In its Judgment of 8 September 2016 in Politanò, C-225/15, EU:C:2016:645, the European Court of Justice (ECJ) followed the Opinion of Advocate General Wahl (see here) and confirmed that the 2004 procurement rules were not applicable to a public contest for the award of concessions (ie licences or authorisations) for the provision of betting and gambling services to the public.
The ECJ did not address AG Wahl’s obiter comments concerning the theoretical applicability of the 2014 Concessions Directive to an equivalent case but, in my view, the stress put by the ECJ in the analysis of the essential elements of remuneration and risk transfer in the definition of a (services) concession indicates that the ECJ would have likely ruled against that applicability.
In the Politanò Judgment, the ECJ addressed the question whether Directive 2004/18 was applicable to a call for tenders for the grant of “concessions” in the field of betting and gambling by focusing on the remuneration element that is necessary for the existence of a public contract.
After distinguishing public service contracts from services concessions by reference to the different modalities of remuneration they imply and the different risk structure that underlies those modalities of remuneration (paras 30 to 31), the ECJ focused on the plain and simple fact that ‘in the case in the main proceedings, the service provider receives no remuneration from the contracting authority and bears the entire risk associated with the activity of collecting and transmitting bets’ (para 32, emphasis added).
This led the ECJ to conclude that such “concessions” could not ‘be classified as a public contract for services within the meaning of … Directive 2004/18’ (para 33), which leaves them outside of its scope of application (para 34). The ECJ does not make an equivalent explicit conclusion concerning the classification of those “concessions” for the provision of betting and gambling services as services concessions because those were explicitly excluded from the scope of application of Directive 2004/18 in any case (para 29).
In my view, however, that conclusion would be unavoidable in an equivalent case that took place after the entry into force of Directive 2014/23 because its Art 5(1)(b) defines a services concession in the following terms:
a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works ... to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment (emphasis added).
Importantly, Art 5(1) in fine of Directive 2014/23 also requires that
The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both ... (emphasis added).
Taking all of this into account, and on the basis of the same factual finding that in the case of licences or authorisations for the provision of betting and gambling services (typically) ‘the service provider receives no remuneration from the contracting authority and bears the entire risk associated with the activity of collecting and transmitting bets’ and, possibly more importantly, the fact that 'the "service" under analysis [is] not provided on behalf of the contracting authority' (see Opinion of AG Wahl, para 51), the only possible conclusion is that Directive 2014/23 is equally inapplicable to a call for tenders for the grant of “concessions” in the field of betting and gambling.
This simple and unsurprising conclusion is slightly more interesting when taken together with the also recent Judgment in Promoimpresa (see here) because, together, they provide some additional clarity on the limits of application (or rather, outright inapplicability) of public procurement rules to “concessions” in name that are actually regulatory systems of licences or authorisations to carry out specific economic activities, whether they involve the use of public assets (generally, parts of the public domain) or not.