Polismyndigheten v Konkurrensverket (C-282/24)

Contents

Judgment of the Court (Third Chamber)16 October 2025^note(Reference for a preliminary ruling — Public procurement — Directive 2014/24/EU — Article 72 — Modification of a framework agreement during its term — Value of the modification below the values laid down in Article 72(2) — Modification of the remuneration model of a framework agreement — Substantial modification of a framework agreement — Alteration of the overall nature of a framework agreement)In Case C‑282/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), made by decision of 18 April 2024, received at the Court on 23 April 2024, in the proceedingsPolismyndighetenvKonkurrensverket,THE COURT (Third Chamber),composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,Advocate General: A. Rantos,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Polismyndigheten, by M. Ehn and K. Pedersen, advokater,– the Konkurrensverket, by M. Andersson Müller and M. Östman, acting as Agents,– the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,– the Estonian Government, by M. Kriisa, acting as Agent,– the European Commission, by A. Biolan, C. Faroghi, L. Malferrari and G. Wils, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 30 April 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 72(2) of Directive 2014/24/EU 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).

2The request has been made in proceedings between the Polismyndigheten (Swedish Police Authority) and the Konkurrensverket (Swedish Competition Authority) concerning the latter’s application for the imposition of a fine on the Swedish Police Authority for modifying framework agreements relating to vehicle towing services without having initiated a new procurement procedure.

Legal context

3Recitals 107 and 109 of Directive 2014/24 are worded as follows:(107) It is necessary to clarify the conditions under which modifications to a contract during its performance require a new procurement procedure, taking into account the relevant case-law of the Court … A new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. This is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure.Modifications to the contract resulting in a minor change of the contract value up to a certain value should always be possible without the need to carry out a new procurement procedure. To this effect and in order to ensure legal certainty, this Directive should provide for de minimis thresholds, below which a new procurement procedure is not necessary. Modifications to the contract above those thresholds should be possible without the need to carry out a new procurement procedure to the extent they comply with the relevant conditions laid down in this Directive.…(109) Contracting authorities can be faced with external circumstances that they could not foresee when they awarded the contract, in particular when the performance of the contract covers a long period. In this case, a certain degree of flexibility is needed to adapt the contract to those circumstances without a new procurement procedure. The notion of unforeseeable circumstances refers to circumstances that could not have been predicted despite reasonably diligent preparation of the initial award by the contracting authority, taking into account its available means, the nature and characteristics of the specific project, good practice in the field in question and the need to ensure an appropriate relationship between the resources spent in preparing the award and its foreseeable value. However, this cannot apply in cases where a modification results in an alteration of the nature of the overall procurement, for instance by replacing the works, supplies or services to be procured by something different or by fundamentally changing the type of procurement since, in such a situation, a hypothetical influence on the outcome may be assumed.’

4Article 72 of that directive provides:1.Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:(a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the contract or the framework agreement;…(c) where all of the following conditions are fulfilled:(i) the need for modification has been brought about by circumstances which a diligent contracting authority could not foresee;(ii) the modification does not alter the overall nature of the contract;(iii) any increase in price is not higher than 50% of the value of the original contract or framework agreement. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;…(e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4.…2.Furthermore, and without any need to verify whether the conditions set out under points (a) to (d) of paragraph 4 are met, contracts may equally be modified without a new procurement procedure in accordance with this Directive being necessary where the value of the modification is below both of the following values:(i) the thresholds set out in Article 4; and(ii) 10% of the initial contract value for service and supply contracts and below 15% of the initial contract value for works contracts.However, the modification may not alter the overall nature of the contract or framework agreement. Where several successive modifications are made, the value shall be assessed on the basis of the net cumulative value of the successive modifications.…4.A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of point (e) of paragraph 1, where it renders the contract or the framework agreement materially different in character from the one initially concluded. In any event, without prejudice to paragraphs 1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:(a) the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;(b) the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;(c) the modification extends the scope of the contract or framework agreement considerably;(d) where a new contractor replaces the one to which the contracting authority had initially awarded the contract in other cases than those provided for under point (d) of paragraph 1.5. A new procurement procedure in accordance with this Directive shall be required for other modifications of the provisions of a public contract or a framework agreement during its term than those provided for under paragraphs 1 and 2.’

The dispute in the main proceedings and the question referred for a preliminary ruling

5In 2020, the Swedish Police Authority issued a call for tenders for a contract for vehicle towing services, under which the tenders were to be assessed on the basis of the criterion of the lowest price offered. The tenderers were required to quote a fixed price for services where the pick-up point of the vehicle was within a 10 kilometre radius of the place where the vehicle was to be returned and an additional price per kilometre for transportation outside that radius. The tender documents stated that prices were to remain unchanged throughout the duration of the contract.

6That procurement procedure led to the conclusion in early 2021, of two framework agreements, one of which with Lidköpings Biltjänst Hyr AB.

7In 2021, the Swedish Police Authority agreed with the two successful tenderers concerned to amend the terms of remuneration laid down in those two framework agreements, with the aim of evening out the distribution of costs between the various police areas, without increasing the total contractual value of those two framework agreements. First, the radius of services for which only a fixed price was payable was increased from 10 to 50 kilometres. Second, the prices initially agreed on were modified. More specifically, as regards Lidköpings Biltjänst Hyr, the fixed price per service was increased from 0 to 4500 kronor (SEK) (approximately from EUR 0 to EUR 400) and the price per kilometre was reduced, for certain operations, from SEK 185 to SEK 28 (approximately from EUR 16.5 to 2.5) and, for others, from SEK 275 to SEK 55 (approximately from EUR 24.5 to EUR 5). The Swedish Police Authority concluded that the application of that new remuneration model had led to a marginal reduction in the total remuneration of Lidköpings Biltjänst Hyr in comparison with that which would have been paid in accordance with the remuneration model initially provided for.

8The Swedish Competition Authority brought an action before the Förvaltningsrätten i Stockholm (Administrative Court, Stockholm, Sweden) seeking the imposition of a fine on the Swedish Police Authority for having modified the framework agreements relating to vehicle towing services without having initiated a new procurement procedure. That court upheld that action and ordered the Swedish Police Authority to pay a fine of SEK 1200000 (approximately EUR 106650), on the ground that, if the modifications at issue in the main proceedings had been included in the initial call for tenders, they could have led to the participation of other tenderers or to the selection of another tender, with the result that those modifications had to be regarded as substantial. For the same reason, that court held that those modifications altered the overall nature of the framework agreement concluded with Lidköpings Biltjänst Hyr.

9The Swedish Police Authority brought an appeal against that judgment before the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm, Sweden). That court dismissed that appeal, upholding, in essence, the grounds of that judgment.

10The Swedish Police Authority brought an appeal on a point of law before the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), which is the referring court, claiming, inter alia, that the criterion adopted in the judgment of the Kammarrätten i Stockholm (Administrative Court of Appeal, Stockholm) was not appropriate for assessing whether there had been an alteration of the overall nature of the framework agreement concluded with Lidköpings Biltjänst Hyr.

11The referring court states that, according to the calculation made by the Swedish Police Authority, the value of the modifications made to that framework agreement is lower than the values laid down in Article 72(2) of Directive 2014/24. It is therefore necessary to determine whether those modifications can be regarded as having altered the overall nature of that framework agreement.

12The referring court considers that, although the case-law of the Court of Justice has clarified the concept of ‘substantial modification’ of a contract, the Court has not yet examined the rules on modifications of lesser value provided for in Article 72(2), which did not originate in that case-law, and, in particular, it has not ruled on the concept of an alteration of the overall nature of a contract.

13In those circumstances, the Högsta förvaltningsdomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Can a modification of the remuneration model in a framework agreement originally awarded on the basis of the award criterion of the lowest price offered, whereby the balance between fixed and variable prices is altered and the price levels are adjusted to such an extent that the total contract value does not change to more than a marginal degree, mean that the overall nature of the framework agreement is to be considered to have been altered within the meaning of Article 72(2) of [Directive 2014/24]?’

Consideration of the question referred

14By its question, the referring court asks, in essence, whether Article 72(2) of Directive 2014/24 must be interpreted as meaning that the modification of the method of remuneration provided for in a framework agreement which was awarded on the basis of the criterion of the lowest price, whereby the balance between fixed and variable prices is altered and the price levels are adjusted in such a manner that the total value of that framework agreement does not change to more than a marginal degree, must be regarded as altering the overall nature of that framework agreement, within the meaning of that provision.

15Article 72(5) of Directive 2014/24 provides that a new procurement procedure is required for other modifications to the provisions of a framework agreement during its term than those provided for under Article 72(1) and (2) of that directive.

16Article 72(1) of Directive 2014/24 lists five cases in which framework agreements may be modified without a new procurement procedure. In particular, Article 72(1)(e) of that directive allows for such a modification where the modification, irrespective of its value, is not substantial within the meaning of Article 72(4) of that directive.

17Article 72(2) of that directive provides that, without any need to verify whether the conditions set out under Article 72(4)(a) to (d) thereof are met, framework agreements may equally be modified without a new procurement procedure where the value of the modification is below both of the values specified in Article 72(2)(i) and (ii). The second subparagraph of Article 72(2) states, however, that such a modification may not alter the overall nature of the framework agreement concerned.

18In order to determine the scope of the concept of an alteration of the overall nature of a framework agreement, within the meaning of Article 72(2) of Directive 2014/24, it is necessary, in accordance with the Court’s settled case-law, to interpret that provision by taking into consideration not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 1 August 2025, Tradeinn Retail Services, C‑76/24, EU:C:2025:593, paragraph 25).

19As regards, in the first place, the wording of Article 72(2) of Directive 2014/24, it should, first, be pointed out that that provision does not contain a definition of the concept of an alteration of the overall nature of a framework agreement.

20Accordingly, and since no other provision of that directive contains such a definition, it is necessary to determine the meaning and scope of that expression by considering its usual meaning in everyday language (see, to that effect, judgment of 16 July 2020, AFBM and Others (C‑610/18, EU:C:2020:565, paragraph 52, and of 19 June 2025, CeramTec (C‑17/24, EU:C:2025:455, paragraph 53).

21The words ‘overall nature’, taken in their usual meaning, tend to indicate that the EU legislature intended to refer exclusively to modifications to framework agreements of such a kind that they result in the transformation of the contract or framework agreement in its entirety.

22Second, Article 72(2) of Directive 2014/24 specifies that that provision is to apply ‘without any need to verify whether the conditions set out under … paragraph 4[(a) to (d)] are met’.

23In that regard, it should be noted that a modification which satisfies one of those conditions must, in accordance with Article 72(4) of that directive, be regarded as being substantial. Therefore, the addition, to Article 72(2) of that directive, of the clarification referred to in the preceding paragraph indicates that the EU legislature had taken the view that the question whether or not a modification to a framework agreement is substantial is not decisive for the purpose of determining whether that modification alters the ‘overall nature’ of that framework agreement, within the meaning of the second subparagraph of that provision.

24In particular, given that Article 72(4)(a) of Directive 2014/24 specifically refers to modifications introducing conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure, the circumstance that a modification introduces such conditions into a framework agreement cannot logically preclude, as such, that modification from being made on the basis of Article 72(2) of that directive.

25As regards, in the second place, the context in which Article 72(2) of Directive 2014/24 occurs, it should be noted that it follows from Article 72(5) of that directive that Article 72(2) constitutes a derogation from the principle that a framework agreement must not be modified without following a new procurement procedure, with the result that the power to modify laid down in Article 72(2) must be interpreted strictly (see, by analogy, judgments of 4 June 2009, Commission v Greece, C‑250/07, EU:C:2009:338, paragraph 35, and of 28 October 2022, Generalstaatsanwaltschaft München (Extradition and ne bis in idem), C‑435/22 PPU, EU:C:2022:852, paragraph 120).

26That said, first, it is true that the first paragraph of recital 107 of Directive 2014/24 states that a new procurement procedure is required in case of material changes to the initial contract, in particular if the modifications concerned introduce conditions which, had they been included in the initial procedure, would have had an influence on its outcome.

27The EU legislature thus implicitly referred to a solution enshrined in the case-law of the Court relating to situations prior to the application of Directive 2014/24, from which it was apparent that the contracting authority could not make modifications to the provisions of a contract such that those provisions differ materially in character from those of the original contract and that such would be the case, inter alia, if the proposed modifications were liable to call into question the award of the contract, in the sense that, had such amendments been incorporated in the documents which had governed the original contract award procedure, either another tender would have been accepted or other tenderers might have been admitted to that procedure (see, to that effect, judgments of 19 June 2008, pressetext Nachrichtenagentur, C‑454/06, EU:C:2008:351, paragraphs 34 and 35, and of 7 September 2016, Finn Frogne, C‑549/14, EU:C:2016:634, paragraph 28).

28However, although it is apparent from the first paragraph of recital 107 of Directive 2014/24 that the EU legislature intended to take account of the Court’s case-law, it does not follow that it intended systematically to codify that case-law.

29The second paragraph of that recital qualifies the statement in the first paragraph of that recital, noted in paragraph 26 above, adding that ‘modifications to the contract resulting in a minor change of the contract value up to a certain value should always be possible without the need to carry out a new procurement procedure’.

30The EU legislature thus manifested its intention to ensure a broad possibility of effecting, in a simplified manner, modifications which would normally require the use of such a new procedure, provided that those modifications remain below certain value thresholds, even though such a possibility has no basis in the case-law of the Court relating to situations prior to the application of Directive 2014/24.

31Second, recital 109 of that directive, which concerns the modifications governed by Article 72(1)(c) thereof, which are subject to the requirement not to alter the overall nature of the contract or framework agreement concerned, cites as an example of modifications ‘[altering] the nature of the overall procurement’, the replacement of the works, supplies or services by something different or a fundamental change in the type of procurement concerned.

32It should be noted in that regard that, although the examples thus cited by the EU legislature are not exhaustive, the fact remains that they relate exclusively to modifications which transform the contract concerned, the scope of which thus goes beyond that of the substantial modifications referred to in Article 72(4) of Directive 2014/24.

33Furthermore, although recital 109 of that directive presents those examples as cases in which it may be presumed that the modification in question would be likely to influence the outcome of the contract concerned, it cannot be inferred therefrom that any modification having such an effect must be regarded as entailing an alteration of the overall nature of that contract.

34Third, it is apparent from a comparison of Article 72(1), (2) and (4) of Directive 2014/24 that the EU legislature chose to use different expressions to refer, first, to modifications altering the overall nature of a framework agreement and, second, to substantial modifications thereto.

35Moreover, in the light of the structure of Article 72 of Directive 2014/24, an interpretation of that provision which would equate the concepts of substantial modifications and modifications altering the overall nature of a contract or a framework agreement would deprive Article 72(1)(a) and (c) and (2) of that directive of all effectiveness.

36It is apparent from Article 72(1)(e) of Directive 2014/24 that any non-substantial modification, irrespective of its value, may be effected without the need to carry out a new procurement procedure. Moreover, it follows from the very wording of Article 72(1)(a) and (c) and (2) of that directive that those provisions are not applicable to modifications altering the overall nature of the contract or framework agreement concerned. Accordingly, if that requirement were to be understood as meaning that the application of the provisions of Article 72(1)(a) and (c) and (2) of Directive 2014/24 allows only modifications which are not substantial to be adopted, those provisions would allow only modifications to contracts or framework agreements which could, in any event, be made under Article 72(1)(e) of that directive.

37Such an interpretation is all the less consistent with the structure of Article 72 of that directive since Article 72(1)(a) and (c) and (2) thereof each lay down specific conditions in addition to the absence of an alteration of the overall nature of the contract or framework agreement concerned, which would be devoid of any purpose if that interpretation were to be adopted.

38As regards, in the third place, the objectives of Directive 2014/24, it follows from the case-law of the Court that Article 72 of that directive, by regulating the conditions under which contracts or framework agreements may be modified during their term, aims to ensure compliance with the principles of equal treatment and transparency, while introducing a degree of flexibility in the application of the rules governing contracts and framework agreements, in order to enable contracting authorities to respond pragmatically to the situations they face during the performance of contracts and framework agreements (see, to that effect, judgments of 3 February 2022, Advania Sverige and Kammarkollegiet, C‑461/20, EU:C:2022:72, paragraphs 32 and 37, and of 7 December 2023, Obshtina Razgrad, C‑441/22 and C‑443/22, EU:C:2023:970, paragraph 61).

39It is also apparent from the Proposal for a Directive of the European Parliament and of the Council on public procurement of 20 December 2011 (COM(2011) 896 final), which led to the adoption of Directive 2014/24, that the adoption of the rules now set out in Article 72 thereof was intended, inter alia, to authorise the implementation of ‘a pragmatic solution for dealing with unforeseen circumstances requiring an adaption of a public contract during its term’.

40As the Advocate General observed in point 28 of his Opinion, the situations mentioned in Article 72(1)(a) and (c) and (2) of Directive 2014/24 are characterised by the fact that they concern specific scenarios in which the proposed modification is less likely to affect compliance with the principles of equal treatment and transparency, with the result that more flexible rules may be applied.

41It follows from those considerations that the concept of an alteration of the overall nature of a framework agreement is distinct from that of a substantial modification thereto and that the former concept covers only the most significant substantial modifications which entail a fundamental change in the subject matter of the framework agreement or in the type of framework agreement concerned or a fundamental change in its balance, with the result that they may be regarded as being of such a kind that they result in the transformation of the framework agreement in its entirety.

42It follows that the mere fact that a modification would have been capable of influencing the outcome of the initial procurement procedure for the award of the framework agreement concerned, if it had been included in the documents which governed that procedure, a circumstance which corresponds to the condition laid down in Article 72(4)(a) of Directive 2014/24, cannot, in itself, suffice to establish that that modification alters the overall nature of that framework agreement.

43As regards, more specifically, a modification to the method of remuneration of a framework agreement, it must be pointed out that Article 72(1)(a) and (c) of Directive 2014/24 expressly provides for the possibility of adjusting the price of a contract or a framework agreement, provided that that modification does not alter the overall nature of the contract or framework agreement concerned.

44Accordingly, since those provisions expressly exclude price modifications leading to an alteration of the overall nature of the contract or framework agreement concerned, to consider that a limited price modification of a contract or framework agreement constitutes, in all circumstances, such an alteration would deprive of all effectiveness the mechanisms for adjusting that price expressly laid down, in those provisions, by the EU legislature.

45Furthermore, although Article 72(2) of Directive 2014/24 does not expressly refer to the possibility of modifying the price of a contract or a framework agreement, that provision allows only for modifications of a limited value, which makes it possible to limit the effects of a price modification on the balance of the framework agreement concerned.

46A modification of the method of remuneration of a framework agreement resulting in a marginal change in the total value of that framework agreement cannot, in any event, entail a fundamental change in the subject matter of that framework agreement or, in principle, in the type of framework agreement concerned.

47However, it cannot be entirely ruled out that, in exceptional circumstances, a modification of the method of remuneration resulting in a marginal change in the total value of a framework agreement, in the same way as a drastic change in the balance between fixed and variable prices, may lead to a fundamental change in the balance of that framework agreement and therefore to an alteration of the overall nature of that framework agreement.

48That will be the case if the revision of the remuneration method of the framework agreement concerned completely alters the general structure of that framework agreement, leading to the successful tenderer or tenderers being placed in a significantly more favourable position than that which would have resulted from the application of the method of remuneration initially agreed on. Such a matter will be for the referring court to ascertain in the case at issue in the main proceedings, taking into consideration all of the relevant circumstances.

49In the light of all of the foregoing, the answer to the question referred is that Article 72(2) of Directive 2014/24 must be interpreted as meaning that the modification of the method of remuneration provided for in a framework agreement which was awarded on the basis of the criterion of the lowest price, whereby the balance between fixed and variable prices is altered and the price levels are adjusted in such a manner that the total contract value does not change to more than a marginal degree, must not be regarded as altering the overall nature of that framework agreement, within the meaning of that provision, unless the modification of the method of remuneration of that framework agreement leads to a fundamental change in the balance of that agreement.

Costs

50Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Third Chamber) hereby rules: Article 72(2) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/ECmust be interpreted as meaning that the modification of the method of remuneration provided for in a framework agreement which was awarded on the basis of the criterion of the lowest price, whereby the balance between fixed and variable prices is altered and the price levels are adjusted in such a manner that the total contract value does not change to more than a marginal degree, must not be regarded as altering the overall nature of that framework agreement, within the meaning of that provision, unless the modification of the method of remuneration of that framework agreement leads to a fundamental change in the balance of that agreement.