ECLI:EU:C:2026:746

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 10 September 2026 (1)

Case C‑618/25

Capital Gas Ship Management Corp.

Eniaia Archi Dimosion Symvaseon (EADISY),

Diacheiristis Ethnikou Systimatos Fysikou Aeriou AE (DESFA)

(Request for a preliminary ruling from the Symvoulio tis Epikrateias (Council of State, Greece))

( Preliminary ruling proceedings – Public procurement – Directive 2014/25/EU – Article 4(1)(b) and first subparagraph of Article 4(3) – Contracting entity – Concept of special or exclusive rights – Statutory operator of the national natural gas transmission system – Private undertaking operating the national gas transmission system – Co-existence with other independent networks serving areas not supplied with natural gas – Second subparagraph of Article 4(3) – Rights granted by means of a procedure in which adequate publicity has been ensured and in accordance with objective criteria – Privatisation by means of a transfer of the capital of the public operator of the national gas transmission system in a public tendering procedure )

1. In 2022, the operator of the national natural gas transmission system in Greece (2) sent a number of shipping companies an invitation to submit tenders for the charter of a liquefied natural gas (LNG) carrier.

2. DESFA selected a particular company’s tender but another candidate, dissatisfied with the award decision and subsequent contract, submitted two appeals to the Greek body with jurisdiction over contractual appeals, which dismissed those appeals.

3. The subsequent proceedings brought before the Symvoulio tis Epikrateias (Council of State, Greece) are to determine whether DESFA has the status of a contracting entity within the meaning of Article 4 of Directive 2014/25/EU. (3) That court takes the view that, in principle, DESFA does have that status since it enjoys ‘special or exclusive rights’, while acknowledging that there may be some uncertainty in that regard, and it has therefore referred two questions to the Court of Justice for a preliminary ruling.

I. Legal framework

A. European Union law. Directive 2014/25

4. Article 4 (‘Contracting entities’) is worded:

‘1. For the purpose of this Directive contracting entities are entities, which:

(a) are contracting authorities or public undertakings and which pursue one of the activities referred to in Articles 8 to 14;

(b) when they are not contracting authorities or public undertakings, have as one of their activities any of the activities referred to in Articles 8 to 14, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State.

…

3. For the purposes of this Article, “special or exclusive rights” means rights granted by a competent authority of a Member State by way of any legislative, regulatory or administrative provision the effect of which is to limit the exercise of activities defined in Articles 8 to 14 to one or more entities, and which substantially affects the ability of other entities to carry out such activity.

Rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning of the first subparagraph.

Such procedures include:

(a) procurement procedures with a prior call for competition in conformity with Directive 2014/24/EU,[ (4)] Directive 2009/81/EC,[ (5)] Directive 2014/23/EU[ (6)] or this Directive;

(b) procedures pursuant to other legal acts of the Union listed in Annex II, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria.

…’

5. Article 8 (‘Gas and heat’) reads:

‘1. As far as gas and heat are concerned, this Directive shall apply to the following activities:

(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat;

…’

6. Annex II, which contains the ‘List of Union legal acts referred to in Article 4(3)’, states:

‘Rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria do not constitute “special or exclusive rights” within the meaning of Article 4 of this Directive. The following lists procedures, ensuring adequate prior transparency, for granting authorisations on the basis of other legal acts of the Union which do not constitute “special or exclusive rights” within the meaning of Article 4 of this Directive:

(a) granting authorisation to operate natural gas installations in accordance with the procedures laid down in Article 4 of Directive 2009/73/EC;[ (7)]

…’

B. Greek law

1. Law 4001/2011 on the energy markets

7. Pursuant to Article 2 (as amended) of Law 4001/2011 on the energy markets, (8) LNG facilities include ships which constitute floating storage units, the aim of which is to increase storage capacity, whether or not they are permanently connected to an LNG facility (paragraph 2(k)).

8. Article 2(2)(a) provides for the existence of IGSs, that is, independent networks which are not part of the NGTS.

9. Article 63A (special provisions for DESFA) provided in paragraphs 2 and 3 that, by 31 December 2017, 66% of the shares held by Dimosia Epicheirisi Aeriou AE (DEPA) in DESFA would be sold and transferred by means of an international public tendering procedure.

10. Article 64 governs the appointment and certification of natural gas transmission system operators: all operators must obtain a certificate from the competent regulatory authority.

11. Article 67 defines the NGTS and entrusts its operation to DESFA.

12. Article 68, which specifies the powers of DESFA, tasks it with the operation, maintenance, management, exploitation and development of the NGTS and the interconnectors forming part of it, so that the system is cost-effective, technically sound and integrated, for the purpose of meeting natural gas users’ needs in a safe, appropriate, reliable and effective manner and contributing to the functioning of a single natural gas market in the European Union and the protection of the environment.

13. Article 74 governs the authorisation of the IGSs, which includes:

– The powers of an independent system authorisation holder to build and own or, in the case of an underground storage facility, use the systems.

– The grant of authorisations solely to legal persons by decision of the regulatory authority, taking into account, inter alia, the public interest and, in particular, service to areas not supplied with natural gas, the strengthening of the security of supply of the country, another Member State or the European Union, and the protection of the environment.

– The imposition, for reasons in the general interest, of conditions or restrictions such as: (a) the obligation to pay a fee to DESFA or the imposition of a special charge on users of the independent system, for the benefit of DESFA, if use of the independent system benefits from the tariffs applied by that company and may adversely affect its economic efficiency; (b) DESFA’s obligation to pay a reasonable fee to the owner of the independent system, to the extent that the latter contributes significantly to the national system’s economic effectiveness.

2. Law 4412/2016 on public procurement

14. Pursuant to Article 224(1) of Law 4412/2016 on public procurement, (9) for the purposes of works, supply and service contracts in the sectors governed by Directive 2014/25, contracting entities are, inter alia, entities which, when they are not contracting authorities or public undertakings, perform, in particular, one or more of the activities referred to in Articles 228 to 234 and enjoy ‘special or exclusive rights’ granted by a competent Greek authority.

15. In accordance with Article 224(3), ‘special or exclusive rights’ means rights granted by a competent Greek authority by way of any legislative provision or administrative act which has the effect of limiting the exercise of an activity defined in Articles 228 to 234 to one or more entities and which substantially affects the ability of other entities to carry out such activity.

16. Under Article 228, the rules laid down in Book II (Articles 222 to 338) are to apply to the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of natural gas.

II. The facts, the dispute and the questions referred for a preliminary ruling

17. The sequence of events described in the order for reference is as follows:

– In order to respond to the energy crisis and in view of the need to guarantee energy security in Greece as a result of the war in Ukraine, DESFA decided to procure (‘time charter’) a vessel for the transport of liquefied natural gas (LNG), which was to be used as a floating storage unit.

– To that end, in April 2022, DESFA sent a number of shipping companies an invitation to submit indicative (non-binding) tenders or proposals. In the second stage, it invited some of those companies to submit binding tenders by 3 May 2022.

– Capital Gas Ship Management Corp. (‘Capital Gas’) was one of the companies to submit a binding tender.

– DESFA decided to award the contract to GasLog Ltd.

– As a result of that decision, Capital Gas lodged administrative appeals with the Eniaia Archi Dimosion Symvaseon (Single Procurement Authority, Greece) contesting, respectively, the award decision and the contract concluded with GasLog.

– The Single Procurement Authority dismissed both appeals on the grounds that DESFA was not a contracting entity, as it was a private undertaking whose rights over the management of the NGTS were not special or exclusive rights. In any event, even if those rights may previously have constituted special or exclusive rights, they had ceased to be so following the transfer of 66% of DESFA’s share capital to a consortium of undertakings.

18. Capital Gas challenged both rulings before the Dioikitiko Efeteio Athinon (Administrative Court of Appeal, Athens, Greece), which declined jurisdiction in favour of the Symvoulio tis Epikrateias (Council of State).

19. Against that background, the Symvoulio tis Epikrateias (Council of State) has referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must the first subparagraph of Article 4(3) of [Directive 2014/25] be interpreted as meaning that rights granted by statute to the [operator of the NGTS] and consisting of the operation, maintenance, management, exploitation and development of the NGTS, in conjunction with the operator’s statutory right of ownership over the NGTS, also conferred by law, constitute “special or exclusive rights” where national law permits in parallel, with the authorisation of the regulatory authority concerned, the operation on the market for the transmission of natural gas of other [IGSs], but provides, first, that the criterion for the grant of an authorisation for an IGS is, in particular, that it is to serve areas not supplied with natural gas and, second, that it is possible to impose charges on IGS authorisation holders for the benefit of the national system operator or benefits in favour of owners of IGSs, to the detriment of the national system operator, for reasons connected with the economic efficiency of the operator?

If the first question is answered in the affirmative:

(2) Must the second and third subparagraphs of Article 4(3) of [Directive 2014/25] be interpreted as meaning that the procedures in respect of which those provisions state that rights granted by means of those procedures do not constitute special or exclusive rights also include a procedure for the privatisation of a public undertaking which is the operator of [NGTS] where that procedure meets the conditions for ensuring adequate publicity and compliance with objective criteria, and where the procedure further provides that, in the corresponding call for expressions of interest, (i) economic operators interested in acquiring the undertaking must provide a brief description of their strategic plans for investing in the undertaking and the investment horizon sought (element taken into account at the stage of pre-selecting applicants), (ii) only transmission system operators certified in accordance with the procedure laid down in Articles 9 and 10 of Directive 2009/73 and which are members of the European Network of Transmission System Operators for Gas … or persons controlled by or controlling such an operator, may participate in the procedure; and (iii) that as a consequence of the transfer of the majority of the shares of the public undertaking to a third economic operator, the national system operator, which was initially certified as an independent gas transmission operator, will be certified (as indeed it has been) as an ownership unbundled gas transmission system operator?’

III. The procedure before the Court of Justice

20. The request for a preliminary ruling was received at the Registry of the Court on 16 September 2025.

21. Written observations were lodged by DESFA, the Greek Government and the European Commission.

22. The Court did not consider it necessary to hold a hearing.

IV. Assessment

A. Preliminary point. Contracting entities and special or exclusive rights under Directive 2014/25

23. The Proposal for a directive on the procurement procedures of entities providing water, energy, and transport services, submitted by the Commission on 11 October 1988, (10) stated that: (11)

– The classic directives were insufficient because a substantial number of the activities concerned were carried out by entities which could not be formally classified as public administrative authorities and that was the reason for the requirement ‘that the entities to be covered must be identified on a different basis than by reference to their legal status’.

– Among the ‘reasons why entities operating in these sectors [did] not purchase on the basis of Community-wide competition [was] the closed nature of the markets in which they [operated], due to the existence of special or exclusive rights or authorisations granted by the national authorities, concerning the supply or management of networks for providing the service concerned, or to the exploitation of a given geographical area for a particular purpose’.

24. The Commission therefore identified special or exclusive rights as one of the factors for the closed nature of sectoral markets which justified the extension of the procurement rules to formally private entities.

25. Directive 90/531/EEC (12) adopted the Commission’s proposal and abandoned the organic identification criterion to opt for a broader functional approach which covered public authorities, public undertakings and private entities holding special or exclusive rights in certain sectors.

26. That approach was consolidated in Directives 93/38/EEC (13) and 2004/17/EC (14) and continues in Directive 2014/25, recital 20 of which states that ‘the notion of special or exclusive rights is central to the definition of the scope of this Directive, since entities which are neither contracting authorities nor public undertakings within the meaning of this Directive are subject to its provisions only to the extent that they exercise one of the activities covered on the basis of such rights’ (emphasis added).

27. That recital also clarifies that ‘… rights which have been granted by means of a procedure based on objective criteria, in particular pursuant to Union legislation, and for which adequate publicity has been ensured do not constitute special or exclusive rights for the purposes of this Directive’.

28. The legislative expression of that clarification is found in the second subparagraph of Article 4(3) of Directive 2014/25: rights granted by means of a procedure in which adequate publicity was ensured and where the granting of those rights was based on objective criteria do not constitute special or exclusive rights. Accordingly, the holders of such rights do not come within the scope of the contracting entities provided for in Article 4(1)(b) of that directive.

B. Question 1

29. Although it would be possible to answer the two questions together, I shall opt to deal with them in the order in which they have been submitted.

30. Beforehand, I should point out that two facts accepted by the referring court are not in dispute:

– DESFA is neither a contracting authority nor a public undertaking. If it falls within the scope ratione personae of Directive 2014/25, it will only be on account of being a contracting entity which holds special or exclusive rights.

– DESFA carries on the activity, provided for in Article 8(1)(a), of Directive 2014/25, of the provision or operation of fixed networks intended to provide a service to the public in connection with the transport or distribution of gas. That activity is referred to in Article 4(1)(b) and (3) of Directive 2014/25.

31. It should be recalled that, in accordance with settled case-law, (15) the national court alone has jurisdiction to define, under its own responsibility, the factual and legislative context of the questions referred for a preliminary ruling, the accuracy of which is not a matter for the Court to determine.

32. That point is relevant as both DESFA and, to a lesser extent, the Greek Government, do not fully adhere to that factual and legislative context, seeking to replace it with the context which they propose themselves. In particular, DESFA maintains that the referring court’s three key findings ‘are based on incorrect legal and factual premisses’. (16)

33. However, my Opinion will assume that the interpretation of the national provisions and the account of the facts provided by the referring court must be accepted by the Court as the basis for the reply to the questions referred for a preliminary ruling.

34. In the order for reference, the Symvoulio tis Epikrateias (Council of State) interprets Law 4001/2011 and the provisions which preceded it in a way from which it can be categorically concluded that DESFA holds exclusive or special rights over the NGTS. Those rights, to which Article 4 of Directive 2014/25 refers, were granted to it by law and by the Greek authorities. (17)

35. The national court’s presentation of the law identifies the following milestones:

– Law 2364/1995 (18) laid down the basic institutional framework for the organisation, operation and supervision of the natural gas market. In particular, it defined the NGTS and designated DEPA as the management body for that national network, granting it the non-transferable right to plan, own and operate the network.

– Law 3428/2005 (19) brought Greek law into line with the provisions of EU law in order to ensure access to the infrastructure by third-party operators and gradually liberalise the natural gas market. By means of that law, DEPA was legally separated from the operation of the NGTS, which was assigned in its entirety to DEPA’s subsidiary, DESFA. (20) The law also laid down the conditions for the development, management, exploitation and operation of the IGSs.

– Law 4001/2011 transposed Directive 2009/73 into Greek law, amending the provisions applicable to the energy sector in the terms set out below.

36. The interpretation provided by the referring court of the body of domestic legislation is encapsulated in the following findings: (21)

– The right over the NGTS granted by law to DESFA (Article 68 of Law 4001/2011) means that the operation, maintenance, management, exploitation and development of the NGTS was assigned to that entity.

– That right, combined with the right of ownership over the NGTS itself, also granted by law to DESFA, constitutes a special or exclusive right within the meaning of the first subparagraph of Article 224(3) of Law 4412/2016.

– The right granted to DESFA prevents third-party economic operators wishing to operate on the natural gas transmission market from carrying out similar activities on the NGTS.

– The special or exclusive nature of DESFA’s right is not called into question by the fact that other economic operators are, subject to the relevant authorisation, allowed to operate IGSs, that is to say, systems which are not part of the NGTS.

– The operation of the NGTS by DESFA substantially affects the ability of third-party operators to carry on the activity of the transmission of natural gas on Greek territory, to the detriment of competition.

– In short, since DESFA carries on the activity of providing and operating a fixed network intended to provide services to the public in the natural gas transmission sector, on the basis of special or exclusive rights, it is a contracting entity within the meaning of Article 224(1) of Law 4412/2016. The conditions for the application of the second and third subparagraphs of paragraph 3 of that article are not satisfied in its case.

37. In the light of those exhaustive findings, it is very difficult to argue that the rights conferred on DESFA are not special or exclusive, as the Greek Government and DESFA argue.

38. The Greek Government and DESFA submit that the right to operate and manage the NGTS was not conferred by law and is derived instead from the right of ownership of DEPA, a public undertaking which developed the national network, and that, after its branch of activity of gas transmission was hived off, that activity was transferred to its subsidiary DESFA by universal succession. Law 3428/2005, they submit, entrusted DESFA with that activity in order to separate the activities of the supply and transmission of gas, as required by EU law. (22)

39. To the extent that those assertions of the Greek Government and DESFA do not adhere to the factual and legal context of the order for reference, they must yield to that order, for the reasons set out above.

40. In any event, the fact that DESFA succeeded the public undertaking DEPA in the ownership of the NGTS is not incompatible with the fact that, as the referring court states, it was the law which defined the national network and which granted DESFA the rights to carry out the operation, maintenance, management, exploitation and development of the national network.

41. That follows from Articles 6, 7 and 8 of Law 3428/2005, which provided that the NGTS branch would be hived off from DEPA and would be transferred in its entirety to DEPA’s subsidiary, DESFA. Under that law, the decision of 22 March 2011 of the Secretary of State for the Environment, Energy and Climate Change was adopted, pursuant to which DESFA obtained the authorisation for ownership and operation of the national network. Also, in that connection, Article 67(3) of Law 4001/2011, after defining the NGTS, entrusted its operation to DESFA.

42. Those factors confirm the referring court’s findings, should that be necessary: there was a legislative assignment, by operation of law, of the rights conferred on DESFA. The decision of 22 March 2011 granted DESFA an authorisation for ownership and operation of the NGTS while Law 4001/2011 conferred on it the special or exclusive rights at issue.

43. I indicated above that, according to the national court, the operation of the NGTS by DESFA substantially affects the ability of third-party operators to carry on the activity of natural gas transmission on Greek territory, to the detriment of competition.

44. The Symvoulio tis Epikrateias (Council of State) asks, in that connection, whether the acceptance by the national law of independent networks (IGSs) under the specific conditions laid down by that law is sufficient to rule out that DESFA was the beneficiary of ‘special or exclusive rights’.

45. In the referring court’s view, the answer to that question is in the negative, for two reasons: (23)

– First, the criterion for the grant of an IGS authorisation is, in particular, that it serves areas not supplied with natural gas (through the NGTS itself or another IGS).

– Second, specific conditions and restrictions linked to the economic efficiency of DESFA may be imposed, for reasons of public interest, on the holders of IGS authorisations. One of those specific conditions or restrictions is the obligation to pay consideration to DESFA (or the imposition of a fee on users of the IGS, in favour of DESFA), if use of the independent network benefits from DESFA’s tariffs for use and may adversely affect DESFA’s economic efficiency (provided that the amount of the consideration is set in such a way that the adverse effect is fully offset).

46. In the light of those factors, everything suggests that, as the referring court observes, there is a substantial effect on the ability of third-party operators, as a defining feature of the ‘special or exclusive rights’ referred to in Article 4(3) of Directive 2014/25/EU and as reflected in the case-law developed in connection with the interpretation of Article 106(1) TFEU.

47. In the judgment in Ambulanz Glöckner, (24) the Court held that such rights exist when ‘protection is conferred by a legislative measure on a limited number of undertakings which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions.’

48. The grant of special or exclusive rights does not mean that competition must be completely eliminated in relation to the pursuit of a particular activity. It will suffice if the twofold condition is met, to the effect that the activity is pursued under conditions favourable to a limited circle of undertakings and that there is a substantial effect on the ability of other entities to pursue that activity within the same geographical area and under equivalent conditions.

49. As the referring court points out, (25) Greek law reserves the exploitation and management of the NGTS exclusively to DESFA. Since no other operator may carry on activities equivalent to those performed by DESFA in the areas covered by that national network, that factor substantially affects the ability of entities other than DESFA to carry on the activity of natural gas transmission.

50. The fact that the NGTS is subject to an equivalent restriction in respect of areas already covered by an independent network does not invalidate that conclusion. The pre-existence of the national system places DESFA in a predominant position and means that the rights of IGS operators are residual in nature. (26)

51. The foregoing arguments are sufficient in themselves to conclude that the referring court’s finding that DESFA enjoys special or exclusive rights is correct.

C. Question 2

52. If, as I propose, question 1 is answered in the affirmative, the Symvoulio tis Epikrateias (Council of State) asks whether the privatisation of DESFA can be regarded as a ‘procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria’, within the meaning of the second and third subparagraphs of Article 4(3) of Directive 2014/25, such as to exclude the existence of special or exclusive rights.

53. The presentation of the facts and the national legal framework provided by the referring court (to which, I stress, the Court must confine itself) points to a negative reply to that question.

54. The following assertions are set out in the order for reference: (27)

– The procedure initiated by the call for expressions of interest of June 2017 and concluded with the transfer of the majority of the shares in DESFA is of no relevance to this case.

– In particular, although that call for expressions of interest provided for a procedure ensuring adequate publicity and compliance with objective criteria, the procedure was intended to change DESFA’s ownership and not to renegotiate, directly or indirectly, DESFA’s right over the NGTS.

– Nor is it relevant that the law (Article 63A(2) of Law 4001/2011) and the call for expressions of interest provided that the right to participate in the privatisation procedure was to be granted only to transmission system operators certified in accordance with Articles 9 and 10 of Directive 2009/73 and which are members of the European Network of Transmission System Operators for Gas or persons controlled by or controlling such operators.

– It is also irrelevant that DESFA, which was certified at the relevant time as an independent gas transmission operator, was re-certified as an ownership unbundled gas transmission system operator. (28) Certification presupposes that the regulatory authority has found that the system operator is independent and able to meet the requirements of Directive 2009/73 and Law 4001/2011. The change in the certification of DESFA (as a result of the change in its ownership status and the fact that it is now independent and no longer controlled by the public undertaking DEPA) does not constitute a reassignment to DESFA of its special or exclusive rights over the NGTS.

– Accordingly, the second subparagraph of Article 224(3) of Law 4412/2016 is not applicable.

– The procedure followed for the transfer of the majority of the shares in DESFA is not a procedure to grant authorisation to operate natural gas facilities in accordance with Article 4 of Directive 2009/73, but a privatisation procedure which, as the Court of Justice has held, (29) does not fall within the scope of the directives on public contracts.

– Accordingly, the third subparagraph of Article 224(3) of Law 4412/2016 is not applicable either.

55. In point of fact, there is little that can be added to those pertinent considerations of the referring court, with which I fully concur.

56. The third subparagraph of Article 4(3) of Directive 2014/25 lists certain procedures which preclude the existence of ‘special or exclusive rights’. Those procedures include: (a) public procurement procedures with a prior call for competition in conformity with Directives 2014/24, 2014/23, 2009/81 and 2014/25; and (b) procedures pursuant to other legal acts of the European Union listed in Annex II, ensuring adequate prior transparency for granting (sectoral) authorisations on the basis of objective criteria.

57. The procedure for the privatisation of DESFA does not come within any of those categories:

– It was not a procedure for the award of a works, supply or service contract or for the award of a works or service concession, but merely for the transfer of shares with a view to modifying the ownership structure of DESFA.

– As the Court observed in the judgment cited by the referring court, ‘the transfer of shares to a tenderer in the context of a privatisation of a public undertaking does not fall within the scope of the directives on public contracts.’ (30)

– The DESFA privatisation procedure does not correspond to any of the procedures referred to in Annex II to Directive 2014/25, the aim of which is to grant sectoral authorisations for the pursuit of regulated activities under objective and transparent market access conditions. In particular, it is not one of the procedures referred to in Article 4 of Directive 2009/73.

– Through that privatisation procedure, there was no grant, renewal or reassignment of any right relating to the transmission of natural gas: the procedure, I repeat, concerned the transfer of shares in a company which already held the rights lawfully granted for the management and exploitation of the national gas network.

58. It is of no relevance that the list contained in the third subparagraph of Article 4(3) of Directive 2014/25 is not exhaustive, (31) as the wording of the second subparagraph unequivocally requires that the rights must have been granted by means of a procedure in which adequate publicity and objective criteria were applied. That requirement is not met where, as in this case, the rights in question flow directly from national law and are unchanged before and after the privatisation.

59. The rights conferred on DESFA to maintain, manage, exploit and develop the NGTS were not derived from the privatisation procedure and were not redefined by that procedure; instead they are derived from the national legislative framework regulating the energy sector.

60. The subsequent certification of DESFA as the ownership unbundled gas transmission system operator is solely evidence of fulfilment of the requirements of independence and technical capacity laid down in Directive 2009/73 and in the Greek transposition legislation. There is nothing to indicate that that certification confers new exclusive rights: the act of conferral continues to be Law 4001/2011, to which the certificate refers. (32)

61. In short, the privatisation (even if it triggered the need for re-certification) was not the act conferring on DESFA its rights over the NGTS.

62. The eligibility requirements imposed in the tendering procedure for the sale of 66% of DESFA’s share capital – including the requirement that participants must be certified transmission system operators or entities connected to those operators – do not alter that finding either. Those requirements have no bearing on the content, nature or legal basis of the rights already conferred on DESFA by law.

63. The ratio legis of Article 4(3) of Directive 2014/25 confirms that interpretation. Exclusion from the concept of ‘special or exclusive rights’ is justified only where the grant of certain rights was preceded by effective competition through objective, non-discriminatory procedures.

64. A broad interpretation which would enable the exclusion from the scope of Directive 2014/25 of operators which were, until that time, the holders of legal monopolies, simply because the composition of their body of shareholders had been altered by means of a competitive procedure, would undermine the aim of the procurement rules in the special sectors.

65. Directive 2014/25 is aimed at ensuring that contracting entities in certain sectors, such as the energy sector, adhere in their procurement procedures to guidelines which promote the opening up of the markets concerned. The exception laid down in the second subparagraph of Article 4(3) of that directive is legitimised by the fact that the special or exclusive right, as such, was granted to the contracting entity in a procedure in which publicity was ensured and which was based on objective criteria.

66. In summary, although the DESFA privatisation procedure was carried out with adequate publicity and in accordance with objective criteria, it is not a procedure for the grant of rights within the meaning of Article 4(3) of Directive 2014/25. Therefore, it has no bearing on the special or exclusive nature of the rights conferred on that entity by Greek law.

V. Conclusion

67. In the light of the foregoing considerations, I propose that the following reply be given to the Symvoulio tis Epikrateias (Council of State, Greece):

(1) The first subparagraph of Article 4(3) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC

must be interpreted as meaning that the conferral by national law on a single operator of a right of ownership over the national gas transmission system, together with the right to operate, maintain, manage, exploit and develop that system, grants that operator ‘special or exclusive rights’, without that being precluded by the fact that the law referred to:

– permits in parallel, with the authorisation of the regulatory authority, the operation on the natural gas transmission market of other independent systems which serve areas not supplied with natural gas, and

– permits the imposition on holders of authorisations to operate independent systems of charges, for the benefit of the national system operator, or providing for benefits in favour of holders of authorisations to operate independent systems, to the detriment of the national system operator, for reasons connected with the economic efficiency of the national system operator.

(2) The second and third subparagraphs of Article 4(3) of Directive 2014/25

must be interpreted as meaning that a procedure for the privatisation of a public undertaking by means of an international tendering procedure in which the majority of the shares of the national gas transmission system operator are transferred to other operators in the sector cannot be regarded as a procedure for the grant of rights in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria, so as to preclude the existence of ‘special or exclusive rights’.

It is irrelevant for those purposes that:

– economic operators interested in acquiring the shares must provide a brief description of their strategic plans for investing in the undertaking and the investment horizon sought;

– those operators are required to be transmission system operators certified in accordance with the procedure laid down in Articles 9 and 10 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, and members of the European Network of Transmission System Operators for Gas or persons controlled by or controlling such an operator.

It is also irrelevant, for the same purposes, that, as a consequence of the transfer of the majority of the shares of the public undertaking, the national gas transmission system operator, which was initially certified as an independent gas transmission operator, will be re-certified as an ownership unbundled gas transmission system operator.

1 Original language: Spanish.

2 Diacheiristis Ethnikou Systimatos Fysikou Aeriou AE (DESFA). From now on, I shall refer to the national gas transmission system by the abbreviation ‘NGTS’ and to the independent gas systems by the abbreviation ‘IGS’.

3 Directive of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

4 Directive 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).

5 Directive of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (OJ 2009 L 216, p. 76).

6 Directive of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

7 Directive of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94). That directive was replaced and repealed by Directive (EU) 2024/1788 of the European Parliament and of the Council of 13 June 2024 on common rules for the internal markets for renewable gas, natural gas and hydrogen, amending Directive (EU) 2023/1791 and repealing Directive 2009/73/EC (OJ L, 2024/1788).

8 Nomos 4001/2011, gia ti leitourgia Energeiakon Agoron Ilektrismou kai Fysikou Aeriou, gia Erevna, Paragogi kai diktya metaforas Ydrogonanthrakon … (Law 4001/2011 on the operation of the electricity and natural gas energy markets, research, production and hydrocarbon transport networks …) (FEK Α’ 179/22.8.2011).

9 Nomos 4412/2016, Dimosies Symvaseis Ergon, Promithion kai Ypiresion (prosarmogi stis Odigies 2014/24/ΕΕ kai 2014/25/ΕΕ) (Law 4412/2016 on public works contracts, public supply contracts and public service contracts (transposition of Directives 2014/24/EU and 2014/25/EU) (FEK Α’ 147/8.8.2016).

10 COM(88) 377 final – SYN 153 (OJ 1988 C 319, p. 2).

11 Seventh to tenth recitals of the proposal.

12 Council Directive of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1990 L 297, p. 1).

13 Council Directive of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

14 Directive of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).

15 Judgment of 29 January 2026, Fondazione Teatro alla Scala di Milano (C‑668/24, EU:C:2026:60, paragraph 35 and the case-law cited).

16 DESFA’s written observations, paragraph 5.

17 As I set out above, Article 4(3) of Directive 2014/25 provides that special or exclusive rights may be granted by a competent authority of a Member State by way of any legislative, regulatory or administrative provision.

18 Νomos 2364/1995, Systasi tou Somatos Energeiakou Elegchou kai Schediasmou. Eisagogi, metafora, emporia kai dianomi fysikou aeriou … (Law 2364/1995 on the establishment of the Energy Audit and Planning Board. Import, transmission, trading and distribution of natural gas …) (FEK Α’ 252/6.12.1995).

19 Νomos 3428/2005, Apeleftherosi Agoras Fysikou Aeriou (Law 3428/2005 on the deregulation of the natural gas market) (FEK Α’ 313/27.12.2005).

20 DESFA was created by Presidential Decree 33/2007 (FEK A’ 31), adopted under the authority of Article 7 of Law 3428/2005. It used to be wholly owned by DEPA. The privatisation of DESFA took place through the sale of 66% of its share capital on 26 June 2017 to a consortium made up of a number of foreign companies in the gas sector. The Greek State retained possession of the remaining share capital.

21 Order for reference, paragraph 20.

22 Written observations of the Greek Government, paragraphs 15 and 16, and of DESFA, paragraphs 8 and 9.

23 Order for reference, paragraph 20.

24 Judgment of 25 October 2001, Ambulanz Glöckner (C‑475/99, EU:C:2001:577, paragraph 24).

25 Order for reference, paragraph 20.

26 It could also be added that the broad powers of the regulatory authority to grant an authorisation for the operation of the IGSs may constitute a further condition which impedes the effective performance of the activities of the owners of those independent networks. The Commission points this out (paragraph 23 of its written observations) with reference to Article 74 of Law 4001/2011.

27 Order for reference, paragraph 20.

28 Following DESFA’s request and Commission’s opinion of 24 October 2018, reference C(2018)7147 final, DESFA was finally certified as an ownership unbundled gas transmission system operator, pursuant to the provisions of Directive 2009/73 and Law 4001/2011.

29 Judgment of 6 May 2010, Club Hotel Loutraki and Others (C‑145/08 and C‑149/08, EU:C:2010:247, paragraph 59).

30 Ibid.

31 Recital 20 of Directive 2014/25: ‘it should also be clarified that that listing of legislation is not exhaustive and that rights in any form, including by way of acts of concession, which have been granted by means of other procedures based on objective criteria and for which adequate publicity has been ensured do not constitute special or exclusive rights for the purposes of defining the scope of this Directive ratione personae’.

32 Annex 8 to DESFA’s written observations (in reality, Annex 7).

Opinion of Advocate General Campos Sánchez-Bordona delivered on 10 September 2026.###

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