Judgment;Summary — ECLI:EU:C:2021:490
Date: 2021-06-17
Language of the case: Danish
Court formation: Fourth Chamber
Subject matter: Approximation of laws;Public procurement in the European Union
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary C-23/20 — 1 
Case C-23/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
17 January 2020 
Referring court: 
Klagenævnet for Udbud (Denmark) 
Date of the decision to refer: 
16 January 2020 
Applicant: 
Simonsen & Weel A/S 
Defendants: 
Region Nordjylland and Region Syddanmark 
  
Subject of the action in the main proceedings 
The Klagenævnet for Udbud (Public Procurement Complaints Board, Denmark) is 
considering a complaint lodged by Simonsen & Weel A/S against Region 
Nordjylland (Region of North Jutland) and Region Syddanmark (Region of 
Southern Denmark) concerning the requirement to indicate in a contract notice the 
estimated quantity and/or the estimated value, or, alternatively, the maximum 
quantity and/or a maximum value, of, the supplies under a framework contract to 
which the tender relates. 
Subject matter and legal basis of the reference 
Interpretation of Directive 2014/24 (the Procurement Directive) and Directive 
92/13 (the General Remedies Directive) in the light of the judgment of the Court 
of Justice in Case C-216/17, Autorità Garante della Concorrenza e del 
Mercato — Antitrust and Coopservice. 
Legal basis: Article 267 TFEU. 
EN 
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The questions referred 
1. Are the principles of equal treatment and transparency laid down in 
Article 18(1) of [Directive 2014/24] and Article 49 of [Directive 2014/24], 
in conjunction with points 7 and 10(a) of Part C of Annex V to Directive 
2014/24, to be interpreted as meaning that the contract notice in a case such 
as the present must contain information on the estimated quantity and/or the 
estimated value of the supplies under the framework contract to which the 
tender relates? 
If the answer to this question is in the affirmative, the Court is also asked 
whether the above provisions are to be interpreted as meaning that the 
information must be stated in respect of the framework contract (a) as a 
whole and/or (b) in respect of the original contracting authority which stated 
its intention to conclude an agreement on the basis of the invitation to tender 
(in the present case: Region Nordjylland) and/or (c) in respect of the original 
contracting authority which merely stated that it is participating in one 
option (in the present case: Region Syddanmark). 
2. Are the principles of equal treatment and transparency laid down in 
Article 18(1) of [Directive 2014/24] and Articles 33 and 49 of [Directive 
2014/24], in conjunction with points 7 and 10(a) of Part C of Annex V to 
Directive 2014/24, to be interpreted as meaning that either the contract 
notice or the tender specifications must set a maximum quantity and/or a 
maximum value of the supplies under the framework contract to which the 
tender relates, such that the framework contract in question will no longer 
have any effect when that limit is reached? 
If the answer to this question is in the affirmative, the Court is also asked 
whether the above provisions are to be interpreted as meaning that the above 
maximum limit must be indicated in respect of the framework contract (a) as 
a whole and/or (b) in respect of the original contracting authority which 
stated its intention to conclude an agreement on the basis of the invitation to 
tender (in the present case: Region Nordjylland) and/or (c) in respect of the 
original contracting authority which merely stated that it is participating in 
one option (in the present case: Region Syddanmark). 
If the answer to Question 1 and/or Question 2 is in the affirmative, the Court 
is further asked — in so far as it is relevant to the content of those 
answers — to answer the following question: 
3. Is Article 2d(1)(a) of [Directive 92/13], read in conjunction with Articles 33 
and 49 of [Directive 2014/24], in conjunction with points 7 and 10(a) of Part 
C of Annex V to Directive 2014/24, to be interpreted as meaning that the 
condition that ‘the contracting entity has awarded a contract without prior 
publication of a notice in the Official Journal of the European Union’ covers 
a case such as the present where the contracting authority has published a 
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contract notice in the Official Journal of the European Union concerning the 
envisaged framework contract, but 
(a) where the contract notice does not meet the requirement to indicate the 
estimated quantity and/or the estimated value of the supplies under the 
framework contract to which the tender relates since an estimate thereof is 
set out in the tender specifications, and 
(b) where the contracting authority has breached the requirement to set in the 
contract notice or the tender specifications a maximum quantity and/or a 
maximum value of the supplies under the framework contract to which the 
call for tenders relates? 
Provisions of EU law relied on 
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 
2004 on the coordination of procedures for the award of public works contracts, 
public supply contracts and public service contracts (OJ 2004 L 134, p. 114) (‘the 
2004 Procurement Directive’). 
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 Procurement Directive); recitals 59 to 61; Articles 2(1)(5), 
4(5), 18(1), 33(1) and (3), and 49; points 2, 5, 7 and 8 and point 10(a) of Part C of 
Annex V. 
Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, 
regulations and administrative provisions relating to the application of 
Community rules on the procurement procedures of entities operating in the water, 
energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14) (‘the 
General Remedies Directive’), as amended; Article 2d(1). 
Case-law of the Court of Justice of the European Union: judgment of 
19 December 2018, Case C-216/17, Autorità Garante della Concorrenza e del 
Mercato — Antitrust and Coopservice (EU:C:2018:1034); paragraphs 57 to 69 
and operative part. 
Provisions of national law relied on 
Contract notice No 2019/S 086-205406 of 30 April 2019 relating to a four-year 
framework contract for Region Nordjylland with a single operator for the 
purchase of probe kits for patients receiving home care and institutions (‘the 
contract notice’). 
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Law on public procurement (Law No 1564 of 15 December 2015, as subsequently 
amended), which implements the procurement directive in Danish law; 
Paragraphs 2, 56 and 128(2). 
Law on the Public Procurement Complaints Board (Law No 492 of 12 May 2010); 
Paragraph 17(1)(1), which implements, inter alia, the General Remedies Directive 
in Danish law. 
As regards the content of the above Danish legislation, the Klagenævnet for 
Udbud stated that, in its view, those provisions must, and may, be interpreted in 
accordance with the underlying provisions of the Procurement Directive and the 
General Remedies Directive, which they are intended to implement. 
Succinct presentation of the facts and the main proceedings before the 
Klagenævnet for Udbud 
1 The complaint concerns a public procurement procedure under the Procurement 
Directive which the regions initiated by the contract notice relating to a four-year 
framework contract for Region Nordjylland with a single operator for the 
purchase of probe kits for patients receiving home care and institutions. As for 
Region Syddanmark, it was stated that this region merely participated ‘by option’. 
2 Point II.1.4 of the contract notice, headed ‘Short description’, stated that it was not 
possible ‘to tender for parts of the contract’ and that a tender had to be made for 
‘all the headings in the contract’. In addition, a main CPV code and two 
supplementary CPV codes were specified (see Points II.1.2 and II.2.2. of the 
contract notice). Point II.1.5 of the contract notice concerning the ‘Estimated total 
value’ was not completed. This was also the case in respect of Point II.2.6 
concerning the ‘Estimated value’ and the contract notice does not otherwise 
contain information on the estimated value of the procurement, or the estimated 
value of the framework contract in respect of Region Nordjylland or the option in 
the framework contract in respect of Region Syddanmark. Furthermore, the 
contract notice contains no information on the maximum value of the framework, 
either individually or cumulatively, or any information on the estimated or 
maximum quantity of goods likely to be purchased under the framework contract. 
Paragraph I.3 concerning ‘Communication’ states, inter alia, that the tender 
documentation was ‘accessible free of charge, without restriction and in full’ at a 
specified internet address. 
3 An annex (Annex 2 to the contract — requirements specification) to that tender 
documentation, which was drafted in Danish, includes a detailed description of the 
goods to which the tender relates. Furthermore, it was stated at the beginning of 
the tender specifications that the expected quantities to be consumed were set out 
in an annex (Annex 3 to the contract — tender list). In that regard, it was stated 
that the ‘indicated estimates and expected quantities to be consumed merely 
reflect the contracting authorities’ expectations regarding the consumption of the 
services covered by the contract to which the tender relates. The contracting 
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authorities do not therefore undertake to buy a specific quantity of services or 
make purchases in a particular amount under the framework agreement. In other 
words, the actual consumption may prove to be higher or lower than the estimates 
indicate.’ 
4 Contract Annex 3 in question (the tender list) consisted of a spreadsheet with 51 
different lines of goods. Each line provided a description of the goods and the 
annual consumption expected for Region Nordjylland and Region Syddanmark 
respectively, and the total annual consumption for both regions. The columns 
were then to be completed by the individual tenderers with the price offered per 
basic unit, whereby the annual expected consumption in DKK per basic unit was 
then calculated and entered in a subsequent column. On that basis, the annual 
expected consumption in DKK was also calculated as a total sum at the bottom of 
the spreadsheet. 
5 The tender documentation also contained a draft contract stating, inter alia, that 
the framework agreement was not to entail a specific, final obligation on 
customers to buy specific quantities at particular times, but rather to give them the 
right, from time to time as a specific need arises, to purchase goods under the 
framework agreement, and that that meant that the amounts relating to 
consumption under the framework agreement indicated in the tender 
documentation (contract annexes 2 and 3 referred to above) should be regarded as 
indicative, since the actual operating situation may give rise to changes. In 
addition, it stated that there could be no question of an exclusive framework 
agreement and that customers are thus entitled to buy similar goods from other 
suppliers under the rules on procurement, including by placing such goods in a 
separate tender. 
6 Under the tender procedure, the regions received three admissible tenders, 
including those from Simonsen & Weel A/S and Nutricia A/S. On 9 August 2019, 
the regions announced, providing a precise statement of reasons, that the tender 
from Nutricia A/S was regarded, in accordance with the specified award criterion 
(best price-quality ratio) and the associated sub-criteria, as the most advantageous 
tender and that Nutricia A/S was thus awarded the contract. 
7 On 19 August 2019, Simonsen & Weel A/S lodged a complaint with the 
Klagenævnet for Udbud, which does not have suspensive effect. Region 
Nordjylland subsequently concluded a framework agreement with the successful 
tenderer, Nutricia A/S, which intervened in support of the regions during the 
complaint procedure. Region Syddanmark has not yet availed itself of the option 
to which the tender relates. 
8 Since the regions had acted in breach of the Danish Law on public procurement by 
failing to indicate in the contract notice the estimated quantity or the estimated 
value of the goods under the framework agreement to which the tender relates, 
Simonsen & Weel A/S claimed that the Klagenævnet for Udbud should annul the 
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regions’ decision to award the contract to Nutricia A/S and declare ineffective the 
contracts which had been concluded. 
Principal arguments of the parties in the main proceedings 
The requirement to indicate the estimated value and/or quantity 
9 Simonsen & Weel A/S claimed in particular that the regions infringed 
Paragraphs 56 and 128(2) of the udbudslov (Law on public procurement) (see 
Article 49 of the Procurement Directive) and the principles of equal treatment and 
transparency contained in Paragraph 2 of the udbudslov (see Article 18 of the 
Procurement Directive) by failing to indicate in the contract notice the estimated 
quantity or estimated value of the supplies under the framework agreement to 
which the tender relates. In that regard, the company pointed out in particular that 
point 7 of Part C of Annex V to the Procurement Directive stipulates that the 
contract notice is to include a description of the ‘nature and extent of works, 
nature and quantity or value of supplies, nature and extent of services’. Point 10(a) 
of the annex does not depart from that provision. Annex VII A to the 2004 
Procurement Directive contains, in the wording thereof, both a reference to the 
overall estimated value of the framework agreement and a reference to the value 
of the underlying contracts concluded under the framework agreement. Although 
that is not the case in point 10(a) of the 2014 Procurement Directive, that does not 
constitute a modification, but is merely because the requirement to indicate the 
overall value follows from point 7. The reference in point II.1.4 of the contract 
notice to the tender list of the tender specifications (Annex 3 to the contract — the 
tender list), and thus to estimates entered therein, was not sufficient, since the 
information required under Part C of Annex V is to be set out in the contract 
notice itself. The fact that there is a framework agreement and not a public 
contract cannot lead to a different outcome (see paragraph 62 of the judgment of 
the Court of Justice in Case C-216/17). 
10 The regions argued in particular, first, that there is no absolute requirement to 
indicate, in the contract notice, a specific scope or value of a framework 
agreement. The wording of Article 33 of Procurement Directive (‘where 
appropriate’) must therefore be understood as meaning that the quantity envisaged 
must be indicated only if it is relevant and/or possible. Furthermore, in Part C of 
Annex V to the 2014 Procurement Directive, the reference to the estimated total 
value of the services for the entire duration is omitted (see point 10(a)), which 
must be assumed to be due to the desire to increase flexibility and take account of 
the fact that framework agreements cannot be defined precisely in terms of, for 
example, quantity, value and characteristics. Probe kits have not been subject to a 
public tender procedure before and it could have been harmful to competition if 
the regions had indicated in the contract notice a misleading or incorrect estimated 
value. The scope of the framework agreement (quantity, value and characteristics) 
depends on treatment needs. An indication of maximum value or scope will 
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therefore be subject to a great deal of uncertainty and should, where appropriate, 
be stated with a significant margin in relation to the expected value. 
The regions argued, second, that the tender specifications (Annex 3 to the 
contract — tender list) stated the expected consumption of the expected purchase 
under the agreement for each of the two regions and the requirement laid down in 
point 10(a) of Part C of Annex V to the Procurement Directive was therefore 
satisfied. According to the wording of point 7 of Part C of Annex V, the 
contracting entity has, in principle, when purchasing goods, a choice between 
describing either the nature and quantity of the supplies or the nature and value of 
the supplies in the contract notice, since there is no cumulative requirement. 
Point 7 of Part C of Annex V to the directive concerns public contracts in general 
and takes no account of the specific features of framework agreements, including 
their specific character, objectives and background. Point 10(a) of Part C of 
Annex V, by contrast, describes, as a lex specialis, the specific information that 
the contract notice is to contain, as regards framework agreements, and therefore 
must take precedence over paragraph 7. That is supported by the established 
standard form for contract notices in which the fields ‘Estimated overall value’ in 
point II.1.5 of the contract notice and ‘Estimated value’ in point II.2.6 therefore 
are not mandatory and merely allow indication of an economic value and not 
‘scope’ or ‘quantity’ in other units of measurement. 
The requirement to set maximum quantity and/or value 
11 Simonsen & Weel argued in particular that, in its judgment in Case C-216/17, the 
Court of Justice ruled that a contracting authority which invites tenders for a 
framework contract must set a maximum value or maximum quantity of goods 
which may be the subject of subsequent contracts and that the requirement has not 
been satisfied. The estimates for individual probe kits indicated in the tender 
documentation do not satisfy that requirement as they were expressly not binding. 
The Court of Justice’s reasoning is general (see, inter alia, paragraph 61 of the 
judgment in Case C-216/17) and thus also relevant to the case before the 
Klagenævnet for Udbud, regardless of the fact that it is to be decided under the 
current Procurement Directive and the facts in the cases are not comparable. By 
not indicating the maximum quantity of the supplies which may be acquired under 
the framework agreement or the overall maximum value of the framework 
agreement, the regions can make use of the framework agreement without 
restriction during the period in which it runs. 
12 The regions stated, in particular, that the judgment in Case C-216/17 concerned 
the interpretation of Articles 1(5) and 32(2) of the 2004 Procurement Directive 
and that the outcome should be viewed in the light of the forms of order sought 
and the specific circumstances of the case. The scope of the judgment is thus 
limited to situations where a contracting authority acts on behalf of other 
authorities which are not directly parties to the framework agreement in question, 
which is not so in the present case. Furthermore, the scope of the judgment must 
be regarded as limited to the wording of the 2004 Procurement Directive, 
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Article 9(9) of which, concerning the calculation of the value of a framework 
agreement, used the following phrase: ‘the maximum estimated value net of VAT 
of all the contracts envisaged for the total term of the framework agreement’, 
whilst Article 5(5) of the 2014 Procurement Directive uses the phrase: ‘the 
maximum estimated value [net of VAT] of all the contracts envisaged for the total 
term of the framework agreement’. In accordance with the judgment, it is 
sufficient for the total quantity of services to be referred to in the framework 
agreement itself or in another published document, such as the tender 
specifications, since, by doing so, full observance of the principles of transparency 
and equal treatment is ensured (paragraph 68 of the judgment). It is decisive to an 
invitation to tender for a framework contract whether it is also made on behalf of 
other contracting authorities (see, in this regard, the judgment and recitals 59 to 62 
of the Procurement Directive). The requirement to indicate a maximum quantity 
(or maximum value) described in paragraph 61 of the judgment in Case C-216/17 
cannot be applied to cases which are not comparable. The regions invited tenders 
for a non-exclusive and non-mutually binding framework agreement and at the 
time of the invitation to tender had no knowledge of the extent of the specific 
purchasing requirement or the price level for the ‘individual contracts’. The 
regions were thus unable to make an estimate of the framework agreement’s 
estimated value that was sufficiently sound to comply with point II.1.5 or point 
II.2.6 of the contract notice. Thus, the regions’ statements in the tender 
documentation regarding the fixed amounts of services are consistent with the 
guidance set out in paragraphs 31, 61 and 64 of the judgment. The regions’ 
indication of the envisaged quantities does not mean that they may make use, 
without restriction, of the framework agreement during the term thereof, since the 
quantities which they indicated in the tender specifications (Annex 3 to the 
contract — tender list), together with the successful tenderer’s completion and 
pricing thereof, provides the estimated value over the term of the contract and thus 
also the value of the original contract, which is a natural limitation on subsequent 
modifications under Article 72 of the Procurement Directive. 
Ineffective sanction 
13 Simonsen & Weel claimed that the regions’ failure to indicate the value, quantity 
or scope of the framework agreement in the contract notice and their simultaneous 
failure to indicate the maximum quantities or the maximum value in the contract 
notice or the other tender documentation means that the framework agreement 
concluded by Region Nordjylland does not correspond to the published contract 
notice and the tender requirement is thus not met. The framework agreement 
concluded must therefore be declared ineffective. 
14 The regions contended, in particular, that their conclusion of an agreement with 
Nutricia A/S is not a situation which can give rise to ‘ineffectiveness’, since the 
failure to complete the non-mandatory fields ‘Estimated total value’ in point II.1.5 
of the contract notice and ‘Estimated value’ in point II.2.6 thereof cannot be 
equated with a situation where a contract is concluded without prior publication of 
a contract notice. In addition, the regions referred in the contract notice to the 
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tender list, which indicated the regions’ expected annual consumption. The tender 
requirement was therefore met. 
Brief statement of reasons for the reference 
15 The Klagenævnet for Udbud notes that the above provisions of Danish legislation 
should, in its view, be interpreted in accordance with the underlying provisions of 
the Procurement Directive and the General Remedies Directive, which they are 
intended to implement. The complaint which the Klagenævnet for Udbud is 
considering is clearly inspired by the judgment of the Court of Justice in Case 
C-216/17. However, that judgment concerned a very special situation and also 
referred to the provisions of the previous Procurement Directive. It can therefore 
be held that the Court of Justice’s answer may be construed with certainty only as 
applying to the exceptional circumstances set out in its final conclusion. However, 
a number of paragraphs appear to reflect a general interpretation of the rules in 
force at that time. Those rules also appear, to a great extent, to be reproduced 
unchanged in the new Procurement Directive. However, in that respect, even 
minor amendments may give rise to some doubt as to whether the stated 
interpretations may be applied to the rules currently in force. 
16 The Klagenævnet for Udbud also has doubts as to whether, and to what extent, it 
also applies, as follows from paragraphs 57 to 69 of the judgment in Case 
C-216/17, to a situation such as the present, where the contracting authorities are 
both original parties to the framework agreement and one of the two parties 
participates only in one option. The doubts of the Klagenævnet for Udbud relate in 
particular to the scope of the statement in paragraph 60, namely that a maximum 
limit must be stated and that the agreement in question will no longer have any 
effect (paragraph 61) when that limit is reached. That gives rise, inter alia, to 
doubt as to whether such a limit must indicate both the maximum quantity and 
maximum value of the goods which may be purchased under the framework 
agreement and whether such a limit must, where appropriate, be laid down at ‘the 
outset’ and thus already be indicated in the contract notice (and is therefore 
identical to the estimated value) and/or in the tender documents (see to that effect 
paragraph 66 of the judgment, whereas in paragraphs 68 and 69 the assumption 
appears to be that it is sufficient for a maximum first to be set in the framework 
agreement itself and thus at the conclusion of the tender procedure (see Question 
2)). 
17 In the assessment of the questions referred, doubt may also arise as to whether a 
breach of the requirements for a contract notice, as they must subsequently be laid 
down, is covered by Article 2d of the General Remedies Directive, since the 
conclusion of an agreement on the basis thereof must be equated with the situation 
where no contract notice concerning the purchase is published at all and there are 
therefore grounds for regarding the contract as ineffective (see Question 3). 
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18 In the light of the foregoing and having regard to the parties’ submissions, the 
Klagenævnet for Udbud finds that the questions give rise to such doubts that it has 
decided to stay proceedings and refer the questions to the Court of Justice of the 
European Union for a preliminary ruling.