Public procurement - Concession: The Council of State case law evolves towards using the amount of risk born by the operator in order to discriminate public contract from concessions (Association Alcaly)

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. – CE, Section, 8 April 2009, Association Alcaly and others, Nos. 290604, 290605, 291809 and 291810 Can the conclusion of an amendment to a motorway concession contract without prior advertising or competitive tendering comply with Community law? What is the scope of the approval of such an amendment by legislation in the light of the EDH Convention and Community law? Should the regulatory clauses of a contract be presumed to be divisible? These are the main questions answered by the Litigation Section in the Alcaly decision of April 8, 2009. In the present case, an eleventh amendment to the concession contract for the A 89 motorway was concluded on 31