Official Journal of the European Union

C series

—

C/2025/3241

24.6.2025

(Case C-452/23,

Fastned Deutschland)

(Reference for a preliminary ruling - Concessions - Concessions awarded to an in-house entity - Directive 2014/23/EU - Article 43(1)(c) - Modification of the concession on a date on which the concessionaire no longer has the status of an in-house entity - Modification ‘the need’ for which was ‘brought about’ by unforeseeable circumstances - Directive 89/665/EEC - Indirect review of the initial award of a concession)

(C/2025/3241)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Fastned Deutschland GmbH & Co. KG

Defendant: Die Autobahn GmbH des Bundes

Interveners: Autobahn Tank & Rast GmbH, Ostdeutsche Autobahntankstellen GmbH

Operative part of the judgment

Article 43(1)(c) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts

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 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, as amended by Directive 2014/23, 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.

—

OJ C C/2023/122.

—

ELI: http://data.europa.eu/eli/C/2025/3241/oj

ISSN 1977-091X (electronic edition)

—