Judgment of 9 January 2025: clarification of the conditions for the use of the negotiated procedure without prior publication and attention to the role of the contracting authority (case C-578/23)
In a judgment of 9 January 2025, the Court ruled on the conditions that must be met in order to use the negotiated procedure without prior publication.
The negotiated procedure without prior publication allows for the flexible award of a public contract, without the need for prior publication. The contracting authority invites one or more companies with the invitation to submit an offer. The use of this procedure thus implies a restriction of competition, which explains why it may be used only in exceptional cases.
One of these exceptional situations occurs when:
- there are technical or artistic reasons, or the requirement to protect intellectual property rights, linked to the subject-matter of the contract; and
- Those reasons justify that it is absolutely necessary to award the contract to a particular economic operator.
In its judgment of 9 January 2025, the Court confirms that these conditions must be interpreted strictly. More specifically, the Court ruled that the existence of the technical or artistic reasons, invoked by the contracting authority, may not be attributable to that contracting authority.
In other words, a contracting authority may not itself give rise to these technical reasons in order to invoke them later in favour of an incumbent contractor. Moreover, the Court adds that the perpetuation of a state of exclusivity may not be due to the actions or inactions of the contracting authority.
A contracting authority must, the Court states, “do everything that can reasonably be expected of it to avoid the use of [the negotiated procedure without prior publication] and thus use a procedure that is more open to competition.”
The Court concludes that a contracting authority that wishes to use the negotiated procedure without prior publication will henceforth have to demonstrate that the existence of the technical reasons on which it relies cannot be attributed to it.
In doing so, the Court tightens up the implicit examination of alternatives that a contracting authority must conduct before a negotiated procedure is awarded without prior publication for technical reasons and makes contracting authorities jointly responsible for avoiding such exclusive rights.
Judgment of 13 March 2025: access to public procurement for companies from third countries that have not concluded an agreement with the EU (Case C-266/22)
The European rules on public procurement grant companies from EU Member States the right to equal access to public contracts in other Member States. In addition, these companies enjoy the right to equal treatment in these public procurement procedures.
On the basis of an international agreement between the EU and certain third countries, companies from these third countries can enjoy the same right of access to public procurement and equal treatment.
The Court of Justice was asked to what extent companies from third countries, which have not concluded such an agreement with the EU, can enforce the same equal right of access and equal treatment.
In a judgment of 13 March 2025, the Court confirmed that such an equal right of access does not exist: if the European Union does not provide for any right of access to or equal treatment in public contracts for economic operators from a third country, it is up to the contracting authority itself to decide whether these companies are admitted to the procurement procedure.
The Court confirms that companies from third countries, which do not have an agreement with the EU, enjoy less legal protection in public procurement than companies from EU Member States or from third countries that have concluded an agreement with the Union on this matter.
In another recent judgment of 22 October 2024, the Court ruled in the same way. In this case, the Court had to answer the question of whether a company from Turkey (a third country that has not concluded an international agreement with the EU) enjoys the same legal protection as companies from EU Member States or from third countries that have concluded an agreement with the EU. The Court concluded on similar grounds that this is not the case.
Third-country companies that have not concluded an agreement with the EU on the right of access to public procurement within the EU therefore enjoy a more limited legal protection. They are subject to the discretion of the contracting authority, which itself decides whether or not to admit the undertakings to the procurement procedure.
Judgment of 20 March 2025: substantial modification of an ongoing concession on the basis of national legislation (Joined Cases C-728/22 to C-730/22)
In public contracts and concessions for works or services, in principle, a contract, once concluded, may not change substantially without prior publication of a new contract.
In a judgment of 20 March 2025, the Court ruled on national legislation that substantially amends the terms of ongoing concession contracts, and more specifically the possibility of such changes under EU law.
More specifically, it concerned national legislation aimed at amending service concessions for the operation of bingo games in Italy. For example, the legislation provided for an extension of the duration of the licences, whereby the operator – in exchange – would have to pay a higher annual fee, would not be allowed to relocate its operations and would have to accept that change on pain of exclusion from future contracts. The Court of Justice ruled that such a substantial change cannot be legal under EU law and the possibilities for modifying current concessions as provided for in Article 43 of Directive 2014/23/EU.
Accordingly, the Court reaffirms the basic principle that current concessions may not be amended without this amendment having been preceded by a new award procedure. Variations that meet the conditions for exemption laid down in Article 43 of Directive 2014/23/EU are permitted without a new prior award procedure.
