Provisional text
JUDGMENT OF THE COURT (Second Chamber)
5 February 2026 (*)
( Reference for a preliminary ruling – Directive 2014/23/EU – Procedure for the award of concession contracts – Project financing at the initiative of a private operator – Assessment and approval of a financing proposal – Call for tenders launched on the basis of that proposal – Pre-emption right of the economic operator that is the promoter, subject to ensuring the conditions of the best offer – Modification made after the submission of the initial offer – Article 3 – Principles of equal treatment, non-discrimination and transparency – Breach )
In Case C‑810/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 25 November 2024, received at the Court on 26 November 2024, in the proceedings
Urban Vision SpA
v
Comune di Milano,
Digital Vox Srl, formerly A & C Network Srl,
Other party:
Vox Communication Srl,
THE COURT (Second Chamber),
composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec (Rapporteur) and Z. Csehi, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Urban Vision SpA, by F. Iacovone, V. Monello and F. Sciaudone, avvocati,
–        Comune di Milano, by A. Mandarano, S. Pagano and S. Pagliosa, avvocati,
–        Digital Vox Srl, by P. Bertacco, J.E.P. Recla and A. Reggio D’Aci, avvocati,
–        the Italian Government, by S. Fiorentino, acting as Agent, and by A. Giovannini and E. Manzo, avvocati dello Stato,
–        the European Commission, by A. Biolan, C. Biz and G. Wils, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Articles 49 and 56 TFEU, 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), of Article 12 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and of the principles of proportionality, good administration and efficiency.
2        The request has been made in proceedings between,
on the one hand, Urban Vision SpA and,
on the other, the Comune di Milano (Municipality of Milan, Italy) and Digital Vox Srl, formerly A & C Network Srl, concerning the award of a contract for the design, supply, installation, management and maintenance of automated public toilets to a consortium formed of Digital Vox and Vox Communication Srl (‘the consortium’).
Legal context
European Union law
Directive 2006/123
3        Recital 57 of Directive 2006/123 states:
‘The provisions of this Directive relating to authorisation schemes should concern cases where the access to or exercise of a service activity by operators requires a decision by a competent authority. This concerns neither decisions by competent authorities to set up a public or private entity for the provision of a particular service nor the conclusion of contracts by competent authorities for the provision of a particular service which is governed by rules on public procurement, since this Directive does not deal with rules on public procurement.’
4        Article 3 of that directive, entitled ‘Relationship with other provisions of Community law’, provides, in paragraph 1 thereof:
‘If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions. …’
5        Article 9 of that directive, entitled ‘Authorisation schemes’, provides, in paragraph 3 thereof:
‘This section shall not apply to those aspects of authorisation schemes which are governed directly or
indirectly by other Community instruments.’
6        Article 12 of the same directive sets out the procedures for ‘selection from among several candidates’.
Directive 2014/23
7        Recitals 8, 14, 18, 68 and 73 of Directive 2014/23 state:
‘(8)      For concessions equal to or above a certain value, it is appropriate to provide for a minimum coordination of national procedures for the award of such contracts based on the principles of the TFEU so as to guarantee the opening-up of concessions to competition and adequate legal certainty. Those coordinating provisions should not go beyond what is necessary in order to achieve the aforementioned objectives and to ensure a certain degree of flexibility. Member States should be allowed to complete and develop further those provisions if they find it appropriate, in particular to better ensure compliance with the principles set out above.
…
(14)      In addition, certain Member State acts such as authorisations or licences, whereby the Member State or a public authority thereof establishes the conditions for the exercise of an economic activity, including a condition to carry out a given operation, granted, normally, on request of the economic operator and not on the initiative of the contracting authority or the contracting entity and where the economic operator remains free to withdraw from the provision of works or services, should not qualify as concessions. In the case of those Member State acts, the specific provisions of Directive [2006/123] apply. In contrast to those Member State acts, concession contracts provide for mutually binding obligations where the execution of the works or services are subject to specific requirements defined by the contracting authority or the contracting entity, which are legally enforceable.
…
(18)      … The main feature of a concession, the right to exploit the works or services, always implies the transfer to the concessionaire of an operating risk of economic nature involving the possibility that it will not recoup the investments made and the costs incurred in operating the works or services awarded under normal operating conditions even if a part of the risk remains with the contracting authority or contracting entity. …
…
(68)      Concessions are usually long-term, complex arrangements where the concessionaire assumes responsibilities and risks traditionally borne by the contracting authorities and contracting entities and normally falling within their remit. For that reason, subject to compliance with this Directive and with the principles of transparency and equal treatment, contracting authorities and contracting entities should be allowed considerable flexibility to define and organise the procedure leading to the choice of concessionaire. However, in order to ensure equal treatment and transparency throughout the awarding process, it is appropriate to provide for basic guarantees as to the awarding process, including information on the nature and scope of the concession, limitation of the number of candidates, the dissemination of information to candidates and tenderers and the availability of appropriate records. It is also necessary to provide that the initial terms of the concession notice should not be deviated from, in order to prevent unfair treatment of any potential candidates.
…
(73)      Contracting authorities or contracting entities should assess tenders on the basis of one or several award criteria. … The criteria should be disclosed in advance to all potential candidates or tenderers, be related to the subject matter of the contract and should not offer to the contracting authority or contracting entity an unrestricted freedom of choice. They should permit effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. It should be possible to include in award criteria, inter alia, environmental, social or innovation-related criteria. Contracting authorities or contracting entities should also indicate award criteria in descending order of importance so as to ensure the equal treatment of potential tenderers by allowing them to be aware of all the elements to be taken into account when they prepare their tenders.
In exceptional cases where the contracting authority or contracting entity receives a tender which proposes an innovative solution with an exceptional level of functional performance which could not have [been] foreseen by a diligent contracting authority or contracting entity, the contracting authority or contracting entity should, exceptionally, be able to modify the order of the award criteria to take into account the new possibilities brought about by that innovative solution, provided such a modification ensures equal treatment of all actual or potential tenderers by issuing a new invitation to tender or, where appropriate, publishing a new concession notice.’
8        Article 3 of Directive 2014/23, entitled ‘Principle of equal treatment, non-discrimination and transparency’, provides, in paragraph 1 thereof:
‘Contracting authorities and contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
The design of the concession award procedure, including the estimate of the value, shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services.’
9        Under point (1) of Article 5 of that directive:
‘For the purposes of this Directive the following definitions apply:
(1)      “concessions” means works or services concessions, as defined in points (a) and (b):
(a)      “works concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more economic operators the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment;
(b)      “services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.
The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both. The concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject matter of the concession. The part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible.’
10      Article 8 of Directive 2014/23, entitled ‘Threshold and methods for calculating the estimated value of concessions’, provides, in paragraph 1 thereof:
‘This Directive shall apply to concessions the value of which is equal to or greater than EUR 5 186 000.’
11      Article 30 of that directive, entitled ‘General principles’, provides, in paragraphs 1 and 2 thereof:
‘1.      The contracting authority or contracting entity shall have the freedom to organise the procedure leading to the choice of concessionaire subject to compliance with this Directive.
2.      The design of the concession award procedure shall respect the principles laid down in Article 3. In particular during the concession award procedure, the contracting authority or contracting entity shall not provide information in a discriminatory manner which may give some candidates or tenderers an advantage over others.’
12      Under Article 41 of Directive 2014/23, entitled ‘Award criteria’:
‘1.      Concessions shall be awarded on the basis of objective criteria which comply with the principles set out in Article 3 and which ensure that tenders are assessed in conditions of effective competition so as to identify an overall economic advantage for the contracting authority or the contracting entity.
2.      The award criteria shall be linked to the subject matter of the concession, and shall not confer an unrestricted freedom of choice on the contracting authority or the contracting entity. They may include, inter alia, environmental, social or innovation-related criteria.
Those criteria shall be accompanied by requirements which allow the information provided by the tenderers to be effectively verified.
The contracting authority or the contracting entity shall verify whether tenders properly meet the award criteria.
3.      The contracting authority or the contracting entity shall list the criteria in descending order of importance.
Notwithstanding the first subparagraph, where the contracting authority or contracting entity receive a tender which proposes an innovative solution with an exceptional level of functional performance which could not have been foreseen by a diligent contracting authority or contracting entity, the contracting authority or contracting entity may, exceptionally, modify the ranking order of the award criteria to take into account that innovative solution. In that case, the contracting authority or the contracting entity shall inform all tenderers about the modification of the order of importance and shall issue a new invitation to submit tenders, in respect of the minimal time limits referred to in Article 39(4). Where the award criteria have been published at the moment of the publication of the concession notice, the contracting authority or entity shall publish a new concession notice, in respect of the minimum time limits referred to in Article 39(3).
The modification of the ranking order shall not result in discrimination.’
Italian law
13      Decreto legislativo n. 50 – Codice dei contratti pubblici (Legislative Decree No. 50 establishing the Public Procurement Code) of 18 April 2016 (GURI No 91 of 19 April 2016, ordinary supplement No 10),
the purpose of which is, inter alia, to transpose Directive 2014/23 into Italian law, included, in the version applicable to the dispute in the main proceedings, an Article 183, entitled ‘Project financing’, which provided in paragraphs 4 and 15 thereof:
‘4.      The contracting authorities shall assess the tenders submitted according to the criterion of the most economically advantageous tender, decided on the basis of the best price-quality ratio.
…
15.      Economic operators may submit proposals to the contracting authorities to perform, on the basis of a concession, public works … The proposal shall contain a feasibility project, a draft agreement, the economic and financial plan certified by one of the entities referred to in the first sentence of paragraph 9 of the present article and the service and management specifications. … The economic and financial plan shall include the amount of expenditure incurred in preparing the proposal, including royalties in respect of intellectual works under Article 2578 of the Codice civile (Civil Code). …
The contracting authority shall assess the feasibility of the proposal within a strict time limit of three months. The contracting authority may for that purpose invite the party submitting the proposal to make any changes to the feasibility project necessary for it to be approved. If the party submitting the proposal does not include the requested amendments, the proposal may not be evaluated as feasible. [In the event that] the feasibility project, amended if applicable, [has not yet been included] in the programming instruments adopted by the contracting authority under the legislation in force [it shall be included in those programming instruments] and shall be approved in accordance with the procedures applicable to the approval of projects. The party submitting the proposal must include any further amendments requested at the project approval stage, otherwise the project shall be deemed not to have been approved. The approved feasibility project is subject to a tender procedure, in which the party submitting the proposal shall be invited to participate. In the contract notice, the contracting authority may ask participants, including the party
submitting the proposal, to submit alternative scenarios for the project. The contract notice shall indicate that the promoter [of a project financing procedure (“the promoter”)] may exercise its pre-emptive right. The participants, including the promoter, must satisfy the requirements laid down in paragraph 8 of the present article and shall submit a bid containing a draft agreement, the economic and financial plan certified by one of the entities referred to in the first sentence of paragraph 9 of the present article, the service and management specifications and any alternative scenario for the feasibility project. Paragraphs 4, 5, 6, 7 and 13 of the present article shall apply. If the promoter is not awarded the contract, it may, within 15 days from notification of the award, exercise its pre-emptive right and be awarded the contract if it undertakes to comply with the contractual obligations on the same terms as those proposed by the successful tenderer. If the promoter is not awarded the contract and does not exercise its pre-emptive right it will be entitled to be reimbursed, by the successful tenderer, the amount of the expenditure incurred in preparing the proposal up to the limits referred to in paragraph 9 of the present article. If the promoter exercises its pre-emptive right, the initial successful tenderer will be entitled to be reimbursed, by the promoter, in the amount of the expenditure incurred in preparing its bid up to the limits referred to in paragraph 9 of the present article.’
14      Article 183(9) provided, in essence, that for the purpose of taking part in the call for tenders, all candidates – including the promoter – were to submit an economic and financial plan which ‘in addition to providing for reimbursement of the expenditure incurred in preparing the feasibility project on which the call for tenders is based, includes the amount of expenditure incurred in preparing the proposal, including royalties in respect of intellectual works under Article 2578 of the Civil Code. The total amount of the expenditure referred to in the preceding sentence may not exceed 2.5% of the value of the investment, which may be deduced from the feasibility project on which the call for tenders was based.’
The dispute in the main proceedings and the question referred for a preliminary ruling
15      By decision of 29 May 2020 the Municipality of Milan established the guidelines for the implementation of ‘projects and initiatives aimed at the regeneration of public urban spaces by means of the identification of technical sponsors’. That decision stated that the procedure would begin with the publication of a notice, possibly after the submission of a proposal by a promoter, and that it would continue with the municipality’s assessment of the ‘consistency with the strategic objectives of the contracting authority’ and of the value of the proposals. Subsequently, a call for tenders was to be organised on the basis of that notice which would disclose the ‘characteristics of the proposal received and the services offered therein’ and provide for the possibility for the party submitting the proposal to adjust it to match the best bid.
16      The consortium was the only promoter to submit a proposal to the Municipality of Milan in March 2021.
17      On 20 July 2021, that municipality published a Public Notice on its website calling for the ‘submission of proposals for improvement’ with respect to the proposal it had received from the consortium, which was described in detail in that notice. As stated in the decision of 29 May 2020, that notice granted the party submitting the proposal, if unsuccessful, the right to adjust it within a period of 15 days to match the proposal identified as the best and ultimately to be awarded the contract if it undertook to comply with the contractual obligations on the same terms as those offered by the initial successful tenderer and to reimburse the latter the expenses it incurred in preparing its tender (‘the pre-emption right’).
18      At the end of the call for tenders, the Municipality of Milan, by decision of 30 March 2023, awarded the contract at issue in the main proceedings to Urban Vision, which had submitted a proposal for improvement.
19      However, as the consortium exercised its pre-emption right and adjusted its tender to match that of Urban Vision, the Municipality of Milan awarded it the contract by decision of 28 April 2023. The details of that contract reflect those set out in the proposal submitted by Urban Vision. Accordingly, the contract provides that the consortium is to finance, supply and install 110 automated public toilets – ownership of which is to be transferred to the municipality after final inspection – operate and service them for 24 years for the value of EUR 29 100 000, plus an additional EUR 5 000 000. The municipality is to guarantee, for 18 years, the right to commercially benefit from 97 advertising panels, following their conversion to digital
display. Moreover, according to calculations made by the municipality, the value of ‘the image benefits gained through commercial promotion’ amounts to between EUR 10 352 827 and EUR 15 517 412. The communication plan includes ‘the direct promotion of the sponsor’ and ‘third-party advertising that the sponsor, as collector, will display in the spaces made available to it’.
20      Urban Vision challenged the decision of 28 April 2023 before the Tribunale amministrativo regionale per la Lombardia (Regional Administrative Court, Lombardia, Italy), which rejected that appeal by judgment of 29 January 2024.
21      Urban Vision brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy), which is the referring court. That court states that, in the contract at issue in the main proceedings, the consideration is represented by the financial return resulting from the commercial exploitation
of the 97 advertising panels, with the successful tenderer bearing the risk associated with demand.
22      The referring court concludes that that contract comes within the scope of Article 183 of the Public Procurement Code, which concerns the project financing procedure and, consequently, the concept of ‘concession’ within the meaning of Article 5 of Directive 2014/23. Indeed, by that contract the successful tenderer undertakes to install automated public toilets and to convert the advertising panels using its own resources, without receiving any financial consideration.
23      The referring court raises the point
that, under Article 183(15) of that code, the tender notice should state that the promoter may exercise its pre-emption right.
24      That court has doubts, however, as to whether that provision correctly transposes Directive 2014/23. In its view, the outcome of the call for tenders is likely to change if the promoter exercises its pre-emption right. In that case, despite not having been awarded the contract at the end of the call for tenders, the promoter may become the successful tenderer by adjusting its proposal to match the one considered as being the best, which appears to go against the principle of equal treatment.
25      The Consiglio di Stato (Council of State) notes, however, that recital 68 of Directive 2014/23 refers to ‘flexibility to define and organise the procedure leading to the choice of concessionaire’. Similarly, it notes that Articles 3 and 30 of that directive emphasise the importance of communicating information which may give some candidates or tenderers an advantage over others in a way that is non-discriminatory, so as to comply with the principle of equal treatment. In particular, Article 41(3) of that directive provides that, if the contracting authority receives a tender which proposes an ‘innovative solution’, it ‘may, exceptionally, modify the ranking order of the award criteria to take into account that innovative solution’, subject to issuing a new invitation to tender, given that ‘the modification of the ranking order [must] not result in discrimination’. Furthermore, restrictions on economic freedom are permissible if they aim to ensure undistorted competition in all the Member States.
26      The pre-emption right may however be justified, since the promotion of private sector initiatives represents the implementation of the principle of horizontal subsidiarity set out in Article 118 of the Costituzione della Repubblica Italiana (Constitution of the Italian Republic) and is the expression of a form of cooperation which can make the achievement of public interests more efficient in terms of time and resources. The pre-emption right, in that court’s view, also encourages advancement on the part of the contracting authority through the acquisition of new knowledge that is specific to the private sector and constitutes a stimulus for enterprise.
27      The referring court
points out, however, that the pre-emption right may not be appropriate to achieve the objective pursued or, in any event, may not be proportionate, since other provisions are capable of rewarding private sector initiative while having less of an impact on the call for tenders.
28      Lastly, although the commercial exploitation of the 97 advertising panels
is not the main subject matter of the contract at issue in the main proceedings, the referring court notes that Article 12 of Directive 2006/123 does not contain an absolute prohibition on
the inclusion of
a pre-emption right.
29      The referring court considers that the pre-emption right favours the promoter’s initiative by guaranteeing that it will be awarded the contract, even when the best tender was submitted by another candidate. That provision, therefore, does not necessarily reward the person having submitted the best tender for the contracting authority, nor does it delimit the scope of that pre-emption right. That court also notes that Article 183(15) of the Public Procurement Code does not require that the proposal be innovative, in terms of the intrinsic characteristic of the subject matter of the proposal or the novel nature thereof with respect to the previous activity carried out by the contracting authority. Nor does that provision require, from the outset, transparency as to the privileged position of the promoter, given that the fact that there was a pre-emption right was disclosed when the call for tenders was opened following the submission of the proposal. Lastly, that provision does not account for a situation where more than one promoter submit a proposal.
30      In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do the principles of freedom of establishment and freedom to provide services laid down in Articles 49 and 56 TFEU, as well as Directive [2014/23], interpreted in the light of the principles of proportionality, good administration and efficiency, and Article 12 of Directive [2006/123] – in the event that the Court considers it to be applicable – [preclude] the national rules on pre-emption contained in Article 183(15) of [the Public Procurement Code]?’
Consideration of the question referred
31      As a preliminary point, it should be noted, first, that the contract at issue in the main proceedings is, primarily, a works concession, within the meaning of point 1(a) of Article 5 of Directive 2014/23. By that contract, which was entered into in writing and for pecuniary interest, the municipality of Milan entrusted the consortium with the performance of works, the consideration for which consisted solely in the right to exploit the 97 advertising panels located on the automated public toilets. It is therefore clear that the award of that works concession involves the transfer to the consortium of the financial risk related to the exploitation
of those advertising panels.
When the value of a contract exceeds the threshold for the applicability of Directive 2014/23 laid down in Article 8 thereof, as is the case with the contract at issue in the main proceedings, transfer of the financial risk is the key criterion for identifying a concession, as follows from the second subparagraph of point 1 of Article 5 of Directive 2014/23, read in conjunction with recital 18 thereof (see, to that effect, judgment of 10 November 2022, SHARENGO, C‑486/21, EU:C:2022:868, paragraph 61).
32      Secondly, it follows (i) from Article 3(1) and Article 9(3) of Directive 2006/123, read in conjunction with recital 57 thereof, and (ii) from recital 14 of Directive 2014/23 that the applicability of the latter directive renders the former inapplicable, as the Court emphasised in the judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraph 45). Thus, the question referred for a preliminary ruling must be examined in the light of Directive 2014/23, rather than that of Directive 2006/123.
33      Thirdly, in so far as Directive 2014/23, in general terms, intended to achieve only minimal coordination of national procedures for the award of works and services concessions on the basis of the principles of the FEU Treaty, it is also necessary to examine whether the pre-emption right is compatible with Articles 49 and 56 TFEU.
34      It is settled case-law that only a national measure adopted in an area which has been the subject of exhaustive or full harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty (see, inter alia, judgment of 20 April 2023, Autorità Garante della Concorrenza e del Mercato (Municipality of Ginosa), C‑348/22, EU:C:2023:301, paragraph 36 and the case-law cited).
35      In so far as the referring court refers, in its question, to both Article 49 TFEU and Article 56 TFEU, which enshrine the freedom of establishment and the freedom to provide services respectively, the Court notes that the grant of the concession at issue in the main proceedings means that the concessionaire needs to have access to the territory of the host Member State with a view to participating, on a stable and continuous basis, for a relatively long period, in the economic life of that State. It follows that the grant of such a concession falls within the scope of the right of establishment provided for in Article 49 TFEU (see, to that effect, judgment of 11 July 2024, Società Italiana Imprese Balneari, C‑598/22, EU:C:2024:597, paragraph 44 and the case-law cited).
36      In addition, under the first paragraph of Article 57 TFEU, the provisions of the Treaty relating to the freedom to provide services are applicable only if, inter alia, those relating to the right of establishment do not apply. Article 56 TFEU must therefore be disregarded.
37      In the light of the foregoing considerations, it must be held that, by its question, the referring court asks, in essence, whether Article 3(1) of Directive 2014/23, read in conjunction with Article 49 TFEU, with Articles 30 and 41 of Directive 2014/23 and with recital 68 of that directive, must be interpreted as precluding a Member State from granting the promoter of a project financing procedure, such as the one provided for in Article 183(15) of the Public Procurement Code, a pre-emption right that allows that promoter, in the event that the contract in question was not initially awarded to it, to adjust its offer to match that of the initial successful tenderer and thus be awarded that contract subject to reimbursement of the costs incurred by the initial successful tenderer in preparing the bid, within the limit, however, of 2.5% of the amount that the successful tenderer expected to invest
as estimated from
the feasibility project forming the basis of the call for tenders.
38      In that regard, it should be noted that the project financing procedure, which is governed by Article 183(15) of the Public Procurement Code, consists of three stages. First, an economic operator addresses a works concession proposal to a contracting authority by submitting a file containing a feasibility project, an economic and financial plan and the draft concession contract. Second, the contracting authority assesses the feasibility of that proposal. At this stage, the contracting authority may ask the promoter to amend its proposal and, if the promoter accepts, the project is approved and included in the contracting authority’s programming instruments as a planned project. Third, the feasibility project thus approved is subject to a tendering procedure; the promoter is invited to that procedure and is granted a pre-emption right. In practical terms, in the event that the contract is not awarded to it, the promoter has 15 days to adjust its offer to match that of the initial successful tenderer. In such a case, the promoter is awarded the contract, subject to reimbursement of the costs incurred by the initial successful tenderer in preparing its bid; that reimbursement, however, may not exceed 2.5% of the value of the investments, which may be deduced from the feasibility project on which the call for tenders was based.
39      In the present case, since the pre-emption right is expressly provided for in Article 183(15) of the Public Procurement Code as well as in the decision of the Municipality of Milan of 29 May 2020 and its opinion of 20 July 2021, the principle of transparency seems to have been complied with. It is therefore appropriate to examine
whether the pre-emption right infringes the principle of equal treatment, as enshrined in Article 3(1) of Directive 2014/23.
40      In that regard, it follows from paragraph 38 of this judgment that, in the context of a project financing procedure, the pre-emption right has the effect of calling into question the ranking made by the contracting authority at the end of the tendering procedure and confers an actual advantage on the promoter. By enabling the promoter to match the conditions offered by the initial successful tenderer, the pre-emption right from which that promoter benefits allows it to amend the price it had indicated in its bid.
41      However, it is settled case-law that, first, the contracting authority’s obligation to comply with the principle of equal treatment in respect of tenderers is to encourage the attainment of the widest possible opening-up to competition of procedures for the award of concessions (see, by analogy, judgments of 23 December 2009, CoNISMa, C‑305/08, EU:C:2009:807, paragraph 37 and the case-law cited, and of 26 September 2024, Luxone and Sofein, C‑403/23 and C‑404/23, EU:C:2024:805, paragraph 50). Second, that obligation, which lies at the very heart of the EU rules on the procedures for the award of works and services concessions, requires, inter alia, that tenderers be on an equal footing both when they formulate their tenders and when those tenders are being assessed by the contracting authority. Therefore, as a general rule, a tender cannot be amended after it has been submitted, whether at the request of the contracting authority or at the request of the tenderer (see, by analogy, judgments of 22 June 1993, Commission v Denmark, C‑243/89, EU:C:1993:257, paragraph 33; of 25 April 1996, Commission v Belgium, C‑87/94, EU:C:1996:161, paragraphs 51 and 52; and of 13 June 2024, BibMedia, C‑737/22, EU:C:2024:495, paragraphs 30 and 32 and the case-law cited).
42      Since, as a general rule, price is the decisive award criterion in a call for tenders, the taking into account by a contracting authority of an amendment to the price proposed in the initial offer of only one tenderer gives that tenderer an advantage over its competitors, which breaches the principle of equal treatment of tenderers (judgment of 25 April 1996, Commission v Belgium, C‑87/94, EU:C:1996:161, paragraphs 54 and 56), as guaranteed by Article 3(1) of Directive 2014/23, and amounts to a distortion of healthy and effective competition (see, by analogy, judgment of 14 September 2017, Casertana Costruzioni, C‑223/16, EU:C:2017:685, paragraph 40).
43      In the present case, the consequence of the pre-emption right enjoyed by the promoter is that the prices offered before the expiry of the period for submitting tenders do not directly and definitively determine the ranking of tenderers. By allowing the promoter to match the conditions offered by the initial successful tenderer, which was shown to be the lowest bidder, the pre-emption right allows the promoter, in breach of the principle of equal treatment, to optimise its offer to improve its position with respect to the tenders of its competitors in the concession procedure at issue. It follows that submission of the most economically advantageous tender is no guarantee of being awarded the contract.
44      Admittedly, in its judgment of 13 June 2024, BibMedia (C‑737/22, EU:C:2024:495, paragraph 33), the Court held that a clause in a procurement document which, with the aim of maintaining competition in the economic sector concerned, provided that the largest lot be awarded to the tenderer having submitted the most economically advantageous tender, while a lot of lower value preferably be awarded to the tenderer having submitted the second most economically advantageous tender, on the condition that it accept to perform that lot at the price of the tenderer which submitted the most economically advantageous tender, does not contain any element of negotiation. If the tenderer ranking second refuses to match that price, the same proposal is made to the tenderer ranking third, and so on in the event that the latter also declines the proposal.
45      Nevertheless, the conclusion that such a clause did not contain any element of negotiation, which is precluded by the principle of equal treatment, was closely linked to the division of the contract in question into lots and to its objective of maintaining competition in the economic sector concerned.
46      However, irrespective of whether, in the present case, the pre-emption right involves negotiation between the promoter and the contracting authority, that right undeniably allows that promoter to amend its tender after it has been submitted, which is prohibited by the principle of equal treatment. That is all the more so since, unlike the clause at the heart of the case which gave rise to the judgment of 13 June 2024, BibMedia (C‑737/22, EU:C:2024:495), the pre-emption right is capable of producing effects which instead of being pro-competitive are, on the contrary, anticompetitive.
47      Accordingly, granting a pre-emption right to the promoter of a project financing procedure infringes not only Article 3(1) of Directive 2014/23, but also Article 41(1) of that directive, under which tenders must be assessed ‘in conditions of effective competition’.
48      Furthermore, none of the provisions of that directive referred to by the referring court can be interpreted as allowing Member States and contracting authorities to derogate from the principle of equal treatment laid down in Article 3(1) of that directive and, therefore, to justify the pre-emption right.
49      In that regard, it must be noted that the discretion granted to the contracting authority in organising procedures for the award of concessions cannot be unlimited.
50      It is true that Article 30(1) of Directive 2014/23, read in conjunction with recital 68 thereof, confers on the contracting authority the freedom, or considerable flexibility, to organise the procedure leading to the choice of concessionaire. Article 30(1) may also be read in the light of recital 8 of that directive, which states that the directive provides for
only a minimum coordination of national procedures for the award of concessions, thereby ensuring a certain degree of flexibility.
51      Nevertheless, as stated in recital 68 of Directive 2014/23, the considerable flexibility that a contracting authority enjoys in defining and organising the procedure leading to the choice of concessionaire remains subject to ‘compliance with [that] Directive and with the principles of transparency and equal treatment’, which presupposes ‘[the provision of] basic guarantees as to the awarding process, … in order to prevent unfair treatment of any potential candidates’.
52      Thus, despite the considerable flexibility afforded to contracting authorities, a concession award procedure must, in accordance with Article 30(2) of that directive, comply with the principles set out in Article 3 thereof. The last sentence of recital 8 of that directive specifies, in the same vein, that the flexibility afforded to Member States must allow them to ‘complete and develop further [the] provisions [of that directive] if they find it appropriate, in particular to better ensure compliance with the principles [of the FEU Treaty]’.
53      Article 30(1) of Directive 2014/23, read in conjunction with recital 8 thereof, cannot therefore justify the infringement of the principle of equal treatment, as guaranteed by Article 3 of that directive, that results from the pre-emption-right.
54      Similarly, it is true that, under the second subparagraph of Article 41(3) of Directive 2014/23, read in conjunction with recital 73 thereof, the contracting authority may, exceptionally, modify the order of the award criteria to take into account an innovative solution it has received that involves
an exceptional level of functional performance which could not have been foreseen by a diligent contracting authority.
55      Nevertheless, that scenario, described as exceptional by the EU legislature, presupposes receipt not of a proposal aimed at launching a procedure such as the project financing procedure but rather of an offer submitted to the contracting authority in response to a call for tenders. Above all, the contracting authority is then required to inform all tenderers of the change in ranking order of the award criteria and to issue a new invitation to submit offers or, as the case may be, a new concession notice, since, as stated in the third subparagraph of Article 41(3) of Directive 2014/23, the modification of the ranking order must not result in discrimination. However, that did not occur in the present case.
56      Furthermore, in the light of the foregoing, it must also be held that the pre-emption right constitutes a restriction on the freedom of establishment, enshrined in Article 49 TFEU, since it is liable to dissuade economic operators from other Member States from participating in a project financing procedure. However, it is necessary to examine whether that pre-emption right may be justified on the basis of that Article 49 TFEU.
57      In that regard, the referring court states that, by promoting private sector initiatives, the pre-emption right implements the principle of horizontal subsidiarity, set out in Article 118 of the Constitution of the Italian Republic and is the expression of a form of cooperation which can make the achievement of public interests more efficient in terms of time and resources. The pre-emption right thus also encourages advancement on the part of the contracting authority through the acquisition of new knowledge that is specific to the private sector and constitutes a stimulus for enterprise.
58      Such an objective cannot come within the scope of grounds of public policy, public security or public health which, under Article 52(1) TFEU, are the only grounds capable of justifying a restriction on freedom of establishment.
59      In the light of the foregoing considerations, the answer to the question referred is that Article 3(1) of Directive 2014/23, read in conjunction with Article 49 TFEU,
with
Articles 30 and 41 of Directive 2014/23
and
with recital 68 of that directive, must be interpreted as precluding a Member State from granting the promoter of a project financing procedure a pre-emption right that allows that promoter, in the event that the contract in question was not initially awarded to it, to adjust its offer to match that of the initial successful tenderer and thus be awarded that contract subject to reimbursement of the costs incurred by the initial successful tenderer in preparing the bid, within the limit, however, of 2.5% of the amount that the successful tenderer expected to invest
as estimated from the feasibility project forming the basis of the call for tenders.
Costs
60      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Article 3(1) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, read in conjunction with Article 49 TFEU, with Articles 30 and 41 of Directive 2014/23 and with recital 68 of that directive,
must be interpreted as precluding a Member State from granting the promoter of a project financing procedure a pre-emption right that allows that promoter, in the event that the contract in question was not initially awarded to it, to adjust its offer to match that of the initial successful tenderer and thus be awarded that contract subject to reimbursement of the costs incurred by the initial successful tenderer in preparing the bid, within the limit, however, of 2.5% of the amount that the successful tenderer expected to invest as estimated from the feasibility project forming the basis of the call for tenders.
[Signatures]
*      Language of the case: Italian.