(Reference for a preliminary ruling– Directive 2014/24

17By its question, the referring court asks, in essence, whether Article72(1)(d)(ii) of Directive 2014/24 must be interpreted as meaning that an economic operator which, following the insolvency of the initial contractor which led to its liquidation, has taken over only the rights and obligations of the initial contractor arising from a framework agreement concluded with a contracting authority must be regarded as having succeeded that initial contractor under the conditions referred to in that provision.

18As a preliminary point, it should be recalled that, in general, the substitution of a new contractor for one to which the contracting authority had initially awarded the contract must be regarded as constituting a change to one of the essential terms of the public contract in question and, consequently, as a substantial modification to the contract, which must give rise to a new award procedure relating to the contract thus amended, in accordance with the principles of transparency and equal treatment which underlie the obligation of competition between the candidates potentially interested in the various Member States (see, to that effect, judgment of 19June 2008, pressetext Nachrichtenagentur, C‑454/06, EU:C:2008:351, paragraphs40 and 47). That premiss is codified in Article72(4)(d) of Directive 2014/24.

19It follows from the Court’s case-law that the principle of equal treatment and the obligation of transparency resulting therefrom preclude, following the award of a public contract, the contracting authority and the successful tenderer from amending the provisions of that contract in such a way that those provisions differ materially in character from those of the original contract (see, to that effect, judgment of 7September 2016, Finn Frogne, C‑549/14, EU:C:2016:634, paragraph28).

20By way of exception, Article72(1)(d)(ii) of that directive provides that a new contractor may, without a new procurement procedure in accordance with that directive, replace that to which the contracting authority initially awarded the contract following a universal or partial succession into the position of the original 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 that directive.

21It is thus apparent from the wording of that article that it makes the application of the exception at issue subject, inter alia, to the condition that the replacement of the former contractor is due to a universal or partial succession which occurs following company restructuring, in particular insolvency.

22In the present case, the referring court questions whether the condition of universal or partial succession of the original contractor following insolvency is satisfied where the new contractor takes over only the rights and obligations arising from the framework agreement concluded with the contracting authority and does not take over all or part of the business of the original contractor falling within the scope of that framework agreement.

23In that regard, it should be noted, as regards the wording of Article72(1)(d)(ii) of Directive 2014/24, first, that the replacement of the contractor to whom the contracting authority initially awarded the contract is authorised only ‘as a result of a universal or partial succession of the original contractor’. It follows that that succession may involve the taking over, by the new contractor, of all or only part of the assets of the initial contractor and may therefore involve, as the Advocate General noted in point43 of his Opinion, the transfer only of a public contract or of a framework agreement making up the assets of the initial contractor.

24Furthermore, it should be noted, as did the Advocate General in point95 of his Opinion, that requiring a transfer of assets in order to prevent a party from circumventing the award rules is not necessary where the transfer of the public contract or the framework agreement is, in any event, subject to the condition, laid down in Article72(1)(d)(ii) of Directive 2014/24, not to constitute a means of excluding application of that directive.

25Furthermore, while it is true that such an interpretation of the concept of ‘partial succession’ in Article72(1)(d)(ii) of Directive 2014/24 is not sufficient in itself to ensure that the new contractor performs the contract or framework agreement in question with an equivalent capability to that of the original contractor, as Dustin contends, the fact remains that that provision provides that such succession is subject to the condition that the new contractor fulfils the qualitative selection criteria initially established.

26Therefore, it is apparent from the wording of Article72(1)(d)(ii) of Directive 2014/24 that the concept of ‘insolvency’, falling within the concept of ‘restructuring operations’, encompasses structural changes to the original contractor, in particular insolvency which includes insolvency resulting in liquidation.

27Secondly, as for the scope of the concept of ‘insolvency’, which is covered by the concept of ‘restructuring operations’, it is necessary to examine whether that presupposes that the new contractor takes over all or part of the business falling within the scope of the framework agreement at issue.

28Although the first three situations listed as examples of ‘restructuring operations’ in Article72(1)(d)(ii) of Directive 2014/24, namely takeover, merger and acquisition, may involve the continuation of at least part of the original contractor’s business, the fact remains that that provision also lists insolvency as an example of restructuring, which may lead, as the Advocate General noted in point47 of his Opinion, to the dissolution of the insolvent company. There is no indication in the wording of that provision that the concept of ‘insolvency’ must be understood not in its usual meaning, but as being limited to situations in which the business of the original contractor which enables the performance of the public contract is pursued, at least in part.

29Nor is there any such indication in recital110 of that directive, which mentions insolvency together with purely internal restructurings, takeovers, mergers and acquisitions, as situations involving ‘certain structural changes’ of the successful tenderer.

30In that regard, indeed it must be noted that Article72(1)(d)(ii) of Directive 2014/24, and thus the concept of ‘insolvency’, must be interpreted strictly in so far as, as is apparent from paragraphs20 and 21 of this judgment, that article sets out an exception. As the Advocate General noted in point62 of his Opinion, however, that interpretation cannot render that exception ineffective. It would do so if the term ‘insolvency’ were limited solely to situations in which the business of the original contractor falling within the scope of the framework agreement at issue was taken over by the new contractor, at least in part, and if that term were not understood in its usual broader sense.

31Therefore, it is clear from the wording of Article72(1)(d)(ii) of Directive 2014/24 that the concept of ‘restructuring’ encompasses structural changes to the original contractor, in particular insolvency which includes insolvency resulting in liquidation.

32That literal interpretation of Article72(1)(d)(ii) of Directive 2014/24 is also consistent with the principal objective pursued by Article72 of that directive, as set out in recitals107 and 110 thereof. According to those recitals, Directive 2014/24 seeks to clarify the conditions under which changes to a contract during their performance require a new contract award procedure, while taking into account the relevant case-law of the Court and the principles of transparency and equal treatment.

33In that regard, it should be noted, in the first place, that that interpretation of Article72(1)(d)(ii) of Directive 2014/24 is based on the usual meaning of the concepts in that provision, without requiring, unlike the interpretation proposed by Dustin and the Commission, additional criteria not included therein.

34In the second place, that interpretation takes account of the Court’s case-law, in particular the judgment of 19June 2008, pressetext Nachrichtenagentur (C‑454/06, EU:C:2008:351), from which it follows that internal reorganisations of the initial contractor are capable of constituting insubstantial changes in the terms of the public contract concerned which do not require the opening of a new public procurement procedure.

35In recital110 of Directive 2014/24, insolvency is listed without reservation as one of the examples of structural changes to the original contractor not being contrary to the principles of transparency and equal treatment on which that case-law is based. As the Advocate General noted in points84 and 85 of his Opinion, the insolvency of the original contractor, including the bankruptcy which results in its winding-up proceedings, represents an extraordinary circumstance before the occurrence of which the public contract or framework agreement at issue has already been opened to competition in accordance with Directive 2014/24 and, under Article72(1)(d)(ii) of that directive, can neither lead to any other substantial modifications, in particular those relating to the qualitative selection criteria initially established, or aimed at circumventing the application of that directive.

36However, the case-law referred to in paragraph34 of the present judgment does not apply to the insolvency of the original contractor or, generally, to situations in which a substantial modification of the original contractor does not require a reopening to competition. Therefore, that case-law does not preclude the interpretation which follows from paragraph31 of the present judgment.

37The interpretation of Article72(1)(d)(ii) of Directive 2014/24 given in paragraph31 of this judgment is also supported by the specific objective of the exception provided for in that provision, which is, as the Advocate General observed in points82 and 83 of his Opinion, to introduce a degree of flexibility in the application of the rules in order to respond pragmatically to all the extraordinary instances, such as the insolvency of the successful tenderer, which prevents it from performing the public contract at issue. As the Advocate General noted in point83 of his Opinion, the problem created by insolvency, which the EU legislature sought to address, does not arise differently depending on whether the business of the successful tenderer which has become insolvent is continued, at least in part, or is totally stopped.

38In the light of all the foregoing considerations, the answer to the question referred is that Article72(1)(d)(ii) of Directive 2014/24 must be interpreted as meaning that an economic operator which, following the insolvency of the initial contractor which led to its liquidation, has taken over only the rights and obligations of the initial contractor arising from a framework agreement concluded with a contracting authority must be regarded as having succeeded in part of that initial contractor, following corporate restructuring, within the meaning of that provision.