Sig­nif­i­cant con­tract exten­sion trig­gers (new) ten­der­ing oblig­a­tion!

In its deci­sion dat­ed March 6, 2026 (case ref­er­ence: Verg 29/22), the High­er Region­al Court of Düs­sel­dorf ruled that the sub­se­quent addi­tion of fast charg­ing infra­struc­ture to con­ces­sion agree­ments con­sti­tutes a mate­r­i­al change that requires a new award pro­ce­dure.

You can find the video of the rul­ing dis­cus­sion here:

Facts of the case

The legal dis­pute was sparked by the deci­sion of the fed­er­al­ly owned A‑GmbH to extend exist­ing con­ces­sion agree­ments for ancil­lary high­way oper­a­tions (petrol sta­tions, ser­vice sta­tions, hotels) from the late 1990s. With­out a new award pro­ce­dure, the exist­ing con­ces­sion hold­ers were grant­ed the right and oblig­a­tion to set up and oper­ate nation­wide fast-charg­ing infra­struc­ture for elec­tric vehi­cles in 2022 by means of a sup­ple­men­tary agree­ment. A com­peti­tor saw this as an inad­mis­si­ble de fac­to award and com­plained about the lack of a call for ten­ders. Fol­low­ing a pre­lim­i­nary rul­ing pro­ce­dure before the ECJ, the High­er Region­al Court of Düs­sel­dorf had to make a final deci­sion on the valid­i­ty of these agree­ments.

Key point of the deci­sion

The High­er Region­al Court of Düs­sel­dorf took the view that the con­struc­tion and oper­a­tion of fast charg­ing infra­struc­ture was not part of the orig­i­nal old con­tracts. Accord­ing to the inter­pre­ta­tion of the con­tracts at the time they were con­clud­ed in 1997/1998, the term “fill­ing sta­tion” only cov­ered the sup­ply of fos­sil fuels; elec­tro­mo­bil­i­ty was not a fore­see­able sub­ject of reg­u­la­tion for the con­tract­ing par­ties at that time. In addi­tion, the sub­ject mat­ter of the con­tract has been sig­nif­i­cant­ly expand­ed, as the pro­vi­sion of charg­ing elec­tric­i­ty now forms an inde­pen­dent mar­ket seg­ment that places com­plete­ly new tech­no­log­i­cal demands on the infra­struc­ture and thus mas­sive­ly changes the over­all char­ac­ter of the orig­i­nal con­ces­sion. In this respect, the amend­ment to the orig­i­nal con­ces­sion con­sti­tutes a mate­r­i­al change to the con­tract. In addi­tion, the excep­tions that allow the orig­i­nal con­ces­sion to be sup­ple­ment­ed with­out an award pro­ce­dure do not apply. Although the rapid devel­op­ment of e‑mobility in the 1990s was not specif­i­cal­ly fore­see­able, the con­tract amend­ment was not nec­es­sary in terms of pub­lic pro­cure­ment law. Such an adjust­ment with­out a new award pro­ce­dure is only per­mis­si­ble if it is absolute­ly nec­es­sary to ensure the prop­er ful­fill­ment of the orig­i­nal oblig­a­tions — such as refu­el­ing and rest­ing — which was not the case here.

As a result, the exten­sion of the orig­i­nal con­ces­sion with­out car­ry­ing out an award pro­ce­dure was invalid.

Tips for pub­lic clients

• Duty to review tech­ni­cal devel­op­ments: In the case of long-term con­trac­tu­al rela­tion­ships, new ser­vice pro­files (such as mod­ern ener­gy infra­struc­ture) can­not gen­er­al­ly sim­ply be “added on”. Check at an ear­ly stage whether new require­ments form an inde­pen­dent mar­ket.
• Trans­paren­cy require­ment: Do not rely on sup­posed in-house priv­i­leges or exclu­siv­i­ty claus­es in old con­tracts if the mar­ket sit­u­a­tion has changed fun­da­men­tal­ly.
• Doc­u­men­ta­tion of neces­si­ty: A con­tract amend­ment with­out a call for ten­ders is only per­mis­si­ble with­in extreme­ly nar­row lim­its. Mere eco­nom­ic expe­di­en­cy is not suf­fi­cient to cir­cum­vent com­pe­ti­tion.

Tips for bid­ders and fund­ing recip­i­ents

• Com­peti­tor mon­i­tor­ing: Pay atten­tion to trans­paren­cy announce­ments regard­ing con­tract changes. If a client awards ser­vices with­out com­pe­ti­tion that go beyond the orig­i­nal con­cept, this can block your oppor­tu­ni­ty to enter the mar­ket.
• Legal cer­tain­ty of addi­tions: If you take on addi­tion­al tasks as an exist­ing con­ces­sion­aire, have the admis­si­bil­i­ty of the exten­sion checked under pub­lic pro­cure­ment law. An inef­fec­tive sup­ple­men­tary agree­ment can lead to a loss of invest­ment secu­ri­ty.
• Focus on exper­tise: In new award pro­ce­dures for inno­v­a­tive infra­struc­ture, tech­ni­cal excel­lence and mod­ern solu­tions count for more than sim­ply own­ing loca­tions.