Public Procurement & Contract Modifications: A New Interpretation by the CJEU

In the realm of public procurement, modifying contract terms after an award is often fraught with legal risks, primarily because a significant change to the original structure may be seen as bypassing new procurement procedures.

On October 16, 2025, the Court of Justice of the European Union (CJEU) provided a landmark clarification on this issue in its judgement for Case C-282/24 (Polismyndigheten v Konkurrensverket).

Background: The Swedish Police Towing Service Case

In 2020, the Swedish Police Authority issued a call for tenders for vehicle towing services, awarded based on the lowest price criterion. The contract included a fixed price for services within a 10 km radius and a separate price per kilometer beyond that. In 2021, the Police Authority renegotiated the remuneration model with the successful bidders, increasing the fixed-price radius from 10 km to 50 km and adjusting the per-kilometer rates.

Although these changes led to only a marginal change in the total contract value, the Swedish Competition Authority challenged the move, seeking a fine for an illegal modification without a new procurement procedure.

The Legal Question

The core issue before the Court was whether a modification of the remuneration model, as per Article 72(2) of Directive 2014/24/EU, constitutes an “alteration of the overall nature” of the framework agreement. If the overall nature is altered, a new procurement procedure becomes mandatory.

Key Judicial Observations

Distinction Between “Substantial Modification” and “Overall Nature”: The CJEU clarified that a “substantial modification” (defined in Article 72(4)) and an “alteration of the overall nature” (Article 72(2)) are distinct legal concepts. A modification might be “substantial” because it could have influenced the original bidding outcome, but that does not automatically mean it changes the overall nature of the contract.

Defining the “Overall Nature”: According to the Court, an alteration of the overall nature refers to fundamental changes that transform the contract or framework agreement in its entirety. Examples include replacing the works, supplies, or services with something different, or fundamentally changing the type of procurement.

Financial Balance and Remuneration Models: The Court ruled that a modification to the remuneration method that results in only a “marginal change” to the total value does not, in principle, alter the overall nature of the agreement. However, an exception exists if the change is so drastic that it completely alters the agreement’s balance, placing the contractor in a significantly more favorable position than originally agreed.

Significance of the Ruling

This judgment provides much-needed clarity and pragmatic flexibility for public procurement officials. It confirms that:
Contracting authorities have some flexibility to adapt to external circumstances during the contract term.

As long as the core subject matter remains unchanged and the total value adjustment is marginal, technical refinements to payment models do not necessarily require a new tender.

Caution: Authorities must still ensure that any modification does not fundamentally shift the economic balance in favor of the contractor in a way that distorts the original competition.

References: CJEu Judgment of 16 October 2025, Case C-282/24