Judgment;Summary — ECLI:EU:C:2020:224
Date: 2020-03-19
Language of the case: Spanish
Court formation: Tenth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-45/19 — 1 
Case C-45/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 January 2019 
Referring court: 
Juzgado Contencioso Administrativo A Coruña (Spain) 
Date of the decision to refer: 
12 December 2018 
Applicant: 
Compañía de Tranvías de La Coruña, S.A. 
Defendant: 
Ayuntamiento de A Coruña 
  
Subject matter of the main proceedings 
The applicant is challenging, first, the decision of 30 November 2016 of the City 
Council of A Coruña which stipulates that the concession contract held by the 
applicant for the single public passenger transport network in the urban area of A 
Coruña should be extended for a maximum of two years, in accordance with 
Article 5(5) of Regulation (EC) No 1370/2007 of the European Parliament and of 
the Council of 23 October 2007 on public passenger transport services by rail and 
by road (OJ 2007 L 315, p. 1; ‘Regulation No 1370/2007’), and that the European 
Commission should be consulted on the applicant’s argument regarding the 
applicability of the exception provided for in Article 8(3) of the said regulation in 
order to determine whether it is possible to extend the term of the concession until 
the expiry date stipulated in the contract; and second, the decision of the defendant 
of 2 June 2017 dismissing the applicant’s application for review of the aforesaid 
decision of 30 November 2016. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-45/19 
 
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Subject matter and legal basis for the request for a preliminary ruling 
The subject matter of the reference for a preliminary ruling concerns the 
interpretation of the date from which the period of 30 years established in the 
second paragraph of Article 8(3) of Regulation No 1370/2007 begins to run. The 
parties agree that this article applies to the concession contract at issue in these 
proceedings, because it is a public service contract awarded before 26 July 2000 
on the basis of a procedure other than a fair competitive tendering procedure (the 
case provided for in point (b) of the first subparagraph of Article 8(3) of 
Regulation No 1370/2007). 
The legal basis is Article 267 TFEU. 
Question referred 
‘Having regard to Article 8(3)(b) of Regulation (EC) No 1370/2007, does the 
maximum term of 30 years for contracts referred to therein begin to run: (a) when 
the contract is awarded or entered into; (b) on the entry into force of the aforesaid 
provision; (c) on the day following the expiry of the transitional period established 
in Article 8(2) of the regulation (3 December 2019), or (d) on any other date 
deemed correct by the Court of Justice of the European Union?’ 
Provisions of EU law cited  
Article 8(3) of Regulation No 1370/2007. 
The referring court believes that, when considering the possible effects of 
modifications made to contracts during their lifetime, it may be necessary to 
examine Article 81 of Directive 2014/24/EU and Article 90 of Directive 
2014/25/EU. While not directly applicable, these provisions set out the position 
established by the Court of Justice on the effects of such modifications. 
Provisions of national law cited 
Royal Legislative Decree 3/2011 of 14 November 2011 approving the 
consolidated text of the Ley de Contratos del Sector Público (Law on Public 
Sector Contracts) (Article 224(1)). 
Royal Decree 1098/2001 of 12 October 2001 approving the General Regulations 
made under the Law on Public Sector Contracts (Article 109). 
Civil Code (Articles 4 and 1939). 
Ley de Régimen Jurídico del Sector Público (Law on the Legal Regime governing 
the Public Sector) 40/2015 of 1 October 2015 (Article 32(3)). 
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Brief summary of the facts and the main proceedings 
1 On 1 December 1986, in a plenary session, the City Council of A Coruña 
approved the conclusion of an agreement with COMPAÑÍA DE TRANVIAS DE 
LA CORUÑA to bring all the urban transport lines held by the applicant into a 
single concession. The concession contract for the single public passenger 
transport network in the urban area of A Coruña was signed by the applicant and 
the defendant on 6 February 1987 and was publicly registered on 15 May 1987. In 
the contract, the single expiry date for all the services was fixed at 31 December 
2024. On 5 July 1996 the same parties signed a contract to include in the earlier 
agreement a new additional public tram service along the seafront promenade, 
with the same final expiry date. 
2 On 18 October 2016 the defendant served notice on the applicant that, under 
Regulation No 1370/2007, the concession would automatically be extinguished, 
by operation of law, on the completion of 30 years from the award of the 
concession. It allowed the applicant a period of 15 days in which to seek a 
hearing. On 2 November 2016 the applicant submitted its arguments, in which it 
said that: (a) this was not a case of extinction by operation of law but of 
termination of contract; and (b) based on the principles of legal certainty and 
equality, the 30-year period established in Article 8 of Regulation 1370/2007 
should begin on a specific date rather than on the date on which the contract was 
awarded. In the applicant’s opinion, the appropriate date is either 3 December 
2009, which is the date on which the regulation came into force, or 26 July 2000, 
which is the objective date established in Article 8 of the regulation. The applicant 
argued in the alternative that, if it were held that the 30-year period should begin 
to run from the award of the contract, the modification made to the contract in 
1996 would be the equivalent of a new award, and therefore the term of the 
contract would run until 2026 (under the final paragraph of Article 8(3) of 
Regulation 1370/2007). 
3 On 30 November 2016 the defendant issued a decision ordering the applicant’s 
concession to be extended for a maximum of 2 years, in accordance with 
Article 5(5) of Regulation No 1370/2007, and stipulating that the European 
Commission should be consulted on the applicant’s proposal regarding the 
applicability of the exception provided for in Article 8(3) of the regulation in 
order to determine whether it was possible to extend the term of the concession 
until the expiry date stipulated in the contract. The applicant lodged an application 
for review, which was dismissed by the defendant in a decision of 2 June 2017. 
Essential arguments of the parties in the main proceedings 
4 The applicant argues that the decisions under appeal are unlawful on the following 
grounds: 
(i) the decision is void due to failure to follow the procedure laid down by law; 
the applicant cites Article 224 of Royal Legislative Decree 3/2011 approving 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-45/19 
 
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the consolidated text of the Law on Public Sector Contracts, and Article 109 
of Royal Decree 1098/2001 approving the General Regulations made under 
the Law on Public Sector Contracts, claiming that the defendant simply sent 
a notice stating that the concession would be extended for two years and 
giving its interpretation of Regulation No 1370/2007, specifically, Article 8; 
(ii)  the applicant disputes the interpretation of Regulation No 1370/2007, 
specifically Article 8(3) of the regulation; 
(iii) the applicant also states that, even if the argument were to be accepted that, 
on a correct interpretation of Article 8 of Regulation No 1370/2007, the 
concession contract must terminate on the completion of 30 years after it 
was entered into, the contract term would not expire until 2024, because the 
modification made in 1994 was substantial and was the equivalent of a new 
award; on this point, the applicant cites Article 81 of Directive 2014/24/EU 
and Article 90 of Directive 2014/25/EU, arguing that, while these provisions 
are applicable, given that Regulation No 1370/2007 takes precedence 
because it is lex specialis, they reflect the case-law of the Court of Justice on 
substantial modifications to concession contracts and the effects of such 
modifications; 
(iv) in the alternative, the applicant argues that, if it were to be held that the 
30-year period established in Article 8 of Regulation No 1370/2007 begins 
on the award of the contract, a procedure to extend the concession contract 
should be commenced due to the undue legal and economic consequences of 
the termination of the contract, following approval by the Commission under 
Article 8(3) of Regulation No 1370/2007. 
5 The defendant maintains that the contested decision is lawful for the following 
reasons: 
(i) there is no procedural irregularity, because the case does not involve the 
termination of a concession contract but rather the direct application of EU 
law which, under Article 288 TFEU, takes precedence over any rule of 
national law and over the clauses in the contract; and, in any event, as part of 
the proceedings the applicant was granted a hearing; 
(ii) with regard to determining the day on which the 30-year period established 
in Article 8(3) of Regulation No 1370/2007 should begin to run, the 
defendant argues that the period should begin on the award of the concession 
contract; 
(iii) the defendant disagrees that the case-law of the Court of Justice on 
substantial modifications to contracts applies, because the purpose of that 
case-law is to ensure the principles of transparency and equality of treatment 
for tenderers, thereby ensuring that a contract is not changed while it is in 
force in a way that alters its purpose and/or the obligations on the parties, so 
that it no longer accords with the expectations of actual or potential 
COMPAÑIA DE TRANVÍAS DE LA CORUÑA 
 
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tenderers at the time the contract was tendered and awarded; the defendant 
argues that not only is that not the case here, but that the situation is actually 
the complete opposite; 
(iv) with regard to the application of the exception in Article 8(3) of Regulation 
No 1370/2007, the defendant argues that on 17 April 2017 it consulted the 
European Commission; the purpose of the consultation was not to seek 
approval for an extension under the aforementioned exception, but to 
discover what criteria the Commission would apply in granting such 
approval. The defendant disagrees that the case satisfies the circumstances 
required in order for the exception to apply, specifically as regards the 
economic consequences of the termination of the concession, and it 
maintains that as the case involves extinction of obligations by operation of 
law, and given that the regulation does not provide for any compensation, no 
compensation is payable under Article 32 of the Law on the Legal Regime 
governing the Public Sector 40/2015 of 1 October 2015. The defendant adds 
that, in any event, the applicant has not made any claim for compensation 
and therefore it is not appropriate to examine this issue. 
6 With regard to the reference for a preliminary ruling, the applicant argues that the 
period of 30 years established in Article 8(3) of Regulation No 1370/2007 should 
begin to run on 3 December 2009. In support of its view it cites the terms of the 
request for a preliminary ruling made on 12 June 2017 by the Consiglio di Stato 
(Council of State, Italy) in Autolinee Toscane SpA v Mobit Soc.cons.arl (Case 
C-351/17); the Opinion delivered by the Advocate General in Case C-350/17, 
which was joined with Case C-351/17; the answer to parliamentary question 
E 6628/09, which raises the question of the compatibility of the French 
Government’s Draft Law No 1961 on Greater Paris with Regulation 
No 1370/2007; and various points on the retrospective effect of the regulation, 
including the possible impact on the principles of legal certainty and protection of 
legitimate expectations. 
7 For its part, the defendant maintains that the period of 30 years established in 
Article 8(3) of Regulation No 1370/2007 should begin to run from the date on 
which the contract was awarded. In support of its position, it cites the letter sent to 
the City Council of A Coruña by an official in DG MOVE, Ms Bárbara Jankovek, 
which states that the period begins on the award of the contract. It also cites the 
answer to parliamentary question E 6628/09, which raises the question of the 
compatibility of the French Government’s Draft Law No 1961 on Greater Paris 
with Regulation (EC) No 1370/2007, although its interpretation is diametrically 
opposed to the applicant’s; the Report by the Spanish Government’s Ministerio de 
Fomento (Ministry of Public Works) of 21 October 2008, which states that the 30-
year period applies to the term of the concession from the date when it was 
awarded, and that the concession can continue until it expires but for no longer 
than 30 years; and the study on competition in scheduled interurban road 
passenger transport in Catalonia produced by the Catalan Competition Authority, 
which reaches the same conclusion. 
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Brief summary of the grounds for the request for a preliminary ruling 
8 The referring court examines two possible exceptions which may exempt it from 
the obligation to make a reference for a preliminary ruling, and concludes that 
neither applies in the present case. 
9 First, the question raised is not the same as a question that has previously been the 
subject of a preliminary ruling in a similar case. The only reference for a 
preliminary ruling concerning Article 8(3) of Regulation No 1370/2007 of which 
it is aware is the request for a preliminary ruling made by the Council of State, 
Italy, on 12 June 2017, Autolinee Toscane SpA v Mobit Soc.cons.arl (Case 
C-351/17), on which the Court of Justice has yet to rule, although the Advocate 
General has issued an Opinion. However, in that request the Council of State 
assumes as a given that the period of 30 years established in Article 8(3) of the 
regulation begins to run from the entry into force of the regulation, and therefore 
that issue is not raised in the request for a preliminary ruling; the issue raised in 
the fourth question referred concerns only the effects of the said reduction in the 
30-year period, specifically, whether the defects arising from the original failure 
to comply with Article 5 are cured by the mere fact of reducing the term of the 
concession contract to 30 years. 
10 Secondly, with regard to the maximum term of 30 years for the concession 
contract, when viewed in isolation, the wording of Article 8(3) of Regulation 
No 1370/2007 does not allow for only one possible interpretation. Under what is 
known as the ‘acte clair doctrine’, the case-law of the Court of Justice establishes 
that it is for the national court to decide whether there is reasonable doubt over the 
interpretation of the provision of EU law, and therefore it can take the view that 
there is no need to refer a question for a preliminary ruling where the correct 
interpretation and application of EU law are so obvious as to leave no scope for 
any reasonable doubt. But it may only do so if it is convinced that the matter 
would be equally obvious to the national courts of the other Member States and to 
the Court of Justice (judgment of 6 October 1982, 238/81, Sri CILFIT and 
Lanificio di Gavardo SpA v Ministry of Health, and, with a more restrictive 
interpretation of the obligation to make a preliminary ruling, the judgment of 
9 September 2015, Case C-160/14, Ferreira da Silva). 
11 In the present case, the uncertainty is prompted principally by the wording of 
Article 8(3) itself, which does not at any point specify the start date for the 
30-year period, meaning that three options are possible: (i) to conclude that the 
maximum contract period of 30 years begins to run from the award of the contract 
(maximum retrospective effect), which would mean that contracts would 
terminate 30 years after they were awarded, with the result that contracts 
concluded before 3 December 1979 would terminate on the entry into force of the 
regulation and that contracts entered into thereafter would terminate after 30 
years; (ii) the maximum period of 30 years begins to run on the entry into force of 
the regulation (minimum retrospective effect); and (iii) the period begins to run on 
26 July 2000, having regard to the provision in Article 8(3)(b). 
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12 That uncertainty is heightened by the absence of a clear answer from the 
Commission to this question. Thus: 
A) the Communication from the Commission on interpretative guidelines 
concerning Regulation (EC) No 1370/2007 [OJ 2014 C 92, p. 1] makes no 
reference to this point, and with regard to Article 8(3) does no more than 
give an interpretation of the final part of point (d); 
B) the answer to parliamentary question E 6628/09 (which raises the question 
of the compatibility of the French Government’s Draft Law No 1961 on 
Greater Paris with Regulation No 1370/2007, given that the draft law 
provided for the state-owned companies SNCF and RATP to be granted 
exclusive contracts to operate bus, tram and underground routes) could be 
interpreted as coming down in favour of option (iii), that is, that the period 
begins to run on 26 July 2000, having regard to the provision in 
Article 8(3)(b). The answer is, however, somewhat ambiguous, because it 
begins by saying that the statement is made in general terms, and it could 
also be interpreted as meaning that the expiry date of the last contract signed 
before 25 July 2000 may not be later than 25 July 2030, but that all contracts 
prior to that date that were awarded without a tendering procedure may not 
remain in force more than 30 years from when they were awarded; 
C) the letter sent to the City Council of A Coruña by an official in DG MOVE, 
Ms Bárbara Jankovek, states that the 30-year period at issue begins to run 
from the award of the contract. However, given the authorship of the letter, 
this cannot be considered to be the Commission’s formal position ― it is not 
the position of the Commission or even of a Commissioner ― nor can it be 
considered an authoritative interpretation, for the same reasons; therefore it 
cannot be accepted as an interpretative guideline; 
D) moreover, in response to question P 4849/17, asked in Parliament on 14 July 
2017 by the Spanish Member of the European Parliament Mr José Blanco, 
regarding the contradiction between the above letter and the Commission’s 
reply to parliamentary question E 6628/09, the Commission replied on 
4 September 2017 that ‘The question asked by the Honourable Member may 
be clarified by the Court of Justice in the context of a request from the 
Consiglio di Stato [(Council of State)], Italy for a preliminary ruling by the 
European Court of Justice (Case C-350/17). The Commission is awaiting the 
outcome of that case.’ It can therefore be said that the Commission does not 
currently have a view on the interpretation of the point at issue. 
13 Finally, the Opinion of Advocate General [Øe] [delivered on 25 October 2018] in 
the aforementioned case C-350/17 has recently become available. It states as 
follows: ‘76. Therefore, the contract awarded to RATP in France falls within point 
(b) of the first subparagraph of Article 8(3) of Regulation (EC) No 1370/2007, as 
noted by the referring court. 77. Under the second subparagraph of Article 8(3) of 
this regulation, these types of contract may “continue until they expire, but for no 
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longer than 30 years”. 78. It is unfortunate that this latter provision does not 
specify the starting point of the 30-year period, as pointed out by Mobit and by the 
Commission. In theory, there are various possible starting points, such as the date 
of the original draft regulation proposed by the Commission (26 July 2000), as 
suggested by Mobit, the date of the entry into force of Regulation (EC) 
No 1370/2007 (3 December 2009), the day following the expiry of the transitional 
period established in Article 8(2) of that regulation (3 December 2019), the date 
on which the contract in question was awarded, or even the date on which the 
contract came into effect. 79. However, in my opinion the starting point for this 
30-year period should be the date of the entry into force of Regulation (EC) 
No 1370/2007, for the following two reasons. First, using a date that relates to the 
contract in question would not permit the application of a uniform solution to all 
contracts that come within Article 8(3) of the regulation. This would give rise to 
implementation difficulties for the competent authorities and to legal uncertainty 
for operators in the transport sector. 80. Secondly, it should be noted that this 
provision refers to all contracts entered into before 3 December 2009, which is the 
date on which the regulation came into force. Therefore, it seems reasonable to me 
to consider that this date also represents the starting point for the 30 years 
stipulated in the second paragraph of Article 8(3) of the regulation with regard to 
the contracts referred to in subparagraphs (b) and (c) of the first paragraph of 
Article 8(3) of the regulation, as assumed by the referring court and the French 
Government. 81. According to this interpretation of the relevant provisions, this 
30-year period must therefore be considered to expire on 3 December 2039…. 82. 
In its fourth question, [the referring] court seeks to clarify whether the contract 
awarded by the French Government to RATP can take advantage of the 
transitional arrangements set out in Article 8(3) of Regulation (EC) No 1370/2007 
even though this contract will expire on 31 December 2039, that is, after 
3 December 2039, which is the date on which the 30-year period expires. 83. On 
this point, Mobit argues that the contract awarded to RATP does not comply with 
the aforesaid provision, because of the duration of the contract. However, it seems 
to me that this stance is the product of confusion between the conditions required 
in order for the transitional arrangements to apply and the effects of those 
arrangements. 84. On the one hand, it can be seen from the first subparagraph of 
Article 8(3) of Regulation (EC) No 1370/2007 that these transitional arrangements 
apply to all contracts awarded before 3 December 2009, regardless of their 
duration. On the other, the second subparagraph of Article 8(3) specifies the 
effects and duration of the arrangements rather than the type of contract that is 
subject to them. 85. Under this interpretation of the relevant provisions, there can 
be no doubt that the contract awarded by the French Government to RATP can 
indeed take advantage of the transitional arrangements set out in Article 8(3) of 
Regulation (EC) No 1370/2007, in spite of the fact that it will expire on 
31 December 2039, as stated by Autolinee Toscane, RATP, the region of Tuscany, 
the Governments of France and Portugal, and the Commission. However, it may 
benefit from those arrangements only during the period of 30 years laid down for 
the contracts specified in point (b) of the first subparagraph of Article 8(3) of this 
regulation, which will expire on 3 December 2039. 86. Therefore, Article 5(2)(b) 
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of Regulation EC No 1370/2007 may not apply to a contract such as that held by 
RATP until 4 December 2039. The relatively lengthy duration of these transitional 
arrangements can be attributed, in particular, to the difficulty in reaching 
agreement within the Council on the adoption of the aforesaid regulation …. 87. 
Having regard to the considerations set out above, I recommend to the Court of 
Justice that it should reply to the first and fourth questions referred as follows: 
Article 8(3) of Regulation (EC) No 1370/2007 should be interpreted as meaning 
that Article 5(2) and (3) of this regulation does not apply to a contract specified in 
in point (b) of the first subparagraph of Article 8(3) of that regulation for a period 
of 30 years, which will expire on 3 December 2019, in spite of the fact that this 
contract will expire after 3 December 2039.’[Emphasis added] 
14 The referring court notes that (i) this Opinion by Advocate General [Øe] 
recognises that there is no single interpretation of Article 8(3) of Regulation 
No 1370/2007 and that, in theory at least, there are various possible options; and 
(ii) while Advocate Generals’ Opinions provide important assistance to the Court 
of Justice of the European Union in reaching its decisions, they are simply an 
indication of what the final decision of the Court might be and are not binding on 
the Court. 
15 Having regard to all the foregoing, the referring court considers that, under 
Article 267 TFEU, the following question should be referred to the Court of 
Justice of the European Union for a preliminary ruling: 
‘Having regard to Article 8(3)(b) of Regulation (EC) No 1370/2007, does the 
maximum term of 30 years for contracts referred to therein begin to run: (a) 
when the contract is awarded or entered into; (b) on the entry into force of the 
aforesaid provision; (c) on the day following the expiry of the transitional 
period established in Article 8(2) of the regulation (3 December 2019), or (d) on 
any other date deemed correct by the Court of Justice of the European Union?’