Provisional text
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 18 December 2025 (1)
Case C‑820/24
Strominator Elektro GmbH
v
Bundesimmobiliengesellschaft mbH,
Intervener:
Fiegl & Spielberger GmbH
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Austria))
( Reference for a preliminary ruling – Public procurement – Performance of the contract – Directive 2014/24/EU – Article 72 – Modification of contracts during their term – Term of contracts – Directive 2011/7/EU – Combating late payment in commercial transactions – Article 4 – Transactions between undertakings and public authorities – Payment period – Receipt of goods or services )
1.        The referring court requests the interpretation of Article 72(5) of Directive
2014/24/UE (2) to clarify, in the dispute before it, whether the contracting authority modified the terms of a works contract.
2.        In particular, the referring court asks whether a change to the contract during its term (3) constitutes a modification of the terms of the contract when: (a) the agreed performance period has expired; (b) the contractor has provided the services entrusted to it; and (c) the contracting authority has received the final invoice but has not yet paid it.
I.      Legal framework
A.      European Union law
1.      Directive 2014/24
3.        Article 72 (‘Modification of contracts during their term’) states that:
‘1.      Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:
(a)      where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the contract or the framework agreement;
(b)      for additional works, services or supplies by the original contractor that have become necessary and that were not included in the initial procurement where a change of contractor:
(i)      cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and
(ii)      would cause significant inconvenience or substantial duplication of costs for the contracting authority.
However, any increase in price shall not exceed 50% of the value of the original contract. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;
(c)      where all of the following conditions are fulfilled:
(i)      the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee;
(ii)      the modification does not alter the overall nature of the contract;
(iii)      any increase in price is not higher than 50% of the value of the original contract or framework agreement. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;
(d)      where a new contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either:
(i)      an unequivocal review clause or option in conformity with point (a);
(ii)      universal or partial succession into the position of the initial contractor, 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; or
(iii)      in the event that the contracting authority itself assumes the main contractor’s obligations towards its subcontractors where this possibility is provided for under national legislation pursuant to Article 71;
(e)      where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4.
Contracting authorities having modified a contract in the cases set out under points (b) and (c) of this paragraph shall publish a notice to that effect in the Official Journal of the European Union. Such notice shall contain the information set out in Annex V part G and shall be published in accordance with Article 51.
2.      Furthermore, and without any need to verify whether the conditions set out under points (a) to (d) of paragraph 4 are met, contracts may equally be modified without a new procurement procedure in accordance with this Directive being necessary where the value of the modification is below both of the following values:
(i)      the thresholds set out in Article 4; and
(ii)      10% of the initial contract value for service and supply contracts and below 15% of the initial contract value for works contracts.
However, the modification may not alter the overall nature of the contract or framework agreement. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications.
3.      For the purpose of the calculation of the price mentioned in paragraph 2 and points (b) and (c) of paragraph 1, the updated price shall be the reference value when the contract includes an indexation clause.
4.      A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of point (e) of paragraph 1, where it renders the contract or the framework agreement materially different in character from the one initially concluded. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:
(a)      the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;
(b)      the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;
(c)      the modification extends the scope of the contract or framework agreement considerably;
(d)      where a new contractor replaces the one to which the contracting authority had initially awarded the contract in other cases than those provided for under point
(d) of paragraph 1.
5.      A new procurement procedure in accordance with this Directive shall be required for other modifications of the provisions of a public contract or a framework agreement during its term than those provided for under paragraphs 1 and 2.’
2.      Directive 2011/7/EU (4)
4.        According to Article 2 (‘Definitions’):
‘For the purposes of this Directive, the following definitions shall apply:
(1)      “commercial transactions” means transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration;
(2)      “public authority” means any contracting authority, as defined in point (a) of Article 2(1) of Directive 2004/17/EC and in Article 1(9) of Directive 2004/18/EC, regardless of the subject or value of the contract;
…’
5.        According to Article 4 (‘Transactions between undertakings and public authorities’):
‘1.      Member States shall ensure that, in commercial transactions where the debtor is a public authority, the creditor is entitled upon expiry of the period defined in paragraphs 3, 4 or 6 to statutory interest for late payment, without the necessity of a reminder, where the following conditions are satisfied:
(a)      the creditor has fulfilled its contractual and legal obligations; and
(b)      the creditor has not received the amount due on time, unless the debtor is not responsible for the delay.
…
3.      Member States shall ensure that in commercial transactions where the debtor is a public authority:
(a)      the period for payment does not exceed any of the following time limits:
(i)      30 calendar days following the date of receipt by the debtor of the invoice or an equivalent request for payment;
…
(iv)      where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place, 30 calendar days after that date;
…’
B.      Austrian law: Bundesgesetz über die Vergabe von Aufträgen (Federal Law on Procurement) (5)
6.        Paragraph 365 reads:
‘1.      Substantial modifications to contracts and framework agreements during their term are permissible only after a new procurement procedure has been conducted. …
…
3.      The following changes to contracts and framework agreements shall be regarded as non-substantial modifications:
…’
II.    Facts, proceedings and question referred for a preliminary ruling
7.        The description of the facts and the proceedings, as set out in the order for reference, is subdivided into several paragraphs, to which I will adhere.
A.      The academic campus affected
8.        The city of Salzburg (Austria) has a school campus made up of different interconnected parts, comprising several educational establishments, including the Handelsakademie I (Academy of Commerce
I) and the Handelsakademie II (Academy of Commerce
II).
9.        Academy of Commerce
I is in a block with several floors (Block I), situated in the southern part of the campus, and Academy of Commerce
II is in a block with several floors (Block II) situated in the eastern part. The blocks are connected to each other on several floors.
10.      The Bundesimmobiliengesellschaft mbH (‘BIG’) is a contracting authority within the meaning of the BVergG 2018 and therefore of Directive
2014/24. It carries out refurbishment work on the campus, which it leases, as a whole, to the Republic of Austria.
B.      The public contract in 2022, the fire and the modification of the contract in 2023
11.      In 2022, BIG commenced an open tendering procedure for electrical fitting work (works contract; code CPV 45311200) mainly for Block
II. The contract notice was published in Austria on 25 May 2022. An EU-wide contract notice was not necessary in view of the estimated value of the contract.
12.      The procurement procedure was designated ‘5020 Salzburg, Johann-Brunauer-Straße 2-4, HAK II + 966991, Electrical refurbishment, electrical works’.
13.      The contract notice indicated that the performance period was 11 July 2022 to 31 August 2023.
14.      On 3 August 2022, the contract was awarded to Fiegl & Spielberger GmbH and the works contract was concluded. The contract value was EUR 675 107.03, and it had been agreed that the performance period for the services would be from 3 August 2022 to 31 August 2023.
15.      However, on 11 July 2022 (less than one month before the contract was concluded) a fire broke out in Block I, causing considerable damage.
16.      Only at a later stage, during the 2022/23 academic year, did it become apparent that, as a result of the fire damage, the spatial and functional design of the college campus needed to be revised in order to continue educational activities. For this reason, the works that Fiegl & Spielberger was contracted to perform were not executed in the way initially planned in the contract:
–        Initially, the electrical works were carried out on the second and third floors of Block
II, in accordance with the initial contract, until 31 August 2023.
–        However, no electrical works were carried out in the basement, on the ground floor, the first floor or in the linking section from Block
II. In May
2023, the contracting authority withdrew from the works, which reduced the volume of the contract to a third of what was initially planned. It would have been pointless to carry out the cancelled works, given the changes that were made to the spatial and functional design of the campus.
17.      Due to the cancellation of that part of the contract of 3 August 2022, Fiegl & Spielberger claimed compensation from BIG for the harm suffered.
18.      On 7 September 2023, Fiegl & Spielberger reached an agreement with BIG to withdraw that claim and, in return, execute part of the uncompleted and cancelled works in 2024, but this time
in Block
I.
19.      On 13 December 2023, Fiegl & Spielberger submitted a bid for the works to be done, calculated on the basis of the initial bid for the 2022 tender.
20.      On 15 December 2023, Fiegl & Spielberger sent the final invoice for the works carried out on the second and third floors of Block
II, corresponding to the initial contract.
21.      On 22 December 2023, BIG formally awarded Fiegl & Spielberger the contract for the ‘functional refurbishment
of the lighting system’ and for ‘lighting’ in Block
I, with performance periods running from
15 January 2024 to
30 September 2024, with a total contract value of EUR 264 355.80.
C.      Project to repair the fire damage and for the functional refurbishment of Block I
22.      Following the fire in Block
I, BIG had to initiate a project to repair the fire damage and for the functional refurbishment of Block
I.
23.      As part of that project,
BIG initiated an open tendering procedure to carry out electrical fitting work in Block I. The notice was designated ‘5020 Salzburg, Johann-Brunauer-Str. 2-4, HAK I 977598 E 009159 Fire damage (liability) electrical works’. The contract value amounted to EUR 832 551.55.
24.      On 6 December 2023, BIG awarded that contract to Strominator Elektro GmbH.
D.      The action for a declaratory judgment (Feststellungsantrag)
25.      On 9 July 2024, Strominator Elektro applied to the referring court for a declaratory judgment that ‘launching a procurement procedure without a prior contract notice, with a view to hiring [Fiegl & Spielberger] for supplying and fitting the lighting for the ‘HAK
I Salzburg’ project was unlawful, in so far as it infringed the [BVergG 2018], the decrees adopted to implement it, or the directly applicable EU law’.
26.      According to Strominator Elektro, it was unlawful to award the contract for the electrical works in Block
I in December
2023 without a public procurement procedure with prior publication. In its view, this infringed its right to a procurement procedure according to the provisions of the BVergG 2018. Strominator Elektro
relied on the right to refrain from unlawfully awarding contracts by the contracting authority, the right to participate in a public procurement procedure, the right to equal treatment of tenderers and fair competition, and the right to a transparent procurement procedure in accordance with national and EU legislation.
27.      For its part, BIG, contended, in essence, that the award of the contract to Fiegl & Spielberger in December
2023 constituted a lawful modification to the public contract awarded in August
2022, as part of an open procedure.
28.      The national court is therefore referring several questions to the Court of Justice for a preliminary ruling. I am only including the first of those questions, which states as follows:
‘Is Article 72(5) of Directive [2014/24] to be interpreted as meaning that [the] modification of a public contract after the end of the agreed performance period, the provision of 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”?’
III. Proceedings before the Court of Justice
29.      The request for a preliminary ruling was registered at the Court of Justice on 29 November 2024.
30.      Written submissions have been lodged by BIG, the Czech, French and Austrian Governments, and the European Commission.
31.      BIG, the French and Austrian Governments and the Commission attended the hearing on 15 October 2025.
32.      At the direction of the Court, this Opinion will deal solely with the first question.
IV.    Assessment
A.      Jurisdiction of the Court of Justice
33.      The facts set out above show that there are three contracts (subject to the second being accepted as a mere modification of the first) that need to be differentiated from each other:
–        The contract entered into on 3 August 2022 between BIG and Fiegl & Spielberger, to refurbish the electrical installations in Block
II of the college campus.
–        The contract that BIG awarded to Fiegl & Spielberger on 22 December 2023 for the lighting in Block
I of the campus. BIG argues that that was in fact a modification to the contract entered into by the same parties on 3 August 2022.
–        The contract that BIG awarded to Strominator Elektro on 6 December 2023 for the electrical works in Block
I of the college campus.
34.      Out of those three (or two, according to BIG) contracts, only the one dated 22 December 2023 is the subject of the dispute, as Strominator Elektro considers that it was unlawful to award that contract to Fiegl & Spielberger.
35.      In terms of its amount (EUR 264 355.80), that contract does not fall under the scope of application of Directive
2014/24, which would, in principle, determine the inadmissibility of the request for a preliminary ruling. (6)
36.      Nevertheless, the Court accepts that it does have jurisdiction to respond to requests for preliminary rulings relating to public contracts that do not reach the minimum threshold required, where the applicable national law seeks to adopt, directly and unconditionally, the corresponding provision of Directive
2014/24 (7).
37.      That is the situation in the present case. When setting out the national law, the referring court states that the BVergG 2018 transposed, among others, Directive 2014/24, and that Paragraph 365
thereof transposes
Article 72 of that directive in full. It adds that it 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. (8)
B.      The first question referred for a preliminary ruling
38.      The referring courts requests an interpretation of Article 72(5) of Directive
2014/24 to determine whether a public contract is still in force (ongoing) once the agreed performance period has expired, the agreed services have been provided (9) and the contractor has sent the final invoice, but the contracting body has not yet paid it.
1.      The applicable provision
39.      As the French Government rightly observes, (10) it is relevant to extend the analysis to Article 72 of Directive
2014/24 as a whole. While it is true that paragraph 5 of that article refers to the term of the contract, it does so in close connection with paragraphs 1 and 2 thereof.
40.      That connection highlights the fact that there are limited circumstances under which the EU legislature allows a contract to be modified without it being necessary to launch a new procurement procedure. Paragraph 5 of Article 72 of Directive
2014/24 expresses in other words what paragraphs 1 and 2 of that article state. (11)
41.      The heading of Article 72
itself (‘Modification of contracts during their term’) limits the applicability of the whole
provision to the term of the contract.
2.      Performance of the contract and fulfilment of the obligation by the contractor
42.      According to the court a quo, there are two ways of understanding when a contract expires.
43.      On the one hand, according to the national court, it could be argued that the term of the contract refers to the performance of the services by both parties to the contract. According to this theory:
–        The requirement provided for in Article 2(1)(5) of Directive
2014/24 of pecuniary interest implies that pursuant to the contract, the contracting authority receives, in return for consideration, a service which is of direct economic benefit to it.
–        The referring court’s view is that the term of the contract in Article 72 of Directive
2014/24 is the period in which the principal reciprocal performance obligations are fulfilled (provision of the service by the contractor and the payment of the price by the contracting authority).
–        Based on the case-law of the Court of Justice, the referring court infers that modifications can also affect performance of obligations by the contracting authority. (12) It states that the price of the contract could be changed substantially ‘during its currency’, even if the contractor has provided its services, and even if the final invoice has been sent, provided that it has not yet been paid by the contracting authority. (13)
44.      On the other hand, the referring court adds, various passages of Directive
2014/24 could give rise to the understanding that the term of the contract refers only to the service provided by the contractor:
–        Recital 107 mentions the conditions for modifying a contract ‘during its performance’ and, in the same sense, recital 110 refers to performance. In its view, these recitals show that the point of reference is during the period when the services
are provided (performance) by the contractor.
–        It maintains that the definition of ‘public contracts’ in Article 2(1)(5) of Directive
2014/24 is based on, among other elements, the ‘execution’ of works. The referring court states that Article 70 of that directive, in line with Recital 104, refers to the performance of services by an economic operator, by using the concept of ‘performance’ of a contract.
–        In its view, Article 58 of Directive
2014/24 also supports that interpretation:
economic operators must demonstrate the necessary abilities to ‘perform’ the contract.
–        Article 67, which refers to the personnel responsible for ‘performing’ the contract, Article 32(3)(b) and Article 77(3) of Directive 2014/24 are also interpreted in the same way. It may be inferred from those provisions that the ‘period of validity’ is equivalent to the ‘period of performance’, understood as the period during which the contractor must provide the services. However, it is not clear that the contracting authority is obliged to make the payment during the same period.
45.      The governments that have intervened in the proceedings argue that the contract is still in effect until the mutual obligations of both parties have been discharged. (14) Therefore, that would mean that in this case a modification to the contract of 3 August 2022 had taken place. The Commission disagrees with that
approach.
46.      The answer to this two-fold
question raised by the referring court may be given either from an abstract perspective, which would disregard the specific circumstances of the case, or in the light of those circumstances.
47.      According to settled case-law, in the context of Article 267 TFEU, it is not for the Court of Justice to give advisory opinions on general or hypothetical questions. On the contrary, its role is to provide the referring court with the interpretation of EU law required to settle a dispute. (15)
48.      From the abstract perspective I just referred to, and in very broad terms, a contract could be deemed to be in effect until both parties have fulfilled the services required of them, as agreed therein. (16)
49.      However, that abstract response (17) would be no more than a general consideration, unrelated to the specific characteristics of the dispute. As such, it would be of little use to the referring court, which wishes to know whether a modification takes place during the term of a works contract in a particular situation, which is based on three unique circumstances: (a) the agreed performance period has expired; (b) the contractor has provided the services it was responsible for and sent the final invoice; and (c) the contracting authority has not yet paid the remuneration agreed in the contract.
50.      In the situation described by the referring court, to which the Court of Justice must limit itself, the decisive factor is the point at which the obligations of each party are to be understood to have been discharged.
51.      In a works contract, a separate analysis of both the mutual obligations of the contractor and the contracting authority shows that: (a) with regard to the contractor, the performance of the service must logically be followed by delivering or offering the product of its work to the contracting authority; and (b) with regard to the contracting authority, its obligation is associated with the payment of the price.
52.      In the dispute before the court a quo the debate focused on the modification of the contractor’s services. The possibility was not raised of modifying the contracting authority’s payment terms following receipt of the works that had already been completed.
53.      The BIG did not refuse to pay the price that it owed, which had already been reduced to a third of the price initially planned, in line with the reduction in the electrical installation works for Block
II, agreed in May
2023. (18)
54.      There will be a point of convergence between the performance of the obligations of both parties if the contracting authority verifies, following a receipt, acceptance or checking procedure, that the contractor has discharged its obligations in accordance with the terms of the contract.
55.      The acceptance by the contracting authority that the other party has duly executed the works that it had undertaken to perform determines that the contractor’s provision of services
is complete and gives rise, eo ipso, to the obligation to make payment.
56.      That acceptance takes place, in general, via the act of receipt of the works (19) by the contracting authority. That is a crucial stage in the dynamics of that type of contract, as it marks the point at which the contracting authority establishes that the works are in a good order and that they conform
to the agreed specifications.
57.      For the relevant purposes, I agree that a contract has reached the end of its term when both parties agree that the party obliged to execute the works has performed them to the full satisfaction of the contracting authority, both physically and in terms of time scale. (20) That being the case, all that remains is for the latter to make payment. Following receipt of the duly executed works, the contracting authority cannot then make modifications to the contract.
58.      The nature of a modification to a contract is that a change in the terms of the contract, in so far as it is a demonstration of the pre-eminent position of the contracting authority, is adopted by it before the contractor has performed the agreed service in full and the contracting authority has received the completed works to its full satisfaction.
59.      Otherwise, as the Commission rightly notes, (21) ‘if it were possible to modify contracts until payment has been made in full, the contracting authority would have an artificial means of modifying the contract, even after the contractor has fulfilled its obligations’.
60.      In my opinion, reading the contractual modifications that paragraphs 1 and 2 of Article 72 of Directive
2014/24 allow without it being necessary to launch a new procurement procedure, supports that view.
61.      Indeed, once the contracting authority has received the works executed to its full satisfaction, there would be no sense in making an a posteriori modification to the terms of the contract that is only valid in the circumstances laid down in the successive lettered paragraphs of Article 72(1) and (2) of Directive
2014/24. All of these circumstances have been devised in relation to points prior to the receipt of the works by the contracting authority. Once the works have been received (and, where applicable, paid for within the required time scales referred to in Directive
2011/7), there is nothing remaining to change in the contract.
62.      During the hearing, the French Government pointed out the viability of contractual modifications in response to events arising subsequent to the receipt of the works under two sets of possible circumstances: if defects appear and if unforeseen circumstances arise. (22) Its argument is understandable, in so far as it is about preventing a very restricted concept of the notion of ‘contractual modification’ from giving rise to consequences that have a negative impact on the public interest.
63.      However, as the Commission rightly pointed out, in order to avoid those negative consequences, works contracts usually include clauses regulating guarantee periods and the contractor’s liability for defects in the works. There is therefore no need to modify a contract the performance of which has been completed, as:
–        A defect that was not noted in the receipt document could result in the contractor being obliged to repair defects within the guarantee period to which the result of its work is subject (or, if it is established in national law, within the legally established time scale). (23)
–        An unforeseen circumstance (24) subsequent to the receipt of the works that have already been completed in accordance with the initial contract, which requires further works to be carried out, will, strictly speaking, result in a new contract. (25)
3.      Application of these considerations to the original dispute
64.      In my view, the ‘modification’ made by BIG, to which the question referred by the referring court relates, was in reality the award of a new contract (dated 22 December 2023) that was separate from the initial contract (dated 3 August 2022).
65.      The new contract concerned a block that was not the one which was the subject of the initial contract: the new contract
concerned the Handelsakademie
I (Academy of Commerce
I), while the initial contract concerned the Handelsakademie
II (Academy of Commerce
II).
66.      It seems to me that the decision made by BIG was led more by practical
than strictly legal considerations. (26) In reality, everything appears to point to it having been adopted as a result of a transaction (27) under which, in exchange for Fiegl & Spielberger withdrawing its action for compensation (based on BIG having reduced the services in the initial contract), BIG ‘compensated’ it by awarding it a new contract, which was presented as a modification to the initial contract.
67.      In fact, BIG’s representative admitted at the hearing that the new contract (described as a modification) dated 22 December 2023 awarded to Fiegl & Spielberger that is the subject of the dispute was intended to neutralise the claim for compensation brought by that company.
68.      BIG insisted, however, that the ‘modification’ had a causal link to the fire, although it could not satisfactorily explain why, that being the case, the repair of the fire damage gave rise to another contract (dated 6 December 2023), awarded to Strominator Elektro. (28)
69.      When Fiegl & Spielberger was awarded the contract for the further works on Block I of the college campus, that company had already issued the final invoice for the works done in Block
II, fulfilling the first contract, as determined by BIG (that is, after reducing the works that needed to be done in Block
II).
70.      As I have already stated, the referring court starts from the premiss that Fiegl & Spielberger had provided the services for which they were responsible (that had not been cancelled by the contracting authority) within the agreed performance period and had issued the final invoice.
71.      A relevant fact that cannot be ascertained with certainty from the referring decision is that during the hearing there was some debate about the receipt of the works that were the subject of the contract entered into on 3 August 2022 between BIG and Fiegl & Spielberger:
–        According to the Commission, that receipt by the contracting authority took place in August
2023.
–        According to BIG, there was an initial receipt that was subject to reservations in August to September
2023 (the exact date remains unclear). (29)
72.      As a matter of fact, it will be for the referring court to determine the precise moment at which the works were received. From that moment onwards, it must be understood not only that the contractor has performed the agreed service in full, to the complete satisfaction of the contracting authority, but also that it only remains for the latter to proceed to the payment for the works, without the possibility of modifying the contract.
73.      Thus, as an interim conclusion, I agree that, in the circumstances described by the referring court, it was not possible to modify the initial contract (of 3 August 2022), but rather to award a new works contract.
4.      The impact of Directive 2011/7
74.      The Austrian Government argues that the contract is valid until the contracting authority has paid the price, which means that it can be modified in accordance with Article 72 of Directive
2014/24.
75.      However, it adds, that it must be born in mind that Article 4 of Directive
2011/7 imposes strict requirements on the contracting authority in relation to payment periods, following receipt of an invoice. The contracting authority would not, therefore, have ‘the option of extending the application of Article 72 of Directive
2014/24, for example, by paying late’. (30)
76.      Directive
2011/7, which the French Government also referred to at the hearing, does not, in my view, support the Austrian Government’s argument regarding the admissibility of the contractual modification.
77.      Article 1(2) of Directive
2011/7 applies to payments made as remuneration for ‘commercial transactions’. (31) The latter concept, in turn, includes contracts to which one of the parties is a public authority within the meaning of Article 2(2) of Directive
2011/7, which establishes a direct link with Directive
2014/24. (32)
78.      Article 4 of Directive
2011/7 provides for the possibility
that the debtor in commercial transactions is a public authority. In such cases, Member States must ensure that ‘the period for payment does not exceed any of the … time limits’ that it subsequently lists.
79.      The periods for payment that the contracting authorities must comply with include the following:
–        The period of 30 calendar days after the date of ‘receipt of the goods or services’ (paragraph 3(a)(iii) of Article 4 of Directive
2011/7).
–        The period of 30 calendar days after the date of acceptance or verification, where ‘a procedure of acceptance or verification, by which the conformity of the goods … with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place’ (paragraph 3(a)(iv) of Article 4 of Directive
2011/7).
80.      Both sub-points of Article 4(3)(a) of Directive 2011/7 emphasise the importance of the date of acceptance of the works and, where applicable, verification of their conformity with the contractual conditions, as the relevant date for avoiding late payment.
81.      Directive
2011/7 therefore only has an indirect effect on the subject of the dispute in this reference for a preliminary ruling (the existence of a contractual modification). In fact, unless I am mistaken, the original court does not refer to it in any passage of the referring decision.
82.      In any case, the possible impact of the provisions of Directive
2011/7 on this case would confirm the relevance of giving a negative response to the first question referred for a preliminary ruling.
83.      Indeed, the obligation to make payment without delay, within a period of 30 days (after receipt of the works or the culmination of the acceptance or verification procedure, if this is provided for by statute or in the contract), confirms that, for Directive 2011/7, that payment is due precisely because the contract has already come to an end.
84.      In other words, Directive
2011/7 supports the argument that the contracting authority has no discretion to modify the initial works contract once the contractor has performed the works as agreed, to the satisfaction of the contracting authority that receives them, and has sent the final invoice to that contracting authority.
V.      Conclusion
85.      In the light of the above, I suggest that the Court’s answer to the Bundesverwaltungsgericht (Federal Administrative Court, Austria) should be as follows:
Article 72 of 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
must be interpreted as meaning that
it does not constitute a modification to a works contract during its term if a contracting authority awards a contract to the contractor for new works in another building that is separate from that provided for in the initial contract, provided that: (a) the performance period agreed in the initial contract has expired; (b) the contractor has performed the services for which it was responsible according to the initial contract, to the satisfaction of the contracting authority; and (c) it has sent the final invoice, but the contracting authority has not yet paid the price set out therein.
1      Original language: Spanish.
2      Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive
2004/18/EC (OJ 2014 L 94, p. 65).
3      The syntagm ‘modificación del contrato durante su vigencia’, used by, among others, the Spanish-, Italian- (‘modifica di contratti durante il periodo di validità’), Portuguese- (‘modificação de contratos durante o seu período de vigência’) and Romanian-language versions (‘modificarea contractului in cursul perioadei sale de valabilitate’) of Article 72 of Directive
2014/24 gives rise to slightly different wordings in other language versions. The French-language version uses ‘modification de marchés en cours’; the English-language version uses ‘modification of contracts during their term’; the German-language version uses ‘Auftragsänderungen während der Vertragslaufzeit’, and the Dutch-language version uses ‘Wijziging van opdrachten gedurende de looptijd’.
4      Directive of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ 2011 L 48, p. 1).
5      Bundesvergabegesetz 2018 (BGBl. I, 65/2018; ‘the BVergG 2018’).
6      ‘The strict special procedures prescribed by … directives coordinating public procurement procedures apply only to contracts whose value exceeds a threshold expressly laid down in each of those … Accordingly, the rules in those directives do not apply to contracts with a value below the threshold set by those directives …’. Judgment of 15 May 2008, SECAP and Santorso (C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 19); and order of 12 November 2020, Novart Engineering (C‑170/20, EU:C:2020:908, paragraph 25 and the case-law cited).
7      Judgment of 7 December 2023, Obshtina Razgrad (C‑441/22 and C‑443/22, EU:C:2023:970), concerning contracts whose value was below the threshold for the applicability of Directive
2014/24, according to Article 4(a). Paragraph 39 of that judgment reads as follows: ‘where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt, directly and unconditionally, 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. That makes it possible to forestall future differences of interpretation and to ensure that those situations and situations falling within the scope of those provisions are treated in the same way …’.
8      Paragraphs 3 and 4 of the explanation of national law in the order for reference.
9      Although BIG cancelled two thirds of the services provided for in the initial contract on 3 August 2022, the order for reference is explicit in the sense that ‘the contracting authority’s cancellation of the services in May
2023 is not the subject of the main proceedings’ (paragraph 1.6 of the section on the grounds for the order for reference).
10      Paragraphs 11 to 16 of the French Government’s written observations.
11      Judgment of 7 December 2023, Obshtina Razgrad (C‑441/22 and C‑443/22, EU:C:2023:970, paragraph 51): ‘…paragraphs 1 and 2 of Article 72 of Directive 2014/24 list the situations in which contracts and framework agreements may be modified without it being necessary to launch a new procurement procedure in accordance with that directive. According to the provisions of paragraph 5 of that article, the launching of a new procedure is required where there are modifications other than those referred to in paragraphs 1 and 2 thereof’.
12      Judgment of 19 June 2008, pressetext Nachrichtenagentur (C‑454/06, EU:C:2008:351, paragraph 87).
13      Although paragraph 18 of the referring decision cites the judgments of 19 June 2008, pressetext Nachrichtenagentur (C‑454/06, EU:C:2008:351, paragraph 34), and of 26 March 2020, Hungeod and Others (C‑496/18 and C‑497/18, EU:C:2020:240, paragraph 89), those paragraphs do not refer to the payment of the price by the contracting authority.
14      Those obligations include, depending on the purpose of the contract, those of the contractor to execute the works, supply the products or provide the services, and that of the contracting authority to pay the price. This common position highlights the nature of reciprocal contracts and the element of pecuniary interest that is inherent to the definition of a public contract.
15      Judgments of 16 December 1981, Foglia (244/80, EU:C:1981:302, paragraph 18), and of 6 March 2025, ONB and Others (C‑575/23, EU:C:2025:141, paragraph 52).
16      From the same abstract perspective is the discussion (reflected in the written observations of the intervening parties) regarding the interpretation of recital 107 of Directive
2014/24, which the referring court mentions. Instead of using the expression ‘modification of contracts during their term’, this recital refers to ‘modifications to a contract during its performance’ (which would appear to refer to the performance period for the works, in works contracts). I do not believe it is necessary to use this paragraph of the preamble to Directive
2014/24 to rule out theories put forward by the parties in the dispute.
17      There could be multiple factors in support of tempering that response. The term
would vary, for example, depending on whether the contract is a one-off
contract or a contract for successive performance, with just one performance or with separate or recurring
performances.
18      In paragraph 1.11 of its written observations, BIG acknowledges that it had awarded an additional contract separately and prior to that had paid for the ‘reduced contract’, as it considered this to be the correct action to take.
19      On ‘receipt of the goods’, when the debtor is a public authority, refers to Article 4 of Directive
2011/7, which I will examine later. As was made clear at the hearing, contracting authorities for works contracts entered into in Austria have protocols that regulate the receipt of the works.
20      The contractor must have fulfilled its obligation within the time scale established in the contract. The performance period may, however, have been extended during the term of the contract, which cannot be classified as a substantial modification. See judgment of 7 December 2023, Obshtina Razgrad (C‑441/22 and C‑443/22, EU:C:2023:970, paragraph 53).
21      Paragraph 17 of the Commission’s written observations.
22      The French Government also pointed out the possibility of modifying payment terms ex post, but as I have explained, there is nothing in the proceedings before us that points to this: no price review or indexation nor have any similar mechanisms been applied.
23      With regard to guarantee clauses in works contracts and the application of additional rules of national law to those contracts, see judgment of 5 June 2025, Veolia Water Technologies and Others (C‑82/24, EU:C:2025:396). Paragraph 40 reads as follows: ‘As regards, in particular, the duration of the warranty and the essential conditions for its implementation, … in view of their importance for determining the financial conditions of the tenders submitted by the tenderers concerned, it must be held that those elements are among those which must be clearly defined in advance and made public, in order to enable those tenderers to understand exactly the legal and economic conditions to which the award of the contract in question and the detailed rules for its performance are subject, and to ensure that the same requirements apply to all competitors. That is so in particular in the case of works contracts, in which the implementation of the warranty, as is apparent from the facts of the dispute in the main proceedings, may present a significant financial risk for the successful tenderer.’
24      The treatment of unforeseen circumstances that require the modification of a concession was analysed in the judgment of 29 April 2025, Fastned Deutschland (C‑452/23, EU:C:2025:284, paragraph 75): ‘…in order for the “need for” the modification of a concession to be regarded as having been “brought about” by the materialisation of unforeseeable circumstances, those circumstances must also require the initial concession to be adapted in order to ensure that the proper performance of the obligations arising from it may continue’. Emphasis added.
25      In this case, on 6 December 2023, BIG awarded Strominator Elektro a new works contract for doing electrical fitting works in Block
I, to remedy the damages caused by the fire that took place at the college campus on 11 July 2022.
26      In its written observations (paragraph 1.11, which I have previously referred to), BIG asserts that the correct procedure for implementing the agreement entered into with Fiegl & Spielberger, while complying with the technical requirements of the IT system used by the group at the time (especially in relation to orders and invoicing), was to enter into an additional contract and prior to that to invoice for a ‘reduced contract’.
27      In this context, by ‘transaction’ I mean an agreement between two parties who, by making mutual concessions, bring an end to a current dispute or avoid a future dispute.
28      BIG argued that the contract dated 6 December 2023 was different from the contract (which in its view was a modification) dated 22 December 2023. In reality, they both relate to Block
I of the college campus and are for lighting (contract of 22 December 2023) or electrical works (contract of 6 December 2023). There was nothing to prevent a single contract from covering both types of works.
29      If that were the case, it would not have been the final receipt, which would have taken place before the invoice dated 15 December 2023 was issued and accepted.
30      Paragraph 15 of the Austrian Government’s written observations. The Czech Government considers that ‘the point at which the contracting authority pays is not a determining factor … A delay by the contracting authority in paying following the provision of the service [by the contractor] cannot have an impact on the extent of the discretion [on the part of the contracting authority] with regard to a possible modification to the contract in the sense of Article 72 of Directive
2014/24’ (section
7, last three paragraphs, of its written observations). This modification would be viable, in its view, if the reasons behind it arose before the subject of the contract had been performed in full.
31      Commercial transactions are broadly defined in Article 2(1) of Directive
2011/7: ‘transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration’.
32      Judgment of 28 January
2020, Commission v Italy (Directive combating late payment) (C‑122/18, EU:C:2020:41, paragraph 56): ‘…
[Article 2(2) of Directive
2011/7] refers, for the purposes of defining the concept of “public authority”, to the definition of the concept of “contracting authority”, inter alia, by, Article 1(9) of Directive
2004/18, that reference responding to a need for consistency of EU legislation, as recital 14 of Directive
2011/7 indicates.’