Brussels – Un concession contract can be modified without launching a new public tender procedure, if the changes are not substantial. This was established by the advocate general of the EU Court of Justice, Campos Sanchez-Bordona, in his ruling on appeal by a consumer association against the settlement agreement between Aspi and the Ministry of Infrastructure and sustainable mobility following the collapse of the Morandi Bridge in Genoa.
The story
In October 2007, the company Autostrade per l’Italia SpA (ASPI) received a concession from the Azienda Nazionale Autonoma delle Strade, through a single agreement, for the management of Italian motorway sections extending over 2,800 kilometres. The deadline was set at the end of 2038.
Following the collapse of the Morandi Bridge (in concession to ASPI) on 14 August 2018, a tragic event which caused the death of 43 people, the Italian authorities had opened proceedings to ascertain the responsibility of ASPI for serious failure to comply with the maintenance and custody obligations of the motorway network. The proceeding concluded with the signing of a settlement agreement between ASPI and the Ministry of Sustainable Infrastructure and Mobility. On the basis of the agreement, the concession clauses were modified without launching a new tender procedure.
A consumer association, Adusbefchallenged the agreement and other related documents before the TAR of Lazio, requesting their annulment.
The Lazio TAR submitted its doubts on the interpretation of the Directive on the awarding of concession contracts to the Court of Justice. The court had to clarify whether or not the interpretation of national legislation in the sense that the granting Administration can initiate a procedure for the subjective and objective modification of a valid motorway concession, or its renegotiation, is in conflict with Union law. , without evaluating and expressing an opinion on the obligation to hold a public tender procedure, and without evaluating the reliability of a concessionaire who has committed a serious breach.
In his conclusions, the Advocate General Campos Sanchez-Bordona held that, pursuant to the directive, a concession contract can be modified without calling for a new public tender procedure, qif the changes made to its clauses are not substantiala circumstance which it is up to the referring judge to verify.
In particular, for the European judiciary, the contracting authorities must establish whether it is necessary to launch a new public tender procedure, after having assessed whether the changes to the clauses are substantial or not. In this case the changes concern, for example, an internal corporate restructuring and the commitments undertaken by ASPI to ensure an increase in safety standards.
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