Opinion of the Advocate General — ECLI:EU:C:2024:376
Date: 2024-04-30
Language of the case: Italian
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-683/22 ‒ 1 
Case C-683/22 
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:  
4 November 2022 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer:  
19 October 2022 
Applicants:  
Adusbef ‒ Associazione difesa utenti servizi bancari e finanziari 
AIPE ‒ Associazione Italiana Pressure Equipment 
Confimi Industria Abruzzo ‒ Associazione dell’industria 
manifatturiera e dell’impresa privata dell’Abruzzo 
Defendants:  
Presidenza del Consiglio dei ministri 
Ministero dell’Economia e delle Finanze 
Ministero delle Infrastrutture e della Mobilità sostenibili 
DIPE – Dipartimento programmazione e coordinamento della 
politica economica 
Autorità di regolazione dei trasporti 
Corte dei Conti 
Avvocatura dello Stato 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-683/22 
 
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Subject matter of the main proceedings 
Annulment of Decree No 37 of 22 February 2022, adopted by the Minister for 
Sustainable Infrastructure and Mobility in concert with the Minister for the 
Economy and Finance, approving a settlement agreement signed on 14 October 
2021 by the Minister for Sustainable Infrastructure and Mobility and the company 
Autostrade per l’Italia SpA (‘ASPI’), along with the annulment of a series of 
associated administrative acts and opinions, which brought to a conclusion the 
proceedings which had been brought concerning serious failures on the part of the 
concessionaire ASPI to meet its obligations to maintain and preserve the Italian 
motorway network. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Directive 2014/23/EU of the European Parliament and of the 
Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, 
p. 1). 
Questions referred for a preliminary ruling 
1. Would it be inconsistent with [EU] law to interpret the national legislation as 
meaning that the awarding authority is entitled to conduct a procedure to 
modify an existing motorway concession, with respect to the entities 
concerned and the substance, or to renegotiate such a concession, without 
assessing and expressing a position on the obligation to launch a public 
procurement procedure? 
2. Would it be inconsistent with [EU] law to interpret the national legislation as 
meaning that the awarding authority is entitled to conduct a procedure to 
modify an existing motorway concession, with respect to the entities 
concerned and the substance, or to renegotiate such a concession, without 
assessing the reliability of a concessionaire that is guilty of a serious failure 
to fulfil its obligations? 
3. Where an infringement of the principle of public procurement is established 
and/or the unreliability of the holder of a motorway concession is 
established, does [EU] law impose an obligation to terminate the 
relationship? 
Provisions of European Union law and case-law of the Court of Justice relied 
on 
Directive 2014/23, in particular Articles 38, 43 and 44. 
Judgment of the Court of Justice of 18 September 2019, C-526/17, in which the 
Court found that the Italian Republic had failed to fulfil its obligations by 
ADUSBEF AND OTHERS 
 
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extending a concession over a section of motorway which had itself been granted 
without a competitive tendering procedure, holding, in particular, that, ‘in 
principle, a substantial amendment of a public concession contract must give rise 
to a new award procedure for the contract so amended’. 
Provisions of national law relied on 
Article 8k of Decreto-legge del 8 aprile 2008, n. 59 (Decree-law No 59 of 8 April 
2008), which approves the ‘single agreement’ for the grant to ASPI of concessions 
over various sections of motorway. 
Article 43 of Decreto-legge del 6 dicembre 2011, n. 201 (Decree-law No 201 of 
6 December 2011), which governs relations between awarding authority and 
concessionaire in the context of motorway concession contracts, in particular, with 
regard to the updating and/or revision of such contracts. 
Various provisions of Decreto legislativo del 18 aprile 2016, n. 50 ‒ Codice dei 
contratti pubblici (Legislative Decree No 50 of 18 April 2016 establishing the 
Code on public contracts). 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 11 October 2007, the competent national authorities awarded ASPI a 
concession, by means of a ‘single agreement’, for the management of various 
sections of Italian motorway, extending to more than 2 800 km, until 
31 December 2038. That single agreement was approved by Article 8k of Decree-
law No 59 of 8 April 2008, which was subsequently converted into law. 
2 Article 43 of Decree-law No 201 of 6 December 2011, which has also been 
converted into law, governs certain aspects of the relationship between the 
awarding authority and the concessionaire, in particular, with regard to the 
updating and/or revision of motorway concession contracts. 
3 On 14 August 2018, a section of Polcevera Viaduct (Morandi Bridge, in Genoa), 
which forms part of the A10 motorway, over which ASPI had the concession, 
collapsed, killing 43 people. 
4 Following that disaster, the Minister for Sustainable Infrastructure and Mobility 
initiated proceedings against the concessionaire ASPI, alleging serious failures on 
its part to meet its obligations to maintain and preserve the motorway.  
5 On 11 July 2020, in the course of those proceedings, ASPI submitted a proposal in 
which it offered financial compensation of EUR 3 400 million, improved safety 
standards and the implementation of a comprehensive corporate restructuring 
operation, with the involvement of Cassa Depositi e Prestiti (Deposits and Loans 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-683/22 
 
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Office) and other investors approved by the latter, to which control over ASPI 
would be transferred. That proposal was accepted by the authorities.  
6 The proceedings against ASPI were brought to a close on 14 October 2021 with 
the conclusion of a settlement agreement between the Minister for Sustainable 
Infrastructure and Mobility and ASPI.  
7 The settlement agreement recorded the serious failure of the concessionaire to 
fulfil its obligations and left it to the public authorities to decide whether or not to 
terminate the single agreement or renegotiate it, having regard to the risk of 
litigation arising from such termination and the need to protect the financial 
interests of the Italian State.  
8 Terminating the concession, as the Corte costituzionale (Constitutional Court, 
Italy) held in Judgment No 168 of 27 July 2020, would in fact be extremely costly 
for the State, which is bound by a compensation regime that is wholly exceptional 
and derogates, to the concessionaire’s advantage, from the rules of ordinary law 
which apply to such relationships. For example, Article 9 of the single agreement, 
which concerns forefeiture of the concession on the ground of a serious failure by 
the concessionaire to fulfil obligations, provides for the payment to the 
concessionaire, by the public authorities, of a ‘subrogation indemnity’ 
corresponding to the net present value of operating revenue ‘up to the date of 
expiry of the concession’. It thus guarantees the concessionaire the profits which it 
would have earned from the relationship, even though the relationship has ended 
for reasons attributable to the concessionaire. 
9 On 22 February 2022, the Minister for Sustainable Infrastructure and Mobility in 
concert with the Minister for the Economy and Finance adopted a ministerial 
decree approving the settlement agreement and thus perpetuating the concession 
relationship. 
10 Both that ministerial decree and the settlement agreement are challenged in the 
main proceedings, along with a series of administrative provisions and opinions 
which preceded them. 
11 The applicants are an association which represents Italian manufacturers operating 
in the pressure equipment sector and allied industries (AIPE), a consortium which 
represents the manufacturing sector in Abruzzo, Italy (Confimi Industria Abruzzo) 
and a consumer protection association focussing on the banking sector (Adusbef). 
They maintain that they have a specific and justifiable interest in motorways being 
provided efficiently, fairly and at a balanced and sustainable cost. 
The essential arguments of the parties in the main proceedings 
12 Essentially, the applicants take issue with the authorities for choosing to continue 
the concession in question, rather than initiate a public tendering procedure. 
ADUSBEF AND OTHERS 
 
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13 In particular, the applicants allege, in the first place, infringement of Article 43 of 
Directive 2014/23 (transposed into national law by Article 175 of the Codice dei 
contratti pubblici (Code on public contracts)), which provides that concessions 
can be amended without a new award procedure ‘where a new concessionaire 
replaces the one to which the contracting authority or the contracting entity had 
initially awarded the concession’ as a consequence of the ‘universal or partial 
succession into the position of the initial concessionaire, following corporate 
restructuring, including takeover, merger, acquisition or insolvency, of another 
economic operator that fulfils the criteria for qualitative selection initially 
established provided that this does not entail other substantial modifications to the 
contract and is not aimed at circumventing the application of this directive’. The 
authorities however failed to investigate in any way the possible circumvention of 
the principle of public tendering by means of the alteration of ASPI’s ownership 
structure, as described in paragraph 5 above.  
14 In the second place, the applicants allege infringement of Article 44 of Directive 
2014/23, which provides that ‘Member States shall ensure that contracting 
authorities and contracting entities have the possibility, under the conditions 
determined by the applicable national law, to terminate a concession during its 
term’ where ‘a modification of the concession has taken place, which would have 
required a new concession award procedure pursuant to Article 43’. According to 
the applicants, the authorities have unlawfully perpetuated the system of award 
following a negotiated procedure, which, after the entry into force of the EU 
legislation, is no longer permitted, particularly for the award of concessions of 
such magnitude as that at issue. 
15 In the third place, the applicants allege infringement of Article 38 of Directive 
2014/23, which concerns the selection and qualitative assessment of candidates, in 
that ASPI is guilty of very grave professional misconduct, as has been established 
and acknowledged by the awarding authority and by all the technical and 
administrative bodies which dealt with the matter. The scale of ASPI’s 
misconduct amply justifies the termination of the relationship between the 
awarding authority and the concessionaire. 
16 The defendants argue, in the first place, that the contractual relationship is 
governed by special legislation and that the grounds on which the action has been 
brought are unfounded, in that they focus on unlawfulness in connection with 
legal provisions that do not apply to motorway concessions, which fall outside the 
objective scope of the Code on public contracts. 
17 In the second place, referring to the change in ownership structure described in 
paragraph 5 above, the defendants assert that there has been no renewal of the 
concession, but rather a change in the identity of the concessionaire, which is 
permitted by the single agreement. 
18 In the third place, with specific reference to Article 44 of Directive 2014/23, the 
defendants maintain that that provision enables contracting authorities to 
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terminate a concession during its term, but does not impose any obligation to that 
effect. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
19 The referring court wonders whether the procedure laid down by national law for 
the updating and/or revision of existing motorway concessions has to be 
conducted in compliance with the provisions of Directive 2014/23, in particular, 
Articles 43, 44 and 38 thereof.  
20 The referring court cites the settlement agreement and notes that ‘the parties’ 
intention [was] to avert any dispute based on possible incompatibility between the 
aforementioned provisions and European Union law’. Moreover, the settlement 
agreement sets out the reasons for which the renewal of the concession was 
preferable to its termination, in particular, the uninterrupted continuation of all the 
works to upgrade and improve the motorway network, the immediate launch of 
the programme of investment in the motorway network, totalling EUR 13 600 
million, the maintenance and development of current employment capacity, at 
around 7 000 employees, and continuity of service. 
21 Nevertheless, the critical point that renders it necessary to refer to the Court of 
Justice for a preliminary ruling is that, in the procedure conducted in accordance 
with national law, not all of the assessments required by the applicable provisions 
of EU law were carried out in advance. 
22 The referring court infers from that that, according to the awarding authority, the 
conditions for continuing the concession must be deemed to be fulfilled (solely) as 
a result of the ‘self-cleaning’ measures applied to ASPI’s corporate structure.  
23 In the referring court’s opinion, on the other hand, in light of the change in the 
corporate structure, it is necessary to determine, as a preliminary point, whether or 
not the application of Article 43 of Directive 2014/23 rendered it necessary to 
determine – in the course of the administrative procedure conducted in accordance 
with national law – whether or not it was compulsory to publish a call for tenders. 
24 The referring court considers that that question – which is relevant to its decision 
on whether the authorities acted ultra vires or committed a serious and manifest 
breach of EU law – must be answered in the affirmative. 
25 It adds that Article 175 of the Code on public contracts, which transposed 
Article 43 of Directive 2014/23 into national law, reduced to two the conditions 
under which a concession may be amended without a new concession award 
procedure, which is to say when ‘1) the need for modification has arisen from 
circumstances which the contracting authority could not reasonably have foreseen; 
2) the modification does not alter the overall nature of the concession’. 
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26 In its view, the changes presented in the proposal of 11 July 2020 cannot be 
regarded as ‘circumstances which a diligent contracting authority or contracting 
entity could not have foreseen’. 
27 Indeed, it would appear obvious that a breach of duty (consisting in a failure to 
carry out maintenance) so serious as to affect road safety or even to bring about a 
disaster like that of 14 August 2018 cannot be regarded as an ‘unforeseeable 
circumstance’ within the meaning of the provision cited. 
28 Nonetheless, the awarding authority did not even make that assessment when 
deciding to amend the concession without launching a call for tenders: it appears 
that the content of the single agreement was altered on the basis that the harmful 
event caused by the lack of maintenance was an unforeseeable circumstance. 
29 Moreover, according to the referring court, the awarding authority should have 
verified, from the perspective of EU law, that the amendment brought about by 
the settlement agreement did not alter ‘the overall nature of the concession’, that 
being a condition, under Article 43 of Directive 2014/23, for derogating from the 
principle of public tendering. However, not even that check was made. 
30 Consequently, if the Court of Justice finds that a call for tenders should have been 
launched, in accordance with Article 43 of Directive 2014/23, it should also rule 
on the application of Article 44 of that directive (see paragraph 14 above). 
31 As regard compliance with Article 38 of Directive 2014/23, which concerns the 
‘selection and qualitative assessment of candidates’, the national court refers to 
the judgment of the Constitutional Court mentioned earlier, which upheld the 
legislature’s decision to entrust the reconstruction of the collapsed viaduct to third 
parties and stated that the collapse of Polcevera Viaduct, ‘killing 43 people, has 
left a deep imprint on the community’s civic conscience and has undermined the 
trust which must exist between members of the public and the State apparatus, 
which is entrusted with the safeguarding of primary interests, including, first and 
foremost, health and safety’. 
32 Thus, the referring court observes that, on the one hand, ASPI was deemed unfit 
for the reconstruction of the collapsed viaduct and, on the other hand, fit to 
continue managing the entirety of the motorway infrastructure under concession. 
33 Lastly, in that context, the referring court cites the judgment of the Court of 
Justice of 18 September 2019, C-526/17, in which the Court held that the Italian 
Republic had failed to fulfil its obligations by extending a concession for a section 
of motorway which had itself been granted without a call for tenders being 
launched, and the judgment of the General Court of 15 September 2021, T-24/19, 
in which a number of aspects of the regime governing Italian motorway 
concessions were examined.