court in the single question in Case C‑730/22, which is that of a modification made by way of legislation, it can be ruled out from the outset that that situation may come within the situation that is the subject of that provision, in so far as the latter requires that the modification be made pursuant to a clause set out in the concession contract.
80 As regards, in the second place, the situations referred to in Article 43(1)(b) to (d) of Directive 2014/23, they are based on the premiss that the modification in question is made for one of the reasons expressly referred to in those provisions, namely where additional works or services carried out by the initial concessionaire have become indispensable, where a modification is made necessary by circumstances which a diligent contracting authority or contracting entity could not foresee, or where a new concessionaire replaces the one to which the contracting authority or contracting entity had initially awarded the concession concerned.
81 Since the referring court has not referred, in the single question in Case C‑730/22, to any particular cause providing a reason for the proposed modifications, there is no need to examine whether either of those provisions might apply. It will be for the referring court, if necessary, to refer new questions to the Court of Justice specifically relating to those situations if it were to take the view that one of them might apply.
82 As regards, in the third place, the situation envisaged in Article 43(1)(e) of Directive 2014/23, it must be borne in mind that that directive covers modifications which, ‘irrespective of their value, are not substantial within the meaning of paragraph 4’.
83 Under the first sentence of Article 43(4) of Directive 2014/23, a modification is to be regarded as substantial ‘where it renders the concession materially different in character from the one initially concluded’.
84 As stated in recital 75 of that directive, the objective of that provision is to ensure that a new concession award procedure is initiated where substantial modifications are made to the initial concession, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. That is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure.
85 In that regard, it is common ground that a modification which has the effect, inter alia, of renewing or extending the duration of a concession beyond the duration provided for at the time of its initial award makes the character of that concession substantially different from that initially envisaged, since it affects an essential element of the contract concerned and because, if that new character of an essential element of that contract had been included in the initial procedure, that procedure would have attracted more participants. Therefore, such a modification must be regarded as substantial, since the other effects produced by that modification can only have accentuated its substantial nature.
86 Consequently, a modification with the purpose of extending the duration of a concession and which introduces, as consideration, (i) an obligation to pay a monthly fee, the amount of which is subsequently increased, (ii) a prohibition banning the transfer of premises and, (iii) an obligation to accept those extensions in order for the concessionaire concerned to be authorised to participate in any procedure for a new award of those concessions in the future must be regarded as substantial and therefore incapable of coming within the scope of Article 43(1)(e) of Directive 2014/23, without it being necessary to examine each of the aspects of that modification separately.
87 In the fourth and last place, the Court wishes to make clear that such a modification likewise does not come within the situation envisaged in Article 43(2) of Directive 2014/23. It is apparent from the wording of that provision that the situation envisaged by that provision is that of modifications (i) the amount of which is lower than the threshold laid down in Article 8 of that directive, (ii) the amount of which is also less than 10% of the amount of the initial concession, and (iii) which do not alter the overall nature of the concession concerned.
88 In the present case, there is nothing in the file before the Court to suggest that the modification at issue in the main proceedings satisfies those criteria or that the parties to the main proceedings maintain that that is the case.
89 Moreover, in accordance with Article 8(2) of Directive 2014/23, the value of a concession is to be the total turnover of the concessionaire generated over the duration of the contract, as estimated by the contracting authority, in consideration for the works and services being the object of that concession, as well as for the supplies incidental to those works and services. Consequently, in the event of a modification having the effect, inter alia, of extending the duration of a concession, in order for that concession to come within the situation envisaged in Article 43(2) of that directive, that increase, itself increased by the conversion, into units of time, of any other effects of that modification on the factors taken into account in order to determine the initial value of that concession, must not represent more than 10% of the initial duration of that concession.
90 In the case at issue in the main proceedings, by postponing the date of expiry of the concessions which already came to an end during the period from 31 December 2016 to 30 September 2018, the effect of the modification brought about by the adoption of Law No 205/2017 was to extend those concessions, with consideration in the form, inter alia, of an increase in the fee, the latter having increased, for each month or fraction of more than fifteen days, from EUR 5000 to EUR 7500 and, for each month of less than fifteen days, from EUR 2500 to EUR 3500.
91 Given that, according to the information in the file before the Court, the concessions concerned had initially been concluded for six years, even on the assumption that, first, those concessions all had an initial value equal to the threshold laid down in Article 8 of Directive 2014/23 when that directive was adopted, namely a value of EUR 5186000, and that, second, the extension in 2017 was the first which applied to them, in order not to exceed 10% of the amount of the concession concerned, that extension should not have exceeded a period of just over eight months, it being noted that the increase in the fee was to be deducted from the increase in the value of the concessions generated by them being extended.
92 It is true that, for the concessionaire concerned, the technical extension scheme also entails - as the referring court points out in the single question in Case C‑730/22 - a prohibition banning the transfer of its premises and an obligation to accept any extension decided on by the national legislature in order to be authorised to participate in any procedure for a new award of the concession concerned in the future.
93 However, the addition of such an obligation or prohibition cannot in any event have the effect of bringing the impact of the extension of the duration of the concessions on the initial value of the concession concerned below the 10% threshold. The first of those modifications had precisely the effect of requiring the concessionaires concerned to continue their activity under the same conditions as those used to determine the initial value of their concession, while the second, although it limits the rights of those concessionaires, does not appear to be such as to influence the value of those concessions, as defined in Article 8 of Directive 2014/23.
94 It will be for the referring court to determine the exact impact of the modification at issue in the main proceedings on the value of the concession concerned, taking into account all the effects of that modification on that value, with that value having to be calculated in accordance with Article 8(2) of Directive 2014/23.
95 In the event that it is found that Article 43 of Directive 2014/23 precludes such a modification, the Court points out that the appellant in the main proceedings cannot base an argument on that finding in order to require that only the provisions by which the national legislature increased the amount of the fee be disapplied. Apart from the fact that that increase is indissociable from the extension of the concession since it is the increase that is the consideration for the extension, the act of disapplying only that increase would have the effect of modifying the balance of the concession in favour of the concessionaire in a manner which was not provided for in the initial concession contract and, therefore, of making a substantial modification of that contract, whereas, under Article 43(1)(e) of that directive, read in conjunction with paragraph 5 of that article, a new award procedure is required in the event of a substantial modification of a concession contract.
96 In the light of all of the foregoing, the answer to the single question in Case C‑730/22 is that Article 43 of Directive 2014/23 must be interpreted as precluding the national legislature from being able to extend unilaterally, by legislative provisions which entered into force after the deadline for transposing that directive, the duration of the service concession and, when doing so, from being able, as consideration, (i) to increase the amount of a flat-rate fee payable by all concessionaires concerned, irrespective of their turnover, (ii) to maintain a prohibition banning the transfer of their premises and, (iii) to retain an obligation to accept those extensions in order for those concessionaires to be authorised to participate in any procedure for a new award of those concessions in the future, to the extent that those amendments, taken together, do not satisfy the conditions for the application of Article 43(1) and (2) of that directive.
97 As a preliminary point, it is apparent from the requests for a preliminary ruling in Cases C‑728/22 and C‑729/22 that the second questions in those cases are raised because, in its decisions of 9 July and 18 November 2020, the ADM declared that it did not have the power to modify the amount of the fee at issue in the main proceedings, on the ground that that amount was set by a legislative act.
98 Furthermore, although, in those questions, the referring court does not refer to any specific provision of Directive 2014/23, it follows from the explanations provided in the orders for reference that those questions concern the interpretation of Articles 5 and 43 of that directive.
99 Therefore, it must be understood that, by the second questions in Cases C‑728/22 and C‑729/22, the referring court asks, in essence, whether Articles 5 and 43 of Directive 2014/23 must be interpreted as precluding the interpretation or application of national legislative rules, or practices based on those rules, that are such as to deprive the contracting authority of the power to initiate, at the request of a concessionaire, an administrative procedure aimed at modifying the conditions for the operation of the concession concerned, where unforeseen and unforeseeable events not attributable to the parties have a significant impact on the operating risk, for as long as those conditions persist and for the time necessary to restore, where appropriate, the initial operation conditions of the concession.
100 In that regard, the Court finds that, it is true that the second subparagraph of Article 5(1)(b) of Directive 2014/23 defines the concept of ‘service concession’ as a contract in respect of which the concessionaire concerned is deemed to have assumed the operating risk of that service ‘under normal operating conditions’.
101 However, as the Advocate General observed in point 77 of her Opinion, and contrary to the submissions of the appellants in the main proceedings, that definition cannot serve as the basis for requiring Member States to grant contracting authorities the power to initiate, at the request of a concessionaire, an administrative procedure with the aim of modifying the conditions for operating a concession, where unforeseen and unforeseeable events not attributable to the parties have a significant influence on the operating risk of that concession. As is apparent from the wording of Article 5 of Directive 2014/23, that definition is provided only for the purposes of the application of that directive and, in particular, for the purposes of defining the material scope of that directive, in accordance with Article 1(2) thereof.
102 As regards Article 43 of Directive 2014/23, although the latter refers, in paragraph 1(c) thereof, to the situation of a modification the need for which has been brought about by circumstances which a diligent contracting authority or contracting entity could not foresee, it is apparent from the wording of that provision that it does so solely in order to make clear that, in such a situation, a new award procedure is not necessary, without imposing an obligation on the contracting authority to initiate a procedure for modifying the concession.
103 That conclusion is supported by recital 75 of that directive, from which it is apparent that the objective of Article 43 thereof is to clarify the conditions under which modifications to a concession during its performance require a new award procedure by listing a limited number of situations in which the opening of a new award procedure is not necessary, and not to require Member States to provide that a concession must necessarily be capable of being modified in each of those situations.
104 That being so, in the event that national legislative rules provide that the contracting authority may be required to initiate a procedure for modifying the concession on account of unforeseeable events not attributable to the parties which have a significant influence on the operating risk, Directive 2014/23 does not preclude the concessionaire concerned from being able to rely on those rules in order to require the contracting authority to initiate that procedure, to the extent that the proposed modification is not excluded by the national legislation transposing Article 43(1) and (2) of that directive.
105 Consequently, the answer to the second questions in Cases C‑728/22 and C‑729/22 is that Articles 5 and 43 of Directive 2014/23 must be interpreted as not precluding the interpretation or application of national legislative rules, or practices based on those rules, that are such as to deprive the contracting authority of the power to initiate, at the request of a concessionaire, an administrative procedure aimed at modifying the conditions for the operation of the concession concerned, where unforeseeable events not attributable to the parties have a significant impact on the operating risk of that concession, for as long as those conditions persist and for the time necessary to restore, where appropriate, the initial operation conditions of the concession.
106 By the third questions in Cases C‑728/22 and C‑729/22, the referring court asks, in essence, whether Directive 89/665, as amended by Directive 2014/23, must be interpreted as precluding national legislation from establishing, as a precondition for participation in any procedure for the award of a new concession, the accession of the concessionaire concerned to a scheme for the extension of that concession, including where the possibility of renegotiating the operation conditions of that concession due to the fact that an unforeseeable event not attributable to the parties has occurred is excluded.
107 In that regard, it should be recalled that, in accordance with Article 94(c) of the Rules of Procedure, any request for a preliminary ruling must contain a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings, which means that the provision or provisions to be interpreted are to be clearly identifiable.
108 In the wording of the third questions in Cases C‑728/22 and C‑729/22, the referring court did not identify as the subject of those questions any specific provision of Directive 89/665. Nor do the explanations provided by that court in the requests for a preliminary ruling concerned make it possible to identify any such provision, particularly since, as the Advocate General stated in point 94 of her Opinion, the description of the disputes in the main proceedings does not make it apparent that the obligations imposed by that directive were infringed by the adoption and subsequent modification of the technical extension scheme.
109 Consequently, the third questions in Cases C‑728/22 and C‑729/22 must be declared to be inadmissible.
110 In view of the answer given to the first questions in Cases C‑728/22 and C‑729/22 and given that, in the cases at issue in the main proceedings, the appellants in the main proceedings are contesting modification which must be assessed in the light of Directive 2014/23, there is no need to answer the fourth, fifth and sixth questions in Cases C‑728/22 and C‑729/22.
111 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.