CJEU, 5th chamber, June 4, 2026, No C-820/24

1.This request for a preliminary ruling concerns the interpretation of 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 (OJ 2014 L 94, p. 65), as amended by Commission Delegated Regulation (EU) 2021/1952 of 10 November 2021 (OJ 2021 L 395, p. 23) (‘Directive 2014/24’).

2.The request has been made in proceedings between Strominator Elektro GmbH (‘Strominator’) and Bundesimmobiliengesellschaft mbH (‘BIG’) concerning a public works contract awarded to Fiegl & Spielberger GmbH (‘Fiegl’).

Legal context

European Union law

Directive 2014/24

3.Recital 107 of Directive 2014/24 is worded as follows:

‘It is necessary to clarify the conditions under which modifications to a contract during its performance require a new procurement procedure, taking into account the relevant case-law of the Court of Justice of the European Union. A new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. This is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure.

4.Article 2 of that directive, entitled ‘Definitions’, provides, in paragraph 1 thereof:

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

(5)“public contracts” means contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services;

(6)“public works contracts” means public contracts having as their object one of the following:

(a)the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex II;

(b)the execution, or both the design and execution, of a work;

(c)the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;

5.Under Article 4 of that directive, entitled ‘Threshold amounts’:

‘This Directive shall apply to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:

(a).EUR 5 382 000 for public works contracts;

6.Article 58 of Directive 2014/24, entitled ‘Selection criteria’, provides, in the first subparagraph of paragraph 4 thereof:

‘With regard to technical and professional ability, contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard.’

7.Article 67 of Directive 2014/24, entitled ‘Contract award criteria’, provides, in paragraph 3 thereof, as follows:

‘Award criteria shall be considered to be linked to the subject matter of the public contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle …

8.Article 70 of that directive, entitled ‘Conditions for performance of contracts’, provides:

‘Contracting authorities may lay down special conditions relating to the performance of a contract, provided that they are linked to the subject matter of the contract within the meaning of Article 67(3) and indicated in the call for competition or in the procurement documents. …’

9.Article 72 of Directive 2014/24, entitled ‘Modification of contracts during their term’, provides as follows:

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

(a).where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the contract or the framework agreement;

(b).for additional works, services or supplies by the original contractor that have become necessary and that were not included in the initial procurement where a change of contractor:

(i).cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and

(ii).would cause significant inconvenience or substantial duplication of costs for the contracting authority.

However, any increase in price shall not exceed 50% of the value of the original contract. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;

(c).where all of the following conditions are fulfilled:

(i).the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee;

(ii).the modification does not alter the overall nature of the contract;

(iii).any increase in price is not higher than 50% of the value of the original contract or framework agreement. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;

(d).where a new contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either:

(i).an unequivocal review clause or option in conformity with point (a);

(ii).universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; or

(iii).in the event that the contracting authority itself assumes the main contractor’s obligations towards its subcontractors where this possibility is provided for under national legislation pursuant to Article 71;

(e).where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4.

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:

(i).the thresholds set out in Article 4; and

(ii).10% of the initial contract value for service and supply contracts and below 15% of the initial contract value for works contracts.

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:

(a).the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;

(b).the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;

(c).the modification extends the scope of the contract or framework agreement considerably;

(d).where a new contractor replaces the one to which the contracting authority had initially awarded the contract in other cases than those provided for under point (d) of paragraph 1.

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.’

 Directive 2011/7/EU

10.Article 2 of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ 2011 L 48, p. 1) defines, in points 1 and 2 thereof, the concepts of ‘commercial transactions’ and ‘public authority’ for the purposes of that directive.

11.Under Article 4 of that directive:

‘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:

(a).the creditor has fulfilled its contractual and legal obligations; and

(b).the creditor has not received the amount due on time, unless the debtor is not responsible for the delay.

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

(a).the period for payment does not exceed any of the following time limits:

(i).30 calendar days following the date of receipt by the debtor of the invoice or an equivalent request for payment;

(iv).where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place, 30 calendar days after that date.

Austrian law

12.Paragraph 365 of the Bundesvergabegesetz 2018 (Federal Law of 2018 on the award of public contracts) of 20 August 2018 (BGBl. I, 65/2018) (‘the Bundesvergabegesetz 2018’), entitled ‘Modifications to contracts during their term’, states:

‘(1).Substantial modifications to contracts and framework agreements during their term are permissible only after a new procurement procedure has been conducted. A modification to a contract or framework agreement is to be regarded as substantial where it renders the contract or the framework agreement materially different in character from the one initially concluded.

(2).In any event, without prejudice to subparagraph 3, a modification shall be considered to be substantial where one of the following conditions is met:

1.the modification introduces conditions which, had they been part of the initial procurement procedure,

(a).would have allowed for the admission of other candidates than those initially selected or

(b).would have allowed for the acceptance of a tender other than that originally accepted; or

(c).would have attracted additional participants in the procurement procedure, or

2.the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement, or

3.the modification extends the scope of the contract or framework agreement considerably, or

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

1.Modifications to the amount of the contract, provided that their value is below the following values:

(a).the relevant thresholds referred to in Paragraph 12(1) or Paragraph 185(1), as applicable; and

(b).10% of the initial contract value for service and supply contracts and below 15% of the initial contract value for works contracts. 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.

2.Modifications which, irrespective of their value, have been provided for in the initial procurement documents in the form of clear, precise and unequivocal review clauses. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used; they shall not provide for modifications or options that would alter the overall nature of the contract or framework agreement.

4.Modifications which, irrespective of their value, are not substantial within the meaning of subparagraphs 1 and 2.

5.Additional services provided by the original contractor that have become necessary and that were not included in the initial procurement where a change of contractor

(a).cannot be made for economic or technical reasons, and

(b).would cause significant inconvenience or substantial duplication of costs for the contracting authority.

6.If the following conditions are satisfied:

(a).the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee, and

(b).the modification does not alter the overall nature of the contract.

In the case of contracts and framework agreements concluded following a procedure in accordance with Part Two of this Federal Law, the total value of the additional services, in the cases referred to in point 5 or 6, may not exceed 50% of the initial contract value. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Federal Law.

(5).For the purpose of calculating the amount of the contract referred to in points 1, 5 and 6 of subparagraph 3, or of its value, the updated amount or value shall be the reference value when the contract includes an indexation clause. For the purpose of calculating the updated amount or value of the contract, the average inflation rate in Austria shall be the reference value when the contract does not include an indexation clause.’

13.Under Paragraph 382 of the Bundesvergabegesetz 2018:

‘This Federal Law implements or takes account of the following legal acts of the [European] Union:

16.Directive 2014/24/EU …

The dispute in the main proceedings and the questions referred for a preliminary ruling

14.The city of Salzburg (Austria) has a school campus on which there is a building made up of different interconnected parts (‘the building’). That campus hosts several educational establishments including the Handelsakademie I (Academy of Commerce I) and the Handelsakademie II (Academy of Commerce II), which are situated in different parts of the building and are referred to, respectively, as Block I and Block II of the building in the order for reference.

15.In the context of various refurbishment measures on that campus, BIG, a contracting authority within the meaning of the Bundesvergabegesetz 2018, commenced an open tendering procedure for electrical fitting works, with the primary focus being Block II of the building. On 3 August 2022, at the end of that procedure, a contract for electrical fitting works with an estimated value of EUR 675 107.03 for Part II of the building was awarded to Fiegl (‘the initial contract’). It was agreed that the period of performance for the contracted services would be from 3 August 2022 to 31 August 2023.

16.However, on 11 July 2022, less than one month before that contract was concluded, a fire broke out in Block I, causing considerable damage. It was therefore necessary, on account of the damage caused by that fire, to review the spatial and functional design of the school campus during the school year 2022/2023. As a result of that revision, the services that Fiegl was contracted to perform were not executed in the way initially planned in that contract.

17.In particular, although electrical fitting works were carried out on the second and third floors of Block II of the building, in accordance with the initial contract, no electrical fitting works were carried out in the basement, on the ground floor, on the first floor or in the linking section of Blocks I and II of the building. In May 2023, those services were cancelled by BIG, which reduced the volume of that contract by two thirds of its value.

18.After those services were cancelled, Fiegl brought an action seeking compensation for the losses which it had allegedly incurred as a result of the reduction in the volume of the contract, which BIG refused to pay.

19.Following the completion, within the prescribed period, of the non-cancelled works in Block II of the building, BIG and Fiegl held discussions on 7 September 2023 and agreed that Fiegl would withdraw its claim for compensation and that, in exchange, part of the cancelled services which had not been performed would be carried out on Block I of the building in 2024.

20.Accordingly, on 13 December 2023, Fiegl submitted a tender for the aforementioned works to be carried out in Block I of the building.

21.On 15 December 2023, Fiegl submitted the final invoice for the services carried out which were not cancelled under the initial contract, namely those carried out on the second and third floors of Block II of the building.

22.On 22 December 2023, at the end of the tender referred to in paragraph 20 above, BIG awarded Fiegl a contract for two services entitled, respectively, ‘functional refurbishment/lighting system’ and ‘lighting’ in Block I of the building, with performance periods running from 15 January 2024 to 30 September 2024 (‘the new contract’). The contract value amounted to EUR 264 355.80.

23.Furthermore, for the purpose of repairing the damage caused by the fire of 11 July 2022 in Block I of the building, BIG issued a call for tenders for the performance of electrical fitting works. On 6 December 2023, at the end of that procurement procedure, the contract, the subject matter of which is distinct from that of the new contract, was awarded to Strominator.

24.On 9 July 2024, Strominator requested, by declaratory judgment from the Bundesverwaltungsgericht (Federal Administrative Court, Austria), which is the referring court, a declaration that the award of a new contract with the intention of contracting Fiegl to carry out the works referred to in paragraph 22 above, without publication of a call for tenders, was unlawful on account of an infringement of Austrian legislation or of EU law. That unlawfulness affected, inter alia, Strominator’s right to participate in a tendering procedure for those works.

25.In its defence, BIG contended, in essence, that the award of the contract to Fiegl constituted a lawful modification to the initial contract.

26.In the context of the proceedings brought before it, the referring court notes that the new contract was concluded at a time when the period of performance agreed under the initial contract had already expired, services agreed under that contract which had not been cancelled had been performed, and the final invoice had been submitted, but had not yet been paid by BIG.

27.The referring court states that the Bundesvergabegesetz 2018 applies to any award of public contracts irrespective of the value of such a contract, even if that value is estimated at one cent. Accordingly, Paragraph 365 of the Bundesvergabegesetz 2018, which transposes Article 72 of Directive 2014/24 into Austrian law, applies to the modification of any public contract during its term irrespective of whether the estimated value of the contract concerned exceeds the thresholds laid down in Article 4 of that directive.

28.That said, the referring court observes that Directive 2014/24 does not specify either the time at which a contract is no longer a contract ‘during its term’, within the meaning of Article 72 of that directive, or, consequently, the time until which modifications may be made to such a contract in accordance with that provision without a new procurement procedure taking place.

29.In order to determine whether the new contract could lawfully modify the initial contract, within the meaning of Article 72 of Directive 2014/24, without the need to follow a procurement procedure, it is necessary to define the period during which a public contract must be considered to constitute a contract ‘during its term’ within the meaning of Article 72(5) of that directive.

30.If it were to be held, in the first place, that, on the date on which the new contract was awarded to Fiegl, the initial contract was a contract ‘during its term’ within the meaning of Article 72 of Directive 2014/24, the question would arise, in the second place, as to whether an event such as a fire may be classified as a circumstance which a diligent contracting authority could not foresee within the meaning of paragraph 1(c)(i) of that article. Should that be the case, it would be necessary, in the third place, to examine the circumstances in which the ‘need’ for a public contract to be modified is considered to arise as a result of unforeseeable circumstances.

31.In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1).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”?

If the answer to Question 1 is in the affirmative:

(2).Is Article 72(1)(c)(i) of Directive [2014/24] to be interpreted as meaning that circumstances which a diligent contracting authority “could not foresee” also cover external circumstances which have arisen before the conclusion of the contract but whose repercussions on the public contract become apparent only after the contract has been concluded?

If the answers to Questions 1 and 2 are both in the affirmative:

(3).Is Article 72(1)(c)(i) of Directive [2014/24], read in conjunction with Article 72(1)(c)(ii) of that directive, to be interpreted as meaning that there is “a need” for modification of a public contract on account of circumstances which a diligent contracting authority could not foresee even if the modification is “appropriate” but not “strictly necessary”, so long as the modification does not change the overall nature of the contract?’

 The jurisdiction of the Court

32.According to settled case-law, it is for the Court itself, in order to confirm its own jurisdiction, to examine the conditions in which the case has been referred to it by the national court (judgment of 4 September 2025, AW ‘T’, C‑225/22, EU:C:2025:649, paragraph 29 and the case-law cited).

33.In that regard, it is apparent from the request for a preliminary ruling that the value of the new contract is below the threshold for the applicability of Directive 2014/24, set at EUR 5 382 000 by Article 4(a) thereof, in the case of public works contracts.

34.Nevertheless, as the referring court pointed out, according to settled case-law, where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt, directly and unconditionally, the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that provisions taken from that measure should be interpreted uniformly. That makes it possible to forestall future differences of interpretation and to ensure that those situations and situations falling within the scope of those provisions are treated in the same way (see judgments of 18 October 1990, Dzodzi, C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 36 and 37, and of 24 October 2024, Obshtina Pleven, C‑513/23, EU:C:2024:917, paragraph 27).

35.In the present case, as the referring court points out, Paragraph 365 of the Bundesvergabegesetz 2018 – which transposes into national law Article 72 of Directive 2014/24, the subject of the referring court’s questions – applies to all public contracts irrespective of their value.

36.In those circumstances, the value of the new contract does not preclude the Court from answering the questions referred for a preliminary ruling.

 Consideration of the questions referred

The first question

37.According to settled case-law, under the procedure established by Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (see judgments of 17 July 1997, Krüger, C‑334/95, EU:C:1997:378, paragraphs 22 and 23, and of 18 December 2025, Lukoil Bulgaria and Lukoil Neftohim Burgas, C‑245/24, EU:C:2025:987, paragraph 26).

38.In that regard, it should be noted, in the first place, that the referring court seeks an interpretation of Article 72(5) of Directive 2014/24 in order to determine whether a public contract must still be considered to constitute a contract ‘during its term’ after the period of performance of the works provided for by that contract has expired, the service has been provided in full by the successful tenderer and that tenderer has submitted the final invoice, but the contracting authority has not yet paid that invoice. However, as the Advocate General observes, in essence, in point 41 of his Opinion, the concept of contracts ‘during their term’ is also used in other paragraphs of Article 72 of Directive 2014/24, the heading of which (‘Modification of contracts during their term’) indicates, moreover, that all the provisions of that article apply only to contracts ‘during their term’.

39.Accordingly, Article 72(4) of Directive 2014/24 states that a modification of a contract ‘during its term’ is to be considered to be substantial within the meaning of Article 72(1)(e) of that directive where it renders that contract materially different in character from the one initially concluded.

40.Furthermore, although it is true that paragraphs 1 to 3 of Article 72 of that directive do not expressly refer to ‘contracts during their term’, they are not devoid of any link with that concept. Under Article 72(5) of that directive, inter alia, a new procurement procedure is required for modifications to a public contract ‘during its term’ other than those provided for in paragraphs 1 and 2 of Article 72. Furthermore, in so far as Article 72(3) of Directive 2014/24 refers to paragraph 2 and paragraph 1(b) and (c) of that article, it also relates to such contracts.

41.In the second place, it is apparent from the explanations given by BIG at the hearing that, in the case in the main proceedings, the works which had been carried out by Fiegl under the initial contract were definitively received by the contracting authority before Fiegl submitted the final invoice on 15 December 2023.

42.In those circumstances, it must be held that, by its first question, the referring court asks, in essence, whether Article 72 of Directive 2014/24 is to be interpreted as meaning that a public contract may be considered to constitute a contract ‘during its term’, within the meaning of that provision, where the successful tenderer has performed in full the services which were to be provided under the contract at issue, the contracting authority has definitively received those services and the successful tenderer has submitted the final invoice, even if that contracting authority has not yet paid the price set out therein.

43.In order to determine the scope of the concept of ‘contracts during their term’ within the meaning of Article 72 of Directive 2014/24, it is necessary to consider not only the wording of that provision but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 16 October 2025, Polismyndigheten, C‑282/24, EU:C:2025:790, paragraph 18).

44.In the first place, as regards the wording of Article 72 of Directive 2014/24, neither that provision nor any other provision of that directive provides a definition of the concept of ‘contracts during their term’. Nor is it possible to infer from the wording of Article 72 any other information capable of answering the question of whether a contract may be considered to constitute a contract ‘during its term’ where the contracting authority has not paid the price in consideration for the service which the successful tenderer had, under that contract, provided in full and which that contracting authority had definitively received, or whether, conversely, such a contract is no longer a contract ‘during its term’ after the contracting authority has definitely received that service and the successful tenderer has submitted the final invoice. In such a case, the failure of the contracting authority to pay is irrelevant.

45.In the second place, as regards the context of Article 72 of Directive 2014/24, it is indeed possible to consider, on the basis of the first part of the sentence of Article 2(1)(5) of that directive, according to which public contracts are ‘contracts for pecuniary interest’, that, until the mutual obligations arising from such a contract, namely not only the services which the successful tenderer is required to provide but also the payment of the price to be paid in return for those services, have been performed, that contract must be considered to constitute a contract ‘during its term’.

46.However, as the referring court observes, Article 72 of Directive 2014/24, read in conjunction with recital 107 of Directive 2014/24, which refers to a contract ‘during its performance’, is to be understood as imposing the specific condition that a contract can be modified without a new procurement procedure if it is in fact a contract ‘during its performance’.

47.The term ‘performance’ refers, as is apparent from other provisions of that directive, to the services which the successful tenderer is required to provide and not to the contracting authority’s obligation to pay. The second limb of Article 2(1)(5) of Directive 2014/24 refers to ‘the execution of works’. In addition, Article 70 of that directive states that contracting authorities may lay down special conditions relating to the performance of a contract, provided that they are linked, within the meaning of Article 67(3) of Directive 2014/24, to the works, supplies or services to be provided. Similarly, the first subparagraph of Article 58(4) of that directive provides that contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to ‘perform’ the contract to an appropriate quality standard.

48.It follows from such a reading that a contract can be considered to constitute a contract ‘during its term’, within the meaning of Article 72 of Directive 2014/24, only when the services which the successful tenderer is required to provide under that contract have not been fully performed. Consequently, it is only possible to modify that contract, under the conditions laid down in that provision, until such time as the successful tenderer has performed the services in full. In that regard, the failure of the contracting authority to pay is irrelevant.

49.Such an interpretation is borne out, in the third place, by the objectives pursued by that provision. It follows from the Court’s case-law that, by regulating the conditions under which contracts may be modified during their term without a new procurement procedure, Article 72 of Directive 2014/24 aims to ensure compliance with the principles of equal treatment and transparency, while introducing a degree of flexibility in the application of the rules governing public contracts, in order to enable contracting authorities to respond pragmatically to the situations they face during the performance of contracts (see, to that effect, judgment of 16 October 2025, Polismyndigheten, C‑282/24, EU:C:2025:790, paragraph 38 and the case-law cited).

50.It must nevertheless be borne in mind that, in so far as Article 72 introduces derogations from those principles, it must be interpreted strictly (see, to that effect, judgment of 16 October 2025, Polismyndigheten, C‑282/24, EU:C:2025:790, paragraph 25 and the case-law cited).

51.Where the services of the successful tenderer have been definitively received by the contracting authority and the final invoice has been submitted, there is no longer any need to allow the contracting authority any leeway in the application of the rules governing public contracts, since it can be ruled out that it will encounter, during the performance of the contract concerned, situations which would have to be taken into consideration by means of a modification to the contract.

52.That is precisely the premiss on which the various provisions of Article 72 of Directive 2014/24 are based.

53.Furthermore, allowing the contracting authority to modify a public contract without a new procurement procedure so long as it has not paid the price in consideration for the services performed by the successful tenderer, even though those services have been definitively received and the final invoice has been submitted, would mean that the contracting authority could extend, at its discretion, the period during which a derogation, namely Article 72 of Directive 2014/24, may apply. Such an interpretation would run counter to the strict interpretation to which that provision must be subject, as recalled in paragraph 50 above.

54.That conclusion cannot be called into question by the argument raised by the Austrian and French Governments that Article 4(3)(a) of Directive 2011/7, read in conjunction with points 1 and 2 of Article 2 of that directive, precludes contracting authorities from making late payments, which are subject to a period of 30 calendar days following the date of receipt of the invoice, failing which they will have to pay statutory interest upon its expiry pursuant to Article 4(1) of that directive.

55.As the Advocate General noted, in essence, in points 83 and 84 of his Opinion, such a period is required for the purposes of payment on the ground that the contract is no longer a contract ‘during its term’ once the successful tenderer has performed the services which were to be provided under the contract, the contracting authority has definitely received those services and the final invoice has been submitted by that tenderer.

56.In the light of the foregoing, the answer to the first question is that Article 72 of Directive 2014/24 must be interpreted as meaning that a public contract cannot be considered to constitute a contract ‘during its term’, within the meaning of that provision, where the successful tenderer has performed in full the services which were to be provided under the contract at issue, the contracting authority has definitively received those services and the successful tenderer has submitted the final invoice, even if that contracting authority has not yet paid the price set out therein.

 The second and third questions

57.In the light of the answer to the first question, there is no need to answer the second and third questions, which were asked only in the event that the Court had answered the first question in the affirmative.

Costs

58.Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

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, as amended by Commission Delegated Regulation (EU) 2021/1952 of 10 November 2021,

must be interpreted as meaning that a public contract cannot be considered to constitute a contract ‘during its term’, within the meaning of that provision, where the successful tenderer has performed in full the services which were to be provided under the contract at issue, the contracting authority has definitively received those services and the successful tenderer has submitted the final invoice, even if that contracting authority has not yet paid the price set out therein.