23.12.2019 |
EN |
Official Journal of the European Union |
C 432/24 |
Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 September 2019 — Sisal SpA v Agenzia delle Dogane e dei Monopoli, Ministero dell’Economia and delle Finanze
(Case C-721/19)
(2019/C 432/30)
Language of the case: Italian
Referring court
Consiglio di Stato
Parties to the main proceedings
Appellant: Sisal SpA
Respondents: Agenzia delle Dogane e dei Monopoli, Ministero dell’Economia and delle Finanze
Questions referred
1. |
Is EU law, and in particular the right of establishment and freedom to provide services (Articles 49 et seq. and 56 et seq. TFEU), the [EU-law] principles of legal certainty, non-discrimination, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and — where deemed applicable — Articles 3 and 43 of Directive 2014/23/EU, (1) to be interpreted as precluding a provision such as that contained in Article 20(1) of Decreto Legge (Decree-Law) No 148 of 16 October 2017 and in the subsequent implementing legislation, which provides that ‘1. Pursuant to Article 21(3) and (4) of decreto-legge 1o luglio 2009, n. 78 (Decree-Law No 78 of 1 July 2009), converted with amendments by legge 3 agosto 2009, n. 102 (Law No 102 of 3 August 2009), the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy) shall authorise the continuation of the existing concession for the collection, including by remote means, of national instant lottery receipts for the period envisaged in Article 4(1) of the concession contract, so as to guarantee additional and increased government revenue of EUR 50 million for 2017 and EUR 750 million for 2018’, in a situation in which:
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2. |
Is EU law, and in particular the right of establishment and freedom to provide services (Articles 49 et seq. and 56 et seq. TFEU), the [EU-law] principles of legal certainty, non-discrimination, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and — where deemed applicable — Articles 3 and 43 of Directive 2014/23/EU, to be interpreted as precluding a provision such as that contained in Article 20(1) of Decree-Law No 148 of 16 October 2017, which, under Article 21(3) and (4) of Decree-Law No 78 of 1 July 2009, converted with amendments by Law No 102 of 3 August 2009, provides that ‘the Customs and Monopolies Agency shall authorise the continuation of the existing concession for the collection, including by remote means, of national instant lottery receipts for the period envisaged in Article 4(1) of the concession contract, so as to guarantee additional and increased government revenue of EUR 50 million for 2017 and EUR 750 million for 2018’, providing for this:
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3. |
Is EU law, and in particular the right of establishment and freedom to provide services (Articles 49 et seq. and 56 et seq. TFEU), the [EU-law] principles of legal certainty, non-discrimination, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and — where deemed applicable — Articles 3 and 43 of Directive 2014/23/EU, to be interpreted as precluding a provision such as that contained in the legislation implementing the aforementioned Decree, and in particular in Customs and Monopolies Agency Notice No 0133677 of 1 December 2017, which, in accordance with the provisions of Article 20(1) of Decree-Law No 148 of 16 October 2017, and on the basis of the provisions of the first paragraph of Article 4 of the concession agreement for the management of instant lotteries, which provides for the renewal of the same no more than once, changes the expiry date of the concession to 30 September 2028 — without prejudice to the provisions of Article 4 regarding the division of the concession period into two periods of five and four years respectively (therefore, once the first period of five years commencing on 1 October 2019 has expired, the continuation for the next four years until the expiry date of 30 September 2028 is contingent on a positive appraisal of the management performance by the Customs and Monopolies Agency, to be indicated by 30 March 2024) — and requires the company to arrange payment of EUR 50 million by 15 December 2017, EUR 300 million by 30 April 2018 and EUR 450 million by 31 October 2018;
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4. |
Is EU law, and in particular the right of establishment and freedom to provide services (Articles 49 et seq. and 56 et seq. TFEU), the principles of legal certainty, non-discrimination, transparency and impartiality, freedom of competition, proportionality, legitimate expectations and consistency, and — where deemed applicable — Articles 3 and 43 of Directive 2014/23/EU, to be interpreted as precluding such a provision, even if the operators in the sector currently interested in entering the market […] did not participate in the call for tenders originally held to award the concession which was due to expire and which was continued with the outgoing concessionaire on the new contractual terms described, or does […] any restriction on access to the market […] apply only if they actually participated in the original call for tenders? |
(1) 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).