Public Procurement

AUTOMATIC SUSPENSION

In Joined Cases C‑266/25 and C‑267/25, two Portuguese tenderers challenged awards of contracts for floating photovoltaic power plants at pumping stations, financed with EU funds subject to a completion deadline of 31 December 2025. Under the Portuguese Public Procurement Code, bringing a timely challenge automatically suspends the award decision, but the contracting authority can apply to have that automatic suspension provisionally lifted based on the standstill period having expired and there being a risk of losing EU funding.

The Court of Justice of the EU held that this provision breaches Article 2(3)-(5) of the Remedies Directive, read with Article 47 of the Charter of Fundamental Rights of the EU. A national court asked to lift an automatic suspension must first hear the challenging tenderer and must be able to genuinely weigh all interests at stake on the merits. A rule that automatically lifts suspension based only on objective, easily met criteria, while leaving the challenger to disprove them and the contract effectively concludable in the meantime, removes judicial discretion and undermines the essence of the right to an effective remedy. A mere risk of losing EU funding cannot by itself override that right.

AUTOMATIC RENEWAL

In C-653/24, the Italian Court asked whether the Services Directive, including provisions banning automatic renewal of scarce-resource authorisations, applies to small-scale hydroelectric diversion concessions, given a regional law allowing their extension to match renewable energy incentive periods.

The Court held the Services Directive does not apply. Electricity is a good, not a service. This holds even where the power plant in question must also perform ancillary activities (managing water flow, protecting hydrogeological balance, and occasional network balancing). These remain ancillary to the principal activity of generating electricity and do not convert it into a service.

OPINION ON DEFENCE

Joined Cases C‑271/25 and C‑334/25 involve two references from the Lithuanian Supreme Court arising from tenderers excluded from public procurement procedures under wartime/state-of-emergency legislation. The legislation allows exclusion where the Government or national security authorities indicate the tenderer poses a threat to national security. Advocate-General Biondi’s Opinion may be summarised as follows:

• Grounds for exclusion from public procurement procedures for reasons relating to the protection of national security, established by national provisions adopted under Article 4(2) on the Treaty of the EU are autonomous grounds for exclusion to which the public procurement Directives do not apply.
• EU law does not prevent national provisions that provide for automatic exclusion based on binding information from a competent national security authority indicating that the supplier has interests that could pose a threat to national security, provided the security authority itself carries out an individual, up-to-date, reasoned assessment respecting fundamental rights and the operator’s defence rights.
• Extending a security exclusion decision from one procurement to another (exceptional/temporary measures) is also permissible if justified by current, case-specific circumstances meeting the same EU-law requirements.
• The contracting authority must disclose the essential content of its reasons, balancing good administration/effective judicial protection against national security, withholding only what would pose a direct and specific security risk.
• Judicial review must not be restricted from assessing the substance of the security information. It is compatible with Article 47 of the Charter on Fundamental Rights of the EU for only the court to see classified material, provided the operator gets the substance of the reasoning and only genuinely sensitive evidence is withheld.
• A statutory national security exclusion ground may be relied on even if not stated in the procurement documents.

OPINION ON UTILITIES DIRECTIVE

In C-618-25, Greece’s gas transmission system operator ran a tender for an LNG carrier. An unsuccessful bidder challenged the award, raising the question of whether the TSO was a “contracting entity” under the Utilities Directive holding “special or exclusive rights” under Article 4(3).

Advocate General Campos Sánchez-Bordona considers that the TSO does hold such rights. Greek law reserves exploitation and management of the transmission system exclusively to the entity concerned, and no other operator can carry on equivalent activities in the areas it covers, substantially affecting third parties’ ability to operate. This conclusion was unaffected by the limited, residual rights of independent gas systems serving unconnected areas.

The Advocate General also considers that the TSO’s privatisation (a transparent tender for 66% of its shares) does not bring it within the Article 4(3) exception for rights granted via a procedure with adequate publicity and objective criteria. The privatisation changed the TSO’s ownership only. It did not grant, renew, or reassign any right over the transmission system, which continues to derive directly from Greek legislation. He therefore proposes that the TSO remains subject to the Utilities Directive.