1 This request for a preliminary ruling concerns the interpretation of Article 72(1)(c) 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 (OJ 2014 L 94, p. 65).
2 The request has been made in proceedings between Fastned Deutschland GmbH & Co. KG (‘Fastned’), on the one hand, and Die Autobahn GmbH des Bundes, on the other, concerning the modification of concession contracts for the operation of ancillary service facilities on German federal motorways so as to include the construction, maintenance and operation of fast-charging infrastructure for vehicle use.
3 Recitals 8, 18, 75, 76 and 81 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) are worded as follows: ‘(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. … … (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. The application of specific rules governing the award of concessions would not be justified if the contracting authority or contracting entity relieved the economic operator of any potential loss, by guaranteeing a minimal revenue, equal or higher to the investments made and the costs that the economic operator has to incur in relation with the performance of the contract. … … (75) Concession contracts typically involve long-term and complex technical and financial arrangements which are often subject to changing circumstances. It is therefore necessary to clarify the conditions under which modifications of a concession during its performance require a new concession award procedure, taking into account the relevant case-law of the Court of Justice of the European Union. A new concession procedure is required in the case of material changes to the initial concession, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that concession. This is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure. Modifications of the concession resulting in a minor change of the contract value up to a certain level value should always be possible without the need to carry out a new concession procedure. To that effect and in order to ensure legal certainty, this Directive should provide for de minimis thresholds, below which a new award procedure is not required. Modifications of the concession above those thresholds should be possible without the need to carry out a new award procedure, to the extent that such modifications comply with certain conditions. That might be, for instance, the case of modifications which have become necessary following the need to accommodate requests from contracting authorities or contracting entities, with regard to security requirements and taking into account specificities of such activities as, for instance, operation of mountain sport and touristic facilities, where legislation might evolve to address the related hazards, to the extent such modifications comply with the relevant conditions laid down in this Directive. (76) Contracting authorities and contracting entities can be faced with external circumstances that they could not foresee when they awarded the concession, in particular when the performance of the concession covers a long period. In those cases, a certain degree of flexibility is needed to adapt the concession to the circumstances without a new award procedure. The notion of unforeseeable circumstances refers to circumstances that could not have been predicted despite reasonably diligent preparation of the initial award by the contracting authority or contracting entity, taking into account its available means, the nature and characteristics of the specific project, good practices in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value. However, this cannot apply in cases where a modification results in an alteration of the nature of the overall concession, for instance by replacing the works to be executed or the services to be provided by something different or by fundamentally changing the type of concession since, in such a situation, a hypothetical influence on the outcome may be assumed. … … (81) In order to ensure adequate judicial protection of candidates and tenderers in the concession award procedures, as well as to make effective the enforcement of this Directive and of the principles of the TFEU, Council Directive 89/665/EEC [of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33)] and Council Directive 92/13/EEC [of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14)] should also apply to services concessions and to works concessions awarded by both contracting authorities and contracting entities. Directives [89/665] and [92/13] should, therefore, be amended accordingly.’
4 Article 2 of Directive 2014/23, headed ‘Principle of free administration by public authorities’, provides, in paragraph 1: ‘This Directive recognises the principle of free administration by national, regional and local authorities in conformity with national and Union law. Those authorities are free to decide how best to manage the execution of works or the provision of services, to ensure in particular a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights in public services. Those authorities may choose to perform their public interest tasks with their own resources, or in cooperation with other authorities or to confer them upon economic operators.’
5 Article 5 of that directive, headed ‘Definitions’, provides: ‘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; …’
6 Article 17 of that directive, headed ‘Concessions between entities within the public sector’, provides, in paragraph 1: ‘A concession awarded by a contracting authority or a contracting entity as referred to in point (a) of Article 7(1) to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled: (a) the contracting authority or contracting entity exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; (b) more than 80% of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or contracting entity or by other legal persons controlled by that contracting authority or contracting entity; and (c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person. A contracting authority or contracting entity as referred to in point (a) of Article 7(1) shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph of this paragraph, where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. That control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority or contracting entity.’
7 Title II of Directive 2014/23, headed ‘Rules on the award of concessions: General principles and procedural guarantees’, contains, inter alia, Article 38 of that directive, headed ‘Selection and qualitative assessment of candidates’, paragraph 1 of which is worded as follows: ‘Contracting authorities and contracting entities shall verify the conditions for participation relating to the professional and technical ability and the financial and economic standing of the candidates or tenderers, on the basis of self-declarations, reference or references to be submitted as proof in accordance with the requirements specified in the concession notice that shall be non-discriminatory and proportionate to the [subject matter] of the concession. The conditions for participation shall be related and proportionate to the need to ensure the ability of the concessionaire to perform the concession, taking into account the [subject matter] of the concession and the purpose of ensuring genuine competition.’
8 Title III of that directive, headed ‘Rules on performance of concessions’, contains, inter alia, Article 43 thereof, headed ‘Modification of contracts during their term’, which states: ‘1. Concessions may be modified without a new concession award procedure in accordance with this Directive in any of the following cases: … (b) for additional works or services by the original concessionaire that have become necessary and that were not included in the initial concession where a change of concessionaire: (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 concession; and (ii) would cause significant inconvenience or substantial duplication of costs for the contracting authority or contracting entity. However, in the case of concessions awarded by a contracting authority, for the purposes of pursuing an activity other than those referred to in Annex II, any increase in value shall not exceed 50% of the value of the original concession. 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 or contracting entity could not foresee; (ii) the modification does not alter the overall nature of the concession; (iii) in the case of concessions awarded by [a] contracting authority, for the purposes of pursuing an activity other than those referred to in Annex II, any increase in value is not higher than 50% of the value of the initial concession. Where several successive modifications are made, this limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive; (d) where a new concessionaire replaces the one to which the contracting authority or the contracting entity had initially awarded the concession as a consequence of either: … (ii) universal or partial succession into the position of the initial concessionaire, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; … … (e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4. … 4. A modification of a concession during its term shall be considered to be substantial within the meaning of point (e) of paragraph 1, where it renders the concession materially different in character from the one initially concluded. … … 5. A new concession award procedure in accordance with this Directive shall be required for other modifications of the provisions of a concession during its term than those provided for under paragraphs 1 and 2.’
9 Under the first subparagraph of Article 51(1) of that directive: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. They shall forthwith communicate to the [European] Commission the text thereof.’
10 The second paragraph of Article 54 of that directive states: ‘This Directive shall not apply to the award of concessions tendered or awarded before 17 April 2014.’
11 Recital 122 of Directive 2014/24 states: ‘Directive [89/665] provides for certain review procedures to be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement of Union law in the field of public procurement or national rules transposing that law. Those review procedures should not be affected by this Directive. However, citizens, concerned stakeholders, organised or not, and other persons or bodies which do not have access to review procedures pursuant to Directive [89/665] do nevertheless have a legitimate interest, as taxpayers, in sound procurement procedures. They should therefore be given a possibility, otherwise than through the review system pursuant to Directive [89/665] and without it necessarily involving them being given standing before courts and tribunals, to indicate possible violations of this Directive to a competent authority or structure. …’
12 Under Article 72(1)(c) and (d) of Directive 2014/24: ‘Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases: … (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: … (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; … …’
13 Article 1 of Directive 89/665, as amended by Directive 2014/23 (‘Directive 89/665’), headed ‘Scope and availability of review procedures’, provides: ‘1. … This Directive also applies to concessions awarded by contracting authorities, referred to in Directive [2014/23] … unless such concessions are excluded in accordance with Articles 10, 11, 12, 17 and 25 of that Directive. … Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive [2014/24] or Directive [2014/23], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Union law in the field of public procurement or national rules transposing that law. … 3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. …’
14 Under Article 2f(1) of Directive 89/665: ‘Member States may provide that the application for review in accordance with Article 2d(1) must be made: (a) before the expiry of at least 30 calendar days with effect from the day following the date on which: - the contracting authority published a contract award notice in accordance with Articles 50 and 51 of Directive [2014/24] or with Articles 31 and 32 of Directive [2014/23], provided that this notice includes justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal of the European Union, or - the contracting authority informed the tenderers and candidates concerned of the conclusion of the contract, provided that this information contains a summary of the relevant reasons … (b) and in any case before the expiry of a period of at least six months with effect from the day following the date of the conclusion of the contract.’
15 Part 4 of the Gesetz gegen Wettbewerbsbeschränkungen (Law against restrictions on competition) of 26 June 2013 (BGBl. 2013 I, p. 1750), in the version applicable to the dispute in the main proceedings (‘the GWB’), lays down the rules relating to public procurement and concessions and includes, inter alia, Paragraphs 132, 135 and 154 of the GWB.
16 Paragraph 132 GWB, headed ‘Modifications of contracts during their term’, provides: ‘(1) Any substantial modification of a public contract during its term shall require a new award procedure. Modifications are substantial if they result in the public contract differing significantly from the public contract originally awarded. … … (2) Notwithstanding subparagraph 1, it is permissible to modify a public contract without conducting a new procurement procedure where … 3. the need for modification has been brought about by circumstances that a diligent public contracting authority could not have foreseen, and the overall nature of the contract is not altered by the modification … … In the cases referred to in points 2 and 3 of the first sentence, the price may not be increased by more than 50% of the value of the original contract. … …’
17 Paragraph 135 of the GWB, headed ‘Ineffectiveness’, provides: ‘(1) A public contract shall be deemed ineffective from the outset if the public contracting authority: … 2. awarded the contract without prior publication of a contract notice in the Official Journal of the European Union, such publication being mandatory in accordance with the law, and that infringement was declared in the context of review proceedings. (2) The ineffectiveness to which subparagraph 1 refers may be declared only if it was pleaded in review proceedings within 30 calendar days from the date on which the contracting authority informed the tenderers and candidates concerned of the conclusion of the contract, but no later than 6 months after the conclusion of that contract. If the contracting authority published the award of the contract in the Official Journal of the European Union, the time limit for pleading ineffectiveness shall expire 30 calendar days after publication of the contract award notice in the Official Journal of the European Union. …’
18 Under Paragraph 154 of the GWB, headed ‘Other applicable provisions’: ‘In addition, the following provisions shall apply mutatis mutandis to the award of concessions …: … 3. Paragraphs 131(2) and (3) and 132 … … 4. Paragraphs 133 to 135, …’
19 According to the first sentence of Paragraph 5(3) of the Gesetz über die Bereitstellung flächendeckender Schnellladeinfrastruktur für reine Batterieelektrofahrzeuge (Schnellladegesetz) (Law on the provision of nationwide fast-charging infrastructure for electric vehicles powered exclusively by battery) of 25 June 2021 (BGBl. 2021 I, p. 2141; ‘the SchnellLG’), the holder of a concession to operate a service facility ancillary to federal motorways, including petrol stations, must be given the possibility to assume the responsibility, on an economically independent basis, for installing, maintaining and operating the fast-charging points planned for the given site if that is appropriate and does not conflict with Part 4 of the GWB.
20 Die Autobahn des Bundes, the defendant in the main proceedings, is a private company and is the inalienable property of the Federal Republic of Germany. The Bundesministerium für Verkehr und digitale Infrastruktur (Federal Ministry of Digital and Transport, Germany) entrusted it with the planning, construction, operation, maintenance, financing and asset management of the German federal motorways with effect from 1 January 2021.
21 Ancillary service facilities, such as service stations and restaurants, are operated across more than 400 service areas within the German motorway network. Originally, the operator of those facilities was the Gesellschaft für Nebenbetriebe der Bundesautobahnen mbH, established by the Federal Republic of Germany in 1951. In 1994, that company was renamed Tank & Rast AG, with the Federal Republic of Germany remaining as the sole shareholder of the company. In the same year, Tank & Rast acquired Ostdeutsche Autobahntankstellengesellschaft mbH.
22 Between 1996 and 1998, the Federal Republic of Germany concluded, without a prior call for tenders, approximately 280 concession contracts for the operation of service facilities ancillary to German federal motorways with Tank & Rast for a maximum period of 40 years.
23 Those contracts, the term of which is still ongoing, were drawn up on the basis of a concession model as part of which the concessionaire may construct and operate an ancillary service facility, for users of the German federal motorways, on a specific operating site. In return, the concessionaire has to pay a fee that is proportionate to its turnover. Those contracts include an operational plan which stipulates a set number of fuel pumps and parking spaces as well as a restaurant and public toilets; each ancillary service facility must be accessible 24 hours a day.
24 In 1998, the German authorities initiated a procedure to privatise Tank & Rast, in which approximately 50 German and foreign applicants participated. That process led to the acquisition of Tank & Rast by a consortium composed of LSG Lufthansa Service Holding AG, Allianz Capital Partners GmbH and three investment funds. Following changes in the company name, Tank & Rast gave rise to the current concessionaires, namely Autobahn Tank & Rast GmbH and Ostdeutsche Autobahntankstellen GmbH, who are interveners before the referring court.
25 Between 1999 and 2019, Autobahn Tank & Rast and Ostdeutsche Autobahntankstellen were awarded approximately 80 further concessions, 19 of which, they claim, were awarded following calls for tender. That is how those companies became the concessionaires for approximately 90% of all existing ancillary service facilities.
26 On 28 April 2022, Die Autobahn des Bundes concluded with Autobahn Tank & Rast and Ostdeutsche Autobahntankstellen, pursuant to Paragraph 5(3) of the SchnellLG, a supplement to all of the approximately 360 concession contracts concerned, pursuant to which Autobahn Tank & Rast and Ostdeutsche Autobahntankstellen are responsible for the construction, maintenance and operation of fast-charging operational infrastructure in the service areas concerned, which also involves an obligation to make available a specific number of recharging points on each site (‘the modification at issue in the main proceedings’).
27 Die Autobahn des Bundes published a notice concerning that modification in the Supplement to the Official Journal of the European Union. According to that notice, the waiver of an invitation to tender was justified in the light of Paragraph 132 of the GWB. The provision of fast-charging infrastructure constitutes a complementary supply of services, which became necessary under the concession contracts concerned, that being something which was not foreseeable on the date on which they were concluded.
28 Fastned and Tesla Germany GmbH (‘Tesla’), which operate charging infrastructure for electric vehicles, applied to the Vergabekammer des Bundes (Federal Public Procurement Board, Germany) seeking the opening of a review procedure in respect of the modification at issue in the main proceedings. In support of that application, they claimed that that modification was ineffective under Paragraph 135(1)(2) of the GWB, on the ground that it had been concluded without prior publication of a contract notice at EU level. According to Fastned and Tesla, that modification cannot be based on Paragraph 132 of the GWB, since that paragraph is not applicable to concessions which were not awarded in the context of a call for tenders.
29 By order of 15 June 2022, the Federal Public Procurement Board refused to grant that application.
30 Fastned and Tesla brought an action against that order before the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), which is the referring court. In support of that action, they argued that Paragraph 132(1) and (2) of the GWB does not apply to a modification of a public contract originally awarded to an in-house entity without a competitive tendering procedure. Such a conclusion is all the more valid in the case of a concession originally awarded without a competitive tendering procedure in view of a privatisation of the concessionaire and therefore in breach of the applicable rules in that field.
31 According to that court, the only decisive factor in resolving the dispute before it is whether the modification at issue in the main proceedings comes within the scope of Paragraph 135(1)(2) of the GWB and is, therefore, ineffective.
32 In that regard, that court considers that the substantive conditions laid down in Paragraph 132(2)(3) of the GWB are satisfied. First, the contracting authority could not foresee, in any event as regards the concession contracts concluded in the period between 1996 to 1998, the need for fast-charging infrastructure on the service areas of German federal motorways or the introduction of a statutory obligation to install that infrastructure. Second, the modification at issue in the main proceedings does not alter the overall nature of the concessions concerned. Third, the value of the original contract is not being increased by more than 50%.
33 However, the referring court expresses doubts as to whether Paragraph 132(2)(3) of the GWB, which is intended to transpose Article 72(1)(c) of Directive 2014/24 into German law, applies to a modification of contracts concluded, outside the scope of Part 4 of the GWB, with an in-house entity of the contracting authority, where, on the date of that modification, the criteria for an in-house award are no longer satisfied, since 100% of the shares in the concessionaire are now held by private investors.
34 That point is decisive for the outcome of the dispute before that court, having regard to the fact that, according to that court, the modification at issue in the main proceedings is ‘substantial’ within the meaning of the first sentence of Paragraph 132(1) of the GWB. It is therefore important to ascertain whether Paragraph 132(2)(3) of the GWB, read in conjunction with Paragraph 154(3) of the GWB, allowed the contracting authority to conclude that modification with Autobahn Tank & Rast and Ostdeutsche Autobahntankstellen without initiating a new award procedure. However, a clear answer to that question does not follow with certainty either from the wording of Article 72 of Directive 2014/24 or from the case-law of the Court.
35 In that regard, the referring court observes, inter alia, that paragraphs 41 to 43 of the judgment of 12 May 2022, Comune di Lerici (C‑719/20, EU:C:2022:372), could be understood as meaning that it is necessary to exclude altogether from the scope of Article 72 of Directive 2014/24 - and therefore of Article 72(1)(c) of that directive, which is the relevant provision in the present case - contracts initially awarded to an in-house entity, where the conditions for an in-house award are no longer met on the date of modification of such a contract.
36 However, that court takes the view that it is immaterial, for the purpose of the application of Article 72 of that directive, whether the initial award of the concessions concerned between 1996 and 1998 complied with the law on procurement or whether the privatisation of Tank & Rast, which occurred in 1998, constituted a substantial modification of those concessions. The time period of six months provided for in Paragraph 135(2) of the GWB for the purpose of transposing into German law Article 2f(1) of Directive 89/665 had long since expired. The objective of that limitation period, namely to ensure legal certainty, would be frustrated if the lawfulness of the award of the initial contract or of modifications made prior to the date of expiry of that period could be called into question after that date in the event of an application for annulment of a subsequent modification of the contract concerned.
37 In those circumstances, the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf) decided to stay the proceedings and referred the following question to the Court of Justice for a preliminary ruling: ‘Is Article 72(1)(c) of Directive [2014/24] to be interpreted as meaning that its scope also includes public contracts which were previously awarded to in-house entities outside the scope of Directive [2014/24] but to which the conditions of in-house procurement no longer apply at the time of the contract modification?’
38 In accordance with the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union, the Federal Republic of Germany requested, on 25 March 2024, that the present case be heard by the Grand Chamber, of which the Court took formal note on 4 June 2024.
39 On 17 July 2024, the referring court informed the Court that Tesla had withdrawn from the proceedings pending before it.
40 The referring court asks the Court about how Article 72(1)(c) of Directive 2014/24, which concerns public procurement, is to be interpreted.
41 In that regard, the Court notes that the question whether such an operation is to be classed as a ‘public contract’, within the meaning of Directive 2014/24 or a ‘concession’, within the meaning of Directive 2014/23, must be considered exclusively in the light of EU law (judgment of 15 October 2009, Acoset, C‑196/08, EU:C:2009:628, paragraph 38).
42 In the present case, the referring court states, inter alia, first, that the contracts concerned by the modification at issue in the main proceedings confer on Autobahn Tank & Rast and Ostdeutsche Autobahntankstellen the right to construct and operate ancillary service facilities for users of the German federal motorways and, second, that those companies must, in return, pay a concession fee proportionate to their turnover.
43 Before the adoption of Directive 2014/23, it was accepted that the fact that the remuneration of the contracting partner of a contracting authority came not from the public authority concerned, but from sums paid by third parties for the use of the work or services concerned, means that the service provider assumes the associated operating risk and thus that the relevant contract is therefore a concession and not a public contract (see, to that effect, judgment of 13 October 2005, Parking Brixen, C‑458/03, EU:C:2005:605, paragraph 40). That criterion for distinguishing between a concession and a public contract, described in recital 18 of Directive 2014/23, is now laid down in Article 5(1) of that directive.
44 Consequently, in the light of the information provided by the referring court, it must be held, as the Advocate General proposed in point 32 of his Opinion, that the dispute in the main proceedings concerns concession contracts and that, in that context, that court is asking the Court about the interpretation of Article 43(1)(c) of Directive 2014/23, which lays down the conditions under which a concession may be modified, without a new award procedure, for reasons relating to the materialisation of circumstances which a diligent contracting authority could not foresee, and the wording of which is essentially identical to that of Article 72(1)(c) of Directive 2014/24.
45 It is therefore appropriate to consider that, by its question, the referring court asks, in essence, whether Article 43(1)(c) of Directive 2014/23 must be interpreted as meaning that, if the conditions laid down in that provision are satisfied, a concession may be modified without a new award procedure, including where that concession was awarded, without a competitive tendering procedure, to an in-house entity and the modification of that concession is carried out on a date on which the concessionaire no longer has the status of an in-house entity.
46 In order to answer the question referred, it is necessary to clarify, first, the scope of the rules under EU law governing the award of a concession to an in-house entity and, second, the consequences resulting, in the light of the application of those rules, from the loss, by the concessionaire, of its status as an in-house entity during the performance of the concession concerned.
47 In that regard, in the first place, even before Directive 2014/23 was adopted, it was accepted that a public authority had the possibility of performing the tasks conferred on it in the public interest by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments (judgment of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 48). With regard to concessions, that possibility is now laid down and clarified in Article 2 of Directive 2014/23, headed ‘Principle of free administration by public authorities’.
48 The application of the rules under EU law in the field of concessions is precluded if the control exercised over the concessionaire by the contracting authority was comparable to that which the authority exercises over its own departments and if, at the same time, that concessionaire carries out the essential part of its activities with the contracting authority which is its owner (see, to that effect, judgments of 13 October 2005, Parking Brixen, C‑458/03, EU:C:2005:605, paragraph 62, and of 15 October 2009, Acoset, C‑196/08, EU:C:2009:628, paragraph 51). In the case of an in-house award of that kind, the contracting authority was deemed to use its own resources since, even if the concessionaire was legally distinct from the contracting authority, it could, in practice, be treated in the same way as the internal departments of the contracting authority, with the result that a competitive call for tenders was not compulsory (see, by analogy, judgments of 10 September 2009, Sea, C‑573/07, EU:C:2009:532, paragraph 36, and of 12 May 2022, Comune di Lerici, C‑719/20, EU:C:2022:372, paragraph 33). Those principles are now laid down and clarified in Article 17 of Directive 2014/23, which sets out the conditions under which a concession between entities within the public sector does not come within the scope of that directive.
49 In the second place, in the event of a substantial modification of a concession contract, the EU legislation in the light of which that modification must be assessed is the legislation applicable on the date of that modification; the fact that the original concession contract was concluded prior to the adoption of EU rules on the matter is therefore without consequence in that regard (see, to that effect, judgments of 19 December 2018, Stanley International Betting and Stanleybet Malta, C‑375/17, EU:C:2018:1026, paragraphs 34 and 35, and of 2 September 2021, Sisal and Others, C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 28).
50 It follows that it is in the light of the provisions of Directive 2014/23 that it is necessary to examine whether a modification such as the modification at issue in the main proceedings, which was made after 18 April 2016, the deadline for transposition of that directive in accordance with the first subparagraph of Article 51(1) thereof, required a new award procedure (see, by analogy, judgment of 12 May 2022, Comune di Lerici, C‑719/20, EU:C:2022:372, paragraph 39 and the case-law cited).
51 In that regard, as the Advocate General observed, in essence, in point 55 of his Opinion, if, on the date on which a concession contract is modified, the concessionaire satisfies the conditions laid down in Article 17 of Directive 2014/23, that modification may, in any event, be made without a new award procedure and regardless of the conditions laid down in Article 43 of that directive. However, if, on that date, the concessionaire no longer satisfies the conditions laid down in Article 17 of that directive - which is the situation is respect of which the referring court seeks a ruling from the Court - that modification may not be made without a new award procedure unless the conditions laid down in Article 43 are satisfied.
52 Clearly, first, the wording of Article 43(1)(c) of Directive 2014/23, which, as is apparent from recital 75 of that directive, is specifically intended to clarify the conditions under which modifications to a concession during its performance require a new award procedure, does not contain any indication that a concession cannot be modified without such a procedure, as a result of unforeseeable circumstances materialising, within the meaning of Article 43(1)(c)(i) of that directive, where it was initially awarded to an in-house entity without a competitive tendering procedure and the modification concerned occurs on a date on which the concessionaire entity no longer has the status of in-house entity. The two other conditions which such a modification must satisfy, laid down in Article 43(1)(c)(ii) and (iii) of that directive, relate only to the fact that that modification must not alter the overall nature of the concession concerned and that its amount must not exceed certain limits, without there being any direct or indirect reference to the existence of an initial award procedure for that concession following a competitive tendering procedure.
53 Second, there is nothing in the context of which Article 43(1)(c) of Directive 2014/23 forms part to suggest that a concession awarded to an in-house entity cannot be amended without a new award procedure, following the materialisation of unforeseeable circumstances, within the meaning of Article 43(1)(c)(i) thereof, if, on the date of the modification concerned, the concessionaire no longer has the status of an in-house entity.
54 In particular, such an approach cannot be justified by the contextual element provided by Article 43(1)(d)(ii) of Directive 2014/23, a provision the content of which is, in essence, identical to that of Article 72(1)(d)(ii) of Directive 2014/24, as interpreted by the Court in the judgment of 12 May 2022, Comune di Lerici (C‑719/20, EU:C:2022:372), cited by the referring court. Article 43(1)(d)(ii) of Directive 2024/23 provides that a concession may be modified without a new award procedure, where the initial concessionaire is replaced by a new concessionaire, following, inter alia, the acquisition of the former by the latter, provided that the latter fulfils the qualitative selection criteria initially established and provided that that does not entail other substantial modifications to the contract or is not aimed at circumventing the application of Directive 2014/23.
55 It is true that the Court inferred from the wording of Article 72(1)(d)(ii) of Directive 2014/24 that such a replacement of contractor is possible only if the public contract concerned was the subject of an initial procurement procedure that complied with the requirements imposed by that directive and that, consequently, a new contractor cannot replace the initial contractor without a new procurement procedure if that contract was initially awarded to an in-house entity without a call for tenders (see, to that effect, judgment of 12 May 2022, Comune di Lerici, C‑719/20, EU:C:2022:372, paragraphs 41 and 43).
56 That requirement, which, under Article 43(1)(d)(ii) of Directive 2014/23, must be regarded as also applying to concessions, is, however, explained by the fact that, although a concession was initially the subject of an in-house award, within the meaning set out in paragraphs 47 and 48 of the present judgment, following a procedure not based on qualitative selection criteria such as those referred to in Article 38 of that directive, the fact that another operator, which is not an in-house entity, replaces the initial concessionaire amounts to a new award of the concession, which should be subject to the rules arising from that directive.
57 However, that is not the case with a modification such as the modification at issue in the main proceedings, which, since it concerned the construction, maintenance and operation of fast-charging operational infrastructure in the service areas concerned, relates not to the loss by the concessionaire, in 1998, of its status as an in-house entity, but to the subject matter of the concession, and which therefore does not come within the scope of Article 43(1)(d) of Directive 2014/23.
58 Equally, as regards the context of which Article 43(1)(c) of Directive 2014/23 forms part, it is true that, according to the introductory sentence of that paragraph 1, concessions may be modified ‘without a new concession award procedure in accordance with [that] directive’. However, it cannot be inferred from that sentence that Article 43 of that directive applies only to modifications made to concessions which were initially awarded in accordance with that directive. In accordance with the case-law referred to in paragraphs 49 and 50 of the present judgment, modifications made to a concession after the deadline for transposing Directive 2014/23 may come within the scope of Article 43 of that directive, even though, according to the second paragraph of Article 54 thereof, that directive is not applicable to the award of concessions tendered or awarded before 17 April 2014 and which, therefore, occurred without an award procedure in compliance with that directive. Thus, that sentence seeks only to require that, where the modification of a concession does not come within one of the cases listed in Article 43 of Directive 2014/23, it must take place at the end of an award procedure that complies with that directive.
59 Third, as regards the objective of Article 43(1)(c) of Directive 2014/23, it is apparent from recital 76 thereof that that provision is intended to give contracting authorities a certain degree of flexibility in order to be able to adapt a concession during its term to external circumstances which they could not foresee at the time of the award of that concession, in particular where the operation of that concession extends over a longer period. To exclude from the scope of that provision cases where a concession was initially awarded to an in-house entity and where the concessionaire no longer has that status on the date of the modification of the subject matter of that concession would limit the possibility of making use of that flexibility on a ground which is not apparent from either the wording or the context of that provision and which, in those circumstances, cannot be regarded as reflecting the intention of the EU legislature.
60 It follows from the findings above that Article 43(1)(c) of Directive 2014/23 must be interpreted as meaning that, if the conditions laid down in that provision are satisfied, a concession may be modified without a new award procedure, including where that concession was initially awarded, without a competitive tendering procedure, to an in-house entity and the modification of the subject matter of that concession is carried out on a date on which the concessionaire no longer has the status of an in-house entity.
61 It is necessary, however, to examine whether, as submitted, in essence, by Fastned and the Commission, the application of Article 43(1)(c) of Directive 2014/23 is subject to the lawfulness, under EU law, of the initial award of the concession. The referring court observes, in that regard, that, under Paragraph 135(2) of the GWB, which transposes Article 2f(1) of Directive 89/665 into German law, the period for bringing an action against acts relating to the initial award has long since expired. It is therefore necessary to determine whether the Member States must allow the national courts to review, indirectly and when an application for such review is submitted, the lawfulness of the initial award of a concession in an action for annulment of a modification of that concession, where that action is brought by an operator demonstrating an interest in being awarded solely the part of that concession which is the subject of that modification, after the expiry of any period laid down for bringing a direct action for annulment of that initial award.
62 As is apparent from both recital 81 of Directive 2014/23 and the fourth subparagraph of Article 1(1) of Directive 89/665, it is the latter directive which lays down the rules with which Member States are required to comply in order to ensure that decisions taken by contracting authorities can be reviewed effectively.
63 It should be borne in mind, first, that Directive 89/665 is intended to ensure full respect for the right to an effective remedy and to have access to an independent and impartial tribunal, enshrined in the first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union, in the specific field of public procurement and concessions (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraph 128). In order to achieve that objective, Article 1(3) of that directive requires Member States to ensure that review procedures are available at least to any person who, irrespective of its formal status as a tenderer or candidate, has or has had an interest in obtaining a particular public contract or concession and has been or risks being harmed by an alleged infringement (see, to that effect, judgments of 11 January 2005, Stadt Halle and RPL Lochau, C‑26/03, EU:C:2005:5, paragraph 40, and of 14 May 2020, T-Systems Magyarország, C‑263/19, EU:C:2020:373, paragraph 50).
64 It follows that an economic operator’s right to bring an action, as guaranteed by Directive 89/665, requires it to show an interest in being awarded the concession at issue in the context of a new concession award procedure (judgment of 2 September 2021, Sisal and Others, C‑721/19 and C‑722/19, EU:C:2021:672, paragraph 59).
65 Furthermore, while it is true that Directive 89/665 does not prohibit Member States from providing remedies for persons other than those referred to in Article 1(3) of that directive, the fact remains that that directive does not impose such an obligation on those States, which is confirmed, as the Advocate General observed in point 86 and footnote 61 of his Opinion, by recital 122 of Directive 2014/24 (see, to that effect, judgment of 26 March 2020, Hungeod and Others, C‑496/18 and C‑497/18, EU:C:2020:240, paragraphs 74 and 80).
66 Moreover, the fourth subparagraph of Article 1(1) of Directive 89/665 provides for the establishment, in the Member States, of review procedures that are effective and, in particular, can be undertaken as rapidly as possible against decisions taken by contracting authorities in the field of public procurement or concessions which may have infringed EU law or national rules transposing that law.
67 In that regard, the setting of reasonable time limits for bringing proceedings, outside of which any actions will be time-barred, such as those laid down by national law in application of Article 2f of Directive 89/665, is intended to ensure, in the interests of legal certainty, that, after those time limits have expired, it is no longer possible to challenge a decision of the contracting authority or to raise an irregularity in the award procedure. The setting of those time limits is compatible with the fundamental right to effective judicial protection and, in principle, meets the requirement of effectiveness arising under Directive 89/665 (see, to that effect, judgments of 12 December 2002, Universale-Bau and Others, C‑470/99, EU:C:2002:746, paragraphs 76 and 79, and of 11 September 2014, Fastweb, C‑19/13, EU:C:2014:2194, paragraph 58).
68 In addition, it is apparent from the case-law that, even where national law makes provision for a monitoring authority to have available to it a review procedure allowing it to find, indirectly, infringements of public procurement legislation with the aim of imposing a financial penalty on the contracting parties concerned, the principle of legal certainty, which is binding, under EU law, on any national authority responsible for applying that law, precludes such a procedure from being initiated after the expiry of the time limits laid down by the national law applicable on the date of the acts alleged to be unlawful (see, to that effect, judgment of 26 March 2020, Hungeod and Others, C‑496/18 and C‑497/18, EU:C:2020:240, paragraphs 90 and 102).
69 It follows that neither Article 43(1)(c) of Directive 2014/23 nor Directive 89/665 requires the Member States to ensure that the national courts review, indirectly and on application, the lawfulness of the initial award of a concession in the context of an action for annulment of a modification of that concession, where that action is brought after the expiry of any time limit laid down by national law pursuant to Article 2f of Directive 89/665 for challenging that initial award by an operator showing an interest in being awarded solely the part of that concession which is the subject of that modification.
70 In its request for a preliminary ruling, the referring court states that, although the modification at issue in the main proceedings is ‘substantial’, within the meaning of the relevant legislation, the need for that modification was brought about by circumstances which the contracting authority was not in a position to foresee, since, inter alia, it could not anticipate, in any event as regards the concession contracts concluded between 1996 and 1998, that a need for additional works and services consisting of the construction, maintenance and operation of fast-charging infrastructure would arise or that a statutory obligation to establish such infrastructure would be established.
71 In that regard, it is apparent from recital 76 of Directive 2014/23 that, where contracting authorities are faced with unforeseeable external circumstances, they must have a certain degree of flexibility in order to be able to adapt the concession to those circumstances without a new award procedure.
72 However, the Court notes that, as is apparent from Article 43(1)(c) of Directive 2014/23, the possibility of modifying a concession without a new award procedure under that provision is subject to three distinct conditions. The first of those conditions, which is set out in Article 43(1)(c)(i) of that directive, contains two elements, the first of which relates to the materialisation of circumstances which a diligent contracting authority could not foresee and the second of which relates to the fact that those circumstances brought about a need to modify the concession concerned. The second condition, which is set out in Article 43(1)(c)(ii) of that directive, states that the modification concerned must not alter the overall nature of the concession contract at issue. The third of those conditions, which is set out in Article 43(1)(c)(iii) of that directive, dictates that, in principle, the increase in the value of that contract must not be higher than 50% of the value of the initial concession contract.
73 In that context, as regards the first of those conditions, contrary to the point of view that the referring court appears to take, the ‘need for’ a modification of a concession cannot be regarded as having been ‘brought about’ merely because its contractual terms do not cover the situation resulting from unforeseeable circumstances which have arisen.
74 As is apparent from the first two sentences of recital 76 of Directive 2014/23, the flexibility granted to contracting authorities by Article 43(1)(c) of that directive is intended to preserve the operation of the initial concession and therefore the proper performance of the obligations arising from it.
75 Consequently, 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.
76 Furthermore, as has been recalled in paragraph 72 of the present judgment, a modification of the subject matter of the initial concession due to unforeseeable circumstances cannot be justified, under Article 43(1)(c) of Directive 2014/23, where it changes the overall nature of that concession. As is apparent from recital 76 of that directive, that is the case, in particular, where the works to be executed or the services to be provided are replaced by something different or where the type of concession is fundamentally changed.
77 It follows that Article 43(1)(c) of Directive 2014/23 allows a modification extending the subject matter of the initial concession provided that, first, the materialisation of circumstances that were unforeseeable at the time of the award of that concession brings about a need for that modification in order to preserve the proper performance of the obligations arising from that concession and, second, the works or services covered by that extension, having regard to their scope or their specificities in relation to the works or services which were the subject of the same concession, do not entail a change in the overall nature of that concession.
78 It is for the referring court, in addition to ensuring compliance with the third condition to which reference is made in paragraph 72 of the present judgment, to determine whether the modification at issue in the main proceedings satisfies the criteria set out in the preceding paragraph of the present judgment.
79 If the referring court were to conclude that that modification does not satisfy all the conditions laid down in Article 43(1)(c) of Directive 2014/23, it would still have to examine whether that modification is capable of satisfying those set out in Article 43(1)(b) of that directive.
80 In that regard, that court should, inter alia, verify, in accordance with Article 43(1)(b)(i) and (ii) of Directive 2014/23, that the works or services covered by the modification at issue in the main proceedings could not, from an economic and technical point of view, and without causing significant inconvenience or duplication of costs for the contracting authority, be the subject of a separate concession awarded following a competitive tendering procedure.
81 The Court must add that it is true that, according to the information provided by the referring court, the first sentence of Paragraph 5(3) of the SchnellLG provides that the holder of a concession to operate a service facility ancillary to the German federal motorways, including a petrol station, must be given the possibility to assume the responsibility, on an economically independent basis, for installing, maintaining and operating the fast-charging points planned for the site concerned. However, that court also states that, according to that provision, the contracting authority’s obligation to propose an assumption of responsibility for the works and services relating thereto to that holder exists only in so far as Part 4 of the GWB, which transposes the provisions of Directive 2014/23 into German law, does not preclude it.
82 It follows from all the findings above that the answer to the question referred is that Article 43(1)(c) of Directive 2014/23 must be interpreted as meaning that: - if the conditions laid down in that provision are satisfied, a concession may be modified without a new award procedure, even where that concession was initially awarded, without a competitive tendering procedure, to an in-house entity and the modification of the subject matter of that concession is carried out on a date on which the concessionaire no longer has the status of an in-house entity; - it does not require the Member States to ensure that the national courts review, indirectly and on application, the lawfulness of the initial award of a concession in the context of an action for annulment of a modification of that concession, where that action is brought after the expiry of any time limit laid down by national law pursuant to Article 2f of Directive 89/665 for challenging that initial award by an operator showing an interest in being awarded solely the part of that concession which is the subject of that modification; - the ‘need for’ modification of a concession has been ‘brought about’, within the meaning of Article 43 of Directive 2014/23, if unforeseeable circumstances make it necessary to adapt the initial concession in order to ensure that the proper performance of the concession may continue.
83 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.