Opinion of Advocate General Campos Sánchez-Bordona delivered on 18 December 2025.#Strominator Elektro GmbH v Bundesimmobiliengesellschaft mbH.#Request for a preliminary ruling from the Bundesverwaltungsgericht.#Reference for a preliminary ruling – Award of public works, public supply and public service contracts – Principles of equal treatment and transparency – Directive 2014/24/EU – Article 72 – Modification of contracts during their term – Concept of ‘contracts during their term’ – Receipt of the works carried out – Submission of the final invoice – No payment made by the contracting authority.#Case C-820/24.

1.

The referring court requests the interpretation of Article 72(5) of Directive 2014/24/EU ( 2 ) to clarify, in the dispute before it, whether the contracting authority modified the terms of a works contract.

2.

In particular, the referring court asks whether a change to the contract during its term ( 3 ) constitutes a modification of the terms of the contract when: (a) the agreed performance period has expired; (b) the contractor has provided the services entrusted to it; and (c) the contracting authority has received the final invoice but has not yet paid it.

3.

Article 72 (‘Modification of contracts during their term’) states that:

‘1.   Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:

Contracting authorities having modified a contract in the cases set out under points (b) and (c) of this paragraph shall publish a notice to that effect in the Official Journal of the European Union. Such notice shall contain the information set out in Annex V part G and shall be published in accordance with Article 51.

2.   Furthermore, and without any need to verify whether the conditions set out under points (a) to (d) of paragraph 4 are met, contracts may equally be modified without a new procurement procedure in accordance with this Directive being necessary where the value of the modification is below both of the following values:

However, the modification may not alter the overall nature of the contract or framework agreement. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications.

3.   For the purpose of the calculation of the price mentioned in paragraph 2 and points (b) and (c) of paragraph 1, the updated price shall be the reference value when the contract includes an indexation clause.

4.   A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of point (e) of paragraph 1, where it renders the contract or the framework agreement materially different in character from the one initially concluded. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:

5.   A new procurement procedure in accordance with this Directive shall be required for other modifications of the provisions of a public contract or a framework agreement during its term than those provided for under paragraphs 1 and 2.’

4.

According to Article 2 (‘Definitions’):

‘For the purposes of this Directive, the following definitions shall apply:

…’

5.

According to Article 4 (‘Transactions between undertakings and public authorities’):

‘1.   Member States shall ensure that, in commercial transactions where the debtor is a public authority, the creditor is entitled upon expiry of the period defined in paragraphs 3, 4 or 6 to statutory interest for late payment, without the necessity of a reminder, where the following conditions are satisfied:

…

3.   Member States shall ensure that in commercial transactions where the debtor is a public authority:

…’

6.

Paragraph 365 reads:

‘1.   Substantial modifications to contracts and framework agreements during their term are permissible only after a new procurement procedure has been conducted. …

…

3.   The following changes to contracts and framework agreements shall be regarded as non-substantial modifications:

…’

7.

The description of the facts and the proceedings, as set out in the order for reference, is subdivided into several paragraphs, to which I will adhere.

8.

The city of Salzburg (Austria) has a school campus made up of different interconnected parts, comprising several educational establishments, including the Handelsakademie I (Academy of Commerce I) and the Handelsakademie II (Academy of Commerce II).

9.

Academy of Commerce I is in a block with several floors (Block I), situated in the southern part of the campus, and Academy of Commerce II is in a block with several floors (Block II) situated in the eastern part. The blocks are connected to each other on several floors.

10.

The Bundesimmobiliengesellschaft mbH (‘BIG’) is a contracting authority within the meaning of the BVergG 2018 and therefore of Directive 2014/24. It carries out refurbishment work on the campus, which it leases, as a whole, to the Republic of Austria.

11.

In 2022, BIG commenced an open tendering procedure for electrical fitting work (works contract; code CPV 45311200) mainly for Block II. The contract notice was published in Austria on 25 May 2022. An EU-wide contract notice was not necessary in view of the estimated value of the contract.

12.

The procurement procedure was designated ‘5020 Salzburg, Johann-Brunauer-Straße 2-4, HAK II + 966991, Electrical refurbishment, electrical works’.

13.

The contract notice indicated that the performance period was 11 July 2022 to 31 August 2023.

14.

On 3 August 2022, the contract was awarded to Fiegl & Spielberger GmbH and the works contract was concluded. The contract value was EUR 675 107.03, and it had been agreed that the performance period for the services would be from 3 August 2022 to 31 August 2023.

15.

However, on 11 July 2022 (less than one month before the contract was concluded) a fire broke out in Block I, causing considerable damage.

16.

Only at a later stage, during the 2022/23 academic year, did it become apparent that, as a result of the fire damage, the spatial and functional design of the college campus needed to be revised in order to continue educational activities. For this reason, the works that Fiegl & Spielberger was contracted to perform were not executed in the way initially planned in the contract:

17.

Due to the cancellation of that part of the contract of 3 August 2022, Fiegl & Spielberger claimed compensation from BIG for the harm suffered.

18.

On 7 September 2023, Fiegl & Spielberger reached an agreement with BIG to withdraw that claim and, in return, execute part of the uncompleted and cancelled works in 2024, but this time in Block I.

19.

On 13 December 2023, Fiegl & Spielberger submitted a bid for the works to be done, calculated on the basis of the initial bid for the 2022 tender.

20.

On 15 December 2023, Fiegl & Spielberger sent the final invoice for the works carried out on the second and third floors of Block II, corresponding to the initial contract.

21.

On 22 December 2023, BIG formally awarded Fiegl & Spielberger the contract for the ‘functional refurbishment of the lighting system’ and for ‘lighting’ in Block I, with performance periods running from 15 January 2024 to 30 September 2024, with a total contract value of EUR 264 355.80.

22.

Following the fire in Block I, BIG had to initiate a project to repair the fire damage and for the functional refurbishment of Block I.

23.

As part of that project, BIG initiated an open tendering procedure to carry out electrical fitting work in Block I. The notice was designated ‘5020 Salzburg, Johann-Brunauer-Str. 2-4, HAK I 977598 E 009159 Fire damage (liability) electrical works’. The contract value amounted to EUR 832 551.55.

24.

On 6 December 2023, BIG awarded that contract to Strominator Elektro GmbH.

25.

On 9 July 2024, Strominator Elektro applied to the referring court for a declaratory judgment that ‘launching a procurement procedure without a prior contract notice, with a view to hiring [Fiegl & Spielberger] for supplying and fitting the lighting for the ‘HAK I Salzburg’ project was unlawful, in so far as it infringed the [BVergG 2018], the decrees adopted to implement it, or the directly applicable EU law’.

26.

According to Strominator Elektro, it was unlawful to award the contract for the electrical works in Block I in December 2023 without a public procurement procedure with prior publication. In its view, this infringed its right to a procurement procedure according to the provisions of the BVergG 2018. Strominator Elektro relied on the right to refrain from unlawfully awarding contracts by the contracting authority, the right to participate in a public procurement procedure, the right to equal treatment of tenderers and fair competition, and the right to a transparent procurement procedure in accordance with national and EU legislation.

27.

For its part, BIG, contended, in essence, that the award of the contract to Fiegl & Spielberger in December 2023 constituted a lawful modification to the public contract awarded in August 2022, as part of an open procedure.

28.

The national court is therefore referring several questions to the Court of Justice for a preliminary ruling. I am only including the first of those questions, which states as follows:

‘Is Article 72(5) of Directive [2014/24] to be interpreted as meaning that [the] modification of a public contract after the end of the agreed performance period, the provision of non-cancelled services and the submission of the final invoice by the contractor[,] but before the payment of the remuneration by the contracting authority[,] is to be classed as modification of a public contract “during its term”?’

29.

The request for a preliminary ruling was registered at the Court of Justice on 29 November 2024.

30.

Written submissions have been lodged by BIG, the Czech, French and Austrian Governments, and the European Commission.

31.

BIG, the French and Austrian Governments and the Commission attended the hearing on 15 October 2025.

32.

At the direction of the Court, this Opinion will deal solely with the first question.

33.

The facts set out above show that there are three contracts (subject to the second being accepted as a mere modification of the first) that need to be differentiated from each other:

34.

Out of those three (or two, according to BIG) contracts, only the one dated 22 December 2023 is the subject of the dispute, as Strominator Elektro considers that it was unlawful to award that contract to Fiegl & Spielberger.

35.

In terms of its amount (EUR 264 355.80), that contract does not fall under the scope of application of Directive 2014/24, which would, in principle, determine the inadmissibility of the request for a preliminary ruling. ( 6 )

36.

Nevertheless, the Court accepts that it does have jurisdiction to respond to requests for preliminary rulings relating to public contracts that do not reach the minimum threshold required, where the applicable national law seeks to adopt, directly and unconditionally, the corresponding provision of Directive 2014/24 ( 7 ).

37.

That is the situation in the present case. When setting out the national law, the referring court states that the BVergG 2018 transposed, among others, Directive 2014/24, and that Paragraph 365 thereof transposes Article 72 of that directive in full. It adds that it must apply Paragraph 365 of the BVergG 2018 in the same way as if the value of the contract exceeded the relevant threshold specified by Directive 2014/24. ( 8 )

38.

The referring courts requests an interpretation of Article 72(5) of Directive 2014/24 to determine whether a public contract is still in force (ongoing) once the agreed performance period has expired, the agreed services have been provided ( 9 ) and the contractor has sent the final invoice, but the contracting body has not yet paid it.

39.

As the French Government rightly observes, ( 10 ) it is relevant to extend the analysis to Article 72 of Directive 2014/24 as a whole. While it is true that paragraph 5 of that article refers to the term of the contract, it does so in close connection with paragraphs 1 and 2 thereof.

40.

That connection highlights the fact that there are limited circumstances under which the EU legislature allows a contract to be modified without it being necessary to launch a new procurement procedure. Paragraph 5 of Article 72 of Directive 2014/24 expresses in other words what paragraphs 1 and 2 of that article state. ( 11 )

41.

The heading of Article 72 itself (‘Modification of contracts during their term’) limits the applicability of the whole provision to the term of the contract.

42.

According to the court a quo, there are two ways of understanding when a contract expires.

43.

On the one hand, according to the national court, it could be argued that the term of the contract refers to the performance of the services by both parties to the contract. According to this theory:

44.

On the other hand, the referring court adds, various passages of Directive 2014/24 could give rise to the understanding that the term of the contract refers only to the service provided by the contractor:

45.

The governments that have intervened in the proceedings argue that the contract is still in effect until the mutual obligations of both parties have been discharged. ( 14 ) Therefore, that would mean that in this case a modification to the contract of 3 August 2022 had taken place. The Commission disagrees with that approach.

46.

The answer to this two-fold question raised by the referring court may be given either from an abstract perspective, which would disregard the specific circumstances of the case, or in the light of those circumstances.

47.

According to settled case-law, in the context of Article 267 TFEU, it is not for the Court of Justice to give advisory opinions on general or hypothetical questions. On the contrary, its role is to provide the referring court with the interpretation of EU law required to settle a dispute. ( 15 )

48.

From the abstract perspective I just referred to, and in very broad terms, a contract could be deemed to be in effect until both parties have fulfilled the services required of them, as agreed therein. ( 16 )

49.

However, that abstract response ( 17 ) would be no more than a general consideration, unrelated to the specific characteristics of the dispute. As such, it would be of little use to the referring court, which wishes to know whether a modification takes place during the term of a works contract in a particular situation, which is based on three unique circumstances: (a) the agreed performance period has expired; (b) the contractor has provided the services it was responsible for and sent the final invoice; and (c) the contracting authority has not yet paid the remuneration agreed in the contract.

50.

In the situation described by the referring court, to which the Court of Justice must limit itself, the decisive factor is the point at which the obligations of each party are to be understood to have been discharged.

51.

In a works contract, a separate analysis of both the mutual obligations of the contractor and the contracting authority shows that: (a) with regard to the contractor, the performance of the service must logically be followed by delivering or offering the product of its work to the contracting authority; and (b) with regard to the contracting authority, its obligation is associated with the payment of the price.

52.

In the dispute before the court a quo the debate focused on the modification of the contractor’s services. The possibility was not raised of modifying the contracting authority’s payment terms following receipt of the works that had already been completed.

53.

The BIG did not refuse to pay the price that it owed, which had already been reduced to a third of the price initially planned, in line with the reduction in the electrical installation works for Block II, agreed in May 2023. ( 18 )

54.

There will be a point of convergence between the performance of the obligations of both parties if the contracting authority verifies, following a receipt, acceptance or checking procedure, that the contractor has discharged its obligations in accordance with the terms of the contract.

55.

The acceptance by the contracting authority that the other party has duly executed the works that it had undertaken to perform determines that the contractor’s provision of services is complete and gives rise, eo ipso, to the obligation to make payment.

56.

That acceptance takes place, in general, via the act of receipt of the works ( 19 ) by the contracting authority. That is a crucial stage in the dynamics of that type of contract, as it marks the point at which the contracting authority establishes that the works are in a good order and that they conform to the agreed specifications.

57.

For the relevant purposes, I agree that a contract has reached the end of its term when both parties agree that the party obliged to execute the works has performed them to the full satisfaction of the contracting authority, both physically and in terms of time scale. ( 20 ) That being the case, all that remains is for the latter to make payment. Following receipt of the duly executed works, the contracting authority cannot then make modifications to the contract.

58.

The nature of a modification to a contract is that a change in the terms of the contract, in so far as it is a demonstration of the pre-eminent position of the contracting authority, is adopted by it before the contractor has performed the agreed service in full and the contracting authority has received the completed works to its full satisfaction.

59.

Otherwise, as the Commission rightly notes, ( 21 )‘if it were possible to modify contracts until payment has been made in full, the contracting authority would have an artificial means of modifying the contract, even after the contractor has fulfilled its obligations’.

60.

In my opinion, reading the contractual modifications that paragraphs 1 and 2 of Article 72 of Directive 2014/24 allow without it being necessary to launch a new procurement procedure, supports that view.

61.

Indeed, once the contracting authority has received the works executed to its full satisfaction, there would be no sense in making an a posteriori modification to the terms of the contract that is only valid in the circumstances laid down in the successive lettered paragraphs of Article 72(1) and (2) of Directive 2014/24. All of these circumstances have been devised in relation to points prior to the receipt of the works by the contracting authority. Once the works have been received (and, where applicable, paid for within the required time scales referred to in Directive 2011/7), there is nothing remaining to change in the contract.

62.

During the hearing, the French Government pointed out the viability of contractual modifications in response to events arising subsequent to the receipt of the works under two sets of possible circumstances: if defects appear and if unforeseen circumstances arise. ( 22 ) Its argument is understandable, in so far as it is about preventing a very restricted concept of the notion of ‘contractual modification’ from giving rise to consequences that have a negative impact on the public interest.

63.

However, as the Commission rightly pointed out, in order to avoid those negative consequences, works contracts usually include clauses regulating guarantee periods and the contractor’s liability for defects in the works. There is therefore no need to modify a contract the performance of which has been completed, as:

64.

In my view, the ‘modification’ made by BIG, to which the question referred by the referring court relates, was in reality the award of a new contract (dated 22 December 2023) that was separate from the initial contract (dated 3 August 2022).

65.

The new contract concerned a block that was not the one which was the subject of the initial contract: the new contract concerned the Handelsakademie I (Academy of Commerce I), while the initial contract concerned the Handelsakademie II (Academy of Commerce II).

66.

It seems to me that the decision made by BIG was led more by practical than strictly legal considerations. ( 26 ) In reality, everything appears to point to it having been adopted as a result of a transaction ( 27 ) under which, in exchange for Fiegl & Spielberger withdrawing its action for compensation (based on BIG having reduced the services in the initial contract), BIG ‘compensated’ it by awarding it a new contract, which was presented as a modification to the initial contract.

67.

In fact, BIG’s representative admitted at the hearing that the new contract (described as a modification) dated 22 December 2023 awarded to Fiegl & Spielberger that is the subject of the dispute was intended to neutralise the claim for compensation brought by that company.

68.

BIG insisted, however, that the ‘modification’ had a causal link to the fire, although it could not satisfactorily explain why, that being the case, the repair of the fire damage gave rise to another contract (dated 6 December 2023), awarded to Strominator Elektro. ( 28 )

69.

When Fiegl & Spielberger was awarded the contract for the further works on Block I of the college campus, that company had already issued the final invoice for the works done in Block II, fulfilling the first contract, as determined by BIG (that is, after reducing the works that needed to be done in Block II).

70.

As I have already stated, the referring court starts from the premiss that Fiegl & Spielberger had provided the services for which they were responsible (that had not been cancelled by the contracting authority) within the agreed performance period and had issued the final invoice.

71.

A relevant fact that cannot be ascertained with certainty from the referring decision is that during the hearing there was some debate about the receipt of the works that were the subject of the contract entered into on 3 August 2022 between BIG and Fiegl & Spielberger:

72.

As a matter of fact, it will be for the referring court to determine the precise moment at which the works were received. From that moment onwards, it must be understood not only that the contractor has performed the agreed service in full, to the complete satisfaction of the contracting authority, but also that it only remains for the latter to proceed to the payment for the works, without the possibility of modifying the contract.

73.

Thus, as an interim conclusion, I agree that, in the circumstances described by the referring court, it was not possible to modify the initial contract (of 3 August 2022), but rather to award a new works contract.

74.

The Austrian Government argues that the contract is valid until the contracting authority has paid the price, which means that it can be modified in accordance with Article 72 of Directive 2014/24.

75.

However, it adds, that it must be born in mind that Article 4 of Directive 2011/7 imposes strict requirements on the contracting authority in relation to payment periods, following receipt of an invoice. The contracting authority would not, therefore, have ‘the option of extending the application of Article 72 of Directive 2014/24, for example, by paying late’. ( 30 )

76.

Directive 2011/7, which the French Government also referred to at the hearing, does not, in my view, support the Austrian Government’s argument regarding the admissibility of the contractual modification.

77.

Article 1(2) of Directive 2011/7 applies to payments made as remuneration for ‘commercial transactions’. ( 31 ) The latter concept, in turn, includes contracts to which one of the parties is a public authority within the meaning of Article 2(2) of Directive 2011/7, which establishes a direct link with Directive 2014/24. ( 32 )

78.

Article 4 of Directive 2011/7 provides for the possibility that the debtor in commercial transactions is a public authority. In such cases, Member States must ensure that ‘the period for payment does not exceed any of the … time limits’ that it subsequently lists.

79.

The periods for payment that the contracting authorities must comply with include the following:

80.

Both sub-points of Article 4(3)(a) of Directive 2011/7 emphasise the importance of the date of acceptance of the works and, where applicable, verification of their conformity with the contractual conditions, as the relevant date for avoiding late payment.

81.

Directive 2011/7 therefore only has an indirect effect on the subject of the dispute in this reference for a preliminary ruling (the existence of a contractual modification). In fact, unless I am mistaken, the original court does not refer to it in any passage of the referring decision.

82.

In any case, the possible impact of the provisions of Directive 2011/7 on this case would confirm the relevance of giving a negative response to the first question referred for a preliminary ruling.

83.

Indeed, the obligation to make payment without delay, within a period of 30 days (after receipt of the works or the culmination of the acceptance or verification procedure, if this is provided for by statute or in the contract), confirms that, for Directive 2011/7, that payment is due precisely because the contract has already come to an end.

84.

In other words, Directive 2011/7 supports the argument that the contracting authority has no discretion to modify the initial works contract once the contractor has performed the works as agreed, to the satisfaction of the contracting authority that receives them, and has sent the final invoice to that contracting authority.

85.

In the light of the above, I suggest that the Court’s answer to the Bundesverwaltungsgericht (Federal Administrative Court, Austria) should be as follows:

Article 72 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC

must be interpreted as meaning that it does not constitute a modification to a works contract during its term if a contracting authority awards a contract to the contractor for new works in another building that is separate from that provided for in the initial contract, provided that: (a) the performance period agreed in the initial contract has expired; (b) the contractor has performed the services for which it was responsible according to the initial contract, to the satisfaction of the contracting authority; and (c) it has sent the final invoice, but the contracting authority has not yet paid the price set out therein.