E-8/23 - Trannel International Limited v Staten v/Kultur- og likestillingsdepartementet 

EFTA-case 

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Deadlines: Motivation ministry:    5 september 2023
Written observations:                    23 October 2023

Keywords: betting, service concession, exclusive rights

Subject: Directive 2014/23/EU of 26 February 2014 of the European Parliament and of the Council on the award of concession contracts: Recitals 11, 14, 18, 35, and article 1(1) and (2), article 5(1)(b), and article 10(1)(9).

Facts of the case:

In 2022, the defendant, the Norwegian State, awarded the foundation Norsk Rikstoto an exclusive right to offer horse race betting in Norway for a period of 10 years. The plaintiff, Trannel International Limited, applied for authorisation to offer totalisator betting in Norway. The application has not been dealt with on its merits by reference to the Norwegian regulation on totalisator betting, the concession currently held by Norsk Rikstoto and the established exclusive rights model governing the gambling and gaming sector in Norway. The parties to the case disagree as to whether Norsk Rikstoto’s exclusive right was awarded through a “services concession” under Article 5(1)(b) of Directive 2014/23/EU (hereinafter: Concession Contracts Directive). If the award of the exclusive right in question is to be regarded as a “services concession” contract under the Concession Contracts Directive, then in the alternative the parties also disagree as to whether the exception in the first subparagraph of Article 10(1) of the Directive entered into on the basis of an exclusive right applies. This case raises inter alia questions as to whether the Concession Contracts Directive applies to the award of an exclusive right to offer totalisator betting to Norsk Rikstoto. Given the doubts about interpretation relating to the scope of the Concession Contracts Directive and the exception provided for in the first subparagraph of Article 10(1), the court has decided to request an Advisory Opinion from the EFTA Court.

Request for an advisory opinion:

1. Which factors are key under EEA law for the determination of whether an award of an exclusive right for gaming is to be regarded as an administrative authorisation scheme falling outside the scope of the public procurement rules, or whether it is to be regarded as an award of a “services concession” under Article 5(1)(b) of Directive 2014/23?

2. Have the adoption and entry into force of Directive 2014/23 and its regulation of concession contracts entailed any change for how to draw the line between public contracts in the form of services concession contracts, on the one hand, and administrative authorisation schemes, on the other?

3. What significance does the fact that any profits of the party awarded the exclusive right are controlled by the State through regulation, to the benefit of third parties, have for the determination of whether one is dealing with an administrative authorisation scheme or a services concession contract?

4. Is the award of an exclusive right to offer horse race betting to a foundation organised in a manner similar to that of Stiftelsen Norsk Rikstoto, a “services concession” under Article 5(1)(b) of Directive 2014/23?

5. Is it of significance for whether the exception under the first subparagraph of Article 10(1) of Directive 2014/23 applies that the national legislation does not specifically name the holder of the exclusive right, but that the preparatory works assume that the exclusive right is to be awarded to a specific exclusive right provider, although this is not laid down in statute because an obligation may not be imposed on the foundation to offer gaming?

6. Is it of significance for whether the exception under the first subparagraph of Article 10(1) of Directive 2014/23 applies that the foundation was also awarded an exclusive right on the basis of previous national legislation, including that the foundation was awarded an exclusive right for horse race betting uninterruptedly under that previous national legislation, although for five years at a time, until such time as the exclusive right was awarded again after new legislation entered into force on 1 January 2023?

Cited (recent) case-law: C-203/08 Sporting Exchange; C-64/98 [presumably C-64/08] C-375/17 Stanleybet; C-486/21; C-451/08; C-796/18 ISE; Case E-24/13 Casino Admiral.

Policy Area: JenV