Introduction

The judgment of the Court of Justice of 16 October 2025 in Polismyndigheten v. Konkurrensverket (C-282/24), provides a necessary clarification concerning the concept of alteration of the overall nature of the contract or the framework agreement provided for in Article 72 of the Procurement Directive (2014/24/EU) (hereinafter, ‘the Directive’).

This judgment is significant, since it delineates the margins of flexibility afforded to contracting authorities under the Directive, particularly concerning minor changes to the contract value. Specifically, the ruling addresses a previously unexamined aspect of contract modifications below the de minimis thresholds set out in Article 72(2) of the Directive.

The Dispute in the Main Proceedings and the Question Referred

The case originated from a dispute between the Swedish Police Authority (Polismyndigheten) and the Swedish Competition Authority (Konkurrensverket), which imposed a fine of approximately EUR 106 650 on the Swedish Police Authority for modifying framework agreements (FWAs) relating to vehicle towing services without a new procurement procedure.

The agreements were amended to adjust the remuneration model, increasing the fixed price component and reducing the variable per-kilometre price, aiming to even out costs without increasing the total contractual value beyond a marginal degree.

Swedish lower courts, in upholding the fine, regarded these modifications as ‘substantial’, deeming them capable of attracting different tenderers or leading to a different outcome of the procedure, thereby altering the ‘overall nature’ of the FWA.

The core issue of the request for preliminary ruling by the the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) is whether a change in the remuneration model of a framework agreement (FWA) which alters the balance between fixed and variable prices for services, while maintaining a marginal change in the total contract value, can be deemed to alter the ‘overall nature’ of the framework agreement, thereby necessitating a new procurement procedure despite the value of the modification falls below Article 72(2) de minimis thresholds.

Legal Context

Article 72 of Directive 2014/24 sets out the conditions under which contracts and framework agreements may be modified without a new procurement procedure. It provides for several specific requirements, including modifications foreseen in initial procurement documents (Article 72(1)(a)), unforeseeable circumstances (Article 72(1)(c)), and non-substantial modifications (Article 72(1)(e)).

For the purposes of this case, Article 72(2) introduces a de minimis rule, allowing modifications below specified value thresholds (Article 4 thresholds and 10% for services/supplies and 15% for works) ‘without any need to verify whether the conditions set out under points (a) to (d) of paragraph 4 are met.’ However, it explicitly states that ‘the modification may not alter the overall nature of the contract or framework agreement.’ Article 72(4) defines the concept of ‘substantial modifications’, which include changes affecting the admission of other candidates, economic balance of the contract, its scope, or the identity of the contractor.

Recitals 107 and 109 of the Directive offer further guidance in the interpretation of this notion. Recital 107 highlights the need for a new procurement procedure in case of ‘material changes’ to the initial contract, especially if they would have influenced the outcome of the initial procedure, while simultaneously introducing de minimis thresholds for minor changes. Recital 109, concerning unforeseeable circumstances, provides examples of alterations of the nature of the overall nature of the procurement, such as replacing the subject matter or fundamentally changing the type of procurement.

The referring court, the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), sought clarification on the concept of ‘alteration of the overall nature’ of the FWA within Article 72(2).

The Reasoning of the Court

The Court’s analysis begins by establishing the necessity of interpreting Article 72(2) by considering its wording, context, and objectives.

The Court first notes the absence of a specific definition for ‘alteration of the overall nature’ of an FWA within the Directive. Resorting to the usual meaning in everyday language, it suggests that it refers to modifications ‘of such a kind that they result in the transformation of the contract or framework agreement in its entirety’ (para. 21).

Crucially, the Court emphasises that Article 72(2) applies ‘without any need to verify whether the conditions set out under … paragraph 4[(a) to (d)] are met.’

While acknowledging that Article 72(2) is a derogation from the general principle requiring a new procurement procedure and that it must be interpreted strictly (para. 25), the Court proceeds to its interpretation. It clarifies that while recital 107 refers to the prior case-law on ‘material changes to the initial contract’, the EU legislature did not intend to ‘systematically codify that case-law’ (para. 28). Instead, the second paragraph of recital 107, allowing minor changes of the contract value up to a certain value, demonstrates an intention to permit a ‘broad possibility of effecting, in a simplified manner, modifications which would normally require the use of such a new procedure’ (para. 30), provided they fall below the specified thresholds.

The Court further references recital 109, concerning the modifications governed by Article 72(1)(c) thereof, which gives examples of modifications which result in an ‘alteration of the nature of the overall procurement’, such as replacing its subject matter or fundamentally changing the type of procurement.

These examples, although not exhaustive, ‘relate exclusively to modifications which transform the contract concerned’ and go beyond ‘substantial modifications’ under Article 72(4) (paras 31-32).

Importantly, the Court explicitly rejects the idea that any modification influencing the outcome necessarily entails an alteration of the overall nature of the contract (para. 33). A key point of the Court’s reasoning lies in comparing the terminology used in Article 72. Indeed, the EU legislature used ‘different expressions to refer, first, to modifications altering the overall nature of a framework agreement and, second, to substantial modifications.’ Equating these concepts would deprive Articles 72(1)(a), 72(1)(c) and 72(2) of the Directive of all effectiveness (paras 34 and 35).

If only non-substantial modifications were allowed under these provisions, they would merely reiterate what is already covered by Article 72(1)(e). This would also negate the ‘specific conditions’ attached to Articles 72(1)(a), 72(1)(c), and 72(2)(2) (paras 36 and 37).

The Court reiterates that Article 72 aims to balance the principles of equal treatment and transparency with the need for flexibility, enabling contracting authorities to respond pragmatically to unforeseen situations (para. 38 and the case-law cited therein, judgments of Advania Sverige and Kammarkollegiet (C‑461/20) paras. 32 and 37, and Obshtina Razgrad (C‑441/22 and C‑443/22, para. 61).

The provisions in Article 72(1)(a), (c), and (2) 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’ (para. 40, citing point 28 of the Advocate General’s Opinion).

In the light of the above, the Court concludes 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’ (para. 41). Consequently, the mere fact that a modification could have influenced the initial procurement outcome (Article 72(4)(a)) is not, in itself, sufficient to establish an alteration of the overall nature (para. 42).

Applying these principles to modifications of the remuneration method of a contract, the Court notes that Article 72(1)(a) and (c) expressly allow for price adjustments, provided they do not alter its overall nature. To deem any limited price modification as automatically altering the overall nature would deprive these adjustment mechanisms of all effectiveness (paras. 43-44).

While Article 72(2) does not explicitly mention price modifications, its limitation to limited value modifications implicitly limits the impact of such changes on the balance of the FWA concerned (para. 45). The Court asserts that a modification of the remuneration method resulting in a marginal change in the total value of the FWA cannot, in any event, entail a ‘fundamental change in the subject matter’ or in the ‘type of framework agreement’ (para. 46).

However, the Court introduces a crucial caveat. 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… 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’ (para. 47).

This would occur ‘if the revision of the remuneration method… 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’ (para. 48).

This assessment is left to the referring court in the main proceedings, which must consider all relevant circumstances.

Conclusion and Implications

The Court of Justice clarified that the concept of ‘alteration of the overall nature of the contract’ in Article 72(2) is distinct from that of a ‘substantial modification’ under Article 72(4), providing a significant degree of legal certainty for contracting authorities in case of minor value adjustments.

This concept involves a fundamental transformation of the agreement’s subject matter, type, or, in exceptional cases, its economic balance, going beyond what would merely have influenced the original tender outcome. Modifications below de minimis thresholds, even if they would have influenced the tender outcome, are permissible unless they alter the overall nature of the contract or framework agreement.

The ruling recognises the practical implications of long-term contracts and the need for some adaptability. Public bodies and national courts must meticulously assess whether a change in the method of remuneration fundamentally alters the agreement’s essence. This requires an in-depth assessment of the economic impact beyond the mere total value. The judgment thus strikes a careful balance, affirming the principles of transparency and equal treatment by safeguarding against true transformations of agreements, while simultaneously promoting administrative efficiency by allowing pragmatic, low-value adjustments.