Opinion of Advocate General Gulmann delivered on 14 July 1993

1 Original language: Danish.

2 The game of Lotto in Italy is regulated by Law No 528 of 2 August 1982, Ordinamento del gioco del lotto e misure per il personale del lotto, as amended by Law No 85 of 19 April 1990, and by implementing regulations adopted in Decree No 303 of the President of the Italian Republic of 7 August 1990.

3 Council Directive of 21 December 1976, OJ 1977 L 13, p. 1.

4 Council Directive of 22 March 1988, OJ 1988 L 127, p. 1.

5 Order in Case C-272/91R Commission v Italy 1992 ECR I-457.

6 See paragraphs 7 to 13.

7 Case C-3/88 Commission v Italy [1989] ECR 4035.

8 See paragraphs 8 and 9.

9 By application lodged at the Court on 2 December 1991 the Commission brought proceedings against Italy for the latter's failure to implement the judgment of the Court in Case C-3/88. The Italian Government subsequently stated that the legislative provisions that were contrary to Community law were abrogated by Article 15 of Law No 142 of 19 February 1992 whereupon the Commission withdrew its application.

10 The Italian Government has pointed out that the invitation to tender, the decree regarding the award of the concession and the special conditions for the tender all refer to a concession and that the Tribunale Amministrativo Regionale of Lazio has recognized in a decision of 8 July 1991 that the agreement in question relates to a concession for the provision of a public service and has stated in that connection inter aha that the key component of the agreement is the operation of the computerized system while tne provision of supplies is of only secondary importance.

11 See in this context Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682), as amended by Council Directive 89M40/EEC of 18 July 1989 (OJ 1989 L 210, p. 1), Article 1(d) of which provides public works concessionis a contract of the same type as [public works contracts] except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the construction or in this right together with payment.

12 This view signifies inter alia that it is not necessary in these proceedings for the Court to rule on whether the conduct of a lottery can be characterized as the provision of services within the meaning of Article 59 of the Treaty. That question is the subject of proceedings currently pending for a preliminary ruling in Case C-275/92 Schindler in which the Court has been asked to rule whether a lottery is to be defined as trade in goods within the meaning of Article 30 of the Treaty or provision of services within the meaning of Articles 59 and 60 of the Treaty (judgment of 24 March 1994, [1994] ECR I-1039).

13 See paragraph 13.

14 See judgment in Case 147/86 Commission v Greece [1988] ECR 1637, paragraph 7, and judgment in Case 2/74 Reyners [1974] ECR 631, paragraph 43.

15 The Commission has stated that at the moment the registration points for the lottery ... are located at certain selling points under a form of monopoly (tobacconists) and at the offices of approved lottery collectors which ... are operated by private concessionaires (emphasis added).

16 Under Article 5(2) of Law No 528, the Area Committee is appointed by the intendente di finanza (director of the ornee of the Finance Ministry in the province in question) and consists of a representative of the Amministrazione finanziaria, who acts as president, and two officials from the Ministero del Tesoro and from the Amministrazione autonoma dei monopoli di stato ....

17 Under Article 6(3) of Law No 528, the Area Commission shall decide on the coupons to be excluded from the draw by decisions that arc published in the Bollettino ufficiale in the area in question. Stakes made against coupons which are excluded from participation in the draw snail be forfeit unless reimbursement is sought within one month of such publication.

18 Under Article 7 of Law No 528, as amended by Law No 85, draws are to be carried out once a week by the department of the Finance Ministry in each of the provincial capitals which are designated as places for draws in Article 2(1) by a committee consisting of the intendente di finanza or his representative, who shall preside, an official from the Ministero di Tesoro and an official from the Amministrazione autonoma dci monopoli di Stato.

19 Under Article 11 of Law No 528, the Area Committee referred to in Article 5 carries out a check of the coupons and confirms the winning coupons in accordance with the lists supplied by the processing centre ... Any player in possession of a coupon taking part in the draw in the area in question may submit a complaint against the decision of the Area Committee ... The Committee shall take decisions concerning complaints Proceedings against decisions of the Area Committees may be brought ... before the Central Lottery Committee ... The Central Committee shall be designated by a decree of the Minister of Finance and shall consist of the Director-General of the Direzione generale delle entrate speciali (Director-General for Special Revenue), who shall preside, two officials from the same directorate-general, one official from the Ministero de Tesoro and one official from the Amministrazione Autonoma dei Monopoli di Stato ....

20 Winnings of less than LIT 1250000 are to be paid by the lottery agent who received the stake. Point 4.8 of the technical programme sets out a number of circumstances which that agent must check before paying out winnings and in this connection also details certam functions that must be carried out by the automated system. For winnings in excess of that amount, requests for payment are to be submitted to the Intendenza di Finanza, which is the representative of the Finance Ministry in the various provinces or the Ispettorato Compartimentale dei Monopoli di Stato, which is a local body under the authority of the AAMS and are subsequently forwarded to the Direzione Generale Monopoli di Stato, which is also subject to the AAMS.

21 The Commission is probably right in pointing out that the development of new software must be regarded as the provision of services.

22 In this connection the Commission has stated that it is clear from the Court's case-law that measures which are potentially such as to hinder trade between Member States are incompatible with Article 30 of the Treaty and it is not necessary for the measures to have an appreciable effect on trade between the Member States. In support of that view it referred inter alia to the judgments in Case 8/74 Dassonville [1974] ECR 837, Case 16/83 Franti [1984] ECR 1299 and Case 124/85 Commission v Greece [1986] ECR 3935.

23 Case C-21/88 Du Pont de Nemours [1990] ECR I-889.

24 The Commission states that the reason why it did not assert an infringement of Article 30 of the Treaty in Case C-3/88 was that the judgment in Du Pont de Nemours was not given until after it had initiated the proceedings in Case C-3/88.

25 It has been stated in these proceedings that two of the three tenderers selected were Italian subsidiaries of foreign producers of data-processing systems while the Lottomatica consortium includes on the one hand Ing. C. Olivetti & C. SpA which produces both hardware and software, and on the other Sogei SpA which develops software specifically designed for computerization within the public sector.

26 Paragraph 19.

27 For the sake of completeness it should be noted that the Italian Government has not claimed that the threshold values set out in the directive were not reached. It seems to me clear, therefore, that they were reached.

28 OJ 1992 L 209, p. 1.

29 OJ 1980 L 215, p. 1.

30 Article 4(4) of Law No 528 of 2 August 1982, as amended by Law No 85 of 19 April 1990, provides: The Finance Ministry shall establish ... after hearing the Amministrazione Autonoma dei Monopoli di Stato, by means of an invitation to tender (appalto-concorso), a system for computerizing the lottery ....

31 For a more detailed consideration of those provisions sec my Opinion of 30 June 1993 in Case C-71/92 Commission v Spain, points 63 to 67 (judgment of 17 November 1993, [1993] ECR I-5923, at p. I-5945).