Specification Trap: Lessons from the DYKA Case

Technical specification determination in public procurement is a highly sensitive matter because it dictates how open or restricted competition will be.

On January 16, 2025, the Court of Justice of the European Union (CJEU) provided a practical and influential answer to a fundamental question: can a contracting authority define specifications according to its needs, or does it restrict competition ?

Background of the Case

The case arose from a public works procurement in Belgium where Fluvius System Operator, a utility authority, invited tenders for the construction of a sewerage system. A key condition was imposed: pipes used in the drainage system must be made of clay or concrete.

This condition effectively prevented the plastic pipe manufacturer DYKA Plastics from participating in the tender.

DYKA Plastics complained that this requirement was intended to exclude suppliers like them and contradicted the basic principles of EU procurement law.

Legal Issues

The matter was referred to the CJEU for a preliminary ruling by the Ghent Business Court in Belgium. The core of the case was Article 42 of Directive 2014/24/EU, which sets the rules for determining technical specifications. The primary question was whether a contracting authority could mandate specific materials, such as clay or concrete. More specifically, the court examined whether this was a valid technical requirement or a method to limit competition, noting that EU Directives require specifications to ensure equal treatment and competition.

Arguments of the Parties

DYKA Plastics argued that specifying a particular material meant excluding other equivalent technical solutions. They claimed plastic pipes can meet the same functional requirements and that mandating clay or concrete creates an artificial barrier. They further alleged this violates the principles of non-discrimination and equal treatment under EU law.

On the other hand, Fluvius System Operator argued their requirement was to ensure project durability, safety, and long-term performance. They contended that contracting authorities should have the discretion to determine the most suitable technical solutions for their projects.

Opinion of the Advocate General

The Advocate General stated in his opinion that while contracting authorities can determine specifications, they must be based on justification. He indicated that if specifications are unnecessarily restrictive, they could undermine the objectives of procurement law.

Judgment of the Court

On January 16, 2025, the CJEU delivered its ruling. The court established an important principle: a contracting authority may mention specific materials, but it must be justified and must not unnecessarily restrict competition.

The court further stated that if a specific material is mentioned in the specification, there is generally a need to include an “or equivalent” (or similar) alternative; otherwise, it may be considered a violation of Article 42 of Directive 2014/24/EU.

Critical Analysis of the Ruling

This ruling clarified a crucial aspect of procurement law: specification neutrality.

First, the court made it clear that functional requirements should be prioritized in procurement, meaning authorities should define outcomes or performance rather than materials.

Second, the ruling strengthens competition because allowing authorities to specify materials or brands makes market entry difficult for new or innovative suppliers.

Third, it represents a significant step toward innovation-friendly procurement, acknowledging that new materials and technologies are constantly improving in modern supply chains.

Practical Impact on Procurement Practice

This ruling carries a practical message for procurement professionals: over-specification equals competition restriction, and specification drafting is a strategic decision.

This is particularly important in infrastructure and engineering procurement. From now on, when creating specifications, contracting authorities must document justifications, include equivalent options, and consider the impact on competition.

Conclusion

The DYKA Plastics case is a significant milestone in procurement law. It shows that technical specifications are not merely technical matters but are strategic and legal ones.

The core goal of procurement is to ensure fair competition, and caution in specification drafting is essential to achieve that goal. This case offers an important lesson for procurement professionals:

“If the specification is wrong, the entire procurement process is questioned”.

References: CJEU Judgment, Case C-424/23 (16 January 2025)