Abstract;Judgment — ECLI:EU:C:2024:495
Date: 2024-06-13
Language of the case: Danish
Court formation: Fourth Chamber
Subject matter: Public procurement in the European Union
Procedure: Reference for a preliminary ruling
Origin: Denmark

Translation C-737/22 – 1 
Case C-737/22 
Request for a preliminary ruling 
Date lodged: 
1 December 2022 
Referring court: 
Østre Landsret (Denmark) 
Date of the decision to refer: 
11 November 2022 
Applicant: 
Staten og Kommunernes Indkøbsservice A/S 
Defendant: 
BibMedia A/S 
….. 
ØSTRE LANDSRET 
(High Court of Eastern Denmark) 
ORDER 
of 11 November 2022 
... 
Staten og Kommunernes Indkøbsservice A/S 
... 
v 
BibMedia A/S 
1 ... The case has been brought by Staten og Kommunernes Indkøbsservice A/S (the 
procurement service of the Danish State and municipalities) (‘SKI’) against Audio 
Visionary Music A/S (‘AVM’) and concerns the legality of a procurement 
EN 
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procedure carried out by SKI concerning a framework agreement for the provision 
of library materials and preparatory services in relation to this. 
2 The Østre Landsret (High Court of Eastern Denmark, Denmark) has in accordance 
with Article 267(2) of the Treaty on the Functioning of the European Union 
(TFEU) decided to request a preliminary ruling from the Court of Justice of the 
European Union (Court of Justice) concerning the interpretation of the ban on 
negotiations which can be deduced from the case-law of the Court of Justice on 
the fundamental principles of equal treatment and transparency as expressed in 
Article 18(1) 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 (‘the Public Procurement Directive’). Furthermore, the Court of 
Justice is requested to give an opinion on whether the scope of the ban on 
negotiations is affected by the fact that this is an open procedure for separate lots 
(see Articles 27 and 46 of the Public Procurement Directive). 
CIRCUMSTANCES AND PROGRESS OF THE CASE 
3 The applicant, SKI, is a central purchasing body owned by the Danish State and 
Kommunernes Landsforening, which is the association and interest organisation 
of the Danish municipalities. SKI was set up to streamline and professionalise 
public procurement, including through the development, procurement and 
operation of framework agreements on behalf of SKI’s customers (state and 
municipal contracting entities). 
4 At the time of the procurement, AVM was active in the market for preparatory 
services for library materials. With effect from 1 March 2021 BibMedia A/S 
acquired all of the shares in the company. AVM was subsequently dissolved by 
being merged with BibMedia A/S, which entity is therefore party to the 
proceedings. 
5 On 4 February 2020 SKI put out to tender Framework Agreement 50.05 for 
library materials, relating to the provision of library materials and preparatory 
services. The framework agreement is divided into eight lots and has an overall 
estimated value of between DKK 748 million and DKK 1.021 billion. The lots 
which are relevant to the case are ‘Lot 1 Danish books and sheet music (East)’ 
with an estimated value of DKK 253 million and ‘Lot 2 Danish books and sheet 
music (West)’ with an estimated value of DKK 475 million. 
6 All of the lots involved a framework agreement with one supplier, and the award 
criterion was the lowest price. Tenders comprised information on some basic data 
about the tenderer, a completed European Single Procurement Document (ESPD) 
and a completed list of offers with an indication of the prices for a relatively 
modest number of product lines per lot. 
7 When the procurement documents were published, point 3.1 of the specifications 
stated the following concerning the model for the award of Lots 1 and 2: 
STATEN OG KOMMUNERNES INDKØBSSERVICE 
 
3 
‘Lots 1 and 2 are interdependent, (see point 3.1.1), and if a tenderer submits a 
tender for one of these lots, tenders are automatically submitted for both lots. No 
exceptions may be made to this, and thus it is not possible to only submit a tender 
for one of the two lots concerning Danish books and sheet music. 
Apart from the above, there are no restrictions as to how many or how few of the 
lots a tenderer can/should submit tenders for. 
SKI expects to award a contract to one supplier per lot. The same supplier can be 
awarded several lots. 
The market for library materials is characterised by there being only a few 
specialised suppliers and potential tenderers. Danish books and sheet music 
constitute the largest product area in terms of turnover and are commercially 
important for the potential tenderers. In order to safeguard competition in the 
market in the future, Danish books and sheet music are divided geographically 
into two lots. The participating customers are divided in two between these, East 
and West respectively. Annex A and Sub-Annexes A.1 and A.2 show which 
municipalities belong to Lot 1 Danish books and sheet music (East) and Lot 2 
Danish books and sheet music (West).’ 
8 Point 3.1.1 of the specifications also revealed that: 
‘Danish books and sheet music were put out to tender as a so-called “East/West 
model”, which means that the intention is to award one supplier in Eastern 
Denmark and another supplier in Western Denmark, but that the same proposed 
prices will apply for all customers regardless of whether the customers are 
located in Eastern or Western Denmark. 
The tenderers submit prices for profit margin and preparation which must be the 
same – and will apply – for both the Lot for Eastern Denmark and the Lot for 
Western Denmark. 
The tenderer who submits the most economically advantageous tender will be 
awarded the contract to be the supplier of Lot 2 Danish books and sheet music 
(West). 
The tenderer who submits the second most economically advantageous tender will 
be awarded the contract to be the supplier of Lot 1 Danish books and sheet music 
(East). However, this tenderer must accept that the award of the contract as the 
supplier in Eastern Denmark requires the tenderer to supply the framework 
agreement’s products and services to the customers in Eastern Denmark for 
exactly the same prices that the tenderer with the most economically 
advantageous offer has tendered and will supply for in Western Denmark. 
If the tenderer with the second most economically advantageous tender does not 
agree to be the supplier in Eastern Denmark, the opportunity passes to the 
tenderer with the third most economically advantageous tender, who must 
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likewise accept that the award of the contract as the supplier in Eastern Denmark 
requires the tenderer to supply the framework agreement’s products and services 
to the customers in Eastern Denmark for exactly the same prices that the tenderer 
with the most economically advantageous offer has tendered and will supply for in 
Western Denmark. 
If this tenderer does not agree to be the supplier in Eastern Denmark either, the 
opportunity passes to the next tenderer on the list, and so on. If the list of 
tenderers with tenders which satisfy the contract conditions is exhausted and no 
supplier for Eastern Denmark is found from among them, the supplier who is 
awarded the contract for Western Denmark will also be awarded the contract for 
Eastern Denmark. In this event, this supplier will be the supplier for the whole of 
Denmark, that is to say for both Lots 1 and 2, and will supply throughout the 
entire country for the same prices. 
For the tenderers, the East/West model means that, if the evaluation should show 
that they have submitted the most economically advantageous tender, they agree 
that they must give the other tenderers full access to their proposed prices, in the 
first place to the tenderer with the second most economically advantageous tender 
and, if that tenderer does not agree to be the supplier in Eastern Denmark, to the 
next on the list, and so on. 
The reason why the supplier with the most economically advantageous tender is 
awarded Western Denmark is that a higher turnover can be expected to be 
achieved in Western Denmark than in Eastern Denmark. Thus the tenderer who is 
awarded Eastern Denmark should also be aware that, in accepting the terms for 
being the supplier in Eastern Denmark, the tenderer must ensure that, under the 
prices imposed, it can achieve a profitable business in relation to its own costs 
even though turnover may be expected to be lower in Eastern Denmark than in 
Western Denmark. The distribution of the expected turnover between Eastern and 
Western Denmark respectively is specified in A.1.’ 
9 On 3 March 2020, the closing date for the submission of tenders, SKI received 
tenders from AVM and from BibMedia A/S (the only two serious suppliers in the 
market). Both tenderers submitted tenders for all of the lots. 
10 The evaluation was able to establish that BibMedia A/S had submitted the most 
economically advantageous tender (lowest price) for all of the lots, while AVM 
had submitted the second most economically advantageous tender for all of the 
lots. 
11 As a consequence of the model for the award of Lots 1 and 2 described in the 
specifications, SKI approached AVM with an offer for the award of Lot 1 (East) 
provided that AVM accepted that it would have to supply at the prices which 
BibMedia A/S had submitted as the lowest bidder and which AVM was informed 
of at the time of this contact. 
STATEN OG KOMMUNERNES INDKØBSSERVICE 
 
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12 AVM accepted this, whereupon SKI sent a communication of the award decision 
on 21 April 2020. 
13  AVM then lodged a complaint, on 30 April 2021, with Klagenævnet for Udbud 
(the Danish Complaints Board for Public Procurement, Denmark, ‘the Complaints 
Board’). The Complaints Board was set up for the purpose of fulfilling Denmark’s 
obligations under the Remedies Directives and has the task of handling complaints 
about possible violations by public contracting entities of the udbudsloven (Law 
on Public Procurement), the EU’s public procurement directives, the Treaty on the 
Functioning of the European Union (TFEU) and the principles of equal treatment 
and transparency, etc. deriving therefrom and the tilbudsloven (Law on Tender 
Procedures). 
14 The Complaints Board gave a decision on 14 January 2021 in case C-20/05105: 
Audio Visionary Music A/S v Staten og Kommunernes Indkøbsservice A/S, where 
the Complaints Board concluded as follows: 
‘[SKI has] infringed the principle of equal treatment (see Paragraph 2(1) of the 
Law on Public Procurement and Paragraph 56 of the Law on Public 
Procurement), by applying a procedure to the awarding of Lots 1 and 2 according 
to which the tenderer who has submitted the second best offer can change its 
tender after the deadline for submission of the tender and thereafter be awarded 
Lot 1.’ 
15 The Complaints Board justified its decision, among other things, thus: 
‘this is a case of an open procedure and once a tenderer has submitted its tender, 
the tender cannot in principle be amended, either on the initiative of the 
contracting authority or on the initiative of the tenderer. 
Thus, the principles of equal treatment and transparency in connection with an 
open procedure preclude any form of negotiation between the contracting 
authority and a tenderer. If, following an approach by the contracting entity, a 
tenderer is given the opportunity to amend (reduce) the price offered to a 
specified lower price, this means that there is an opportunity for the tenderer to 
amend an essential term of its tender, namely the exact amount of the offer 
contained in the original tender, in a way which benefits the contracting entity 
and which gives the tenderer the opportunity to improve its price and thereby its 
offer with a view to being awarded the contract. In accordance with standard 
practice, this type of procedure would be contrary to the ban on negotiations. 
The question is whether the fact that in this particular procurement such a 
procedure is described in the specifications means that the procedure in this case 
may be considered to comply with the principles of equal treatment and 
transparency and is therefore lawful. The Complaints Board finds that the ban on 
negotiations in an open procedure cannot be derogated from solely on the basis 
that SKI has described the East/West model in the specifications, as was the case 
here.’ 
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16 On 9 July 2021 SKI initiated legal proceedings before Retten i Glostrup (Glostrup 
District Court, Denmark) against, inter alia, this part of the Complaints Board’s 
decision. On 7 December 2021 the case was referred to the Østre Landsret (High 
Court of Eastern Denmark) ruling at first instance. 
DANISH PROCUREMENT RULES 
17 Directive 2014/24/EU (Public Procurement Directive) has been implemented into 
Danish law through Law No 1564 of 15 December 2015 as subsequently amended 
(Law on Public Procurement). 
18 Paragraph 2 of the Law on Public Procurement implements Article 18(1) of the 
Public Procurement Directive and concerns the general principles of the Law. The 
provision has the following wording: 
Paragraph 2. In public procurement procedures, a contracting entity shall comply 
with the principles of equal treatment, transparency and proportionality pursuant 
to Titles II-IV. 
 Subparagraph (2) An open procedure may not be designed with the intention of 
excluding it from the scope of this law or of artificially limiting competition. 
Competition shall be considered to be artificially limited where the design of the 
procurement is made with the intention of unduly favouring or disadvantaging a 
single or certain economic operator(s). 
19 Paragraph 49 of the Law on Public Procurement implements Article 46(1) to (3) 
of the Public Procurement Directive. Subparagraph 3 of the provision concerns the 
requirements for the division of contracts into lots, and it reads: 
Section 49. 
... 
Subparagraph (3). A contracting entity shall state the following in the contract 
notice: 
(1) whether the tenderer may submit tenders for one, for several or for all of the 
lots, 
(2) whether the tenderer can be awarded one, several or all lots and, if that is 
the case, how the lots or groups of lots can be combined, and 
(3) the objective and non-discriminatory criteria or rules which will govern the 
award of lots, including how the lots are awarded when the criteria or rules 
would otherwise result in one tenderer being awarded more lots than the 
maximum number which the tenderer can be awarded. 
STATEN OG KOMMUNERNES INDKØBSSERVICE 
 
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20 Paragraph 56 of the Law on Public Procurement concerns the procedural rules for 
public procurement and implements parts of Article 27 of the Public Procurement 
Directive. The provision has the following wording: 
Paragraph 56. In open procedures, any interested economic operator may submit 
a tender in response to a contract notice. The contract notice shall contain the 
information set out in part C of Annex V to 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). The contracting entity 
shall use the standard form (see Paragraph 128(3)). 
APPLICABLE PROVISIONS OF EUROPEAN UNION LAW 
21 The provisions of EU law to which this case relates are chiefly the fundamental 
principles of equal treatment and transparency as laid down in Article 18 of the 
Public Procurement Directive and the scope of the ban on negotiations in relation 
to lots (see Article 46 of the Public Procurement Directive and the ‘open 
procedure’ procurement procedure in accordance with Article 27 of the Public 
Procurement Directive). 
THE APPLICANT’S SUBMISSION  
22 SKI disputes that it has infringed the principle of equal treatment as set out in 
Article 18(1) of the Public Procurement Directive with the East/West model used. 
The chosen design of the procurement, is, notwithstanding the use of the ‘open 
procedure’ procurement process, lawful and complies with the provisions of 
public procurement law, including the principle of equal treatment and the 
principle of transparency and the ban on negotiations derived therefrom as well as 
public procurement case-law. 
23 The main consideration behind the East/West model was the desire to safeguard 
competition for those services covered by Lots 1 and 2, since the latter was the 
largest product area in the procurement in terms of turnover. It is essential in that 
connection to note that there is no private market involving similar services and 
that there are no other contracting entities offering similar contracts. Therefore, 
SKI’s framework agreement in fact represents the entire market. Market operators 
who are not awarded a lot therefore risk being left on the sidelines or even going 
out of business. Thus the market for this product area has for many years suffered 
from periods with little or even no competition at all, which can be very 
detrimental to SKI’s customers and ultimately to taxpayers. Therefore, during the 
procedure for the framework agreement, SKI was strongly focused on 
safeguarding competition to the greatest extent possible, including through the 
division of this part of the procurement into two lots (East and West) and through 
the use of a model which in principle permits two different suppliers, which is 
consistent with the underlying aims of Article 46 of the Public Procurement 
Directive (see recital 79 of that directive). This recital states that ‘[w]here 
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contracts are divided into lots, contracting authorities should, for instance in 
order to preserve competition or to ensure reliability of supply, be allowed to limit 
the number of lots for which an economic operator may tender; they should also 
be allowed to limit the number of lots that may be awarded to any one tenderer.’ 
By at the same time stipulating that both lots must be supplied for the same prices 
as were tendered by the tenderer who had submitted the most economically 
advantageous offer, SKI was also seeking to safeguard against speculation 
involving offering high prices for one of the lots to the detriment of SKI’s 
customers and ultimately taxpayers. If a tenderer was thus guaranteed at least one 
contract, it would be able to speculate by submitting tenders with high prices for 
both lots. This was countered by the requirement that a tenderer would have to 
supply for the same price as the successful tenderer for Lot 1. 
24 Prior to the procurement, a market consultation was carried out. It was apparent 
from the feedback from the market that the market generally found the model both 
fair and compatible with supporting competition both tangibly and over the longer 
term. The response to the consultation received from BibMedia A/S, which also 
submitted a tender during the subsequent procurement (see above), included the 
following: 
‘SKI’s proposal to divide Lot 1 Danish books and preparation into an East/West 
model as described appears to us to be reasonable, since the model outlined will 
still motivate the tenderers to submit the most attractive offer in order to be 
awarded the largest share by volume. Having a number of suppliers for Lot 1 
ensures strong competition in the years ahead, and that solutions and services will 
continue to be developed which will benefit libraries.’  
25 SKI maintains, therefore, that the model is perfectly in line with considerations 
based on merits, which are, furthermore, central to public procurement law, 
namely the need to ensure both an efficient use of public funds (see recital 2 of the 
Public Procurement Directive), and effective competition (see recitals 90 and 69 
thereof), both in the specific procedure at issue and in the future with regard to the 
particular competitive situation specific to this market. 
26 Hence, it is submitted in support of the lawfulness of the model: 
• that the fact that the second cheapest tenderer is given the opportunity to 
accept supplying for the same prices as have been tendered by the cheapest 
tenderer and thus can be awarded Lot 1 does not imply a ‘negotiation’ 
contrary to the ban on negotiations in public procurement law, including 
those principles and considerations underlying the ban and Paragraph 56 of 
the Law on Public Procurement. 
• that the East/West model, on the contrary, represents an objective, 
mechanical award procedure which is used after the ranking of the offers has 
been established and without any other interaction between SKI and the 
tenderer who submitted the second best tender other than the latter’s 
STATEN OG KOMMUNERNES INDKØBSSERVICE 
 
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acceptance of supplying under the terms stipulated in advance in the 
procurement documents and for the same prices that were tendered by the 
tenderer who had submitted the best offer. 
• that it is also a case of an award procedure for lots, which is clearly and 
transparently described in the procurement documents. It in no way allows 
SKI freedom of choice in connection with the award of contracts contrary to 
the principle of transparency as set out in Article 18 of the Public 
Procurement Directive or enables the tenderer who submitted the second 
best tender to arbitrarily change its offer after the deadline for submission of 
the tender has expired, thereby placing itself in a better position than it was 
entitled to be in under the terms of the specifications, contrary moreover to 
the principles of equal treatment and transparency. On the contrary, the 
award of contracts proceeds within the predetermined parameters for the 
award of lots described in the procurement documents and within the 
parameters of Article 46 of the Public Procurement Directive, following a 
process which is also outside the influence of either SKI or the tenderers 
concerned. 
• that the award of contracts in accordance with the East/West model is thus 
applied uniformly, based on the previous assessment of the tenders 
submitted on the basis of the established ‘lowest price’ award criterion and 
following a predetermined and clearly described procedure for the award of 
lots. Moreover, since the model is also used at a time when the ranking of 
the offers has been established (that is to say following the evaluation), there 
is no risk of any distortion of competition between the tenderers in the form 
of unfair discrimination. 
THE DEFENDANT’S SUBMISSION  
27 The defendant submits that the Complaints Board’s decision and grounds are 
correct and should be upheld. 
28 The principle of equal treatment in Article 18 of the Public Procurement Directive 
and Paragraph 2(1) of the Law on Public Procurement as well as the consequent 
ban on negotiations mean that a contracting entity is prevented from negotiating 
with a single tenderer in an open procedure. It makes no difference in this context 
that the contracting entity has described the opportunity to negotiate in the 
procurement documents. 
29 The defendant submits that giving one tenderer the opportunity to change its offer 
after the deadline for submission of the tender so that it corresponds to the price of 
the lowest bidder constitutes negotiation. 
30 It is the view of the defendant that this situation, where one tenderer is allowed to 
lower the price in their offer so that the price corresponds to the lowest bidder, 
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constitutes a change to the offer, which cannot be allowed after the deadline for 
submission of the tender. 
31 Therefore, the East/West model used by SKI constitutes negotiation within the 
meaning of the Public Procurement Directive. 
32 The defendant also submits that such a procedure cannot lawfully be used in 
relation to the ‘open procedure’ procurement procedure in accordance with 
Article 27 of the Public Procurement Directive (see Paragraph 56 of the Law on 
Public Procurement). Thus, this type of award procedure does not provide the 
opportunity for negotiation, including by giving a single tenderer the opportunity 
to change its offer after the deadline for submission of the tender. 
33 SKI should instead have conducted the procurement within the parameters set out 
in the Public Procurement Directive, and there is the opportunity to use lawful 
procedures, which to a large extent fulfil the aims which SKI wishes to achieve 
with the East/West model. Thus a contracting entity can divide a contract into lots, 
and it is lawful to restrict the opportunity for the same tenderer to win all of the 
lots so that competition is safeguarded in the future. However, it is not possible 
within the procedures laid down in the Public Procurement Directive to both 
obtain a number of possible suppliers and to have them with identical prices. 
Contracting entities must, therefore, choose between one single tenderer winning 
all of the lots with the same price or the lots being awarded to several different 
tenderers but with different prices. If a contracting entity chooses to restrict the 
opportunity for the same tenderer to be able to be awarded all of the lots, the 
contracting entity must then accept the second lowest tenderer’s price for the 
smaller lot. 
THE REASON FOR THE QUESTIONS  
34 The case-law of the Court of Justice concerning the principle of equal treatment 
and the principle of transparency in the Public Procurement Directive and the 
scope of the consequent ban on negotiations concerns, inter alia, the limits on a 
contracting entity’s handling of reservations in the tender and the limits on a 
contracting entity’s retrospective collection and inclusion of information (see, 
inter alia, the judgment of the Court of Justice of 10 October 2013, Manova A/S, 
C-336/12, EU:C:2013:647, and of 11 May 2017, Archus and Gama, C-131/16, 
EU:C:2017:358), or collection of information which is missing or imprecise in a 
tender which has been submitted (see judgment of 29 March 2012, SAG ELV 
Slovensko and Others, C-599/10, EU:C:2012:191). 
35 Furthermore, the Court of Justice appears to have addressed the scope of the ban 
on negotiations in relation to the replacement of undertakings on whose capacity 
the tenderer intends to rely (see, inter alia, judgment of 3 June 2021, Rad Service 
Sri Unipersonale and Others v Del Debbio SpA and Others, C-210/20, 
EU:C:2021:445. 
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36 Common to previous practice seems to be the fact that the scope of the ban on 
negotiations is interpreted in relation to a contracting entity’s possibility for 
remedying the fact that the candidate/tenderer does not fulfil the requirements in 
the procurement documents, and, therefore, concerns situations where a 
candidate/tenderer potentially acquires a legal status to which, according to the 
procurement documents, it was not entitled, and which, consequently, is contrary 
to the fundamental principles of EU law (see judgment of 22 June 1993, 
Commission of the European Communities v Kingdom of Denmark, C-243/89, 
EU:C:1993:257; judgment of 25 April 1996, Commission of the European 
Communities v Kingdom of Belgium, C-87/94, EU:C:1996:161; and judgment of 
7 April 2016, Partner Apelski Dariusz v Zarzad Oczyszczania Miasta, C-324/14, 
EU:C:2016:214). 
37 However, the Court of Justice does not appear to have had the opportunity to 
address the extent to which the ban on negotiations in connection with the opening 
for competition of lots in the ‘open procedure’ type of award procedure prevents a 
tenderer who has not submitted the most economically advantageous tender from, 
after the deadline for submission of tender has expired, and in accordance with the 
predetermined terms in the specifications, being given the opportunity to accept 
supplying the proposed services for one lot for the same price as a tenderer who 
has submitted the most economically advantageous tender and who, therefore, is 
awarded another lot. 
38 The Østre Landsret (High Court of Eastern Denmark), which in this case is the 
court of first instance, finds on this basis that it is necessary to refer the question 
to the Court of Justice as set out below. 
IT IS ORDERED THAT: 
39 The Court of Justice be requested to answer the following question: 
Do the principles of transparency and equal treatment in Article 18 of the Public 
Procurement Directive and the consequent ban on negotiations preclude a 
tenderer who has submitted the second most economically advantageous tender in 
connection with an open procedure for separate lots (see Articles 27 and 46 of the 
Public Procurement Directive) from being given the opportunity, after the 
deadline for submission of the tender has expired, and in accordance with the 
predetermined terms in the specifications, to supply the proposed services within a 
lot under the same terms as a tenderer who has submitted the most economically 
advantageous tender and who, therefore, is awarded another lot put out to tender 
at the same time? 
...