EU Court Clarifies Limitations On Modifications To Ongoing Concessions

The Court of Justice of the European Union (CJEU) recently addressed key legal questions in the joint cases Anib and Play Game (C-728/22), concerning Italian legislation extending the duration of bingo gaming concessions. The case centered on whether national legislation could unilaterally modify concession terms, particularly duration, without breaching EU law. The CJEU rules that the extension of such concessions, which were subject to the Concessions Directive, were substantial modifications. This ruling sets the limits of legislative intervention in concession contracts and the scope of permissible modifications under Article 43 of the Directive.

In its joint ruling in Anib and Play Game (C-728/22) on 20 March 2025, the CJEU addressed a challenge brought by several bingo concessionaires against Italian legislation that extended the duration of their concessions. The extension came with added conditions: a monthly fee (which was later increased), a ban on transferring premises, and a requirement to accept the extension in order to participate in future concession award procedures.

The Italian legislator argued that these measures were necessary to gradually align the start dates of all bingo concessions, aiming to launch future award procedures simultaneously once all existing concessions had expired.

The CJEU considered the bingo concessions as services concessions subject to the Concessions Directive (Directive 2014/23) rather than mere authorisations or operating licences.

A key issue before the Court was whether Article 43 of the Concession Directive permits Member States to unilaterally extend the duration of concessions through legislation.

Even unilateral legislative modifications must comply with the Concessions Directive

The Court began by highlighting that Article 43 of the Concessions Directive provides for exhaustive harmonisation and therefore entirely sets out when concessions can be modified without triggering a new award procedure, and when a new procedure is required.

Importantly, the Court clarified that Article 43 of the Concession Directive does not only limit modifications agreed upon through negotiations between the concessionaire and the contracting authority. Instead, it also applies to changes imposed unilaterally by legislation. In the Court's view, this interpretation is supported by the clear wording of the provision, even though Recital 75 of the Concession Directive states that a substantial modification of the concession attests to the parties' intention to renegotiate the essential terms of that concession.

A modification of the duration of a concession during its term is a substantial modification

Article 43 of the Concessions Directive outlines six specific situations where a concession can be modified during its term without triggering a new award procedure. Outside of these cases, a fresh tender is required. Among the permitted changes are:

1. Non-substantial modifications, i.e. modification that do not make the amended concession materially different
2. Modifications under the "de minimis" rule, meaning changes whose value stays below both:
   1. EUR 5 538 000; and,
   2. 10 % of the value of the initial concession.

The Court found that an extension of the duration of a concession after it has been awarded affects an essential element of the contract. If a (potential) extension had been announced from the start, it could have attracted more bidders interested in obtaining the concessions. As such, extending the duration of the concessions qualifies as a substantial modification.

Because of this, the Court ruled out the possibility of treating the extension as a non-substantial modification. In the Court's view, the only remaining option was the de minimis rule. Although it concluded that the extension was unlikely to be permissible on this ground (which is for the national court to verify), it provided useful guidance on how to determine the maximum permissible extension under the de minimis rule.

Conclusion

The CJEU's conclusion that extending a concession amounts to a substantial contract modification is hardly surprising. Extending the duration of a concession typically allows the concessionaire more time to recover investments and generate revenue. However, a change that alters the economic balance in favor of the concessionaire when it was unforeseen at the outset or that would have attracted more bidders in the tendering procedure is a substantial contract modification. Unless such modifications are justified under specific grounds outlined in the Concessions Directive, they are not permitted.

While case law on contract modifications under the Public Procurement Directives remains limited, this judgment provides valuable clarity. The CJEU confirms that all modifications, including those imposed unilaterally through legislation, must meet the conditions set out in the Directives.

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