Charging ahead: ECJ facilitates amendments of long-term concessions to cover electric vehicle charging infrastructure
On 29 April 2025, the European Court of Justice delivered a landmark judgment that provides legal clarity for contracting authorities and concessionaires managing long-term infrastructure agreements. The Court confirmed that modifications of concession contracts under Article 43 of the Directive 2014/23/EU on the award of concession contracts, do not require a new award procedure, even if the original contract was awarded without a competitive tender to an in-house entity that has since been privatised.
Background of the Case
This ruling arose from a reference for a preliminary ruling by the German Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) in a dispute between Fastned Deutschland GmbH & Co. KG (Fastned) and Die Autobahn GmbH des Bundes, concerning the extension of existing concession contracts awarded to Autobahn Tank & Rast GmbH and Ostdeutsche Autobahntankstellen GmbH.
Between 1996 and 1998, the German federal government awarded several concession contracts by way of an in-house award to a then state-owned entity for the operation of fuel stations and service areas along the federal motorway network for a maximum period of 40 years. In 1998, the entity was privatised and eventually renamed Autobahn Tank & Rast GmbH and Ostdeutsche Autobahntankstellen GmbH, which today operate around 90 % of all motorway service areas in Germany.
Fast forward to 2022: Die Autobahn GmbH des Bundes, a private-law company, that is wholly owned by the Federal Republic of Germany, and that is now responsible for managing the federal motorway network, entered into a supplementary agreement with the two concessionaires. This agreement extends approximately 360 concession contracts to include the construction and operation of fast-charging electric vehicle infrastructure in service areas on federal motorways, without launching an award procedure. Die Autobahn GmbH des Bundes justified the absence of an award procedure by arguing that the provision of fast-charging infrastructure constitutes a complementary service, the need for which only materialised after the original concessions were awarded and thus could not have been foreseen at the time of contract conclusion. Fastned, which operates charging infrastructure for electric vehicles, filed for review, claiming the contract amendment is invalid due to the lack of EU-wide contract notice (originally jointly with Tesla Germany GmbH who later withdrew from the proceedings).
The background of this case is rooted in Article 43 of Directive 2014/23/EU, which permits modifications to existing concession contracts under specific circumstances. These include unforeseeable needs that could not have been anticipated by a diligent contracting authority, modifications that do not alter the overall nature of the concession, and the increase in the value of the contract must not be higher than 50% of the value of the initial concession contract.
The Court’s Judgement and key findings
The ECJ clarified that Article 43(1)(c) of Directive 2014/23/EU allows a concession to be modified without a new award procedure, even if the concession was initially awarded without a tender to an in-house entity and the modification takes place at a time when that entity no longer qualifies as in-house
Secondly, the ECJ reinforced the principle of legal certainty. The court dismissed Fastned’s position that national courts must assess the lawfulness of the original concession award under EU law before applying Article 43(1)(c) of Directive 2014/23. EU law does not require national courts to incidentally examine the legality of the initial concession award in the context of an action challenging the modification of a concession. Once the national time limits for challenging contracts before the competent review bodies have expired, the principle of legal certainty precludes any incidental review of the initial concession award.
In its judgment, the ECJ also addressed the notion of unforeseeable circumstances and offered further interpretative guidance on when the need to modify a concession can be considered the result of the materialisation of such circumstances. The Court held that such circumstances must necessitate the adaptation of the initial concession to ensure the proper performance of the obligations arising from it may continue.
Further proceedings
The referring court considered in its request for a preliminary ruling, that the modification was necessary due to circumstances the contracting authority could not have foreseen, as there was no way at the time of awarding the concession contracts between 1996 and 1998 to anticipate a future need for fast-charging infrastructure or a legal obligation to provide it. In deciding the national dispute, the referring court may base its decision on the need to adapt the original concessions so that the concessionaires can fulfil their contractual obligations under the initial concession contracts. Motorway service areas are intended to meet the needs of road users by enabling them to refuel and rest without leaving the motorway, thus ensuring travel readiness. As technology evolves, so too must the range of services offered, especially as electric charging stations have become essential to maintaining travel readiness on motorways. As things stand, it appears likely that the national court will confirm the lawfulness of extending existing concession contracts for motorway service areas to include fast-charging stations under public procurement rules, without requiring a new award procedure.
