Summary of the facts
The case concerns the interpretation of Article 72 of Directive 2014/24/EU, which allows certain modifications of public contracts during their term without a new procurement procedure.
In 2022 an Austrian contracting authority awarded a contractor an electrical installation works contract for part of a school campus in Salzburg. Shortly before the contract was concluded, a fire occurred in another part of the campus, making it necessary to revise the spatial and functional design of the campus. As a result, the contracting authority cancelled some of the works initially entrusted to the contractor.
On 15 December 2023, the contractor submitted its final invoice for the works actually performed and not cancelled under the initial contract. On 22 December 2023, the contracting authority awarded the contractor a further contract for lighting works in another part of the campus, without publishing a new call for tenders.
Another contractor that had itself been awarded electrical works relating to the repair of the fire damage, challenged the legality of that direct award. The contracting authority argued that the further award was not a new contract but a lawful modification of the initial contract under Article 72 of Directive 2014/24/EU. The key issue was therefore whether the initial contract was still “ongoing” when the new works were awarded, even though the works under the initial contract had been fully performed, accepted, and finally invoiced, but not yet paid.
Findings of the Court
The Court held that a public contract is no longer “ongoing” for the purposes of Article 72 of Directive 2014/24/EU once three cumulative conditions are met: the contractor has fully performed the services or works due under the contract; the contracting authority has definitively accepted those works or services; and the contractor has issued the final invoice. The fact that the contracting authority has not yet paid the final invoice is irrelevant.
The Court’s reasoning is textual, contextual and purposive. Textually, Article 72 concerns modifications of contracts during performance. The notion of performance refers to the contractor’s obligations — the works, supplies or services to be delivered — not to the contracting authority’s separate obligation to pay the price.
Contextually, the Court linked that interpretation to several provisions of Directive 2014/24/EU, including Articles 2(1)(5), 58(4), 67(3) and 70, which use the idea of contract performance by reference to what the contractor must deliver. Payment by the contracting authority is not what keeps the procurement contract “in performance” for Article 72 purposes.
Purposively, Article 72 gives contracting authorities flexibility to deal with circumstances arising while the contract is being performed. Once the contractor’s works have been completed, definitively accepted and finally invoiced, there is no longer a need for that flexibility. Allowing the contracting authority to keep the contract artificially alive merely by delaying payment would
undermine transparency and equal treatment, because Article 72 is an exception to the normal obligation to conduct a competitive procedure and must therefore be interpreted strictly.
Critical analysis
The judgment is important because it draws a clear temporal boundary around the use of Article 72. A contracting authority cannot rely on an unpaid final invoice as a legal bridge to add further works to an old contract. Once performance has ended, acceptance has occurred and the final invoice has been issued, any additional works must normally be treated as a new procurement requirement, unless another legal basis for direct award exists.
The ruling is convincing. Article 72 is designed to address contingencies during contract performance, not to create a post-completion shortcut for additional awards. The Court’s approach also prevents a simple but problematic avoidance technique: a contracting authority could otherwise postpone payment and keep a completed contract “open” in order to award further works to the incumbent contractor without competition.
That said, the judgment may create practical pressure in construction and renovation projects, where the line between omitted works, additional works, remedial works and new works is often factually complex. The critical operational lesson is that contracting authorities should decide on any contract modifications before final acceptance and final invoicing, and should document the link between the modification and the ongoing performance of the original contract.