The Lotto call for tenders in Luxembourg
With the Council of State's referral order published on 12 June, a new season of appeals was opened at the European Court of Justice.
The pronunciation was certainly not expected and above all surprised the three questions that the Council of State, invoking the clear act theory - which in this context would not seem to operate - has referred to the Court of Justice. The first question ("whether EU law - and in particular the right of establishment and the freedom to provide services, as well as the principles of non-discrimination, transparency, freedom of competition, proportionality and coherence - should be interpreted in the sense which precludes a regulation such as that set out in Article 1, paragraph 653, of the 2015 Stability Law and the related implementing acts, which provides for an exclusive monoproviding concession model in relation to the Lotto game service, and not for others games, betting competitions and bets ") the legitimacy of the monoproviding dealer is questioned. The game of the lot, in addition to a well-established story, has characteristics very different from the other types of games (bets, vlt, bingo, online game, etc.): a) it is the only game in which the State takes the risk of company, b) is characterized by the distinction of the phase of the collection of bets, guaranteed by over 33 thousand receivers widespread throughout the national territory, from the "management of the automated lottery game service", entrusted to a single dealer. If the multiproviding figure was chosen, another figure would have to be identified, private ("superconcessioner") or an ADM structure, to coordinate the activity of the various service concessionaires.
In the second principle, on the other hand, we read: "whether Union law - and in particular the right of establishment and the freedom to provide services and Directive 2014/23 / EU, as well as the principles of non-discrimination, transparency, freedom of competition, proportionality and coherence - must be interpreted as meaning that it precludes a call for tenders which provides a much higher and unjustified basis for auction than the economic-financial and technical-organizational capacity requirements (...) ". The auction base of 700 million euros has been set by the Legislator, which in this sense has exclusive jurisdiction. This choice, however, is in line with the standards of reasonableness and proportionality, and indeed the Administrations have clearly pointed out in both grades that at least fifteen operators in the sector had the special requisites required by the announcement (total turnover of at least € 100,000. 000.00 in the three-year period 2012/2014, or in the three-year period 2013/2015, and total gaming collection equal to at least € 350,000,000.00 in each of the last three financial years of the three-year period 2012/2014 or of the three-year period 2013/2015).
In the third, the Judges of Palazzo Spada reproduce the questions that in fact the Judge a quo had submitted for the call for bids c.d. Monti referred to in art. 10, paragraph 9-octies, of the decree law n. 16/2012: "whether EU law - and in particular the right of establishment and the freedom to provide services as well as Directive 2014/23 / EU, as well as the principles of non-discrimination, transparency, freedom of competition, proportionality and coherence - it must be interpreted as precluding a discipline that requires the imposition of a de facto alternativity between becoming assignees of a new concession and continue to exercise the freedom to provide the various betting services on a cross-border basis, alternativeness of the kind that derives from Article 30 of the Convention Scheme, so that the decision to participate in the call for tenders for the award of the new concession would result in the renunciation of cross-border activity, despite the legitimacy of the latter activity being recognized repeatedly by the Court of Justice ".
The provisions of art. 30 of the outline of the agreement appear to be entirely legitimate, because they fix with sufficient certainty causes for the forfeiture of the concessionaire connected to conduct that determine the loss of the fiduciary relationship with ADM. The pactum of trust between the contracting authority and the relevant dealer can not be questioned, because it is the basis for everything. However, it is surprising that the appellant, always so belligerent, has however acquired a concession for online gaming, where even in the scheme of access to online gaming there are specific clauses of forfeiture and revocation if trust fails. The renunciation of their own network would seem to be a useless excuse, since, to date, the appellant operates in the terrestrial channel without proceeding with the payment of taxes, invoking the principle of discrimination. The risk is that once this "discriminating" has failed, it will actually have to participate in a call for tenders.