Opinion of Advocate General Campos Sánchez-Bordona delivered on 30 April 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:376
• Date: 30 April 2024
• Celex Number: 62022CC0683
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 30 April 2024 (1)

Case C‑683/22

Adusbef – Associazione difesa utenti servizi bancari e finanziari

v

Presidenza del Consiglio dei ministri,

Ministero dell’Economia e delle Finanze,

Ministero delle Infrastrutture e della Mobilità sostenibili,

DIPE – Dipartimento programmazione e coordinamento della politica economica,

Autorità di regolazione dei trasporti,

Corte dei Conti,

Avvocatura dello Stato,

interveners:

Mundys SpA, formerly Atlantia SpA,

Autostrade per l’Italia SpA,

Holding Reti Autostradali SpA

(Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy))

(Reference for a preliminary ruling – Motorway management concession – Serious failure to fulfil the obligations to maintain and preserve – Directive 2014/23/EU – Article 43 – Modification of the concession – Retention of the concession by the previous concessionaire – Evaluation of the need to organise a new tendering procedure – Reasons for the decision – Substantial nature of the modifications – Assessment of the reliability of the concessionaire as part of the process of modifying the concession – Article 44 – Termination of the concession – No call for tenders – Unreliability of the concessionaire)

1. On 14 August 2018, the Polcevera Viaduct, known as Ponte Morandi, on the A10 motorway in Genoa (Italy) collapsed. The motorway concessionaire at that time was Autostrade per l’Italia SpA (‘ASPI’).

2. The national authorities opened proceedings to determine whether ASPI was liable for a serious failure to fulfil its obligations to maintain and preserve the motorway network for which it is responsible.

3. Those proceedings culminated in an accordo transattivo (‘settlement agreement’) between ASPI and the Italian authorities, which was followed by the terzo atto aggiuntivo (‘the third supplementary agreement’), signed by the same parties and incorporated into the original concession agreement. In adopting those instruments, the authorities modified the provisions of the concession without opening a new tendering procedure.

4. A consumer association challenged those agreements, along with other related acts, before an Italian court, which has referred to the Court of Justice its doubts as to the interpretation of EU law relating to the modification (and possible termination) of concession contracts governed by Directive 2014/23/EU. (2)

I. Legal framework

A. European Union law: Directive 2014/23

5. Article 3 (‘Principle of equal treatment, non-discrimination and transparency’) provides:

‘1. Contracting authorities and contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

…

2. Contracting authorities and contracting entities shall aim at ensuring the transparency of the award procedure and of the performance of the contract …’

6. In accordance with Article 38 (‘Selection and qualitative assessment of candidates’):

‘…

7. Contracting authorities or contracting entities may exclude or may be required by Member State to exclude from participation in a concession award any economic operator if one of the following conditions is fulfilled:

…

(c) where the contracting authority can demonstrate by any appropriate means that the economic operator is guilty of a grave professional misconduct, which renders its integrity questionable;

…

(f) where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior concession or a prior contract with a contracting authority or with a contracting entity as defined in this Directive or in Directive 2014/25/EU [of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243)] which led to early termination of that prior contract, damages or other comparable sanctions;

…’

7. According to Article 43 (‘Modification of contracts during their term’):

‘1. Concessions may be modified without a new concession award procedure in accordance with this Directive in any of the following cases:

(a) where the modifications, irrespective of their monetary value, have been provided for in the initial concession documents in clear, precise and unequivocal review clauses, which may include value revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the concession;

…

(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 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:

(i) an unequivocal review clause or option in conformity with point (a);

(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; or

(iii) in the event that the contracting authority or contracting entity itself assumes the main concessionaire’s obligations towards its subcontractors where this possibility is provided for under national legislation;

(e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4.

Contracting authorities or contracting entities having modified a concession in the cases set out under points (b) and (c) of this paragraph shall publish a notice to that effect in the Official Journal of the European Union. Such notice shall contain the information set out in Annex XI and shall be published in accordance with Article 33.

2. Furthermore, and without any need to verify whether the conditions set out under points (a) to (d) of paragraph 4 are met, concessions may equally be modified without a new concession award procedure in accordance with this Directive being necessary where the value of the modification is below both of the following values:

(i) the threshold set out in Article 8; and

(ii) 10% of the value of the initial concession.

However, the modification may not alter the overall nature of the concession. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications.

…

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. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:

(a) the modification introduces conditions which, had they been part of the initial concession award procedure, would have allowed for the admission of applicants other than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the concession award procedure;

(b) the modification changes the economic balance of the concession in favour of the concessionaire in a manner which was not provided for in the initial concession;

(c) the modification extends the scope of the concession considerably;

(d) where a new concessionaire replaces the one to which the contracting authority or contracting entity had initially awarded the concession in other cases than those provided for under point (d) of paragraph 1.

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.’

8. Article 44 (‘Termination of concessions’) provides:

‘Member States shall ensure that contracting authorities and contracting entities have the possibility, under the conditions determined by the applicable national law, to terminate a concession during its term, where one or more of the following conditions is fulfilled:

(a) a modification of the concession has taken place, which would have required a new concession award procedure pursuant to Article 43;

(b) the concessionaire has been, at the time of concession award, in one of the situations referred to in Article 38(4) and should therefore have been excluded from the concession award procedure;

(c) the Court of Justice of the European Union finds, in a procedure pursuant to Article 258 TFEU, that a Member State has failed to fulfil its obligations under the Treaties by the fact that a contracting authority or contracting entity belonging to that Member State has awarded the concession in question without complying with its obligations under the Treaties and...