Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 4 July 2024 (1)

Joined Cases C‑728/22 to C‑730/22

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)

Coral Srl (C‑730/22)

v

Ministero dell’Economia e delle Finanze,

Agenzia delle Dogane e dei Monopoli,

joined parties:

B.E. Srl,

Play Game Srl,

Play Line Srl unipersonale,

BC,

BD,

EF,

GL,

HU

(Requests for a preliminary ruling from the Consiglio di Stato (Italy))

(Reference for a preliminary ruling – Directive 2014/23 – Directive 89/665 – Freedom of establishment – Concessions for betting activities relating to bingo – ‘Technical extension’ scheme – Payment of a fixed-rate monthly fee – Substantial modification of a concession – Discretion of the contracting authority to suspend or modify the terms of a concession – Unforeseeable circumstances not attributable to the concessionaire)

I.      Introduction

1.        The present cases concern three requests for a preliminary ruling made by the Consiglio di Stato (Council of State, Italy). That court is asking the Court of Justice about the compatibility with EU law – mainly with Directive 2014/23, (2) Directive 89/665 (3) and Article 49 TFEU – of certain features of the ‘technical extension’ scheme that applies in Italy to expired concessions awarded for bingo gaming activities.

2.        The ‘technical extension’ scheme was adopted by the Italian legislature in 2013 and has been in force since then as a transitional measure pending the carrying out of a new tender procedure for the re-awarding of those concessions. Under that scheme, operators of betting activities relating to bingo are required to pay a monthly fee. The payment of that fee was not a condition of the initial awarding of their concessions and it applies to operators in the sector at a fixed rate, regardless of their financial capacity. Moreover, that fee has been progressively increased since its adoption. In addition, being subject to that scheme and, accordingly, to payment of the monthly fee constitutes a requirement for participation in a future tender procedure, the date of which has been repeatedly postponed since December 2014 and, at present, has not yet been determined.

3.        The requests have been made in proceedings commenced before the national court by two associations of operators engaged in betting activities related to bingo and by several operators in that sector of activity acting individually. They take the view that they are severely affected by the ‘technical extension’ scheme, mainly after the COVID‑19 pandemic. In essence, they contest the decision of the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy; ‘the ADM’), by which that agency declared that it did not have any discretion to suspend or modify the conditions governing the ‘technical extension’ scheme as set out by the Italian legislature.

4.        These cases provide the Court with the opportunity to rule on the scope of Directive 2014/23 and on the discretion that contracting authorities of the Member States might be required to exercise in order to reconsider the terms of a concession when unforeseeable circumstances, not attributable to the concessionaires, affect the economic balance of the operation of a service. They further allow the Court to determine the limits of when a concession may be modified without a new award procedure in accordance with that directive.

II.    Legal framework

A.      European Union law

5.        Apart from Article 49 TFEU, which relates to the freedom of establishment, the norms of EU law concerned by the present cases are, above all, Directive 2014/23 and Directive 89/665.

6.        Directive 2014/23 establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession. It applies to the awarding of works and services concessions whose value is estimated to be not less than the threshold laid down in the directive itself. (4) That value was set at EUR 5 225 000 in the version of the directive applicable at the relevant time for the purposes of the present cases. (5)

7.        Directive 89/665 in turn regulates the fundamental requirements and principles for remedies in relation to breaches of the EU public procurement procedures. It requires the Member States to ensure that decisions on the award of public contracts and concessions, as well as preliminary procedural decisions in that context, are reviewed quickly and effectively in the event that they have infringed EU public procurement law. (6)

8.        The provisions of both legal instruments, in so far as they could be relevant for the present proceedings, are cited in the assessment part of the present Opinion.

B.      Italian law

9.        As regards national law, it is important to point out that, in Italy, the organisation of the game of bingo is a matter for the State alone, which regulated it for the first time in 2000 by means of a national decree. (7) That decree stipulated that the conduct of the relevant gaming activities was to be entrusted to holders of concessions awarded by means of a selective procedure. The State assigned the management of that sector to the ADM.

10.      The duration of the concessions was initially set at six years, after which the concessions could be renewed once. According to those concessions, no fee was to be paid to the State. The reason given for not imposing fees was the fact that the operators’ activity in any event produced a direct economic benefit for the State, consisting in the so-called ‘fiscal levy’, imposed on the receipts obtained by the concessionaires from the sale of gaming cards.

11.      In order to ensure compliance with the ‘EU-law principle of competition’ in the re-award of new concessions, the Italian legislature decided to organise, following an alignment of the timing of the majority of the concessions expiring in 2013 and 2014, a single tender procedure in which all operators in the sector could participate. That tender procedure was initially scheduled to take place by 31 December 2014. The legislature also established that, in the meantime, the outgoing concessionaires should operate under a ‘technical extension’ scheme, paying a monthly fee of EUR 2 800 to the State. In addition, that payment would constitute a condition for being able to participate in the future tender, thus introducing the principle of fee-paying concessions. (8)

12.      As the initial deadline for conducting the tender had expired, the legislature moved it, first, to 31 December 2016 (9) and, subsequently, to 30 September 2018. (10) On both occasions, it extended the ‘technical extension’ scheme to cover the concessions expiring during those periods. At the same time, the monthly fee was raised, initially, to EUR 5 000 and, later, to EUR 7 500.

13.      By means of subsequent legislative measures, the Italian legislature, first, further extended the ‘technical extension’ scheme until 2023, secondly, suspended the payment of the fee during the period of closure of commercial enterprises due to the COVID-19 pandemic in 2020, deferring the amounts due, and, lastly, set 31 March 2023 as the deadline for issuing a new tender procedure. To date, no such invitation to tender has been issued.

III. Facts, procedure and the questions referred

14.      The applicants in Cases C‑728/22 and C‑729/22 are two professional associations of undertakings that manage bingo gaming activities – namely, Associazione Nazionale Italiana Bingo (Anib) and Associazione Concessionari Bingo (Ascob) – as well as other undertakings in that same sector of activity acting individually. The applicant in Case C‑730/22 is also an undertaking operating in that sector.

15.      All those undertakings hold concessions that have expired and that are therefore subject to the ‘technical extension’ scheme established by the Italian legislature. They submit that they have been experiencing very serious financial difficulties, both in relation to the effects of the COVID‑19 pandemic and as a result of the implementation of the national legislation described above, which has, inter alia, meant that concessions are subject to the mandatory payment of a fixed-rate monthly fee.

16.      The applicants in Cases C‑728/22 and C‑729/22 submitted a request to the ADM for the immediate suspension of the fee until the initial conditions of economic and financial balance after the pandemic were reinstated. They also requested that the agency recalibrate, in any event, the fees due on the basis of the actual ability to pay of each operator. For that purpose, the applicants argued that the ‘technical extension’ scheme contravened several provisions of EU law.

17.      By memoranda of 9 July 2020 and 18 November 2020, which are the decisions contested in the main proceedings of Cases C‑729/22 and C‑728/22, respectively, the ADM rejected the applicants’ request, on the ground that it could not change, by means of an administrative measure, the effects of a norm adopted by the Italian legislature.

18.      Those applicants then brought an action against the refusal decision of the ADM before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy) (‘the TAR Lazio’). It was also before that court that the applicant in Case C‑730/22 had previously challenged the order adopted by that agency to implement the national legislation that, in 2017, reset at EUR 7 500 the monthly sums due by concessionaires as a condition for their continued operation under the ‘technical extension’ scheme. (11) However, the TAR Lazio dismissed the three actions, relying on a judgment of the Corte costituzionale (Constitutional Court, Italy), which had declared doubts as to the constitutionality of the national legislation concerned to be unfounded. (12)

19.      All of the applicants subsequently appealed to the Consiglio di Stato (Council of State), which is the referring court in the present cases. Before that court, they alleged that the legal provisions implemented by the ADM in the contested decision are illegal in terms of both EU law and national constitutional law.  

20.      In essence, the applicants maintain, on the one hand, that the fact that the amount of the fee applicable under the ‘technical extension’ scheme is determined by the Italian legislature cannot justify depriving the ADM of its discretionary power to readjust the economic balance of the concessions, especially when unforeseeable circumstances affect the conditions of operation of the service concerned. In that regard, they note that, even if, by definition, concessions involve the transfer of the operating risk to a concessionaire, that does not exclude the possibility, in the event of exceptional circumstances, of modifying the terms of that concession.

21.      On the other hand, the applicants argue that the ‘technical extension’ scheme at issue in the main proceedings has been employed abusively as a transitional and exceptional instrument, and that it has resulted in excessive modifications to the existing concessions in a manner which goes beyond the limits authorised by Directive 2014/23. In the applicants’ view, it has also altered the economic balance of those concessions, since it does not have an equal impact on all operators and encompasses additional restrictions such as the prohibition on transferring the premises of the activities of the concessionaires as a condition for participating in a future tender.

22.      In the orders for reference, the Consiglio di Stato (Council of State) observes that the applicants submitted evidence demonstrating that the conditions for the operation of the concessions – in particular, the sustainability of the operating costs – were seriously compromised following the COVID-19 pandemic. However, that court harbours doubts as to whether Directive 2014/23 is applicable to the concessions concerned by the present cases, since they were initially awarded by means of a public tender procedure in 2000.

23.      In the event that Directive 2014/23 is applicable, the Consiglio di Stato (Council of State) wonders whether that norm precludes an interpretation of national law which results in the impossibility for an administrative agency such as the ADM to modify the concession’s operating conditions in cases where unforeseen events occur. In particular, that court refers to events which cannot be attributed to the concessionaires and which significantly affect normal operating risk conditions.

24.      The Consiglio di Stato (Council of State) also entertains doubts as to whether Directive 2014/23 allows national law to provide for a scheme, such as that at issue in the main proceedings, which is applicable to expired concessions pending the organisation of a new tender procedure. The referring court highlights the obligation to pay the monthly fee imposed by that scheme, which was not envisaged in the initial award of the concessions and the amount of which has over time been increased significantly. It also emphasises that that fee is calculated in an abstract manner, without any specific assessment of the economic conditions of individual concessions, thus potentially distorting the overall balance of the concession.

25.      In the event that Directive 2014/23 is not applicable to the concessions at issue in the main proceedings, the Consiglio di Stato (Council of State) is uncertain whether the ‘technical extension’ scheme can be considered to be compatible with the general principles enshrined in Article 3 TEU, Articles 8, 12, 49, 56, 63, 145 and 151 TFEU, as well as in Articles 15, 16, 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’). It also refers to the principles of freedom of establishment, freedom to provide services and the protection of legitimate expectations and, in particular, to the interpretation of those principles by the Court in its judgment of 2 September 2021, Sisal and Others (C‑721/19 and C‑722/19, EU:C:2021:672). In the view of the Consiglio di Stato (Council of State), the ‘technical extension’ scheme gives rise to doubts as to its necessity, appropriateness, proportionality and usefulness in relation to the objective that, according to the Italian legislature, it actually pursues – namely the alignment of a new tender procedure for all expiring concessions.

26.      In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings in the three cases before it and to refer the following questions to the Court of Justice for a preliminary ruling:

–        In relation to Cases C‑728/22 and C‑729/22:

‘(1)      Must [Directive 2014/23] on the award of concession contracts, as well as the general principles that follow from the Treaty, namely Articles 15, 16, 20 and 21 of the [Charter], Article 3 [TEU] and Articles 8, 49, 56, 12, 145 and 151 [TFEU], [(13)] be interpreted as applying to concessions for the operation of the [game of bingo] 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 the 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 [discretionary power] 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 [is classified] as a substantial change, in cases where unforeseen and unforeseeable events not attributable to the parties occur that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?

(3)      Does [Directive 89/665], 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 [re-awarding] gaming concessions conditional on the concessionaire’s membership of the technical extension scheme, including in cases where it is not possible to renegotiate the operating conditions of the concession in order to bring them back into equilibrium as a result of unforeseen and unforeseeable events not attributable to the parties that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?

(4)      In any event, do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude an interpretation or application of domestic legislative provisions, or implementing practices based on those provisions, that would deprive the administration of the [discretionary power] 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 [is classified] as a substantial change, in cases where unforeseen and unforeseeable events not attributable to the parties occur that have a significant impact on the normal conditions of operating risk, for as long as those conditions persist and for the time required to reinstate, where possible, the concessions’ original operating conditions?

(5)      Do Articles 49 and 56 TFEU and the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations, preclude an interpretation or application of domestic national provisions, or implementing practices based on those provisions, under which the legislature or the public administration may make participation in the procedure for the [re-awarding] 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?’

–        In addition, in relation to Case C‑730/22 alone:

‘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-awarding] of concessions subject to participation by the operators in the extension?’

27.      The requests for a preliminary ruling were lodged at the Registry of the Court of Justice on 24 November 2022. On 31 January 2023, the Court decided to join the cases for the purposes of the written and oral parts of the procedure and of the judgment, on account of the connection between them. The Italian Government, the European Commission and the parties to the main proceedings submitted written observations. On 16 October 2023, the Court submitted a request for clarification to the Consiglio di Stato (Council of State), in accordance with Article 101 of the Rules of Procedure of the Court of Justice. The Consiglio di Stato (Council of State) answered the request by letter dated 16 November 2023. A hearing was held on 24 April 2024.

IV.    Assessment

28.      By its questions, the referring court asks the Court of Justice about the compatibility with EU law of certain elements arising from the so-called ‘technical extension’ scheme, which applies in Italy to the expired concessions awarded by the State for bingo gaming activities.

29.      More specifically, the referring court asks whether Directive 2014/23 – or, alternatively, certain provisions of the TEU, the TFEU and the Charter – apply to concessions that were awarded before that directive entered into force and that, once expired, have been repeatedly extended by legislative means after that entry into force (the first question referred in Cases C‑728/22 and C‑729/22).

30.      In the event that Directive 2014/23 is deemed to be applicable, the referring court questions whether that directive precludes an interpretation of national legislation (14) which deprives the administration of a Member State of the discretion to amend, at the request of the operators concerned, the conditions for the exercise of a concession. It refers, in particular, to cases where unforeseen events not attributable to the parties and having a significant impact on the normal conditions of operating risk occur (the second question referred in Cases C‑728/22 and C‑729/22).

31.      The referring court further enquires whether Directive 89/665 precludes making the right to participate in a procedure for the re-awarding of concessions subject to the concessionaires’ membership of the ‘technical extension’ scheme, especially where those concessionaires are unable to renegotiate the operating conditions of the concession as a result of unforeseen events (the third question referred in Cases C‑728/22 and C‑729/22).

32.      Lastly, the referring court wishes to ascertain whether the unilateral imposition of the payment of a monthly fee under the ‘technical extension’ scheme is inconsistent with Directive 2014/23. It poses that question considering (i) that that fee was not provided for in the original award, (ii) that its amount is fixed in identical terms for all operators of the sector, regardless of their financial capacity, (iii) that the fee has been repeatedly increased since it was first imposed and (iv) that its payment constitutes a condition for participation in the concession re-award procedure (the first part of the single question referred in Case C‑730/22).

33.      In the event that Directive 2014/23 is not deemed to be applicable, the referring court poses the same questions as those set out in points 30 to 32 above in relation to Articles 49 and 56 TFEU, on the one hand, and in relation to the principles of legal certainty, effectiveness of legal protection, protection of legitimate expectations, non-discrimination and proportionality, on the other (the fourth, fifth and sixth questions referred in Cases C‑728/22 and C‑729/22, and the second part of the single question referred in Case C‑730/22).

34.      I shall examine, at the outset, the first question referred in Cases C‑728/22 and C‑729/22, as the answer to that question will ascertain the norm of EU law applicable to the concessions at issue in the main proceedings. Then, on the assumption that Directive 2014/23 applies to them, I shall examine the first part of the single question referred in Case C‑730/22, since an affirmative answer to that question might exclude the need for the Court to proceed with further examination of the present requests for a preliminary ruling. I will then analyse the second and third questions referred in Cases C‑728/22 and C‑729/22 before finally addressing the fourth, fifth and sixth questions referred in Cases C‑728/22 and C‑729/22, as well as the second part of the single question referred in Case C‑730/22.

A.      The first question referred in Cases C‑728/22 and C‑729/22

35.      The first question referred in Cases C‑728/22 and C‑729/22 requires the scope of application of Directive 2014/23 to be examined. In essence, the referring court wishes to ascertain whether concessions awarded before the date of entry into force of that directive and before the expiry of the deadline for its transposition can nonetheless be subject to it. In the alternative, the referring court wonders whether ‘the general principles that follow from the Treaty, namely Articles 15, 16, 20 and 21 of the [Charter], Article 3 [TEU] and Articles 8, 49, 56, 12, 145 and 151 [TFEU]’ would be applicable to the disputes in the main proceedings.

36.      As a preliminary remark, I would point out that an answer by the Court is not required, in my view, in relation to some of the provisions of the TEU, the TFEU and the Charter cited by the referring court in the first question referred in Case C‑728/22. That is the case with Article 3 TEU, Articles 8, 12, 145 and 151 TFEU and Articles 15, 16, 20 and 21 of the Charter. In that regard, it suffices to note that the referring court provides no concrete explanation as to the relevance of those provisions to the case at issue or of the general principles that, according to that court, ‘follow’ from them. (15) In those circumstances, and in line with the settled case-law of the Court, (16) I suggest that the first question referred in Case C‑728/22 should be declared inadmissible in so far as those provisions or general principles are concerned.

37.      Furthermore, in the response to the request for clarifications addressed by the Court of Justice, the referring court declares that it is not uncertain about whether the concessions at issue, first, constitute services concessions within the meaning of Article 5(1)(b) of Directive 2014/23 and, secondly, satisfy the quantitative threshold laid down in Article 8 of that same directive.

38.      In any event, as regards the first of those elements, it is important to note that, contrary to the doubt expressed by the Commission in its written observations, the disputes in the main proceedings do not concern acts granting an authorisation or an administrative licence for the pursuit of an economic activity. Those disputes actually relate to concessions by which the ADM, as the contracting authority, transferred to the applicants in the main proceedings the right to exploit a service for the benefit of end users. By virtue of the terms of the agreement between the ADM and the concessionaires, the State has been receiving a profit, namely the fiscal levy imposed on the receipts obtained by the concessionaires from the sale of gaming cards. At the same time, the concessionaires have been also receiving remuneration, which essentially corresponds to the sale of bingo cards, less the fiscal levy imposed on them and player winnings.

39.      Moreover, the circumstance that the concessions at issue in the main proceedings were modified by legislative means does not alter their concessional nature or convert those concessions into a mere provision of services subject to regulation. In that respect, it is important to observe that the national law instituting the ‘technical extension’ scheme instructs the ADM to adopt the necessary provisions with a view to adapting those concessions to the conditions laid down by the Italian legislature. (17)

40.      In the light of the definition laid down in Article 5(1)(b) of Directive 2014/23 and the case-law of the Court, (18) I would dispel any doubts as to the classification of the concessions at issue as ‘services concessions’, which fall, therefore, under the scope of the directive in accordance with Article 1(2)(b) thereof.

41.      As regards the quantitative threshold that the value of a concession must reach in order for Directive 2014/23 to apply, the referring court also declares that it has no doubts as to whether that requirement is fulfilled by the concessions at issue in the main proceedings.

42.      In particular, I observe that, according to the clarifications provided by the referring court, which alone has jurisdiction to establish the facts of the main proceedings, the revenues of the concessionaires during the six-year period of the concession were, on average, more than EUR 8 000 000. It also follows from those clarifications that those revenues exceeded EUR 5 382 000 ‘in every case’. Those figures, which are higher than the threshold required by the version of the directive applicable at the relevant time, namely EUR 5 225 000, (19) were further confirmed by the applicants in the main proceedings during the hearing before the Court.

43.      Consequently, since the conditions established in Article 5(1)(b) and Article 8 of Directive 2014/23 can be deemed to be satisfied, I consider that the present cases do not require the provision of further guidance as to the applicability of Directive 2014/23 ratione materiae, an issue that remained doubtful for the Commission, for instance.

44.      Instead, the referring court should receive guidance about whether that directive applies ratione temporis to the concessions at issue in the main proceedings, which is the only relevant aspect raised by that court in the light of the strict wording of the first question referred in Cases C‑728/22 and C‑729/22 and the statement of reasons for the orders for reference.

45.      In that regard, it is appropriate to recall that, according to settled case-law, the EU legislation applicable to a concession contract is, as a rule, that in force when the contracting entity chooses the type of procedure to be followed and decides whether it is necessary for a prior call for competition to be issued for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point in time. (20)

46.      In the present cases, the period prescribed for the transposition of Directive 2014/23 was 18 April 2016, which means that, in so far as the concessions at issue before the referring court were awarded in 2000, that directive would not, in principle, be applicable to them.

47.      Moreover, the second subparagraph of Article 54 of Directive 2014/23 further states that the provisions of that directive are not to apply to the award of concessions tendered or awarded before 17 April 2014, namely the date of entry into force of that directive. It follows that the initial award of the concessions at issue would, by virtue of that provision, in any event fall outside the scope of Directive 2014/23.

48.      Nonetheless, as the referring court correctly recalls, the Court of Justice has held that, in the event of a substantial amendment to the conditions applicable to a concession, the EU legislation in the light of which that amendment must be assessed is that in force at the date it was adopted. The fact that the original concession contract was concluded prior to the adoption of EU rules on the matter is therefore without consequence in that regard. (21)

49.      As indicated in point 17 of the present Opinion, the dispute at national level concerns two memoranda adopted by the ADM, on 9 July 2020 (Case C‑729/22) and 18 November 2020 (Case C‑728/22) respectively. Those memoranda have as their basis the Italian legislation adopted in December 2017, which modified for the second time the ‘technical extension’ scheme initially set up in 2013 after it was first amended in 2015. (22) Consequently, if the ‘technical extension’ scheme, as subsequently modified, were to be considered a substantial amendment to the initial concessions, for the purposes of the case-law cited above, Directive 2014/23 should be deemed to be applicable to the disputes in the main proceedings.

50.      In that regard, it is important to note that a piece of national legislation is capable of constituting a substantial amendment to concessions originally awarded when, for instance, the duration of the concession is unilaterally extended in a manner which was not provided for in the original award. That is also the case when that national legislation imposes new conditions which must be fulfilled for the exercise of the concession, in particular in relation to the consideration that concessionaires must pay for the operation of the service concerned.

51.      As for the present cases, it is for the referring court to ascertain whether the Italian legislation adopted in 2013, as subsequently amended in 2015 and 2017, constituted a substantial amendment in relation to the terms of the concessions awarded in 2000. Nevertheless, in the light of the information resulting from the orders for reference, in my view it is clear that, by setting up and maintaining the ‘technical extension’ scheme, that legislation changed the relevant conditions of the operation of bingo gaming concessions, particularly when compared to the terms agreed at the time of their initial award:

–        first, the ‘technical extension’ scheme prolonged the concessions already expired, thus extending the duration initially agreed upon for them. Taking account of the modification introduced in 2015 by the Italian legislature, (23) subsequently maintained in 2017, this resulted in existing concessions under that scheme being prolonged for nine years, that is, one and a half times their initial duration;

–        secondly, the ‘technical extension’ scheme imposed the payment of a monthly fee in consideration of the operation of the concessions, which was not laid down in the initial award procedure. That modified the manner in which the State would receive its profits for the operation of the services by the concessionaires, which, until that moment, had involved receiving a fiscal levy imposed on the receipts obtained from the sale of gaming cards; (24) and

–        thirdly, the ‘technical extension’ scheme made participation in that scheme and payment of the monthly fee compulsory for concessionaires wishing to participate in a future tender procedure, which additionally constituted a new condition in relation to the conditions required in the initial award. (25)

52.      It follows from the foregoing that subject to the assessment to be carried out by the referring court, that directive should be considered to be applicable to the concessions at issue in the main proceedings in so far as the conditions of the initial award were substantially amended by the adoption of the ‘technical extension’ scheme and its subsequent modifications.

53.      I would therefore suggest that the Court answer the first question referred in Cases C‑728/22 and C‑729/22 by declaring that Directive 2014/23 does apply to the concessions at issue in the main proceedings.

54.      Furthermore, it is important to recall that, according to settled case-law, a national measure falling within a domain 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. (26) That means that, should the Court share the analysis set out in the previous points of the present Opinion, this would result in Articles 49 and 56 TFEU, which are cited by the referring court in the wording of the first question referred in Cases C‑728/22 and C‑729/22, not being relevant for the disputes in the present cases. It would also have the consequence that the fourth, fifth and sixth questions referred in those same cases and the second part of the single question referred in Case C‑730/22 would not require an answer by the Court either.

B.      The first part of the single question referred in Case C‑730/22

55.      Having established the applicability of Directive 2014/23 to the concessions at issue in the main proceedings, it is now necessary to provide an answer to the first part of the single question referred in Case C‑730/22, which is posed primarily with reference to that directive. (27) By its question, the referring court asks, in essence, whether the obligation to pay the monthly fee established under the ‘technical extension’ scheme is compatible with that directive, taking into account, in particular, the specific features of that fee referred to in point 32 of the present Opinion.

56.      As a preliminary remark, I would point out that, in the first part of that single question, the referring court does not cite any specific provision of Directive 2014/23 as a possible basis for the incompatibility of the payment of the monthly fee imposed. However, it follows from the information provided in the orders for reference that that court refers, in essence, to Article 43 of that directive.

57.      Under the heading ‘Modification of contracts during their term’, Article 43 of Directive 2014/23 governs the conditions that must be fulfilled by amendments introduced into a service concession when that contract is being performed. That provision relies on the assumption that concession contracts typically involve long-term and complex financial arrangements, which are often subject to changing circumstances. (28) For that reason, it is intended to clarify the conditions under which the modification of a service concession requires – or does not require – a new concession award procedure. (29)

58.      More specifically, Article 43(1)(e) of Directive 2014/23 provides that concessions may be modified without a new concession award procedure where the modification, irrespective of its value, is not substantial within the meaning of paragraph 4 of that article. In turn, the first sentence of Article 43(4) of Directive 2014/23 stipulates, as a general criterion, that a modification of a concession during its term is to be considered to be substantial where it renders the concession materially different in character from the one initially concluded. According to subparagraph (a) of that same provision, that is the case, in any event, where 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. Lastly, it is important to recall that, in the event that a modification of a concession is deemed to be substantial, Article 43(5) of Directive 2014/23 provides that a new tender procedure must be organised.

59.      In the present cases, I have already indicated, within my analysis of the first question referred in Cases C‑728/22 and C‑729/22, that the ‘technical extension’ scheme involved several changes of relevant conditions for the operation of bingo gaming concessions. (30) Those changes concerned some of the core elements of those concessions, namely, first, their duration, as compared with that initially established for them, and, secondly, the manner in which concessionaires had to compensate the contracting authority for the operation of the services concerned.

60.      I would like to note that the sole element of the ‘technical extension’ scheme that is concerned by the present question, as formulated by the referring court, is the obligation to pay a monthly fee resulting from that scheme, and not the fact that the concessions were also significantly prolonged by it. That is why, even though that prolongation could justify a conclusion that there was a substantial modification of the concessions at issue in the main proceedings, within the meaning of Article 43(4) of Directive 2014/23, (31) that element of the ‘technical extension’ scheme can, in my view, be excluded from the Court’s analysis.

61.      Concerning the obligation to pay a monthly fee, that obligation was certainly not envisaged in the initial award of the concessions at issue in the main proceedings. Arguably, it was established in order to ensure that the extension of the concessions under the ‘technical extension’ scheme was in parallel with the consideration for the prolonged operation of the services concerned. That being said, the adoption of the ‘technical extension’ scheme changed the manner in which that consideration was to be provided, since, until that moment, it essentially consisted of the collection by the State of a fiscal levy, imposed on the receipts obtained by the concessionaires from the sale of gaming cards.

62.      In that regard, the fact remains that the collection of the fiscal levy, as provided for in the initial award of the concessions, relied on an indirect payment by the end users of bingo gaming activities. It also had as a consequence that the consideration to be paid by the concessionaires for the operation of their services was adapted according to their actual revenues.

63.      By contrast, the payment of the fee established by the ‘technical extension’ scheme modified, unilaterally, the rationale underlying that consideration, given, first, that it imposed the mechanism of compensation directly on the concessionaires and, secondly, that it resulted in it being at a fixed rate, which means that all those concessionaires were obliged to pay the same amount, regardless of their financial capacity or the duration of the initial concession. At the same time, the fact that the monthly fee was repeatedly increased following each modification of the ‘technical extension’ scheme – reaching, in 2017, three times the value of that fee as compared with when it was first imposed – increased the financial pressure on the concessionaires with lower revenues. For its part, the State could be certain, under the principle of fee-paying concessions, of receiving a secure amount of profits for the operation of the services concerned, which does not reflect the variable character of the consideration of the concessions as they were initially configured.

64.      It follows that, as the applicants in the main proceedings argue, the obligation to pay the monthly fee under the ‘technical extension’ scheme modified the basic economic parameters of the concessions, as they had been defined at the time of their initial award. From that perspective, in my view, those applicants are right to claim that, after the adoption of the ‘technical extension’ scheme and the modifications thereof, those concessions were rendered materially different in character from the ones initially concluded. (32) It also cannot be excluded that, if those conditions had been part of the initial concession award procedure, this would have allowed for the admission of applicants other than those initially selected.

65.      In view of the foregoing, I would consider that the general and specific criteria set out in Article 43(4) of Directive 2014/23 and in subparagraph (a) of that same provision, respectively, are satisfied. (33) Moreover, the abovementioned considerations lead me to consider that, by imposing the obligation on concessionaires to pay a monthly fee according to the terms under which it was set up, the ‘technical extension’ scheme introduced a substantial modification of the concessions at issue in the main proceedings, within the meaning of Article 43(1)(e) of Directive 2014/23. Accordingly, by virtue of Article 43(5) of Directive 2014/23, a new tender procedure would have had to be organised before making those modifications.

66.      The same conclusion can be reached with regard to the obligation for concessionaires to comply with the obligation to pay the fee under the ‘technical extension’ scheme as a condition which must be satisfied for them to be able to participate in a new tender procedure. Certainly, as the Commission points out, that obligation may be regarded as an element intended to offset the competitive advantage enjoyed by the outgoing concessionaires vis-à-vis the new concessionaires. However, it reinforces the modification of the economic parameters of the concessions as compared with their initial configuration. At the same time, in so far as the opening of the procedure for the award of new concessions remains uncertain, the application of that condition results in a new modification of the content of the concession contract, for the purposes of Article 43(4) of the Directive.

67.      It follows from the foregoing that Article 43(1)(e) and (5) of Directive 2014/23 precludes national legislation, such as that at issue in the main proceedings, which provides for the obligation to pay a monthly fee which was not envisaged in the initial award, in so far as it alters the basic economic parameters of the concessions concerned, for instance by fixing an identical rate of that fee for all operators in the sector, regardless of their financial capacity, and by significantly increasing the rate of that fee since it was first imposed. Both provisions also preclude that legislation in so far as the payment of that fee is established as a condition for participation in a future tender procedure for the re-awarding of the concessions in question.

C.      The second question referred in Cases C‑728/22 and C‑729/22

68.      As I have indicated in point 34 of the present Opinion, in my view, an affirmative answer to the first part of the single question referred in Case C‑730/22 excludes the need for the Court to proceed with further examination of the present requests for a preliminary ruling. Indeed, should the Court agree with the conclusion that the obligation to pay a monthly fee, as it is configured under the ‘technical extension’ scheme, is contrary to Directive 2014/23, then it would not be required to examine the second and third questions referred in Cases C‑728/22 and C‑729/22, which seek to clarify whether that fee could be reconsidered by a national administration in the context of unforeseeable circumstances. Nevertheless, I shall examine both questions for the sake of completeness.

69.      The second question referred in Cases C‑728/22 and C‑729/22 relates to the situation where a contracting authority refuses to renegotiate the terms of a concession when unforeseen events which are not attributable to the concessionaires occur. The referring court wishes to ascertain whether Directive 2014/23 precludes an interpretation of national law which leads to a contracting authority such as the ADM being deprived of its discretionary power to reconsider the terms of a public contract in those circumstances.

70.      The renegotiation of public contracts at a later point in time in their execution is a classical theme in the administrative law literature, in particular in the field of public procurement. (34) It constitutes an exception to one of the core principles of the performance of concessions, namely that concessionaires must operate the service awarded at their own risk (‘à ses risques et périls’) (35) and that contracting authorities must not, for that reason, engage in the financial consequences of that operation. The renegotiation of public contracts is generally mistrusted, as it might create incentives for opportunistic behaviour by participants in a tender. (36)

71.      However, when events that concessionaires could not anticipate and for which they are not responsible occur, national legal orders often grant contracting authorities the discretion to reconsider the terms of the concession. (37) The justification for that approach is that concessions are based on an economic and financial balance, which should be restored when circumstances out of the control of the concessionaires affect the conditions under which a service concession must be executed in accordance with the initial terms of the concession. The possibility to renegotiate the terms of a public contract arise whenever those circumstances are capable of disrupting the equilibrium of that contract. (38)

72.      The orders for reference make it clear that the Italian legal order provides for a provision which takes into account the need to preserve the economic and financial balance of concessions such as those concerned in the main proceedings. (39) However, in the memoranda of 9 July 2020 and 18 November 2020, the ADM appears to declare itself not competent to apply that provision upon the request of the applicants since, as an administrative agency, it would not be able to decide against the national measures of a legislative nature which established and subsequently modified the ‘technical extension’ scheme.

73.      In that regard, I would like to note, on the one hand, that the reasoning of the ADM – which relates to the principle of the hierarchies of competences and norms in the national legal order – is of no relevance when examining whether Directive 2014/23 grants contracting authorities the possibility to reassess, using the discretion afforded to them, the terms of a concession. Indeed, if the Court considers that that discretion exists on the part of contracting authorities, the ADM would be entitled to exercise it notwithstanding the fact that the ‘technical extension’ scheme was adopted and modified by legislative means or, what is more, notwithstanding the fact that that agency acts on the basis of a mandatory duty imposed on it by the national legislature.

74.      On the other hand, upon an examination of the information provided in the orders for reference, the referring court appears to have found that the COVID‑19 pandemic must be regarded as unforeseeable circumstances which are not attributable to the applicants in the main proceedings and which are capable of affecting the economic and financial balance of concessions. (40) This means that, provided that the Court concludes that Directive 2014/23 grants contracting authorities the discretionary power to assess the need to renegotiate the terms of public contracts when unforeseeable circumstances occur, that requirement would be fulfilled in the present cases. (41)

75.      Concerning whether the discretionary power of contracting authorities to reconsider the terms of operation of a concession can be grounded on Directive 2014/23, I observe that no provision expressly refers to such power.

76.      The referring court notes, however, that the second subparagraph of Article 5(1)(b) of that directive defines the term ‘services concession’ as a contract and that that provision further states that the concessionaire must be deemed to assume the operating risk of the operation of the service ‘under normal operating conditions’. (42) According to that court, it could be inferred from that provision that, in so far as unforeseeable conditions may alter the economic balance of a public contract, concessionaires should be entitled to request a modification of that contract.

77.      To my mind, contrary to the arguments of the applicants in the main proceedings, it is clear that the definition established in the second subparagraph of Article 5(1)(b) of Directive 2014/23 cannot in itself serve as the basis for granting a contracting authority the discretionary power to reconsider the terms of a public contract, even less for granting concessionaires a right to request the exercise of that power. That definition is provided only for the purposes of the application of Directive 2014/23 (43) and, in particular, for defining the material scope of that directive in accordance with Article 1(2) thereof.

78.      That being said, Article 43 of Directive 2014/23, to which I have already referred in the present Opinion, establishes in paragraph 1(c) thereof that concessions may be modified without a new award procedure where the need for modification has been brought about by circumstances which a diligent contracting authority or contracting entity could not foresee.

79.      That provision is to be read in the light of recital 76 of Directive 2014/23, which declares that contracting authorities and contracting entities can be faced with external circumstances that they could not foresee when they awarded that concession, in particular when the performance of that concession covers a long period. According to that recital, in those cases a certain degree of flexibility is needed to adapt the concession to the circumstances without a new award procedure.

80.      It follows that Directive 2014/23 envisages that unforeseeable circumstances might affect the terms of public contracts as initially agreed between contracting authorities and concessionaires. For that purpose, the same directive lays down a set of rules that must be followed if that concession is deemed to need an adjustment to the new circumstances, in particular without a new tender procedure.

81.      It is important to note that the previous finding does not mean, contrary to what the applicants in the main proceedings argue, that concessionaires have a right according to which a contracting authority must engage, in any event, in the renegotiation of the terms of a concession when unforeseeable circumstances arise. The Italian Government is right to maintain, in that regard, that the objective of Directive 2014/23 is primarily to coordinate the procedures for the award of certain concessions and that that directive does not deal with the rights to which concessionaires are entitled by reason of events occurring during the performance of the public contract.

82.      Nonetheless, Article 43(1)(c) of Directive 2014/23, read in the light of recital 76 thereof, demonstrates that, in the context of an unforeseen scenario for the operation of a service concession capable of affecting its economic and financial balance, EU law places at the disposal of contracting authorities a set of rules for reconsidering the terms of a service concession. Those rules can be effective only if that authority is capable of discerning, at the outset, whether the financial equilibrium of a concession must be restored as a consequence of unforeseeable circumstances. Accordingly, if a piece of national legislation – or the interpretation thereof – prevents a contracting authority from making a decision, within its discretionary power, in relation to the need to bring a concession back to a point of economic and financial balance, then Article 43(1)(c) of Directive 2014/23 would be impaired and the effectiveness of EU law would be at risk of being undermined.

83.      In the present cases, it is for the referring court to determine whether the ADM made an error when adopting the memoranda of 9 July 2020 and 18 November 2020, in particular by declaring that it was not entitled to reconsider the terms of the services concessions at issue in so far as the norms enacting the ‘technical extension’ scheme were adopted by the Italian legislature.

84.      However, in my view, a contracting authority should be considered to have made such an error where it fails to take into account the fact that EU law – namely Article 43(1)(c) of Directive 2014/23 – outlines the rules which must be observed for the purpose of reconsidering the terms of a service concession in the context of unforeseeable circumstances, the effectiveness of which, by definition, requires the exercise of discretion on the part of that authority.

85.      In that respect, I should add that it is beyond any doubt that the exercise of that discretion does not have as a consequence that a contracting authority must agree on the need to modify a service concession or to recalibrate it in the specific terms requested by the concessionaires concerned. It can even deny the mere existence of unforeseeable circumstances justifying that type of decision. However, that contracting authority cannot rely on national law or on the interpretation of that law in order to avoid making such an assessment, which, incidentally, must be subject to review by the national courts.

86.      I would therefore conclude that Article 43(1)(c) of Directive 2014/23 precludes an interpretation of national law that deprives a contracting authority of the discretionary power to assess whether unforeseeable events, which are not attributable to the concessionaires and which are capable of affecting the economic and financial balance of concessions, justify any reconsideration of the terms of a concession.

87.      Against that interpretation, the Commission argues that, in the judgment adopted in Consorzio Italian Management, (44) the Court considered that the Member States are not required to put in place an administrative or contractual procedure to take into account circumstances capable of justifying a modification of a public contract which is currently being performed. (45) However, the directive at issue in that judgment was Directive 2004/17, (46) which is no longer in force and did not include any provision similar to Article 43(1)(c) of Directive 2014/23. That is why I do not consider that the Court should rely on that judgment as a valid precedent for the purpose of assessing the present question referred.

88.      In the light of the foregoing, I would invite the Court to answer in the affirmative the second question referred in Cases C‑728/22 and C‑729/22 and to consider, therefore, that Directive 2014/23 precludes depriving a contracting authority of its discretionary power to assess whether the terms of a public contract should be reconsidered in the context of the circumstances described by the referring court.

D.      The third question referred in Cases C‑728/22 and C‑729/22

89.      By the third question referred in Cases C‑728/22 and C‑729/22, the referring court asks the Court of Justice whether Directive 89/665 precludes national legislation that requires concessionaires, as a condition which must be satisfied in order to participate in a future tender procedure, to be subject to a ‘technical extension’ scheme such as that at issue in the main proceedings. It poses that question with reference to the situation in which a contracting authority would not have any discretion to renegotiate the operating conditions of a concession in the context of unforeseeable circumstances.

90.      At the outset, it is important to note that the present question relies on the assumption that, contrary to my analysis of the second question referred, Directive 2014/23 does not preclude depriving a contracting authority of its discretion to modify the terms of a concession when unforeseeable events occur. Therefore, as has already been indicated, it is in the event that the Court does not share that analysis that a specific response is required to the present question.

91.      In any event, I do not think that Directive 89/665 enables an affirmative answer to be given to the referring court’s question.

92.      Directive 89/665, which forms part of what are termed the ‘Remedies Directives’, (47) applies to concessions awarded by contracting authorities according to Directive 2014/23. (48) That includes services concessions such as those concerned by the main proceedings. (49) In essence, that directive requires the Member States to ensure that decisions on the award of public contracts and concessions, as well as preliminary procedural decisions in that context, are reviewed quickly and effectively. (50) According to the case-law of the Court, Directive 89/665 gives specific expression to the general principle of EU law enshrining the right to an effective remedy in the particular field of public procurement. (51)

93.      For that purpose, Directive 89/665 imposes on Member States the obligation to establish, under detailed rules, review procedures that must be available, in essence, to any person having an interest in obtaining a particular contract and who has been harmed by an alleged infringement of EU public procurement law. (52) National remedies must allow for the possibility of adopting interim measures, setting aside unlawful decisions and awarding damages. (53) Member States are free to determine the bodies that will be responsible for the review decisions under the directive. These may be either bodies of a judicial character or, alternatively, non-judicial review bodies, provided that, in the latter case, those bodies respect some supplementary conditions. (54)

94.      In the present cases, it suffices to observe, as the Commission did, that the description of the disputes in the main proceedings does not make it apparent that the obligations imposed by Directive 89/665 were infringed by the adoption and subsequent modification of the ‘technical extension’ scheme. More importantly, none of the provisions of that directive appears to be relevant for the purposes of assessing the lawfulness of making concessionaires’ membership of that scheme a condition which must be satisfied in order for them to participate in a future tender procedure.

95.      In fact, the information provided in the orders for reference makes it clear that those concessionaires have had the opportunity to challenge the two memoranda adopted by the ADM following their respective requests. More precisely, they have been able to contest the decision of that agency to refuse the suspension and modification of the payment of the monthly fee required under that scheme. To that effect, they have employed available remedies under Italian national law, offering them access to two judicial bodies and the possibility of pleading the illegality of the legislative provisions on the basis of which the ADM substantiated its decisions. Those actions have even resulted in a request being made for a preliminary ruling under Article 267 TFEU.

96.      Moreover, the fact that the Italian legal order does not provide for an administrative remedy allowing a concessionaire to request that a contracting authority initiate a procedure for the renegotiation of the terms of a public contract does not change that conclusion. An obligation to have access to that administrative remedy might be established on the basis of Article 43(1)(c) of Directive 2014/23, as has already been explained in the context of my analysis of the second question referred, but it does not arise merely from Directive 89/665.

97.      In the light of the abovementioned considerations, I would conclude that Directive 89/665 does not constitute a legal basis on which it is possible to call into question the lawfulness of a piece of national legislation, such as that at issue in the main proceedings, which makes participation in a future tender procedure subject to membership of a ‘technical extension’ scheme. That conclusion is obviously based on the premiss that the operators concerned have available to them the necessary remedies to challenge the lawfulness of that legislation, if necessary by way of a plea of illegality.

E.      The fourth, fifth and sixth questions referred in Cases C‑728/22 and C‑729/22 and the second part of the single question referred in Case C‑730/22

98.      In point 54 of the present Opinion I indicated that, should the Court consider that Directive 2014/23 applies to the concessions at issue in the main proceedings, then an answer would not be required for the fourth, fifth and sixth questions referred (Cases C‑728/22 and C‑729/22) or for the second part of the single question (Case C‑730/22). The following points provide some guidance to the Court in the event that it does not share that view. (55)

99.      According to settled case-law, 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. (56)

100. In the present cases, even though the referring court mainly cites Articles 49 and 56 TFEU in the questions referred, it is only the first of those provisions that is relevant for the purpose of the present analysis. (57) After all, concessions relating to the operation of bingo halls, such as those at issue in the main proceedings, require a stable and continuous basis in the Member State where bingo gaming services are provided. In the light of the case-law of the Court, that requires the application of Article 49 TFEU, on the freedom of establishment, and excludes, by contrast, the application of Article 56 TFEU, on the freedom of services. (58) The applicants further confirmed during the hearing that no other type of bingo services, provided for instance on an online basis, were concerned in the present cases.

101. Moreover, in order to conclude on the application of Article 49 TFEU to the cases in the main proceedings, a certain cross-border interest must be established, which, according to the Court’s case-law, is solely for the referring court to assess. (59) In that regard, I observe that, in the answer to the request for clarification sent by the Court, the referring court expressly states that, in the event that Directive 2014/23 were considered not to be applicable to the concessions at issue, then that court would have ‘no difficulty in determining, by means of a detailed assessment, how the concessions at issue present a cross-border interest within the meaning of the case-law of the Court’. In any event, during the hearing, the applicants in the main proceedings confirmed that some of the concessions concerned were held by operators established in other Member States (60) and, consequently, are subject to the conditions and restrictions imposed by the national legislation at issue. In those circumstances, I am of the view that the Court is not required to examine further, in light of other objective criteria, (61) whether the concessions at issue in the main proceedings fulfil that condition of applicability of Article 49 TFEU.

102. As to the substance, Article 49 TFEU provides that restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited.

103. It follows from the Court’s settled case-law that Article 49 TFEU precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by nationals of the European Union of the freedom of establishment guaranteed by that provision of the Treaty. (62)

104. In the present case, leaving aside the prolongation introduced by the national legislation regarding the concessions at issue in the main proceedings, which is an issue not concerned by any of the questions examined here, (63) the referring court asks about the compatibility with Article 49 TFEU of (i) an interpretation of national law depriving a contracting authority of its discretionary power to reconsider the terms of a public contract within the context of unforeseeable events; (ii) making membership of the ‘technical extension’ scheme a condition for participation in a future tender procedure; and (iii) the obligation to pay a monthly fee that was not stipulated in the initial award of the concessions.

105. In that respect, I find it clear, first of all, that the modifications introduced by the ‘technical extension’ scheme into the concessions, which were capable of altering their basic economic parameters as compared with the initial award, (64) are in themselves sufficient grounds to consider that they can render less attractive the exercise of the freedom of establishment in the sense of the case-law cited in point 103 above. That is all the more the case if the unilateral and non-negotiated character of those modifications is taken into account.

106. Secondly, that is also the case regarding the obligation to participate in the ‘technical extension’ scheme and as regards, therefore, the obligation to pay the monthly fee in order to be able to participate in a future tender procedure. Indeed, when taking those obligations into account, it is clear that the exercise of the freedom of establishment is less attractive – or, as the Commission indicates, impossible – for any operator established in another Member State wishing to operate bingo halls in Italy.

107. Lastly, there should be no doubt that the inability of a contracting authority to renegotiate the terms of the concessions within the context of unforeseeable circumstances also constitutes an obstacle to the freedom of establishment. Indeed, operators would lack enough incentives to establish themselves in Italy, taking into account the fact that the economic and financial balance of concessions could not be restored after its disruption by events beyond the control of the concessionaires.

108. With respect to the legitimate objectives which may be relied on by the Member State in order to justify a restriction on the freedom of establishment, (65) it is important to recall that a restriction on the freedom of establishment is permissible only if, in the first place, it is justified by an overriding reason in the public interest. In the second place, it must observe the principle of proportionality, which means that it must be suitable for ensuring, in a consistent and systematic manner, the attainment of the objective pursued and that it must not go beyond what is necessary in order to attain that objective. (66)

109. The legislation referred to by the referring court declares, as its sole objective, the alignment of the expiring concessions and a new tender procedure in order to reconcile the EU‑law principle that public concessions must be awarded or re-awarded, after their expiry, in accordance with competitive selection procedures, with the need to continue the collection of bingo bets.

110. However, in my view, it is not clear how an extension or a temporal alignment of current concessions and an obligation to continue to operate the service in order to be able to secure the re-award of those concessions at a later date, such as those provided for in the legislation at issue in the main proceedings, could be justified, for example, in the light of the need to ensure continuity of service. (67) In particular, the absence of a clear expiry date for the duration of the concessions makes it particularly difficult to regard that justification as being made out in the present case.

111. In any event, I consider, first, that that objective could have been achieved in a more appropriate manner, for instance, by organising a transitional period during which the concessions granted would have been of different durations. Secondly, the pursuit of such an objective appears to be inconsistent, since the ‘technical extension’ regime was applied for 10 years, including after the expiry of the last concession.

112. In light of the foregoing, I would suggest the Court to interpret Article 49 TFEUas precluding national legislation, such as that at issue in the main proceedings, which requires the concessionaire to accept the conditions established by that legislation, namely the obligation of payment of a monthly fee that was not stipulated in the initial award of the concessions, in order to be able to participate in a new tendering procedure for the re-awarding of new concessions. It also precludes an interpretation of national law that deprives a contracting authority of the discretionary power to assess whether unforeseeable events, which are not attributable to the concessionaires and which are capable of affecting the economic and financial balance of concessions, justify any reconsideration of the terms of a concession.

V.      Conclusion

113. On the basis of the analysis set out above, I propose that the Court answer the questions referred by the Consiglio di Stato (Council of State, Italy) as follows:

–        In relation to Cases C‑728/22 and C‑729/22:

(1)      Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts

must be interpreted as applying to service concessions, such as those at issue in the main proceedings, that were awarded before that directive entered into force and that, on expiry, have been repeatedly extended by legislative means after that entry into force, provided that the conditions of the initial award have been substantially amended, which it is for the referring court to assess.

(2)      Article 43(4) and (5) of Directive 2014/23

must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for the obligation to pay a monthly fee which was not envisaged in the initial award, in so far as it alters the basic economic parameters of the concessions concerned, for instance by fixing an identical rate of that fee for all operators in the sector, regardless of their financial capacity, and by significantly increasing the rate of that fee since it was first imposed. Both provisions also preclude that legislation in so far as the payment of that fee is established as a condition for participation in a future tender procedure for the re-awarding of the concessions in question.

Should the Court not share the conclusion set out in point (2), then I would propose the following additional answer:

(3)      Article 43(1)(c) of Directive 2014/23

must be interpreted as precluding an interpretation of national law that deprives a contracting authority of the discretionary power to assess whether unforeseeable events, which are not attributable to the concessionaires, justify any reconsideration of the terms of a concession.

(4)      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

must be interpreted as meaning that it does not constitute a legal basis on which it is possible to call into question the lawfulness of a piece of national legislation, such as that at issue in the main proceedings, which makes participation in a future tender procedure subject to membership of a ‘technical extension’ scheme.

Should the Court not share the conclusion set out in point (1), at least partially, then I would propose the following additional answer:

(5)      Article 49 TFEU

must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires the concessionaire to accept the conditions established by that legislation, namely the obligation to pay a monthly fee that was not stipulated in the initial award of the concessions, in order to be able to participate in a new tendering procedure for the re-awarding of new concessions. It also precludes an interpretation of national law that deprives a contracting authority of the discretionary power to assess whether unforeseeable events, which are not attributable to the concessionaires and which are capable of affecting the economic and financial balance of concessions, justify any reconsideration of the terms of a concession.

–        In addition, in relation to Case C‑730/22 alone:

(6)      Article 43(4) and (5) of Directive 2014/23

must be interpreted as precluding that national legislation, such as that at issue in the main proceedings, which provides for the obligation to pay a monthly fee which was not envisaged in the initial award in so far as it alters the basic economic parameters of the concessions concerned, for instance by fixing an identical rate of that fee for all operators in the sector, regardless of their financial capacity, and by significantly increasing the rate of that fee since it was first imposed. Both provisions also preclude that legislation in so far as the payment of that fee is established as a condition for participation in a future tender procedure for the re-awarding of the concessions in question.

Should the Court not share the conclusion set out in point (1), at least partially, then I would propose the following additional answer:

(7)      Article 49 TFEU

must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires the concessionaire to accept the conditions established by that legislation, namely the obligation to pay a monthly fee that was not stipulated in the initial award of the concessions, in order to be able to participate in a new tendering procedure for the re-awarding of new concessions. It also precludes an interpretation of national law that deprives a contracting authority of the discretionary power to assess whether unforeseeable events, which are not attributable to the concessionaires and which are capable of affecting the economic and financial balance of concessions, justify any reconsideration of the terms of a concession.

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1      Original language: English.

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2      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) (‘Directive 2014/23’).

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3      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), as subsequently modified by Directive 2014/23 (‘Directive 89/665’).

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4      Article 1(1) and (2) of Directive 2014/23.

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5      Article 8 of Directive 2014/23, as modified by Commission Delegated Regulation (EU) 2015/2172 of 24 November 2015 (OJ 2015 L 307, p. 9).

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6      Article 1(3) of Directive 89/665.

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7      Decreto del Ministro delle finanze. n. 29 – Regolamento recante norme per l’istituzione del gioco ‘Bingo’ ai sensi dell’articolo 16 della legge 13 maggio 1999, n. 133 (Decree of the Minister for Finance 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) of 31 January 2000 (GURI No 43 of 22 February 2000).

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8      Article 1(636) to (638) of legge n. 147 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2014) (Law No 147 laying down rules for the preparation of the annual and multiannual State budget (2014 Stability Law)) of 27 December 2013 (GURI No 302 of 27 December 2013 – Ordinary Supplement No 87) (‘Law No 147/2013’).

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9      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 laying down measures for the drawing up of the annual and multiannual State budget (Stability Law 2016)) of 28 December 2015 (GURI No 302 of 30 December 2015 – Ordinary Supplement No 70) (‘Law No 208/2015’).

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10      Article 1(1047) of 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 multiannual budget for the three-year period from 2018 to 2020) of 27 December 2017 (GURI No 302 of 29 December 2017 – Ordinary Supplement No 62) (‘Law No 205/2017’).

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11      See footnote 10 above.

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12      Judgment No 49 of 29 March 2021 (IT:COST:2021:49).

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13      The first question referred in Case C‑729/22 makes reference only to Directive 2014/23 and Articles 49 and 56 TFEU. It does not make reference to the other provisions appearing in the first question referred in Case C‑728/22.

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14      For the formulation of the second, third, fourth and fifth questions referred in Cases C‑728/22 and C‑729/22, the referring court employs, in essence, the phrase ‘an interpretation or application of domestic legislative provisions, or implementing practices based on those provisions’. For the sake of simplification, I shall replace that phrase with the term ‘interpretation of national legislation’ or an equivalent expression.

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15      As indicated in footnote 13 above, the formulation of the first question in Case C‑729/22 even omits referring to all those provisions.

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16      See, inter alia, order of 10 January 2022, ZI and TQ (C‑437/20, EU:C:2022:53, paragraphs 18 to 21), and judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi (C‑152/17, EU:C:2018:264, paragraphs 21 to 24).

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17      See Article 1(637) of Law No 147/2013.

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18      See judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraph 46), cited by the referring court.

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19      Certainly, the fact that the amount indicated is just an average figure could lead the Court to consider that there might be concessions that do not reach the threshold required. However, it is clear, to my mind, that the statement of the referring court is made, within its answer to the request for clarification, for the purposes of confirming that it entertains no doubts in that regard.

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20      Judgment of 2 September 2021, Sisal and Others (C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 24 and the case-law cited).

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21      Ibid. (paragraph 28 and the case-law cited).

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22      See point 12 of the present Opinion. Since 2017, additional amendments have been introduced into the legislation concerning the ‘technical extension’ scheme. However, those amendments are not relevant for the purposes of the present cases.

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23      See footnote 9 to the present Opinion.

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24      See point 10 of the present Opinion.

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25      In the order for reference in Case C‑730/22, the referring court also mentions that the ‘technical extension’ scheme included relevant restrictions being placed on the holders of the services concessions, consisting, for example, in prohibiting the transfer of the operational premises of those services. However, those restrictions were introduced by amendments of the ‘technical extension’ scheme which were adopted after 2017. For that reason, I do not think they should be taken into account for the purposes of the present analysis.

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26      Judgment of 2 September 2021, Sisal and Others (C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 32 and the case-law cited).

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27      Inasmuch as the first part of the single question referred in Case C‑730/22 implicitly requires it to be determined whether Directive 2014/23 would be applicable to the concessions at issue in that case, the same considerations set out as part of the analysis of the first question referred in Cases C‑728/22 and C‑729/22 also apply here.

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28      Bovis, C. and Clarke, C., ‘Title III. Rules on performance of concessions’, in Steinicke, M. and Vesterdorf, P.L., EU Public Procurement Law – Brussels Commentary, C.H. Beck, 2018, p. 1195.

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29      See, to that effect, judgment of 2 September 2021, Sisal and Others (C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 33).

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30      See point 51 of the present Opinion.

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31      See, in that regard, Article 43(4)(c) of Directive 2014/23, which refers to cases where ‘the modification extends the scope of the concession considerably’ (emphasis added).

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32      In that last regard, I would point out, in a manner which is consistent with the written observations of the Commission, that not only modifications entailing favourable consequences for the concessionaire are covered by Article 43(4) of Directive 2014/23. That provision can also refers to changes beneficial to the contracting authority. See, in that regard, Bogdanowicz, P., Contract Modifications in EU Procurement Law, Edward Elgar Publishing, 2021, p. 60.

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33      No other subparagraph of Article 43(4) of Directive 2014/23 is applicable.

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34      See, inter alia, Dufau, J., Les concessions de service public, Éd. du Moniteur, 1979, pp. 7 and 18, and Mestre Delgado, J.F., La extinción de la concesión de servicio público, La Ley, 1992, pp. 66 to 86.

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35      Bettinger, C., La concession de service public et de travaux publics, Berger-Levrault, 1978, p. 117. See recital 20 of Directive 2014/23 and judgment of 21 May 2015, Kansaneläkelaitos (C‑269/14, EU:C:2015:329, paragraph 33 and the case-law cited).

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36      See Beuve, J. and Saussier, S., ‘Renegotiations of public contracts: A blessing in disguise?’, in Bandiera, O., Bosio, E. and Spagnolo, G. (eds), Procurement in Focus: Rules, Discretion, and Emergencies, CEPR Press, 2021, pp. 23 to 31, available at https://cepr.org/publications/books-and-reports/procurement-focus-rules-discretion-and-emergencies.

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37      In the French legal order, academic literature cites the arrêt du Conseil d’État du 3 mars 1916 (judgment of the Council of State of 3 March 1916) in Compagnie genérale d’éclairage de Bordeaux as the source of the ‘théorie de l’imprévision’ (doctrine of unforeseeability) in public contracts. See Hauriou M., Précis élémentaire de droit administratif, Sirey, 1943, p. 445.

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38      Philippe, D.M., Changement de circonstances et bouleversement de l’économie contractuelle, Bruylant, 1986. See also Mestre Delgado, J.F., op. cit., p. 77.

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39      Article 165 of Decreto legislativo 18 aprile 2016, n. 50 (Codice dei contratti pubblici) (Legislative Decree No 50 of 18 April 2016 laying down a public procurement code) (GURI No 91 of 19 April 2016 – Ordinary Supplement No 10).

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40      In the orders for reference, the referring court observes that the applicants have submitted evidence demonstrating that the conditions for the operation of the concessions, in particular the sustainability of the operating costs, were seriously compromised following the COVID‑19 pandemic. See point 22 of the present Opinion.

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41      Directive 2014/23 essentially explains, in recital 76 thereof, that the concept of ‘unforeseeable circumstances’ refers to external circumstances that could not have been predicted despite reasonably diligent preparation of the initial award.

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42      See also recital 18 of Directive 2014/23.

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43      See the first sentence of Article 5 of Directive 2014/23.

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44      Judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi (C‑152/17, EU:C:2018:264).

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45      Ibid., paragraphs 29 and 30.

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46      Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).

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47      See also Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14). Both Directive 89/665 and Directive 92/13 were substantially amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 (OJ 2007 L 335, p. 31) and by Directive 2014/23.

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48      See the second subparagraph of Article 1(1) of Directive 89/665.

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49      See the third subparagraph of Article 1(1) of Directive 89/665. This is the case after the modifications made to Directive 89/665 by Directive 2014/23.

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50      See the first and third recitals of Directive 89/665. See also order of 4 October 2007, Consorzio Elisoccorso San Raffaele (C‑492/06, EU:C:2007:583, paragraph 29).

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51      Order of 23 April 2015, Commission v Vanbreda Risk & Benefits (C‑35/15 P(R), EU:C:2015:275, paragraph 28).

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52      Article 1(3) of Directive 89/665, as interpreted, inter alia, by judgment of 9 February 2023, VZ (Tenderer definitively excluded) (C‑53/22, EU:C:2023:88, paragraph 29).

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53      Article 2(1) of Directive 89/665.

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54      Article 2(9) of Directive 89/665.

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55      That would be the case, for instance, if the Court considers that it remains uncertain whether the threshold set out in Article 8 of Directive 2014/23 has been reached as regards some of the concessions concerned in the main proceedings or if it considers that the modification of those concessions through legislative means converted them into a mere provision of services subject to regulation. See, in that regard, point 39 of the present Opinion.

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56      Judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraph 64 and the case-law cited).

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57      In the fourth, fifth and sixth questions referred in Cases C‑728/22 and C‑729/22, the referring court also cites ‘the principles of certainty and effectiveness of legal protection, as well as the principle of the protection of legitimate expectations’. In turn, in the second part of the single question referred in Case C‑730/22, that court cites, in addition to Articles 49 and 56 TFEU, Articles 26, 56 and 63 of that Treaty and ‘the principle of non-discrimination, the principle of proportionality and the protection of competition and the free movement of services and capital’. For reasons similar to those set out in point 36 of the present Opinion, I consider that all those questions should be declared inadmissible in so far as those provisions or principles are concerned.

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58      See, inter alia, judgment of 19 July 2012, Garkalns (C‑470/11, EU:C:2012:505, paragraphs 26 and 27 and the case-law cited).

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59      Judgment of 23 December 2009, Serrantoni and Consorzio stabile edili (C‑376/08, EU:C:2009:808, paragraph 25 and the case-law cited). Cfr. judgment of 6 October 2016, Tecnoedi Costruzioni (C‑318/15, EU:C:2016:747, paragraph 26) and judgment of 14 July 2022, ASADE (C‑436/20, EU:C:2022:559, paragraph 49).

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60      Cfr. judgment of 13 February 2014, Crono Service and Others (C‑419/12 and C‑420/12, EU:C:2014:81, paragraphs 35 to 37).

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61      See judgment of 6 October 2016, Tecnoedi Costruzioni (C‑318/15, EU:C:2016:747, paragraph 20 and the case-law cited).

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62      Judgment of 11 February 2021, Katoen Natie Bulk Terminals and General Services Antwerp (C‑407/19 and C‑471/19, EU:C:2021:107, paragraph 58 and the case-law cited).

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63      See, in that regard, point 60 of the present Opinion.

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64      See points 63 and 64 of the present Opinion.

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65      Judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta (C‑463/13, EU:C:2015:25, paragraph 53).

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66      Judgment of 6 October 2020, Commission v Hungary (Higher education) (C‑66/18, EU:C:2020:792, paragraph 178).

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67      Judgment of 16 March 2023, OL (Extension of Italian licences) (C‑517/20, EU:C:2023:219, paragraphs 49 to 51).