Opinion of the Advocate General — ECLI:EU:C:2021:729
Date: 2021-09-09
Language of the case: Swedish
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Sweden

Translation C-461/20 — 1 
Case C-461/20 
Request for a preliminary ruling 
Date lodged:  
24 September 2020 
Referring court:  
Högsta förvaltningsdomstolen (Sweden) 
Date of the decision to refer:  
15 September 2020 
Applicant:  
Advania Sverige AB 
Kammarkollegiet 
Defendant:  
Dustin Sverige AB 
  
SUPREME 
ADMINISTRATIVE 
MINUTES [...] 
COURT 15-09-2020 [...] 
 Stockholm  
[...] 
APPLICANT 
1. Advania Sverige AB [...] 
2. Kammarkollegiet (Legal, Financial and Administrative Services Agency) 
Statens Inköpscentral (State central purchasing body) 
[...] 
DEFENDANT 
REQUEST FOR A PRELIMINARY RULING OF 15. 9. 2020 — CASE C-461/20 
 
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Dustin Sverige AB, [...] 
DECISION UNDER APPEAL 
Judgment of the Kammarrätten i Stockholm (Administrative Court of Appeal, 
Stockholm) of 16 October 2019 [...] 
IN THE MATTER OF 
Review of the validity of a contract; request for a preliminary ruling from the 
Court of Justice of the European Union 
[...] 
[OR. 2] 
The Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) takes 
the following 
DECISION 
A preliminary ruling shall be requested from the Court of Justice of the European 
Union under Article 267 TFEU in accordance with the attached request for a 
preliminary ruling (annexed to the minutes). 
[...] 
[OR. 3]  
ANNEX 
Request for a preliminary ruling under Article 267 TFEU concerning the 
interpretation of Article 72(1)(d)(ii) of Directive 2014/24/EU on public 
procurement and repealing Directive 2004/18/EC (‘the Public Procurement 
Directive’) 
Introduction 
1. After a supplier was declared insolvent, its insolvency estate transferred four 
framework agreements to a new supplier. By the request for a preliminary ruling, 
the Högsta förvaltningsdomstolen (Supreme Administrative Court) seeks clarity 
on whether the new supplier may be regarded as having succeeded into the 
position of the initial supplier in such circumstances that it is unnecessary to carry 
out a new procurement procedure. 
ADVANIA SVERIGE AND KAMMARKOLLEGIET 
 
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Relevant provisions of EU law 
2. Pursuant to Article 72(1)(d)(ii) of the Public Procurement Directive, framework 
agreements may be modified without a new procurement procedure where a new 
contractor replaces the one to which the contracting authority had initially 
awarded the contract as a consequence of universal or partial succession into the 
position of the initial contractor, following corporate restructuring, including 
takeover, merger, acquisition or insolvency, of another economic operator that 
fulfils the criteria for qualitative selection initially established provided that this 
does not entail other substantial modifications to the contract and is not aimed at 
circumventing the application of the directive. 
3. Recital 110 of that directive states the following. In line with the principles of 
equal treatment and transparency, the successful tenderer should not be replaced 
by another economic operator without reopening the contract to competition. 
However, the successful tenderer performing the contract should be able to 
undergo certain structural changes during the performance of the contract, such as 
purely internal reorganisations, takeovers, mergers and acquisitions or insolvency 
(emphasis added by the Högsta förvaltningsdomstolen (Supreme Administrative 
Court)). Such structural changes should not automatically require new 
procurement procedures. 
Relevant national legislation 
4. Under the first subparagraph of Chapter 17, Paragraph 13, of the Lagen 
(2016:1145) om offentlig upphandling (Law (2016:1145) on public procurement; 
‘the LOU’), ‘a contract or a framework agreement may be modified with one 
contractor being replaced by another, without a new procurement, if: 
1. the new contractor universally or partially succeeds into the position of the 
initial contractor, following corporate restructuring, including takeover, 
merger, acquisition or insolvency, and 
2. the circumstance that a new contractor universally or partially succeeds into 
the position of the initial contractor does not entail other substantial 
modifications to the contract or framework agreement.’ 
[OR. 4] 
It is apparent from the second paragraph that such a replacement of the contractor 
presupposes that the new service provider is not excluded and that it meets the 
qualification conditions required in the context of the original contract. 
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The facts of the main proceedings 
Background 
5. The case involves four framework agreements with reopening of competition 
procured by the Kammarkollegiet through a restricted procedure in accordance 
with the Lagen (2007:1091) om offentlig upphandling (Law (2007:1091) on 
public procurement), now repealed. The framework agreements concern the 
purchase of computers, monitors, tablets, etc. Three of the framework agreements 
cover various geographical areas and the fourth framework agreement 
encompasses the national territory. Seventeen candidates qualified and went on to 
selection. If more than nine candidates qualified to tender, selection was to be 
based on the highest tendered total added value. 
6. Dustin Sverige AB (‘Dustin’) and Misco AB (‘Misco’) were among the nine 
candidates with highest added value that were invited to submit tenders. Advania 
Sverige AB (‘Advania’) was not among those nine, but among the 17 that had 
qualified. Framework agreements were concluded with a total of six suppliers in 
each field. Misco was awarded contracts in all fields. Dustin was awarded 
contracts in two fields. 
7. By letter of 4 December 2017, Misco requested the Kammarkollegiet to approve 
the transfer of the framework agreements to Advania. On 12 December 2017, 
Misco was declared insolvent. On 18 January 2018, the insolvency administrator 
signed a contract with Advania for the transfer of the framework agreements. The 
transfer was approved by the Kammarkollegiet in February 2018. 
Application for declaration of invalidity of contracts 
8. Dustin applied to the Förvaltningsrätten i Stockholm (Administrative Court, 
Stockholm) for a declaration of invalidity of Advania’s framework agreements 
with the Kammarkollegiet. Dustin argued that the transfer of the four framework 
agreements from Misco to Advania did not constitute an authorised modification 
of the framework agreements under Chapter 17, Paragraph 13, of the LOU, since 
Advania had not succeeded into the position of Misco following corporate 
restructuring. In support of its application, Dustin submitted the following. It is 
unclear whether Advania has taken over Misco’s subcontracting contracts. It can 
be stated that, apart from certain information, Advania has not taken over any 
systems, staff, business assets or operational contracts other than the framework 
agreements themselves. The divestment of the framework agreements therefore 
has not brought about a substantial structural change of Misco as is required by 
the LOU. The existing supplier merely sold the agreements in question and the 
transfer does not constitute corporate restructuring for the purposes of that 
provision. 
9. The Kammarkollegiet submitted the following. It is apparent from the information 
received by the Kammarkollegiet that Advania purchased Misco’s entire business 
ADVANIA SVERIGE AND KAMMARKOLLEGIET 
 
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in respect of its performance of the framework agreements. With regard to 
Misco’s request, the Kammarkollegiet took the view that the transfer at issue had 
taken place due to a restructuring as result of Misco’s insolvency and that there 
was continued identity between Misco, which submitted tenders, [OR. 5] 
qualified and signed framework agreements, and Advania, which then performs 
the framework agreements. That view was based on the fact that Advania had 
taken over all public framework agreements (including call-off contracts with 
rights and obligations), the staff of Misco who played a decisive role in the 
performance of the contracts (in so far as those staff wished to be transferred to 
Advania), the subcontractors who were relied on to perform Misco’s obligations 
under the contracts, as well as the systems etc. necessary for Misco to be able to 
perform those contracts. Advania universally succeeded into Misco’s position as 
regards the obligations of the framework agreements and partially as regards the 
acquisitions made. 
Judgment of the Förvaltningsrätten 
10. The Förvaltningsrätten (Administrative Court) dismissed Dustin’s application for 
a declaration of invalidity. As regards the question of whether the conditions for 
replacing a contractor set out in the first paragraph of Chapter 17, Paragraph 13, of 
the LOU were satisfied, the Förvaltningsrätten stated the following. Advania and 
Misco’s insolvency administrator made clear to the Kammarkollegiet what 
Advania purchases and the Kammarkollegiet then concluded that there was 
identity between Advania and Misco, such that Advania could succeed into the 
position of Misco as contractor under the framework agreement. It is the 
Kammarkollegiet which assumes a risk through the replacement of the supplier 
and which has a certain interpretive right in the situation that arises. The court 
considers the circumstances relied on by Dustin not to constitute grounds for 
challenging Advania’s acquisition of Misco’s framework agreements and of parts 
of Misco’s business for the performance of the framework agreements in the 
manner required by Chapter 17, Paragraph 13, of the LOU. The framework 
agreements have been amended through a replacement of the contractor in a 
manner that falls within what can be regarded as corporate restructuring. 
Appeal before the Kammarrätten 
11. Dustin lodged an appeal against the judgment of the Förvaltningsrätten 
(Administrative Court) before the Kammarrätten i Stockholm (Administrative 
Court of Appeal, Stockholm), arguing the following. The investigation in the 
present case does not support the conclusion that Advania took over Misco’s 
assets to the extent assumed by the Kammarkollegiet in its decision to approve the 
transfer. That agency has not put forward any circumstances to support the claim 
that any of Misco’s employees actually transferred to Advania or that any systems 
were transferred, with the exception of certain data lists. Of the seven subcontracts 
submitted to the courts, four were concluded before the transfer contract, that is to 
say, in Advania’s initial activity, and none of them makes any mention of Misco 
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or states that the contract would entail Advania taking over an existing contractual 
relationship. Nor did Advania take over any other framework agreements with 
public clients. Those circumstances show that, apart from certain information lists, 
Advania merely acquired the framework agreements and therefore did not take 
over any branch of activity. Such a limited transfer cannot be regarded as giving 
rise to the succession by Advania into the position of Misco as a result of 
corporate restructuring. 
12. The Kammarkollegiet took the view that the appeal should be dismissed on the 
merits and stated the following. There is much to support the view that the 
examination should pertain solely to the question of whether a corporate 
restructuring has taken place. The fact that the transfer was the result of 
insolvency — which is explicitly stated in the text of the LOU — indicates that 
the requirement is satisfied. In its view, insolvency being an extraordinary event, 
winding up is a particular kind of corporate restructuring. It is unlikely that Misco 
would have gone into insolvency in order [OR. 6] to trade in framework 
agreements. 
13. Advania was of the view that the appeal ought to be dismissed on the merits and 
submitted the following. As part of the insolvency, Misco wound up its entire 
business as regards those parts that could not be transferred, inter alia, to Advania. 
The precise nature of Advania’s acquisition of the insolvency estate is therefore 
irrelevant. 
Judgment of the Kammarrätten 
14. The Kammarrätten (Administrative Court of Appeal) upheld Dustin’s appeal and 
declared the four framework agreements between Advania and the 
Kammarkollegiet invalid. The Kammarrätten found that the Kammarkollegiet’s 
approval of the transfer of the framework agreements had been given due to 
Misco’s insolvency. The Kammarrätten also stated the following. Under the 
contract in question, Misco transferred, in addition to the framework agreements, 
the right to the undertaking’s staff, customer and supplier data, product statistics 
and history, as well as the right to take over the undertaking’s subcontractors and 
Advania declared itself prepared to offer a number of ‘key employees’ 
employment under market conditions. It is apparent from the investigation in the 
case that one employee subsequently transferred to Advania. It is also apparent 
that, according to Advania, Misco’s customer list was not fully updated or 
relevant and that Misco’s customers had already changed supplier. There is no 
indication that, as a result of the transfer contract, some of Misco’s subcontractors 
were taken over by Advania. Nor is there any indication that any other public 
framework agreements were transferred. On the contrary, Dustin has submitted 
evidence showing that Misco was a party to at least one other public framework 
agreement and that that framework agreement was not transferred to Advania. The 
investigation shows that Misco did not, for the most part, transfer any business to 
Advania, with the exception of the framework agreements at issue. Advania 
therefore cannot be regarded, in the Kammarrätten’s view, as having universally 
ADVANIA SVERIGE AND KAMMARKOLLEGIET 
 
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or partially succeeded into Misco’s position within the meaning of Chapter 17, 
Paragraph 13, of the LOU. It is therefore a substantial modification. The 
Kammarkollegiet ought not to have approved the replacement of the supplier. It is 
accordingly an unauthorised direct procurement. 
Positions of the parties 
Advania 
15. Advania claims that the judgment of the Kammarrätten (Administrative Court of 
Appeal) be set aside and that the judgment of the Förvaltningsrätten 
(Administrative Court) be upheld and submits the following. Advania does not 
call into question the Kammarrätten’s assessment of what was included in the 
transfer from the insolvency estate. In the present case, the question at issue is one 
of a restructuring of the previous contractor due to insolvency and subsequent 
winding up, which means that the insolvency estate sold parts of the existing 
business to, inter alia, Advania. The remaining parts of the insolvent undertaking’s 
business were wound up. Advania agreed to take over all of Misco’s contractual 
obligations and Advania thus universally succeeded into Misco’s position as 
regards the framework agreements. Neither the LOU nor the Public Procurement 
Directive requires that activities of a certain nature or scope be transferred to the 
new contractor. This is evidently not a case where only a procured contract has 
been transferred and the initial contractor’s business has continued as usual. [OR. 
7] 
The Kammarkollegiet 
16. The Kammarkollegiet claims that the judgment of the Kammarrätten 
(Administrative Court of Appeal) should be set aside and the framework 
agreements be declared valid and submits the following. The central issue is how 
the expression ‘universal or partial succession into the position of the initial 
contractor’ is to be interpreted. The Kammarkollegiet is of the view that it should 
be interpreted as meaning that the acquiring contractor succeeds into the position 
of the initial contractor as regards the rights and obligations laid down in the 
framework agreement or the contract that has been transferred. If it is interpreted 
as requiring some type of business transfer and transfer of assets, the application 
of the provision will be severely limited. It is highly unlikely that a new contractor 
will continue to operate in the same way as the previous contractor. The key issue 
is that the new contractor be able to perform the contract in accordance with the 
conditions and requirements that were originally laid down. If an agreement is 
partially taken over, it does not necessarily mean that other substantial 
modifications to the agreement are made. 
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Dustin 
17. Dustin disputes that the appeal should be upheld and submits the following. That 
the new contractor has universally or partially succeeded into the position of the 
initial contractor as a result of corporate restructuring cannot reasonably pertain to 
the new contractor’s takeover of the procured agreement. If that were the case, it 
would be possible to acquire individual procured agreements without 
simultaneously taking over any part of the business to which the agreements 
relate. Such an approach provides almost free rein to trade in procured 
agreements. With such an interpretation, it would also be possible to take over 
only partially the rights and obligations arising under the agreement, which would 
be difficult to reconcile with the requirement that the replacement of the 
contractor may not entail other substantial modifications to the agreement. The 
exception covering replacement of the contractor in corporate restructuring may 
be assumed to be subject to the condition that the main purpose of the transaction 
is the taking over of all or part of the business to which the agreement relates and 
that the transfer of the agreement itself, namely the replacement of the contractor, 
is ancillary to the transfer of the business. The fact that the new contractor enters 
into the agreement in question is the consequence of the modification and does not 
constitute the precondition for its taking place. 
The need for a preliminary ruling 
18. In the case before the Högsta förvaltningsdomstolen (Supreme Administrative 
Court), it is of crucial importance how the provision on replacement of contractor 
in Article 72(1)(d)(ii) of the Public Procurement Directive is to be interpreted. The 
examination of the case requires an interpretation of what is meant by ‘universal 
or partial succession into the position of the initial contractor, following corporate 
restructuring, including takeover, merger, acquisition or insolvency’. 
19. The Court of Justice has not ruled on the interpretation of that article in the current 
context. The Högsta förvaltningsdomstolen (Supreme Administrative Court) is of 
the view that the correct interpretation of the provision is unclear. 
20. Against that background, the Högsta förvaltningsdomstolen (Supreme 
Administrative Court) deems it necessary to request a preliminary ruling from the 
Court of Justice. [OR. 8] 
Question 
21. Does the circumstance that a new contractor has taken over the initial contractor’s 
rights and obligations under a framework agreement, after the initial contractor 
has been declared insolvent and the insolvency estate has transferred the 
agreement, mean that the new contractor will be deemed to have succeeded into 
the position of the initial contractor under conditions such as those referred to in 
Article 72(1)(d)(ii) of the Public Procurement Directive?