Court of Justice of the European Union (EuGH) on In-House Concessions: Amendments Permissible

By means ofJudgment of 29 April 2025, the Court of Justice of the European Union (EuGH) in Case C-452/23 (Fastned Deutschland GmbH & Co. KG against Die Autobahn GmbH des Bundes) has made fundamental statements on the public procurement law permissibility of amendments to existing concession contracts.

At the centre of the proceedings was the question of whether and under what conditions concessions originally awarded without a call for competition to so-called in-house facilities (so-called in-house concessions) may be subsequently modified if the concession holder later loses its in-house status.

1. In-House Concessions as the Background to the Proceedings

The claimant, Fastned Deutschland GmbH & Co. KG, a private provider of rapid charging infrastructure for electric vehicles, contested the contractual modification of existing operating concessions in the field of rest area use along German motorways. The affected in-house concessions had originally been awarded without a call for competition to subsidiaries of the Federal administration as part of an in-house transaction.

Over time, however, these companies lost their in-house status – in particular through changes in the ownership structure and increasing economic independence. Die Autobahn GmbH des Bundes subsequently amended the existing concession contracts for the in-house concessions to enable the construction and operation of rapid charging infrastructure by the previous concession holders without conducting a new public procurement procedure. Fastned argued that this violated the requirements of EU concession award law.

2. Key Findings of the Judgment

The Court of Justice of the European Union (EuGH) used the proceedings to clarify the requirements for amendments to existing concessions that are exempt from public procurement law and to interpret Art. 43 (1) (c) of Directive 2014/23/EU.

a) No Blocking Effect through Loss of In-House Status

The Court makes it clear that the loss of in-house status of a concession holder originally favoured without a public procurement procedure does not per se lead to the impermissibility of contract amendments. Rather, what is decisive is whether the requirements of Art. 43 (1) (c) of the Concession Directive are met. An amendment may therefore also be permissible if the contracting party is no longer classified as an in-house facility at the time of the contract modification.

b) Conditions for a Permissible Amendment under Art. 43 (1) (c) Directive 2014/23/EU

The Court of Justice of the European Union (EuGH) specifies the conditions under which a material amendment to a concession contract is lawful without the performance of a new public procurement procedure. The regulation requires:

• Unforeseeability: The necessity of the amendment must have been triggered by circumstances that the public authority could not have foreseen with careful preparation.
• Preservation of the Contract Nature: The amendment must not change the overall character of the concession. This means that the economic and functional basic structure of the contract must be preserved.
• Limited Financial Scope: The financial value of the amendment must not exceed the thresholds mentioned in Art. 43 (1) (c) (generally 50 % of the original concession value).

c) No Subsequent Review of the Original Award after Expiry of the Time Limit

Furthermore, the Court of Justice of the European Union (EuGH) makes clear that Member States are not required to permit national courts to conduct a subsequent review of the original (in-house) award if the time limits provided for legal remedies have already expired. The amendability of the contract is therefore to be assessed in legal isolation from the lawfulness of the original award – an important clarification for the legal certainty of public authorities.

3. Significance for Practice

The judgment has considerable implications for the practice of concession award and concession amendment. It makes clear that the amendment of existing concessions is possible under narrow, but practical conditions, even if the legal framework conditions – in particular the status of the concession holder – have changed in the meantime.

At the same time, the Court of Justice of the European Union (EuGH) strengthens the legal certainty of public authorities by rejecting a subsequent comprehensive review of earlier procurement decisions in the context of amendment disputes.

Recommendations for Procurement Authorities and Bidders on Dealing with In-House Concessions

For public authorities:

• Careful Examination of the Conditions for Amendment: Before making an amendment to existing concessions, a structured legal review pursuant to Art. 43 (1) Directive 2014/23/EU should be carried out – documented, traceable and, if necessary, externally reviewed.
• Transparency and Documentation: Clear documentation of the unforeseen circumstances and the effects on the overall character of the contract is essential.
• Publication of Amendments: Even if a new procedure is not required, it is advisable in the interest of transparency to publish a notice in accordance with Art. 51 of Directive 2014/23/EU (voluntary ex-ante transparency notice) in order to prevent legal uncertainty.

For interested businesses and bidders:

• Duty to Monitor: Market participants should carefully monitor amendments to existing concessions – in particular in the context of publicly announced amendments.
• Review Legal Remedies: If an amendment is made without notification and a potentially impermissible interference with competition exists, an objection or an application for review may be considered. Time is of the essence here: the relevant time limits for legal remedies commence with actual knowledge or gross negligent lack of knowledge.

For further questions or for legally secure assistance with amendments to in-house concessions and of course also for all other questions regarding concession law, the lawyers at AVANTCORE Rechtsanwälte with in-depth expertise in European Vergaberecht and concession law are at your service.