Case C-454/06, Pressetext Nachrichtenagentur v Austria – legal and economic aspects. Solutions for public administration

JURCIK RADEK: Case C-454/06, Pressetext Nachrichtenagentur v Austria – legal and economic aspects. Solutions for public administration? Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis, 2013, LXI, No. 4, pp. 967–971 The overall question of when amendments to an existing agreement are to be regarded as constituting a new award of a public contract has not come before the ECJ. The Pressetext case and decision’s practice in the Czech Republic has solved this question: In order to ensure transparency of procedures and equal treatment of tenderers, amendments to provisions of a public contract during the currency of the contract constitute a new award of a contract when they are materially diff erent in character from the original contract and, therefore, are such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract. We can say that for this purpose an amendment to a public contract may be regarded as ‘material’ when: it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted, or would have allowed for the acceptance of a tender other than the one initially accepted, it extends the scope of the contract considerably to encompass services not initially covered and it changes the economic balance of the contract in favour of the contractor in a manner which was not provided for in the terms of the initial contract. public procurement procedures, court of justice of the European Union, public procurement, contract amendment, changes of public contracts, variation clauses The process of entering into an agreement for the subject of fulfi lment of a public contract assigned pursuant Act No. 137/2006 Coll. , on public contracts, as amended (hereina er the “Act on Public Contracts”) is subject upon assigning of a below-limit or above-limit public contract to a binding legal framework.1 If this legal framework related to the rules is breached, it will also result in a breach of the Act on Public Contracts. In the article, the author analyses the resulting option of the contracting parties to amend the agreement entered into based on a binding approach pursuant to the Act on Public Contracts. Based on the above analysis of the legal defi nition, decision practice and the nature of contractual amendments, the author draws his own conclusions regarding the resulting option of entering into lege artis amendments to the specifi ed agreements. Changes of public contracts In relation to the above objective, the following provisions of the Act on Public Contracts are standard. Pursuant to Section 82 paragraph 2 of the Act on Public Contracts, the tenderer shall enter into an agreement in accordance with the dra agreement contained in the selected applicant’s 1 The Czech Act on Public Contracts which is based on European procurement directives considers assignment to be a public decision by the tenderer to select the best off er and to enter into an agreement with the applicant selected in the tender (see Section 17 letter k/ of Act No. 137/2006 Coll., as amended).