This week, the EFTA Court delivered its judgment (advisory opinion) in Case E-8/23, Trannel International Limited v Norway represented by the Ministry of Culture and Equality (Staten v/Kultur- og likestillingsdepartementet), which concerned a question on the award of exclusive right for gaming under Directive 2014/23 (Award on Concession Contracts Directive).
More specifcally, the referring body, the Oslo District Court (Oslo tingrett) sought an interpretation of the concept of a ‘service concession contract’ relating to Article 5(1)(b) and Article 10(1) of the Directive, and administrative authorisations schemes not covered by the Directive. Or, in other words, whether an exclusive right to operate gaming to be considered as,
1) an administrative authorisation scheme (falling outside the scope of public procurement law)?
or,
2) the award of a services concession (falling inside the scope of the Directive)?
Norway awarded the Stiftelsen Norsk Rikstoto – a Norwegian undertaking – through an administrative authorisation scheme to be the exclusive rights holder for horse race betting in Norway from 2023, for ten years. Trannel – a Maltese undertaking – claimed that their own application for the authorisation was not consider on its merits, and thus is contrary to EEA law. It further argues that, in its view, is that Norway is granting an award of a services concession, and should therefore be done in accordance with the Directive.
What is key to making sense of this case is to enable that a national court considers applicable criteria and considers in order to be able to make a determination on whether it would be an administrative authorisation scheme (falling outside the scope of the Directive), or an an award of a services concession (falling inside the scope of the Directive).
The EFTA Court found, inter alia, that, as regards awarding of a services concession,
‘…in order to determine whether an award of an exclusive right to offer horse race betting…constitutes a contract for a services concession within the meaning of Article 5(1)(b) of the Directive, regard must be had to whether the right is subject to a contract concluded in writing for pecuniary interest between one or more economic operators and one or more contracting authorities, having as its object a concession for services, in return for consideration and to the benefit of the acquiring authority, which is legally binding on both parties and legally enforceable.‘ (para. 45)
As for administrative authorisation schemes, the EFTA Court stated,
‘…administrative authorisation schemes by which an authorisation is granted to an economic operator, and which regulates and establishes the conditions for the exercise of the activity whilst the economic operator remains free to withdraw from the provision of the works or service, the provision of which cannot be legally enforced, are not within the scope of the Directive.’ (para. 45).
Therefore, whether the situation at issue was one or the other, was for the referring national court to decide, applying this distinction, and accounting for the case as a whole.
This case must be seen against the background that in 2021, the EFTA Surveillance Authority (ESA) announced it would no longer give much of a hearing to complaints brought against infringements of EEA law on gambling, and so private enforcement before national courts is now the only way in which economic operators can assert their rights.
The judgment of the EFTA Court in Case E-8/23, Trannel International Limited, delivered on Monday 13 May 2024, is available here.