C_2021431EN.01002001.xml

Judgment of the Court (Fifth Chamber) of 2 September 2021 (references for a preliminary ruling from the Consiglio di Stato — Italy) — Sisal SpA (C-721/19), Stanleybet Malta Ltd (C-722/19), Magellan Robotech Ltd (C-722/19) v Agenzia delle Dogane e dei Monopoli, Ministero dell'Economia e delle Finanze

(Joined Cases C-721/19 and C-722/19) (1)

(Reference for a preliminary ruling - Articles 49 and 56 TFEU - Free movement of services - Restrictions - Directive 2014/23/EU - Concession award procedure - Article 43 - Substantial amendments - Instant lottery games - National legislation providing for the renewal of a concession without a new tendering procedure - Directive 89/665/EEC - Article 1(3) - Legal interest in bringing proceedings)

(2021/C 431/19)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Sisal SpA (C-721/19), Stanleybet Malta Ltd (C-722/19), Magellan Robotech Ltd (C-722/19)

Defendants: Agenzia delle Dogane e dei Monopoli, Ministero dell'Economia e delle Finanze

Intervener: Lotterie Nazionali Srl, Lottomatica Holding Srl, formerly Lottomatica SpA (C-722/19),

Operative part of the judgment

EU law, and in particular Article 43(1)(a) of 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 not precluding national legislation requiring the renewal of a concession contract without a new award procedure, in circumstances where it has been awarded to a single concessionaire, whereas the applicable national law provided that such a concession was in principle to be awarded to several, at most four, economic operators, where that national legislation constitutes the implementation of a clause contained in the initial concession contract providing for the option of such renewal;

EU law, and in particular Article 43(1)(e) of Directive 2014/23, must be interpreted as not precluding national legislation which provides, first, that the renewal of a concession is to be decided two years before its expiry and, second, that an amendment to the arrangements for payment of the financial consideration due from the concessionaire, as they were set out in the initial concession contract, so as to guarantee additional and increased government revenue, where that change is not substantial within the meaning of Article 43(4) of that directive.

Article 43(4) of Directive 2014/23 and Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23, must be interpreted as meaning that an economic operator may bring an action against a decision to renew a concession on the ground that the conditions of performance of the initial concession contract have been substantially amended, even though that operator did not participate in the initial award procedure for that concession, provided that, at the time when the renewal of the concession is due to take place, that operator can show an interest in being awarded such a concession.

(1) OJ C 432, 23.12.2019.