Opinion of the Advocate General — ECLI:EU:C:2025:1008
Date: 2025-12-18
Language of the case: German

Summary C-820/24 – 1 
Case C-820/24 
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: 
28 November 2024 
Referring court: 
Bundesverwaltungsgericht (Austria) 
Date of the decision to refer: 
25 November 2024 
Applicant: 
Strominator Elektro GmbH 
Contracting authority: 
Bundesimmobiliengesellschaft mbH 
  
Subject matter of the main proceedings 
Proceedings for a declaratory judgment before the Bundesverwaltungsgericht 
(Federal Administrative Court, Austria) at first instance, in which that court is 
required to rule on the unlawfulness or lawfulness of the modification or award of 
a public contract without a new contract notice 
Nature and subject matter of the request 
Interpretation of EU law under Article 267 TFEU in the field of public 
procurement 
Questions referred for a preliminary ruling 
1. Is Article 72(5) of Directive 2014/24/EU on public procurement and 
repealing Directive 2004/18/EC, OJ L 94, 28.3.2014, p. 65, as last corrected by OJ 
L 2023/90063, 3.11.2023, to be interpreted as meaning that a modification of a 
public contract after the end of the agreed performance period, the provision of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
2  
non-cancelled services and the submission of the final invoice by the contractor 
but before the payment of the remuneration by the contracting authority is to be 
classed as modification of a public contract ‘during its term’? 
If the answer to Question 1 is in the affirmative: 
2. Is Article 72(1)(c)(i) of Directive 2014/24/EU to be interpreted as meaning 
that circumstances which a diligent contracting authority ‘could not foresee’ also 
cover external circumstances which have arisen before the conclusion of the 
contract but whose repercussions on the public contract become apparent only 
after the contract has been concluded? 
If the answers to Questions 1 and 2 are both in the affirmative: 
3. Is Article 72(1)(c)(i) of Directive 2014/24/EU, read in conjunction with 
Article 72(1)(c)(ii) of that directive, to be interpreted as meaning that there is ‘a 
need’ for modification of a public contract on account of circumstances which a 
diligent contracting authority could not foresee even if the modification is 
‘appropriate’ but not ‘strictly necessary’, so long as the modification does not 
change the overall nature of the contract? 
Provisions of national law relied on 
Bundesgesetz über die Vergabe von Aufträgen (Federal Law of 2018 on 
Procurement; ‘the BVergG 2018’): 
‘Part One 
Subject matter and definitions 
Subject matter 
Paragraph 1 This Federal Law governs, in particular: 
1. procedures for the procurement of goods and services (procurement 
procedures) in the public sector, namely the award of public works contracts, 
public supply contracts and public service contracts, as well as the conduct of 
design contests by contracting authorities and the award of certain works and 
service contracts which are not awarded by contracting authorities but are 
subsidised by them (Part Two), 
… 
Part Two 
Procurement procedures for contracting authorities 
… 
STROMINATOR ELEKTRO 
 
3 
Paragraph 9 (1) This Federal Law shall not apply to: 
… 
26. procurement procedures for the modification of contracts and framework 
agreements during their term which is permissible under Paragraph 365 of this 
Federal Law. 
… 
Threshold values 
Paragraph 12 (1) Procedures for procurement by contracting authorities shall 
fall into the above-threshold category if the estimated contract value: 
1. … 
2. amounts to at least EUR 750 000 in the case of service contracts within the 
meaning of Annex XVI to this Federal Law, or 
3. amounts to at least EUR 221 000 in the case of all other supply and service 
contracts, or 
4. amounts to at least EUR 5 548 000 in the case of works contracts. 
(2) … 
(3) Procurement procedures conducted by contracting authorities shall fall into 
the below-threshold category if the estimated value of the contract does not reach 
the amounts specified in subparagraph (1) above. Design contests shall fall into 
the below-threshold category if the estimated value of the contract, including the 
prize money and payments, or the sum of the prize money and payments to the 
participants, does not reach the amounts specified in subparagraph (2) above. 
… 
Part Five 
… 
Non-governmental oversight, Internal Market Information System (IMI), 
statistics, post-award obligations and provisions of civil law 
Paragraph 365 (1) Substantial modifications to contracts and framework 
agreements during their term are permissible only after a new procurement 
procedure has been conducted. A modification of a contract or framework 
agreement is substantial where it makes the contract or framework agreement 
significantly different from the original contract or framework agreement. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
4  
(2) Without prejudice to subparagraph (3) below, a modification shall, in any 
event, be considered substantial where one of the following conditions is met: 
1. the modification introduces conditions which, had they been applied to the 
initial procurement procedure, would have: 
(a) permitted the admission of candidates other than those initially selected, or 
(b) permitted the acceptance of an offer other than the one initially accepted, or 
(c) attracted the interest of additional participants in the procurement procedure, 
or 
2. the modification changes the economic balance of the contract or framework 
agreement in favour of the contractor in a manner not envisaged in the initial 
contract or framework agreement, or 
3. the modification significantly extends or reduces the scope of the contract or 
framework agreement, or 
4. … 
(3) The following changes to contracts and framework agreements shall be 
regarded as non-substantial modifications: 
1. Changes in the amount of the contract, provided that they do not exceed: 
(a) the relevant thresholds specified in Paragraph 12(1) and Paragraph 185(1) of 
this Federal Law, and 
(b) 10% of the initial amount of the contract in the case of supply and service 
contracts and 15% of the initial amount of the contract in the case of works 
contracts. The overall nature of the contract or framework agreement must not 
change as a result of the modifications. In the event of several successive 
modifications, their value shall be determined on the basis of the net cumulative 
value of the successive modifications. 
2. Changes, irrespective of their value, for which the initial tender documents 
provide in clearly, precisely and unambiguously formulated amendment clauses. 
Such clauses must contain information on the scope and nature of possible 
modifications or options, as well as on the conditions in which they may become 
applicable, and must not provide for modifications or options which would change 
the overall nature of the contract or framework agreement. 
3. … 
4. Modifications which, whatever their value, are not to be regarded as 
substantial modifications within the meaning of subparagraphs (1) and (2) above. 
STROMINATOR ELEKTRO 
 
5 
5. Additional services provided by the original contractor which have become 
necessary and for which no provision was made in the original tender documents, 
if a change of contractor: 
(a) cannot be made for economic or technical reasons, and 
(b) would entail significant difficulties or considerable additional costs for the 
contracting entity. 
6. Where the following conditions are met: 
(a) the modification was made necessary by circumstances which a diligent 
contracting entity could not foresee, and 
(b) the overall nature of the contract does not change as a result of the 
modification. 
In the case of contracts and framework agreements concluded following a 
procedure conducted in accordance with the provisions of Part Two of this Federal 
Act, the total value of the additional services in cases referred to in point 5 or 6 of 
this subparagraph must not, moreover, exceed 50% of the value of the original 
order. Where two or more successive modifications are made, the foregoing shall 
apply to the value of each modification. Such successive modifications must not 
be made for the purpose of circumventing the application of the provisions of this 
Federal Law. 
(4) In the above-threshold category, the contracting entity shall publish notice of 
the modification of a contract or framework agreement referred to in subparagraph 
(3), points 5 or 6, above in accordance with Paragraphs 61 and 62 or 231 and 232 
of this Federal Law. 
(5) Where the contract contains an indexation clause, the amount of the contract 
or the value referred to in subparagraph (3), points 1, 5 and 6, above shall be 
calculated using the adjusted amount of the contract or the adjusted value as the 
reference value. If the contract does not contain an indexation clause, the average 
inflation rate in Austria shall be used to calculate the adjusted amount of the 
contract or the adjusted value. 
… 
Part Six 
Penal, final and transitional provisions 
… 
Paragraph 382 This Federal Law implements or takes account of the following 
legal acts of the European Union: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
6  
… 
16. Directive 2014/24/EU on public procurement and repealing Directive 
2004/18/EC, OJ L 94, 28.3.2014, p. 65, as last amended by Regulation (EU) 
2017/2365 of 18 December 2017 amending Directive 2014/24/EU of the 
European Parliament and of the Council in respect of the application thresholds 
for the procedures for the award of contracts, OJ L 337, 19.12.2017, p. 19. 
…’ 
Provisions of European Union law relied on 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC, 
especially Article 72 
Succinct presentation of the facts and procedure and the essential arguments 
of the parties in the main proceedings 
1 The Bundesimmobiliengesellschaft mbH (‘the BIG’) is the owner of a college 
campus in the city of Salzburg (Austria), which it leases to the Republic of Austria 
(the Federation), represented by the Federal Minister for Education, Science and 
Research. On the site stands a building comprising several structurally connected 
parts, including blocks I and II, which are used by two public vocational colleges 
(academies of commerce). Block I contains premises of Academy of Commerce I, 
and block II contains premises of Academy of Commerce II. The connecting wing 
between those blocks is used by both colleges. 
2 In 2022, the BIG – a contracting authority within the meaning of Article 2(1)(1) of 
Directive 2014/24 – launched an open tendering procedure for the procurement of 
electrical fitting work in block II (works contract; Common Procurement 
Vocabulary (CPV) code 45311200). The Austria-wide contract notice was 
published on 25 May 2022. An EU-wide contract notice was not necessary in 
view of the estimated value of the contract. The procurement procedure was 
designated ‘5020 Salzburg, Johann-Brunauer-Straße 2-4, HAK II + 966991, 
Elektrosanierung, Elektrotechnik’ (electrical refurbishment, electrical works). 
3 On 3 August 2022, the contract was awarded to Fiegl & Spielberger GmbH 
(‘Fiegl & Spielberger’) and was concluded between that company and the BIG. 
According to a notice published the following day, the contract value was 
EUR 675 107.03. In conformity with the initial contract notice, it was agreed that 
the services ordered would be provided by 31 August 2023. 
4 Before the contract was concluded, a fire broke out in block I on 11 July 2022, 
causing considerable damage there. Only at a later stage, during the 2022/23 
academic year, did it become apparent that, as a result of the fire damage, a 
STROMINATOR ELEKTRO 
 
7 
change in the spatial and functional design concept for the college campus was 
necessary for the continuation of educational provision. In the context of the new 
design concept, some of the electrical fitting work to be carried out by Fiegl & 
Spielberger in block II of the building and in the wing connecting it with block I 
was no longer necessary. Accordingly, the works which had become superfluous 
were not carried out but were cancelled in May 2023, which reduced the contract 
value by about two thirds. The residual works were carried out by 31 August 2023 
in accordance with the contract, and the final invoice for them was issued on 
15 December 2023. Fiegl & Spielberger, in fact, could also have provided the 
entirety of the services within the prescribed time limit. 
5 Consequently, that company claimed compensation from the BIG for the 
disadvantages suffered by it as a result of the cancellation. On 7 September 2023, 
Fiegl & Spielberger reached an agreement with the BIG to waive that claim and 
instead to carry out in 2024 some of the cancelled works which had not initially 
been executed, but to carry them out in block I of the building. On 13 December 
2023, it submitted a tender for that purpose, which, according to concurring 
information from Fiegl & Spielberger and the BIG, was calculated and drawn up 
on the basis of the initial offer it had submitted in the context of the 2022 call for 
tenders. 
6 On 22 December 2023, the BIG formally awarded the contract for the functional 
rehabilitation of the lighting system (Beleuchtung Funktionssanierung) and for 
lighting (Beleuchtung) in block I of the building, the performance period in both 
cases being 15 January 2024 to 30 September 2024 and the aggregate contract 
value EUR 264 355.80. 
7 In addition, further works were needed for repair of the fire damage to block I of 
the building and its functional rehabilitation. The estimated contract value of the 
overall project exceeded EUR 1 million but did not exceed the threshold value 
specified in Article 4(a) of Directive 2014/24, as amended by Delegated 
Regulation (EU) 2021/1952. 
8 In the course of that project, the BIG conducted, among other measures, another 
open tendering procedure for the procurement of electrical fitting work (works 
contract; CPV code 45311200). The procurement procedure was designated ‘5020 
Salzburg, Johann-Brunauer-Str. 2-4, HAK I, 977598 E 009159 Brandschaden 
(Haftpfl.) – Elektroinstallation’ (fire damage (liability) – electrical fitting work). 
The contract was awarded on 6 December 2023 to Strominator Elektro GmbH 
(‘Strominator Elektro’). The contract value amounted to EUR 832 551.55. The 
electrical fitting work ordered from Fiegl & Spielberger, which was also to be 
carried out in block I of the building, did not form part of that contract. 
9 On 9 July 2024, Strominator Elektro brought an action before the referring court 
under Paragraph 353 of the BVergG 2018 for a declaratory judgment ruling that it 
had been unlawful to award a contract to Fiegl & Spielberger to supply and fit 
lighting as part of the HAK I Salzburg works project without prior publication of a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
8  
contract notice. It alleged that its right under national and EU law to a lawful 
procurement procedure in accordance with the provisions of the BVergG 2018 
had been infringed, in particular its right to absence of an unlawful direct award, 
to participation in a public procurement procedure in accordance with the law, to 
equal treatment of tenderers and to fair competition, in particular in accordance 
with statutory principles, and to a transparent procurement procedure 
(transparency principle). 
10 The BIG contends, in essence, that the award of the contract to the interested party 
in December 2023 constituted a lawful modification of the public contract that had 
been awarded in an open procedure in August 2022. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 To begin with, the referring court notes that one of the purposes of the BVerG 
2018 is to transpose Directive 2014/24. Under Paragraph 1(1) of the BVergG 
2018, read in conjunction with Paragraph 12(1) and (3) of that federal law, the 
BVergG 2018, unlike Directive 2014/24, applies to the award of any contracts 
with an estimated value of one euro cent or more and not only in cases where the 
estimated contract value exceeds particular thresholds. Paragraph 365 of the 
BVergG 2018, which is relevant in the present case and which, as the Court of 
Justice has ruled, for example in the judgment of 7 September 2015, Finn Frogne, 
C-549/14, EU:C:2016:234, transposes Article 72 of Directive 2014/24, is 
applicable to public contracts whether or not their value exceeds the thresholds 
specified in EU law. That national provision states that substantial modifications 
of contracts during their term are not permitted until a new procurement procedure 
has been conducted. Although Paragraph 365 of the BVergG 2018 differs in 
structure from Article 72 of Directive 2014/24, that does not entail any substantive 
deviations, according to the preparatory documents for that statute. The only 
difference – albeit irrelevant in the present case – is that Paragraph 365(4) of the 
BVergG 2018 transposes the obligation laid down in the last sentence of 
Article 72(1) of Directive 2014/24 to publish a notice of modification of public 
contracts only for contract values above the thresholds referred to in Article 4 of 
that directive. The modification of contracts with a lower value, therefore, need 
not be made known. 
12 Although, on account of its value, the works contract at issue in the present case 
does not fall within the scope of Directive 2014/24, it is apparent from the settled 
case-law of the Court of Justice that where, in regulating situations outside the 
scope of the EU measure concerned, national legislation seeks, in a direct and 
unconditional way, to adopt the same solutions as those adopted in that measure, it 
is clearly in the interest of the European Union that provisions taken from that 
measure should be interpreted uniformly (see, with further references, the 
judgments of 7 December 2023, Obshtina Razgrad and Others, C-441/22 and 
C-443/22, EU:C:2023:970, paragraph 38 et seq. (‘the Obshtina Razgrad 
STROMINATOR ELEKTRO 
 
9 
judgment’) and of 4 April 2019, Allianz Vorsorgekasse, C-699/17, 
EU:C:2019:290, paragraph 39 et seq.). 
13 In the present case, the referring court must apply Paragraph 365 of the BVergG 
2018 in the same way as if the value of the contract exceeded the relevant 
threshold specified by Directive 2014/24. In that respect, the findings of the Court 
of Justice set out in paragraph 44 et seq. of its judgment in Allianz Vorsorgekasse, 
C-699/17, EU:C:2019:290, which relate to the former legal situation under the 
Bundesvergabegesetz 2006, have now become obsolete, in the view of the 
referring court. 
14 Furthermore, the referring court points out that the lawfulness of the contracting 
entity’s cancellation of its order for services in May 2023 is not the subject of the 
main proceedings. In paragraph 63 of the Obshtina Razgrad judgment, the Court 
of Justice recalled that substantial modifications to a contract are consensual in 
nature. Even if that cancellation constituted a substantial modification in itself, it 
would have no bearing on the relevant contractual modification of December 
2023. Article 72 of Directive 2014/24 stipulates at various points that a 
modification must relate to the initial contract, which, in the present case, means 
the public contract awarded in August 2022. 
The first question referred 
15 The first question concerns the interpretation of Article 72(5) of Directive 2014/24 
as regards the date up to which a modification of a public contract is to be 
regarded as a modification of the contract ‘during its term’. It is only during that 
period, which is not defined in Directive 2014/24, that the obligation to 
recommence a procurement procedure does not apply in cases involving a non-
substantial modification. Paragraph 365 of the BVergG 2018, transposing 
Article 72 of Directive 2014/24, specifies which modifications are to be classed as 
substantial. In that regard, the referring court considers it irrelevant that 
Paragraph 365 of the BVergG 2018, when referring to the modification of 
contracts, uses the term ‘Verträge’ for contracts, whereas the German version of 
Article 72(5) of Directive 2014/24 refers to the modification of ‘öffentliche 
Aufträge’ – public contracts – during their term in both cases. The Court, in fact, 
has already ruled, in the context of Article 12(4) of that directive, that the concept 
of ‘contract’ (Vertrag) is congruent with the concept of ‘public contract’ 
(öffentlicher Auftrag) (judgment of 28 May 2020, Informatikgesellschaft für 
Software-Entwicklung, C-796/18, EU:C:2020:395, paragraph 36). 
16 In the view of the referring court, the date on which the term of a contract within 
the meaning of Article 72 of Directive 2014/24 ends is unclear for the following 
reasons: 
17 First of all, a ‘public contract’ is defined in Article 2(1)(5) of Directive 2014/24 as 
a contract for pecuniary interest concluded in writing between one or more 
economic operators and one or more contracting authorities and having as its 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
10  
object the execution of works, the supply of products or the provision of services. 
The requirement of pecuniary interest implies that the contracting authority which 
has concluded a public contract receives under that contract, in return for 
consideration, a service which must be of direct economic benefit to that 
contracting authority (see, with further references, judgment of 28 May 2020, 
Informatikgesellschaft für Software-Entwicklung, C-796/18, EU:C:2020:395, 
paragraph 40). In the opinion of the referring court, that supports the view that the 
term referred to in Article 72(5) of Directive 2014/24 must be understood as the 
period during which the principal reciprocal performance obligations – provision 
of the service by the contractor and payment of the pecuniary remuneration by the 
contracting entity – are fulfilled. In that regard, it must be borne in mind that 
changes in the remuneration, in other words in the contracting entity’s 
contribution, may also constitute modifications which must be checked for 
substantiality (suffice it to cite the judgment of 19 June 2008, pressetext 
Nachrichtenagentur, C-454/06, EU:C:2008:351). 
18 In addition, the Court of Justice has referred – in part – to amendment of a public 
contract ‘during its currency’ (see, for example, before the entry into force of 
Directive 2014/24, judgment of 19 June 2008, pressetext Nachrichtenagentur, 
C-454/06, EU:C:2008:351, paragraph 34, and judgment of 26 March 2020, 
Hungeod and Others, C-496/18, EU:C:2020:240, paragraph 89). Consequently, in 
the context of contract modifications, the contract term referred to in Article 72 of 
Directive 2014/24/EU is still current where the contractor has provided the 
services and, where appropriate, has even issued the final invoice, but that invoice 
has not yet been paid by the contracting entity. Modifications to the public 
contract, therefore, could still be made at that late stage. 
19 On the other hand, according to recital 107 of Directive 2014/24/EU, it is 
necessary to clarify the conditions under which modifications to a contract ‘during 
its performance’ require a new procurement procedure. The recitals also focus 
elsewhere on the performance (‘Ausführung’) in that sense (see recitals 107 and 
110). However, the term ‘performance’, used in that sense, is surely intended to 
mean only the period during which the service is provided by the contractor, for 
the very definition of a public contract in Article 2(1)(5) of Directive 2014/24 
focuses, among other things, on the ‘execution’ (‘Ausführung’) of works, which is 
ultimately the subject of competitive tendering between economic operators. 
Article 70 of Directive 2014/24 likewise uses the term ‘performance of a contract’ 
to express the process of service provision by the economic operator (see also 
recital 104 of Directive 2014/24). Furthermore, besides other provisions, 
Article 58 of Directive 2014/24/EU, which stipulates that economic operators 
must have the appropriate capacities and abilities to ‘perform’ the contract to be 
awarded, and Article 67 of that directive, which focuses in particular on the staff 
assigned to ‘performing’ the contract, also support that view. 
20 In addition, Directive 2014/24 provides for some temporal limitations on the 
duration of public contracts. Article 32(3)(b), for example, states that ‘the duration 
of such contracts as well as that of recurrent contracts shall not, as a general rule, 
STROMINATOR ELEKTRO 
 
11 
exceed three years’ while Article 77(3) stipulates that ‘The maximum duration of 
the contract shall not be longer than three years’. In both contexts, it seems clear, 
in the view of the referring court, that, when using the term ‘duration’, the 
directive focuses on the period of performance, in other words on the period 
during which the contractor is authorised to provide services, not on the fact that 
payment for the service would also have to be made by the contracting entity 
during that period. The same is likely to apply to the rules for calculating the 
estimated contract value in the case of certain supply and service contracts (see 
Article 5(12) and (14) of Directive 2014/24). 
21 In such an interpretation, the duration would end, in the context of modifications 
to the contract, with the expiry of the agreed period which is available to the 
contractor to perform the services tendered for. Under Article 72 of Directive 
2014/24, modifications to contracts after the performance (within the prescribed 
period) of the service provision or after the expiry of the agreed period for 
performance are therefore no longer permitted without a new procurement 
procedure. 
22 In the present case, the initially agreed period of performance had already ended 
by the time of the contractual modification asserted by the BIG. The services 
which had initially been agreed and not cancelled had been provided, and the final 
invoice had been issued. The contracting entity, however, had not yet paid it. In 
the light of the foregoing, and of the doubts of the referring court set out above, 
the interpretation of Article 72(5) of Directive 2014/24 is relevant in the present 
case and is necessary for the resolution of the dispute in the main proceedings as 
regards the date on which the term of a contract ends and hence the date until 
which non-substantial modifications to the contract may be made, in accordance 
with the conditions set out in Article 72 of Directive 2014/24, without a new 
procurement procedure. 
The second question referred 
23 If the first question is to be answered in the affirmative and the modification of the 
contract in December 2023 is to be assessed in the light of Article 72 of Directive 
2014/24 and/or on the basis of Paragraph 365 of the BVergG 2018, the question 
arises as to the interpretation of Article 72(1)(c)(i) of Directive 2014/24/EU. 
Under that provision, one of the conditions for contractual modifications without a 
new procurement procedure is that the modification was brought about by 
circumstances which a diligent contracting authority could not foresee. 
24 According to recital 109 of Directive 2014/24, unforeseeable circumstances are 
external circumstances that could not have been predicted despite reasonably 
diligent preparation of the initial award by the contracting authority, taking into 
account its available means, the nature and characteristics of the specific project, 
good practice in the field in question and the need to ensure an appropriate 
relationship between the resources spent in preparing the award and its 
foreseeable value (see also the judgment in Obshtina Razgrad, paragraph 68). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
12  
25 In the view of the referring court, a fire may certainly be regarded as such an 
unforeseeable external circumstance. However, given that the fire on the college 
campus had already occurred about one month before the initial contract was 
awarded, the question arises as to whether that event may constitute a 
circumstance which the contracting authority could not foresee within the 
meaning of Article 72(1)(c)(i) of Directive 2014/24. So far the Court of Justice 
has expressly left open that question, namely whether the term ‘circumstances 
which a diligent contracting authority could not foresee’ applies only to 
circumstances arising after the conclusion of the contract (see the judgment in 
Obshtina Razgrad, paragraph 72). 
26 Recital 109 of Directive 2014/24 suggests that the fire should not be classed as an 
unforeseeable circumstance. That recital focuses on external circumstances which 
contracting authorities could not foresee ‘when they awarded the contract’. At the 
same time, however, in the view of the referring court, consideration should be 
given –even in the light of the factors set out in recital 109 – to the fact that 
external circumstances, such as a fire, may have repercussions which do not 
become apparent until a later date, sometimes long after the event. The contracting 
entity argues in that regard that the implications of the fire for the public contract 
did not become apparent until after the contract had been awarded, resulting as 
they did from the change in the spatial and functional design concept. At the time 
when the contract was awarded, it was still believed that the works could be 
executed as specified in the call for tenders. 
27 The referring court considers it possible, in the light of the standard of diligence 
required of the contracting entity (see judgment in Obshtina Razgrad, 
paragraph 68 et seq.), to interpret Article 72(1)(c)(i) of Directive 2014/24 as 
meaning that, if an unforeseen external circumstance arises, the contracting entity 
must examine all of its repercussions on a public contract before awarding that 
contract. Such an examination could also result in the award of the contract being 
postponed to a later date or in the procurement procedure being revoked because 
the services as specified in the call for tenders are no longer needed. 
28 However, unforeseen external circumstances, such as a fire, may also have 
repercussions which do not become apparent until later and which not even a 
diligent contracting entity can initially foresee. In that regard, in the view of the 
referring court, consideration should be given to recital 109 of Directive 2014/24, 
which refers in particular to the need to ensure an appropriate relationship 
between the resources spent in preparing the award and its foreseeable value. This 
supports the view that external circumstances predating the award of the contract 
may also be regarded as circumstances which a diligent contracting authority 
could not foresee. 
29 Since, in the present case, the external circumstance had already occurred by the 
time the contract was awarded, and in view of the observations set out above, the 
referring court considers that interpretation of Article 72(1)(c)(i) of the Directive 
STROMINATOR ELEKTRO 
 
13 
by the Court of Justice is relevant in the present case and necessary to enable the 
referring court to give judgment. 
The third question referred 
30 If the answers to the first and second questions are both in the affirmative, the 
question then arises as to the interpretation of Article 72(1)(c)(i) of Directive 
2014/24/EU, read in conjunction with Article 72(1)(c)(ii) of that directive, 
regarding the need for a modification on account of unforeseen circumstances. 
31 In the view of the referring court, the concept of need must be assessed on the 
basis of an objective criterion, if only for reasons of equal treatment of all 
economic operators and for reasons of transparency. Furthermore, it follows from 
the wording of Article 72(1)(c)(i) of Directive 2014/24 that there must be a causal 
relationship between the modification made to the public contract and the 
unforeseen circumstances (see also judgment of 7 November 2024, Adusbef 
[Morandi Bridge], C-683/22, EU:C:2024:936, paragraph 61). The question arises, 
however, whether the concept of ‘need’ means that the modification must be 
strictly necessary on account of the unforeseen circumstances or whether 
modifications which are merely appropriate may also fall within the scope of 
Article 72(1)(c)(i) of Directive 2014/24. 
32 In this same context, the referring court points out that, according to recital 109 of 
Directive 2014/24, in some situations contracting authorities must have ‘a certain 
degree of flexibility … to adapt the contract to those circumstances without a new 
procurement procedure’. In that regard, it may be necessary to consider the fact 
that, under Article 72(1)(c)(ii) of Directive 2014/24, the modification must not 
alter the overall nature of the contract. The case for a broad interpretation of that 
provision is strengthened by the fact that recital 109 cites as examples of such 
comprehensive changes only modifications which consist in replacing the works 
to be procured by something different or in fundamentally changing the type of 
procurement. Consequently, modifications which are merely appropriate could be 
permitted in order to give contracting entities the required degree of flexibility to 
respond to unforeseen events. 
33 In the present case, the modification of the contract in December 2023, in the view 
of the referring court, certainly did not alter the overall nature of the contract 
awarded in August 2022. The service to be provided was the same; the work was 
merely to be performed at another time in another part of the building on the same 
college campus. It is also common ground that, in the absence of a fire, the 
electrical fitting work entrusted to Fiegl & Spielberger would still have been 
required in block II of the building and not in block I. 
34 The referring court has doubts, however, as to whether the modification of the 
contract in December 2023 was, in fact, strictly necessary. The BIG initially 
cancelled the order for those services which were no longer necessary, and only 
after conciliation talks did it once more entrust Fiegl & Spielberger with the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-820/24 
 
14  
provision of the services it had previously ordered, but in another part of the 
building and with a deferred period of performance. In addition, it was easily able 
to put out to tender, in December 2023, the other electrical fitting work for the 
remediation of fire damage and functional rehabilitation in block I. 
35 In the view of the referring court, the question whether the fire made the 
modification of the contract ‘necessary’ in the present case depends on the 
interpretation of Article 72(1)(c)(i) of Directive 2014/24/EU, read in conjunction 
with Article 72(1)(c)(ii) of that directive, as to how narrowly or broadly the 
causality requirement set out in point (i) of that provision is to be understood.