1. 

‘The world neither ever saw, nor ever will see, a perfectly fair lottery.’ ( 2 )

2. 

This request for a preliminary ruling from the Consiglio di Stato (the Council of State, Italy) concerns a public procurement procedure for the award of an exclusive contract to an operator to manage Italy’s computerised lottery game — ‘Lotto’ — and other fixed-odds numerical games. In proceedings before the Italian courts, Stanley International Betting Ltd and Stanleybet Malta Ltd (‘the Stanley companies’) challenged domestic rules enabling the relevant Italian authorities to issue a call for tenders in that regard. Those companies argue that, by aspects of the contract on offer, the national authorities effectively created a hindrance restricting access to the market for operators such as themselves in breach of Directive 2014/23/EU on the award of concession contracts, ( 3 ) of the Treaty provisions governing the freedoms of establishment and the right to provide services and of general EU law principles.

3.

Article 49 TFEU provides that restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are to be prohibited.

4.

Article 56 TFEU states that restrictions on freedom to provide services within the European Union are prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.

5.

Articles 49 and 56 TFEU are without prejudice to provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health (Articles 52 and 62 TFEU respectively).

6.

Directive 2014/23 establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession where the value is estimated to be not less than the threshold of EUR 5186000 (Articles 1(1) and 8(1)). In accordance with Article 5(10), ‘exclusive right’ means a ‘right granted by a competent authority of a Member State by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to a single economic operator and which substantially affects the ability of other economic operators to carry out such an activity’.

7.

Article 10 falls under the title ‘Exclusions’. That article identifies those concessions awarded by contracting authorities and contracting entities that fall outwith the scope of the directive. Article 10(9) states that the directive does not apply to service concessions for lottery services which are covered by CPV code 92351100-7 awarded by a Member State to an economic operator on the basis of an exclusive right. ( 4 ) Recital 35 of the directive states in that regard that ‘this Directive should not affect the freedom of Member States to choose, in accordance with Union law, methods for organising and controlling the operation of gambling and betting, including by means of authorisations. It is appropriate to exclude from the scope of this Directive concessions relating to the operation of lotteries awarded by a Member State to an economic operator on the basis of an exclusive right granted by means of a procedure without publicity pursuant to applicable national laws, regulations or published administrative provisions in accordance with the TFEU. That exclusion is justified by the granting of an exclusive right to an economic operator, making a competitive procedure inapplicable, as well as by the need to retain the possibility for Member States to regulate the gambling sector at national level in view of their obligations in terms of protecting public and social order’.

8.

Pursuant to Article 51(1), ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016 …’. Article 54 specifies that the directive ‘shall not apply to the award of concessions tendered or awarded before 17 April 2014’.

9.

Article 1, paragraph 653, of Law No 190 of 2014 (described by the referring court as the ‘2015 Stability Law’) conferred responsibility on the Agenzia delle Dogane e dei Monopoli (Customs and State Monopolies Authority, ‘the ADM’) to organise the tender for the award of an exclusive concession to manage the Lotto and other fixed-odds numerical games in Italy.

10.

In Italy, there are two types of concession relating to running the Lotto: ( 5 ) a concession for Lotto ticket sales which is reserved to retailers and a concession for the management of the Lotto including, as the order for reference puts it, ‘the services of drawing lottery numbers, linkage and computerisation’. The Italian Government summarises the services that are subject of the management concession as: (i) the drawing of lottery numbers; (ii) computer linkage between all the different points of sale; (iii) control over the bets made; (iv) determination of who has won; (v) paying out winnings; (vi) withholding tax on revenue; and (vii) transferring to the Italian State the profits and the withholding tax. Lottomatica Spa was responsible for rendering those services until its contract expired on 8 June 2016.

11.

The ADM published a concession notice in December 2015 which set out the following essential conditions: (i) the concession would be granted for a non-renewable period of nine years; (ii) selection would be based on the criterion of the economically most advantageous tender, with a basic contract value of EUR 700 million; (iii) the successful tenderer would pay that amount in tranches (EUR 350 million at the time of the award; EUR 250 million in 2016 at the time when it took over the lottery service; and the remainder by 30 April 2017); (iv) the successful tenderer would be permitted to use the telecommunications network for the direct or indirect provision of services other than collecting Lotto bets and bets on other fixed-odds numerical games, provided that the ADM considered those services compatible with the primary activity of collection itself; and (v) the concessionaire would derive a commission equivalent to 6% of sales. ( 6 )

12.

Participants also had to be able to demonstrate previous experience in games management or games sales on the basis of a valid and effective licence in one of the States of the European Economic Area.

13.

Paragraph 5.3 of the tender specifications accompanying the call for tenders set out the requirements concerning financial standing. Participants had to demonstrate a total turnover of at least EUR 100000000 over a three-year period (either 2012 to 2014 or 2013 to 2015) from activities involving games management or games sales. In terms of technical ability, paragraph 5.4 required the following of participants:

14.

Paragraph 12.4 required a participant’s financial tender to consist of a bid in excess of the basic contract value set at EUR 700 million with bids formulated with a minimum amount of EUR 3000 000.00 (EUR three million).

15.

Article 22.1 of the model contract accompanying the call for tenders stated that, upon expiry of the concession, the operator concerned ‘shall transfer to the [ADM], without any burden falling upon the latter and at its request, all of the tangible and intangible assets constituting the network comprising the physical sales outlets, and ownership of the whole computerised system as well, including the availability of premises and equipment, the latter to include the terminals at all of the sales outlets’.

16.

Article 30(2) of the model contract listed the circumstances that might give rise to withdrawal of the concession. Those included:

…

17.

By a decision dated 16 May 2016 the sole concession was awarded to a consortium (Lottoitalia Srl) that included the incumbent service provider (Lottomatica SpA). Notification of the award was published in the GURI on 20 May 2016. In the meantime, the Stanley companies had brought proceedings before the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court of Lazio; ‘the TAR Lazio’) challenging Article 1, paragraph 653, of the 2015 Stability Law and seeking the annulment of the acts relating to the procedure conducted by the ADM in selecting an exclusive concessionaire for the management of the Lotto. On 21 April 2016, the TAR Lazio rejected that challenge.

18.

In so doing, inter alia, the TAR Lazio held that the Lotto differs from other games in so far as the Italian State bears the business risk and that there are two separate elements: the collection of bets which is entrusted to 33000 retail outlets and the management of the Lotto, a task entrusted to a sole concessionaire. With regard to the ADM’s decision to choose the exclusive concession model rather than granting a number of concessions, the TAR Lazio ruled that such a decision had two advantages. First, it avoided the need to have a ‘super-concessionaire’ to oversee and coordinate the activities of the various concessionaires for the management of the Lotto. Second, that decision relieved the ADM of any liability caused by failure on the part of any individual concessionaire to perform its obligations, which had the further advantage of removing such a burden from the Italian State. Whilst there would also be, as a result, less competition in the relevant market, that was consistent with responsible State control over this gambling activity.

19.

In addition, the TAR Lazio held that the decision to fix the basic contract value at EUR 700 million and to concentrate the financial burdens on the concessionaire in the first year was not inappropriate. The high contract value was reasonable and proportionate. It had been determined in advance that at least 15 operators in the sector satisfied the special conditions laid down in points 5.3 and 5.4 of the tender specifications. For the previous five years, annual sales over EUR 6 billion had always been recorded, generating a turnover for the concessionaire of approximately EUR 400 million. The new concession might reasonably be expected to generate greater figures. Those conditions were therefore adequate and proportionate having regard to the nature and object of the service required under the tender. The fact that Lottomatica had taken part in the tender as the representative of an ad hoc tendering consortium demonstrated that the call had not been deliberately designed for the benefit of that company. Further, the withdrawal clauses had been drafted with sufficient clarity that they could not be considered to dissuade through uncertainty. Lastly, the TAR Lazio held that the Stanley companies could not rely on the judgment of the Court in Laezza because that judgment concerned a different issue. ( 7 )

20.

On appeal to the referring court, the Stanley companies argued that the decision to organise the tender process on the basis of an exclusive concession model effectively excludes them (and other operators in the sector) from the selection procedure which is essentially tailor-made for Lottomatica or, at least, for a very restricted number of extremely large scale operators that already have a substantial presence in Italy. The Stanley companies state that they were dissuaded from participating in the tender process and claim that the 2015 Stability Law and documents relating to the call for tenders are precluded by Articles 49 and 56 TFEU, general principles of EU law and provisions of Directive 2014/23. The referring court is of the view that it will be assisted in its determination of the main proceedings by the Court’s reply to the following questions:

21.

The Stanley companies, Lottoitalia, the Governments of Belgium, Italy and Portugal and the European Commission submitted written observations. At the hearing on 6 June 2018, the same parties presented oral argument and responded to questions from the Court.

22.

Lottoitalia and the Italian Government submit that the order for reference is manifestly inadmissible. The referring court simply included the questions drafted by the Stanley companies in the order for reference without examining whether a decision of this Court is necessary to determine the case at issue. The order for reference does not explain why the provisions of EU law mentioned in those questions are relevant. Nor does the referring court explain the link between the EU legislation there identified and the relevant national rules.

23.

It is settled case-law that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which assumes responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by a national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. ( 8 )

24.

It seems to me that, whilst the order for reference is not the most complete or comprehensive model of its kind, it contains sufficient material to show that the interpretation of EU law sought bears some relation to the facts of the main proceedings. I note that the material provided by the referring court was sufficiently detailed for the Belgian and Portuguese Governments to submit written observations. ( 9 ) Thus, the referring court’s description of the factual and legal background equips the Court with adequate background to provide useful answers to the questions posed. ( 10 )

25.

The referring court is candid in indicating that the questions referred were proposed by the Stanley companies. Nonetheless, it also states that it itself considers those questions clearly to be relevant in order to determine the main proceedings. Since this Court requires to provide a reply to the referring court which will be of use to, and enable, that court to determine the case at issue, it is necessary to consider how best to reformulate them with greater precision. ( 11 )

26.

For the reasons I have given, I consider the order for reference to be admissible.

27.

First, it is necessary to determine the type of contract at issue. Whilst the referring court does not expressly address this point, there is an assumption — implicit, not least, in its reference to Directive 2014/23 — that it considers the contract on offer to be one for the concession of a service. The key criteria identifying a services concession contract are that (i) the consideration for the provision of services consists in the right to exploit the service, either alone or together with payment, and that (ii) there is a transfer to the concessionaire of the risk connected with operating the service. ( 12 ) Given the description in the order for reference of the way in which the concessionaire would be remunerated and the findings of the TAR Lazio that the income earned by the concessionaire is dependent on the annual turnover, it seems to me that the contract described in the call for tenders is indeed for the concession of a service.

28.

Second, in so far as the contract at issue is of cross-border interest, the authorities offering to award and conclude the contract are ‘bound to comply with the fundamental rules of the EC Treaty in general, including [Article 56 TFEU] and, in particular, the principles of equal treatment and of non-discrimination on the ground of nationality and with the consequent obligation of transparency’. ( 13 ) The Court normally leaves it to the referring court to ascertain the existence of a cross-border interest. In the present case, however, there are sufficient elements available to the Court to conclude that the public contract at issue does indeed have such an interest. Those are that the Stanley companies are themselves UK- and Malta-based and that, on any objective view, the value of the contract, disputed as it may be, is sufficiently high to be of cross-border significance. ( 14 )

29.

Finally, it is common ground that the ADM is a public authority and that the call for tenders falls within the domain of public procurement in that it is part of the process by which that public authority sought to procure services to manage the Lotto. Within that context, it is settled case-law that ‘the principle of transparency’ is a corollary of the principle of equal treatment. ( 15 ) The rules which govern such procedures are aimed at ensuring that the procurement market is competitive, open and well regulated. It is in that light that I understand the references to general principles of EU law (‘non-discrimination, transparency, freedom of competition, proportionality and consistency’) in the questions posed by the referring court.

30.

The directive entered into force on 17 April 2014 and applies to the award of concessions tendered or awarded after that date. ( 16 ) The implementation period for Member States ran until 18 April 2016. Here, the ADM published a call for tenders on 17 December 2015 in the Official Journal of the European Union and on 21 December 2015 in the GURI. The deadline for submitting offers was 16 March 2016. All three dates were after Directive 2014/23 began to apply to the award of concessions (17 April 2014). The concession itself was awarded on 16 May 2016 which was after the implementation period had expired but before the directive had been transposed fully into Italian law. ( 17 )

31.

The Court has stated that the applicable directive is, as a rule, the one in force when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary to issue a prior call for competition for the award of a public contract. Conversely, a directive is not applicable if the period prescribed for its transposition expired after that point. ( 18 ) However, that case-law concerns circumstances where two earlier public procurement directives were repealed and replaced by Directive 2004/18/EC. ( 19 ) Although the latter directive entered into force on 30 April 2004, Directive 92/50 (public service contracts) and Directive 93/37 (public works contracts) remained applicable until the period for transposing Directive 2004/18 had expired on 31 January 2006. ( 20 ) Those rules were intended to provide for a smooth transition between the rules governing the old and new public procurement regimes. ( 21 )

32.

That is not the position here because there was no bespoke EU regime for the award of works concessions prior to the adoption of Directive 2014/23. ( 22 ) Thus, it seems to me that, in accordance with the plain wording of the second paragraph of Article 54, Directive 2014/23 would be applicable ratione temporis. That is because (contrary to the arguments advanced by the Italian Government and the Commission) the contracting authority chose the type of procedure to be followed and made a definitive decision to issue a call for tenders at a time when Directive 2014/23 was clearly already in force.

33.

There remains, however, the question whether this particular contract falls within the scope of the directive ratione materiae. In that regard, the wording of Article 10(9) of Directive 2014/23 is clear and unambiguous. Since the offer of the Lotto service concession contract was for an ‘exclusive right’ (as defined in Article 5(10) of the directive ( 23 )) relating to a service caught by the ‘Common Procurement Vocabulary’ code expressly mentioned — 92351100-7 — it follows that the tender was exempt from the provisions of the directive. ( 24 )

34.

Recital 35 might be read as suggesting that the exemption applies only where the Member State concerned chooses not to advertise the award of the contract and invite competition, in exercise of its ‘freedom to choose … methods for organising and controlling the operation of gambling and betting …’ but that, if it does publicise the award, the exemption does not apply. ( 25 ) I think that would be a strained reading of an imperfectly drafted recital which, in any event, lacks binding force. ( 26 ) The important words in the recital, to my mind, are ‘in accordance with the TFEU’. Those words emphasise that public procurement with a cross-border interest is, in any event, subject to scrutiny under the Treaties and general principles of EU law.

35.

Accordingly, the directive does not apply.

36.

By its first question, the referring court in essence asks whether EU law is to be interpreted as precluding national rules such as those at issue which require the competent Member State authorities to issue a call for tenders for the award of a concession to manage the computerised Lotto to a sole concessionaire. The referring court raises that question against the background that the contracts offered for other games, prediction games and betting are not based on exclusivity; rather, they allow for multiple providers.

37.

It seems to me that there are three elements to the referring court’s question. First, is the act of offering to award the Lotto management concession precluded by EU law? Second, is the fact that the offer is for an exclusive concession precluded by EU law? And third, is the exclusive model precluded by EU law given that non-exclusive models have been applied by the Italian State to other types of gaming and betting activity?

38.

The Stanley companies argue that the exclusive model constitutes a restriction in terms of Articles 49 and 56 TFEU which cannot be justified by any overriding public interest aim and is, in any event, disproportionate. They also argue that there are, inter alia, reasons deriving from competition law why all gambling activities should be treated in the same way. The Italian Government and Lottoitalia disagree with that view, arguing that the different types of gambling activities justify a difference in treatment and that the restriction is proportionate and justified by an overriding public interest. The Italian Government also claims that its decision to choose an exclusive model is an expression of the freedom of administration and, as such, escapes scrutiny as a measure related to a gambling activity. The Belgian and Portuguese Governments and the Commission argue that the restriction appears to be proportionate and justified by reference to an overriding public interest, again in terms of Articles 49 and 56 TFEU.

39.

As to the first element — whether the offer of a concession contract is precluded by EU law — my view is that requiring a would-be lottery operator to hold a concession contract is a restriction of the freedoms guaranteed by Articles 49 and 56 TFEU, but that in principle that restriction is plainly justifiable.

40.

Specifically, where, as a matter of fact and law, it is not possible for an operator to render Lotto management services in Italy other than by way of a concession won through a public procurement procedure, that acts as an impediment to the unfettered enjoyment of the freedoms guaranteed by Articles 49 and 56 TFEU. Put simply, operators are required to bid for a concession contract if they wish to continue to render equivalent services and/or to seek to render those services. ( 27 ) Moreover, the presence in that concession contract of withdrawal clauses posing a threat to business continuity (whether those clauses are triggered by inappropriate conduct or by the concession reaching its contractual end) necessarily renders the service the operators would provide less economically attractive than if holding a concession contract were not a condition precedent of providing that service. ( 28 )

41.

As to the second element, I do not think that it can be automatically assumed that the decision to apply an exclusive concession model is, per se, an unlawful restriction in terms of Articles 49 and 56 TFEU. Rather, it seems to me that, depending on the exact terms of the service concession contract, exclusivity may reinforce the overall restrictive effects of the decision — adopted via the 2015 Stability Law — to conduct a public procurement exercise or, on the contrary, exclusivity may palliate those effects. It will be for the referring court to evaluate the exclusive arrangements on offer for their likely dissuasive effects or for their persuasive or neutral effects which will go to the overall proportionality of the arrangements in question. It must do so, I suggest, against objective criteria, not against the subjective appreciation of individual operators. ( 29 )

42.

The views I have expressed above on the choice of model necessarily imply rejecting the Italian Government’s argument that that choice is excluded from scrutiny under Articles 49 and 56 TFEU. At least two other reasons lead to the same conclusion. First, the Court has previously held that contracts relating to only one aspect of a gambling activity are still to be assessed according to the case-law examining gambling activities by reference to Articles 49 and 56 TFEU as they should not be viewed independently of those overall activities. ( 30 ) Second, it seems to me to be artificial to divorce the management of a gambling activity from the gambling activity itself. ( 31 )

43.

In my view, therefore, the decision to follow a public procurement exercise applying an exclusive concession model indeed falls to be assessed under Articles 49 and 56 TFEU. That being the case, that choice of model — which is not expressly discriminatory — is precluded unless it is justified on the basis of the derogations expressly provided for by the TFEU or by overriding reasons in the public interest. ( 32 ) The burden to provide that justification lies with the relevant public authorities. ( 33 )

44.

In its written observations, the Italian Government cites several public interest aims, including preventing criminal interference with the management of the lottery and channelling gambling activities into a controlled circuit subject to reduced competition. Lottoitalia’s observations also refer to reasons of public and social order, consumer protection and fraud prevention. The Stanley companies dispute that these aims are genuine, arguing that the principal reason for the choice of model is to increase revenue for the Italian State’s treasury.

45.

All of the aims cited by the Italian Government and Lottoitalia have been recognised by the Court to constitute — together and individually — an overriding public interest in relation to gambling activities. ( 34 ) By contrast, increasing revenues for the Member State is not an objective capable of justifying a restriction on the freedom to provide services, although that may be an ancillary benefit for the government concerned. ( 35 ) Administrative efficiency (or seeking to avoid administrative inconvenience) is likewise not considered to be an overriding public interest. ( 36 ) It is for the referring court to determine which objectives are actually pursued by the choice of model in issue. ( 37 )

46.

If that court determines that the real objective pursued by Italy is primarily to increase revenue or other purely economic grounds, the choice of model must be regarded as incompatible with Articles 49 and 56 TFEU. Similarly, if that court determines that the choice is made primarily for reasons of administrative efficiency, such as avoiding a double layer of management concessions (that is to say, if — as the Stanley companies seek — the ADM were to appoint multiple service providers rather than one exclusive service provider to manage the lottery, it might then be necessary to appoint a ‘super-concessionaire’ to be in overall charge ( 38 )), the choice of model would likewise fall to be regarded as incompatible with Articles 49 and 56 TFEU.

47.

On the other hand, if the referring court finds that the choice of the exclusive model genuinely pursues one of the permitted objectives, it will have then to consider whether the restriction is proportionate. The court must be satisfied that the restriction is suitable for achieving the objectives pursued by the model concerned at the level of protection it seeks and does not go beyond what is necessary to achieve those objectives.

48.

In that regard, whilst Member States enjoy wide discretion in accordance with their ‘own scale of values’ and ‘moral, religious and cultural differences’ to determine what is required to ensure the overriding public interest aim, ( 39 ) the Italian authorities concerned must supply the referring court with the evidence necessary to satisfy that court that the model is, in fact, intended to pursue the declared objective in a consistent and systematic manner. ( 40 ) For example, in previous references for preliminary rulings, the Court has spoken of evidence showing that the concessionaire will be subject to the relevant authorities’ ‘tight control’ or that the offer of the exclusive concession is ‘accompanied by a legislative framework suitable for ensuring that the holder of the said monopoly will in fact be able to pursue, in a consistent and systematic manner, the objective thus determined’. ( 41 )

49.

The referring court notes in its order for reference that the TAR Lazio considered that the exclusive model created less competition within the relevant market, thereby promoting responsible governance of the game. In that regard, this Court has already found that the presence of ‘free, undistorted competition … in the very specific market of games of chance, that is to say, between several operators authorised to run the same games of chance, is liable to have detrimental effects owing to the fact that those operators would be led to compete with each other in inventiveness in making what they offer more attractive and, in that way, increasing consumers’ expenditure on gaming and the risks of their addiction’. ( 42 ) Accordingly, the choice of an exclusive concession model, if it seeks to create less competition and thereby promote responsible governance of the Lotto, is not precluded by EU law.

50.

It will be for the referring court to determine what are the actual objectives of the choice of exclusive concession model (of which a variety has been claimed by the Italian Government) and, if they are permitted objectives, whether the choice is in fact proportionate and consistent with those objectives. In its assessment of proportionality — which I underline is distinct from the question of what the objective of the choice of exclusive model is — the referring court can, in my view, take account of any administrative efficiencies gained from pursuing that model. It can also take account of the finding of fact made by the TAR Lazio that that model provides the Italian State with protection from financial liability.

51.

Finally, as to the third element, I see no reason why the contract for the management of the Lotto has as a matter of EU law to be awarded to multiple operators merely because multiple non-exclusive concessions are offered in Italy for other games, prediction games and other forms of betting, such as the placing of a simple fixed-odds bet.

52.

That argument reduces to claiming that because the games all involve various forms of gambling, they must be treated with a one-size-fits-all approach. ( 43 ) It seems obvious to me, however, that there are differences between the contract that the ADM offered for tender here and, for example, a license to run a concession for horse race betting.

53.

As the referring court notes in its order for reference, the TAR Lazio found the principal differences to lie in: (i) the fact that the contract on offer relates to the technical, administrative and organisational activities involved in the management of a national lottery and not to direct dealings with customers, such as the placing of a bet implies; and (ii) the economic risk that the Italian State bears — which, disputed as it may be, appears to contrast with the absence of any risk to the State where someone places a bet with a licensed commercial operator on the outcome of a football match or a horse race. Moreover, a competition law analysis suggesting that the market for all gambling activities should be treated the same (that is to say, with multi-user non-exclusive concessions) is not relevant here. The Court’s assessment of gambling services under Articles 49 and 56 TFEU expressly recognises that competition can legitimately be restricted and that, accordingly, a ‘traditional’ Article 101 or 102 TFEU approach is inappropriate. ( 44 )

54.

Finally, I see no reason to question the transparency of the model. The assessment that I have indicated above should be conducted by the referring court also necessarily includes consideration of the ‘principle of consistency’ (in that the choice of model must be consistent with the public interest objective sought) and recognition that total freedom of competition is not always desirable.

55.

I therefore propose to answer the first question to the effect that a decision by the relevant national authorities to apply a concession model for the management of a gaming activity such as the Lotto constitutes a restriction of the enjoyment of the freedoms guaranteed by Articles 49 and 56 TFEU. It is for the referring court to determine, having regard to the objective characteristics of the exclusive concession model put out to tender, the extent of any such restriction. It will then be for the national authorities to adduce sufficient evidence of (i) the overriding public interest aim it seeks to achieve through that choice of model and (ii) the proportionality of that model vis-à-vis that aim.

56.

The second question proceeds on the assumption that the contract value is disproportionately high (‘unjustified’) when compared with other conditions within the call for tenders and asks whether that value is, as a result, precluded by EU law. The TAR Lazio — whose findings were not queried, let alone contradicted by the referring court — came to the opposite conclusion. I would therefore reformulate the second question as follows: Where a public authority issues a call for tenders, does EU law preclude it from stipulating a basic contract value if that value is high, in particular when viewed in the context of the other conditions set out in the call for tenders?

57.

The Stanley companies focus on the combined effect of the high contract value and other contractual conditions, claiming that the result is to exclude them from bidding and to reserve the contract on offer for the incumbent service provider. In contrast, the Belgian and Italian Governments, Lottoitalia and the Commission, point to objective factors underlying the contract value calculation. They conclude that the resulting figure appears proportionate and reasonable notwithstanding the other contractual conditions. The Portuguese Government did not submit specific observations on the second question.

58.

In my view, the starting point is that the inclusion of a contract value in the call for tenders is per se unobjectionable. Indeed, the approximate value is one of the essential elements of information to be contained in a publicised tender (similar to, for example, details of the nature of the contract on offer). Without it, a call for tenders risks attracting no bids.

59.

However, were the contract value — considered on its own merits — to lack an objective basis, the principle of transparency would, inter alia, be infringed.

60.

In my view, the order for reference contains sufficient findings of fact by the national judge for the Court to be satisfied that the figure of EUR 700 million cannot suffer from that objection. It is not so preposterously high as to lack an objective basis.

61.

The order for reference records that the TAR Lazio found that (i) the turnover of sales of lottery tickets exceeded EUR 6 billion per year for five years running (that figure is, I note, reflected at point II.2.1 of the contract notice); and (ii) the annual income therefrom would amount to approximately EUR 400 million (reflecting the 6% commission proposed, likewise at point II.2.1 of the contract notice). It thus appears that the Italian State was offering to sell the possibility of earning EUR 400 million per year for a total of nine years (protected from all competition) in exchange for (at least) EUR 700 million to be paid over a period of three years.

62.

The order for reference records other factors taken into account by the TAR Lazio. Whilst the amount at which lottery concessions have been sold in other Member States may not necessarily be strictly comparable, it seems to me entirely appropriate to take account of additional factors such as that payment was to be spread over three years, that companies were permitted to form temporary groupings for the purpose of the bid and that the Italian State may or may not bear some part of the ultimate risk, together with the nature of the overall services to be rendered and the requirement to transfer to the ADM without charge at the end of the concession ‘all of the tangible and intangible assets constituting the network …’ (Article 22.1 of the model contract). ( 45 ) The fact that 15 companies were assessed by the ADM as fulfilling the conditions for the call for tenders places the EUR 700 million figure calculated in a wider, but nevertheless relevant, overall context.

63.

If the referring court establishes that the contract value figure was calculated objectively both when viewed in isolation and when compared with other contractual conditions, that will suffice to dispose of the claim advanced by the Stanley companies that the figure discriminates against them and/or treats them unequally as compared with the incumbent service provider. The fact that a potential operator is discouraged from tendering simply because the contract value is high or unachievable by one company acting alone does not undermine the objectivity of the contract value.

64.

If, however, the referring court concludes that subjective considerations, rather than objective factors, formed the basis for the value set for the contract, it is very difficult to see how the resulting obstacle to the freedoms guaranteed by Articles 49 and 56 TFEU could be justified as a proportionate and transparent means of achieving an aim in the overriding public interest. ( 46 ) Likewise, if the effect of the contract value in combination with the other contractual conditions were such as to render participation in the tender deeply unattractive (or even impossible) for anyone but the incumbent provider, the resulting restriction on trans-frontier establishment and service provision would be virtually certain to fail that test.

65.

I therefore propose to answer the second question to the effect that EU law does not preclude the inclusion of a high contract value in the call for tenders for a public procurement tender if the objectivity of that figure is established both on its own merits and by reference to the other rights and obligations set out in the call for tenders. It is for the national court to determine whether that is the case.

66.

The third question proceeds on the basis of two assumptions (each favourable to the Stanley companies): that the 2015 Stability Law and the call for tenders require the Stanley companies to give up a commercial activity if they seek to win the contract on offer; and that that commercial activity has been upheld as lawful by this Court.

67.

Both assumptions are to be questioned. First, no natural reading of the 2015 Stability Law or of the call for tenders leads to the conclusion that they expressly target the Stanley companies. Nor did the TAR Lazio make any finding of fact recorded in the order for reference from the Consiglio di Stato (Council of State) that could underpin such an assumption. Second, this Court has made no such finding of legitimacy regarding the particular commercial activity which the Stanley companies here seek to advance as lawful.

68.

I would therefore reformulate the third question as follows: Do Articles 49 and 56 TFEU and/or the principles of non-discrimination, proportionality and transparency preclude the inclusion, in a model contract for the exclusive concession to manage a national lottery, of clauses that provide for the concession to be withdrawn if (a) the concessionaire, its servants or agents are charged with certain criminal offences or (b) the concessionaire infringes national rules on the prevention of irregular, unlawful or covert gambling where those clauses act such as to exclude a potential bidder?

69.

The Stanley companies argue simultaneously that the withdrawal clauses were vaguely worded and that those clauses posed a sufficiently clear and precise threat that they were prevented or dissuaded from tendering because they are subject to various pending proceedings and, in consequence, automatically fall foul of the withdrawal clauses. They further claim that, contrary to the principles laid down by this Court in Costa and Cifone, ( 47 ) those clauses also target offences which are not res judicata. The Belgian and Italian Governments, Lottoitalia and the Commission argue, in summary, that the withdrawal clauses are clear, that they are proportionate given the aim sought and that they do not automatically operate to exclude the Stanley companies from the procurement process. The Portuguese Government did not submit specific observations on the third question.

70.

I shall first consider Article 30(2)(h) and (k) of the model contract by reference to the principle of transparency (which implies also consideration of the principle of non-discrimination) before turning to the requirements of Articles 49 and 56 TFEU. Finally, I shall examine the res judicata issue, focusing in particular on Article 30(2)(h) of the model contract.

71.

The order for reference notes that the TAR Lazio considered the withdrawal clauses to be sufficiently transparent. In that regard, the standard to be applied is to view the clauses from the perspective of a reasonably well-informed and normally diligent tenderer exercising ordinary care. ( 48 ) In Costa and Cifone, the Court provided guidance as to what satisfied the requirements of transparency in this context. Thus, wording allowing for the withdrawal of a concession for ‘offences referred to in Law No 55 of 19 March 1990’ was deemed to be acceptable because it related to specific and identified offences found in that law (which were also consistent with the overall aim of combatting criminality). Conversely, however, wording which allowed for withdrawal for ‘any other offence liable to breach the relationship of trust with the [contracting authority]’ was not acceptable because such wording did not ‘enable any potential tenderer to assess with certainty the likelihood that such penalties will be applied to it’. ( 49 )

72.

It is for the referring court, if necessary, to reassess the transparency of both withdrawal clauses in light of the case-law to which I have just referred.

73.

For my part, I do not consider that a reasonably well-informed and normally diligent tenderer exercising ordinary care would have much difficulty in understanding the scope and application of Article 30(2)(k) of the model contract. So far as Article 30(2)(h) is concerned, the circumstances in which the ADM may withdraw the concession under that clause of the model contract are described succinctly but clearly. A cumulative set of conditions requires to be fulfilled before the ADM decides whether or not to proceed with the withdrawal process. Wthdrawal is not automatic, but it is clear that withdrawal may occur once those conditions are united. The fact that the clause gives the ADM discretion whether to withdraw the concession does not deprive the clause of its clarity. Moreover, it is clear that a third party distinct from the ADM (namely the public prosecutor, as was common ground at the hearing) assesses whether there is sufficient material to warrant indictment for a suspected criminal offence. The combination of those elements seems to me adequate to comply with the principle of transparency.

74.

Turning, next, to the assessment under Articles 49 and 56 TFEU, this Court has held that subjecting an economic activity such as the provision of management services for the Lotto to the requirement to bid for, and win, a contract and to clauses allowing for potential withdrawal of that concession thereafter constitutes an obstacle to the freedoms guaranteed in Articles 49 and 56 TFEU. ( 50 ) The clauses on withdrawal therefore require to be justified by reference to an overriding public interest aim and to satisfy the proportionality test. I have already discussed what is required of the Italian authorities in terms of the overriding public interest aim to be achieved. ( 51 ) The referring court will have to satisfy itself whether the contested clauses are appropriate and necessary to achieve that aim and do not go beyond what is necessary to do so. Here, I merely note that the grounds in Article 30(2)(h) of the model contract, for example, are expressly linked to criminal activity and that one of the stated public interest aims is preventing criminal activity in the management of the Lotto.

75.

I turn finally to the argument in relation to res judicata. Does the fact that Article 30(2)(h) and Article 30(2)(k) of the model contract are not restricted to offences that are res judicata mean that they are automatically to be considered disproportionate? ( 52 )

76.

It is helpful to recall at this juncture that an assumption on which the third question is based is that the Stanley companies would have to abandon an existing, lawful and commercially successful model of operation in order not to fall foul of the clauses in Article 30(2)(h) and/or (k) of the model contract.

77.

In Costa and Cifone, the clauses at issue were framed in terms of withdrawal of the concession but in practice had the effect of excluding certain operators from participating in the tender process altogether (because withdrawal would effectively be triggered on the day the license was awarded). The Court held that ‘… exclusion from the market through withdrawal of the licence should in principle be regarded as proportionate to the objective of combating criminality only if it is based on a judgment which has the force of res judicata and concerns a sufficiently serious offence. Legislation which provides for operators to be excluded, even temporarily, from the market can be regarded as proportionate only if it provides for an effective legal remedy and compensation for any loss suffered in the event that such exclusion subsequently proves to be unjustified’. ( 53 )

78.

It is not obvious from the material before the Court that the contested clauses in the present case did have the effect of excluding the Stanley companies automatically from the tendering process. The referring court will therefore first need to examine carefully the nature of any pending proceedings against the Stanley companies and determine whether they were indeed such as to trigger the withdrawal clause immediately, had those companies tendered for and been awarded the contract. If they were not, the Court’s dicta in Costa and Cifone are in any event not directly pertinent.

79.

If the Stanley companies were excluded, however, is it permissible to include a withdrawal clause in a model contract for an exclusive lottery concession that may be triggered at the discretion of the contracting authority at the point where the concessionaire, its servants or agents have been indicted, but not yet tried for, a serious criminal offence (a fortiori, where the conviction has not yet acquired the force of res judicata)?

80.

It seems to me that we have here a classic example of the need to strike the correct balance between two competing interests. On the one hand is the public interest in preventing criminal activity within the lottery system (as claimed by the Italian Government). On the other hand is the private commercial interest of the sole concessionaire, coupled with the presumption that a party charged with a criminal offence is innocent until proven guilty. ( 54 )

81.

So far as that public interest is concerned, the existence of a judgment that has the force of res judicata implies the (perhaps extended) process of (first) a full criminal trial and then (potentially) a full sequence of appeals. It may take a long time before the conviction becomes res judicata. From the perspective of the public interest, there are clearly grave disadvantages in having to wait until that point before the sole concession to run the national lottery can be withdrawn. Meanwhile, the management of a valuable and vulnerable service will have remained in the hands of the concessionaire. That is clearly an undesirable outcome if — ultimately — it turns out that the concessionaire, its servants or agents are indeed guilty of a criminal offence which (to cite Article 30(2)(h) of the model contract), ‘because of its nature, seriousness, method of commission and connection with the activity for which the concession was awarded, [the awarding authority] considers such as to preclude the concessionaire possessing the requisite reliability, professionalism and moral quality’.

82.

If, however, the withdrawal clause is permitted to be triggered at a point where there is (in effect) only a suspicion that a serious offence has been committed (albeit a suspicion endorsed by a third party public authority in the shape of the public prosecutor), that may tilt the balance too far towards the public interest to the detriment of the private interest. On the basis of a prima facie case that has not yet been tested in a criminal trial conducted under normal guarantees, the operator’s right to conduct its business and its right to be presumed innocent until found guilty are both at risk of being undermined.

83.

Here, I note that the EU legal order in other public procurement procedures envisages the possibility of exclusion from a tendering procedure by reference not only to the commission of serious criminal offences but also to instances where the operator is ‘guilty of a grave professional misconduct which renders his integrity questionable’ (emphasis added). ( 55 ) Thus, in interpreting the equivalent exclusion provision under Directive 2004/18, ( 56 ) for example, the Court has held that ‘a judicial decision, even though it is not yet final may, depending on the subject of the decision, provide the contracting authority with the appropriate means by which to substantiate the existence of grave professional misconduct, its decision being, in any event, open to judicial review’. ( 57 )

84.

I therefore suggest that the appropriate place to strike the balance between the public and private interests is at the point where there has already been a ‘judicial decision’ substantiating the suspicion of criminality or grave professional misconduct. Thus, in the present case, that would — for example — permit exclusion once there was a first instance conviction in a relevant court relating to a criminal offence that caused the ADM to doubt that the operator had the ‘requisite reliability, professionalism and moral quality’ relevant to the Lotto services concession contract. It would also be necessary for there to be legal remedies available to the excluded concessionaire allowing it (i) to seek to suspend the ADM’s decision withdrawing the concession pending the appeal of the judicial decision in question and (ii) to seek damages against the contracting authority were that judicial decision subsequently to be overturned on appeal. ( 58 ) For both types of remedy, the necessary mechanisms would need to be established as a matter of law, rather than as a matter of contract. ( 59 )

85.

So far as the present proceedings are concerned, whether the two impugned withdrawal clauses did — or did not — dissuade the Stanley companies from tendering and what remedies and guarantees are available to an excluded concessionaire under national law are both issues that are, quintessentially, for the national court to verify and I do not explore them further here.

86.

I therefore propose to answer the third question as follows: Articles 49 and 56 TFEU and the principles of non-discrimination, proportionality and transparency do not preclude the inclusion, in a model contract for the exclusive concession to manage a national lottery, of clauses that provide for the concession to be withdrawn if (a) the concessionaire, its servants or agents are charged with certain criminal offences or (b) the concessionaire infringes national administrative law rules on the prevention of irregular, unlawful or covert gambling, and where those clauses act to exclude a potential operator, provided that

87.

Accordingly, I propose that the Court of Justice should reply as follows to the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy):