Opinion of the Advocate General — ECLI:EU:C:2025:305
Date: 2025-04-30
Language of the case: Swedish
Procedure: Reference for a preliminary ruling
Origin: Sweden

Translation C-282/24 – 1 
Case C-282/24 
Request for a preliminary ruling 
Date lodged: 
23 April 2024 
Referring court: 
Högsta förvaltningsdomstolen (Sweden) 
Date of the decision to refer: 
18 April 2024 
Appellant: 
Polismyndigheten 
Respondent: 
Konkurrensverket 
  
[…] 
DECISION UNDER APPEAL 
Judgment of the Kammarrätten i Stockholm (Administrative Court of Appeal, 
Stockholm) of 13 April 2023 in Case No 7456-22 
SUBJECT MATTER 
Procurement fine; reference for a preliminary ruling from the Court of Justice of 
the European Union 
[…] 
The Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden) 
issues the following 
ORDER 
A reference for a preliminary ruling pursuant to Article 267 TFEU shall be made 
to the Court of Justice of the European Union in accordance with the attached 
request for such a ruling […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 18. 4. 2024 – CASE C-282/24 
 
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[…] 
Request for a preliminary ruling pursuant to Article 267 TFEU seeking 
interpretation of Article 72(2) of Directive 2014/24/EU on public 
procurement and repealing Directive 2004/18/EC (Public Procurement 
Directive) 
Introduction 
1 By its reference for a preliminary ruling, the Supreme Administrative Court seeks 
clarity on the detailed conditions in which an amendment of a framework 
agreement concluded previously which, in terms of its value, could be covered by 
Article 72(2) of the Public Procurement Directive, may nevertheless be deemed to 
give rise to an obligation to conduct a new procurement procedure on the ground 
that the overall nature of the framework agreement is altered. The question has 
arisen in a case concerning a procurement fine. 
Applicable provisions of EU law 
2 Article 72(1) of the Public Procurement Directive allows contracts and framework 
agreements to be modified without a new procurement procedure in a number of 
situations. One of them is where the modifications, irrespective of their value, are 
not substantial within the meaning of paragraph 4 of that article. That paragraph 
states that a modification of a contract or a framework agreement during its term 
is to be considered to be substantial where it renders the contract or the framework 
agreement materially different in character from the one initially concluded. 
Paragraph 4(a) further states that a modification is in any event to be considered to 
be substantial where it introduces conditions which, had they been part of the 
initial procurement procedure, would have allowed for the admission of other 
candidates than those initially selected or for the acceptance of a tender other than 
that originally accepted or would have attracted additional participants in the 
procurement procedure. 
3 Under Article 72(2), furthermore, and without any need to verify whether the 
conditions set out under points (a) to (d) of paragraph 4 are met, contracts may 
equally be modified without a new procurement procedure where the value of the 
modification is below both the thresholds set out in Article 4, and, for service and 
supply contracts, 10% of the initial contract value. However, the modification may 
not alter the overall nature of the contract or framework agreement. 
4 Article 72(5) states that a new procurement procedure in accordance with that 
directive is to be required for other modifications of the provisions of a public 
contract or a framework agreement during its term than those provided for under 
paragraphs 1 and 2. 
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5 Recital 107 of the directive states that a new procurement procedure is required in 
case of material changes to the initial contract, in particular to the scope and 
content of the mutual rights and obligations of the parties. It states that such 
changes demonstrate the parties’ intention to renegotiate essential terms or 
conditions of that contract and that this is the case in particular if the amended 
conditions would have had an influence on the outcome of the procedure, had they 
been part of the initial procedure. 
6 Recital 107 further states that modifications to the contract resulting in a minor 
change of the contract value up to a certain value should always be possible 
without the need to carry out a new procurement procedure. 
7 Recital 109 deals with the exclusion from the obligation to conduct a new 
procedure which applies where a contracting authority needs to modify an existing 
contract due to unforeseeable circumstances. It states that that exclusion cannot 
apply in cases where a modification results in an alteration of the nature of the 
overall procurement, for instance by replacing the works, supplies or services to 
be procured by something different or by fundamentally changing the type of 
procurement since, in such a situation, a hypothetical influence on the outcome 
may be assumed. 
Applicable provisions of national law 
8 Under Paragraph 8 of Chapter 17 of Lagen (2016:1145) om offentlig upphandling 
(Law No 1145 of 2016 on public procurement; ‘the Law on public procurement’), 
a contract or framework agreement may be modified without a new procurement 
procedure if the modification is made on the basis of one of the provisions in 
Paragraphs 9 to 14. 
9 According to the first subparagraph of Paragraph 9, a contract or framework 
agreement may be modified without a new procurement procedure if the overall 
nature of the contract or framework agreement is not altered and the increase or 
decrease in the value of the contract or framework agreement is less than the 
prescribed threshold and 10% of the value of the contract or framework 
agreement, where there is procurement of goods or services. 
10 The first subparagraph of Paragraph 14 states that a contract or a framework 
agreement may be modified without a new procurement procedure even though 
the modification is not covered by Paragraphs 9 to 13, if the modification is not 
substantial. According to point (1) of the second subparagraph, a modification is 
to be considered to be substantial if, inter alia, it introduces new conditions which, 
had they been included in the original procurement procedure, would have 
resulted in other candidates being invited to submit tenders, other tenders being 
included in the evaluation or additional suppliers participating in the procurement 
procedure. 
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Facts in the proceedings 
Background 
11 In 2020, the Polismyndigheten (Swedish Police Authority) carried out a 
procurement procedure in respect of towing services under the Law on public 
procurement. The total contract value was estimated at SEK 15 million and the 
tender was evaluated on the basis of the award criterion of lowest price offered. 
The tenderers were required to quote a fixed price for assignments where the pick-
up point of the vehicle to be towed was within a 10-km radius of the place where 
the vehicle was to be returned. For transportation outside the 10-km radius, 
tenderers were required to quote a specific additional price per kilometre for the 
remainder of the distance covered. According to the tender documents, the prices 
were to remain unchanged for the duration of the contract. 
12 The procurement procedure was concluded by the Swedish Police Authority 
entering into two framework agreements in early 2021, one with Lidköpings 
Biltjänst Hyr AB and one with another supplier. 
13 In the middle of 2021, the Swedish Police Authority agreed with the two suppliers 
to amend the terms of remuneration in the framework agreements. The 
amendment agreements stipulated that the radius within which the kilometre price 
would not be paid was extended from 10 to 50 km. At the same time – as far as 
Lidköpings Biltjänst Hyr AB is concerned – the fixed price per assignment was 
changed from SEK 0 to SEK 4 500, while the kilometre prices outside the radius 
for certain transportation were changed from SEK 185 to SEK 28 and for others 
from SEK 275 to SEK 55. 
14 The Swedish Police Authority has stated that the reason for the amendments was a 
need to even out the distribution of costs internally within the authority between 
different police areas with varying geographical size and urbanisation levels. The 
starting point was that the amendments should not result in any change in the total 
value of the framework agreements. The authority has subsequently concluded, 
based on the invoices, that the amendment agreement with Lidköpings Biltjänst 
Hyr AB has led to a marginal reduction in the total remuneration in comparison 
with what would have been paid under the original terms. 
Application for procurement fine 
15 The Konkurrensverket (Swedish Competition Authority) applied to the 
Förvaltningsrätten i Stockholm (Stockholm Administrative Court) for an order 
requiring Swedish Police Authority to pay a procurement fine on the grounds that 
the amendment agreements should have been preceded by a new procurement 
procedure. 
16 The Swedish Police Authority contested the application. The authority argued that 
it had not been obliged to carry out a new procurement procedure because the 
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amendments were not substantial within the meaning of Paragraph 14 of Chapter 
17 of the Law on public procurement. In addition, with regard to the amendments 
to the agreement with Lidköpings Biltjänst Hyr AB, the authority argued that they 
were permissible under Paragraph 9 of Chapter 17 of the Law on public 
procurement because they were changes of lesser value. 
17 The Administrative Court granted the Swedish Competition Authority’s 
application and ordered the Swedish Police Authority to pay SEK 1 200 000 by 
way of a procurement fine. The Administrative Court found that the amendments, 
which meant that the tenderers would have had to strike a different balance 
between the prices for fixed and variable remuneration, were not foreseeable 
based on the information in the original procurement documents, which meant that 
the other tenderers were not given the same opportunities as the successful 
suppliers to make correct calculations of the profitability of the potential orders 
under the new conditions. In the Administrative Court’s view, it appeared likely 
that the amendments to the conditions, had they been included in the original 
tender, could have resulted in additional suppliers participating or the outcome of 
the evaluation being different. Against that background, the Administrative Court 
found that the amendments were to be considered to be substantial and thus not 
permitted under Paragraph 14 of Chapter 17 of the Law on public procurement. 
For the same reason, the Administrative Court found that the amendments to the 
agreement with Lidköpings Biltjänst Hyr AB altered the overall nature of the 
framework agreement and were thus not permitted under the provisions on 
changes of lesser value set out in Paragraph 9 of Chapter 17 of the Law on public 
procurement. 
18 The Swedish Police Authority brought an appeal against the judgment of the 
Administrative Court before the Administrative Court of Appeal. With regard to 
the amendments to the agreement with Lidköpings Biltjänst Hyr AB, the Swedish 
Police Authority claimed that a change of lesser value can be permitted even if the 
change in itself were considered to be substantial. Furthermore, the authority 
referred to recital 109 of the Public Procurement Directive and argued that there 
must be changes of a greater kind than an adjustment of the terms of remuneration 
for the overall nature of the contract to be considered to have been altered. 
19 The Administrative Court of Appeal dismissed the appeal. The Administrative 
Court of Appeal also considered that the amendments were to be considered to be 
substantial and thus not permitted under Paragraph 14 of Chapter 17 of the Law 
on public procurement. Furthermore, the Administrative Court of Appeal held that 
the concept of ‘the overall nature of the agreement’ and the examples given in the 
preamble to the Public Procurement Directive cannot be interpreted as meaning 
that amendments to the terms of remuneration cannot be considered to be 
alterations of the overall nature. Instead, in the view of the Administrative Court 
of Appeal, it is necessary to assess on a case-by-case basis whether an amendment 
to the terms of remuneration is too dramatic a change in the obligations of the 
parties and means that it can be concluded that the outcome of the previous 
procurement procedure had been affected in some relevant way. In the present 
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case, the Administrative Court of Appeal considers that it could be held that the 
outcome of the original procurement procedure would have been affected had the 
amended terms of remuneration been included from the outset. The amendments 
to the agreement with Lidköpings Biltjänst Hyr AB were therefore considered to 
constitute such an alteration of the overall nature of the framework agreement, as 
referred to in Paragraph 9 of Chapter 17 of the Law on public procurement. 
20 The Swedish Police Authority has brought an appeal against the judgment of the 
Administrative Court of Appeal and claims that the Supreme Administrative Court 
should dismiss the Swedish Competition Authority’s application for a 
procurement fine or, in any event, set the fine at a lower amount. The Swedish 
Competition Authority contends that the appeal should be dismissed. 
21 The Swedish Police Authority further argues before the Supreme Administrative 
Court that the amendment agreements were permitted under Paragraph 14 of 
Chapter 17 of the Law on public procurement. The authority also maintains that 
the amendments to the agreement with Lidköpings Biltjänst Hyr AB were in any 
event permitted under Paragraph 9 of Chapter 17 of the Law on public 
procurement. 
22 This reference for a preliminary ruling concerns the latter provision and the 
corresponding provision of the Public Procurement Directive, Article 72(2), and, 
more specifically, what is meant by the overall nature of a framework agreement 
being altered. 
Positions of the parties 
The Swedish Police Authority 
23 The Swedish Police Authority makes the following submissions. The amendments 
are not such as to have resulted in the overall nature of the framework agreement 
being altered. Article 72(2) of the Public Procurement Directive states that a 
contract which fulfils the requirements of that provision may be modified without 
any verification of whether the conditions set out under points (a) to (d) of 
paragraph 4 are met. This means that the fact that another supplier could have 
been awarded the contract had the new conditions applied from the outset cannot 
be regarded as supporting the position that the overall nature of the contract has 
been altered. The case-law of the Court of Justice of the European Union (Finn 
Frogne, C-549/14, EU:C:2016:634) also shows that even substantial changes to 
the contract may be permitted if the possibility of making them has been indicated 
in advance. Amending clauses are now governed by Article 72(1)(a) of the Public 
Procurement Directive and are reserved for modifications which do not affect the 
overall nature, which means that that concept cannot be synonymous with 
substantial modifications but must relate to modifications of a greater kind. 
Recital 109 of the Public Procurement Directive states, as an example of an 
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alteration of the overall nature, the replacement of the subject matter of the 
contract by something else or a fundamental change in the type of procurement. 
The Swedish Competition Authority 
24 The Swedish Competition Authority makes the following submissions. Changes 
of lesser value in a contract which has already been concluded can be made since 
such changes cannot generally be expected to distort competition or infringe the 
principles of equal treatment and transparency to any great extent. However, the 
scheme of the procurement rules would be undermined if amendments, which in 
themselves entail only a marginal change in value in absolute terms, but which are 
contrary to the principles for reasons other than a change in value, were to be 
permitted. Thus, the assessment of whether such an amendment alters the overall 
nature of the framework agreement should focus on whether the outcome of the 
original procurement procedure could hypothetically have been different, 
irrespective of the impact of the marginal change in value. In this case, the value 
is irrelevant to the issue of whether the amendments are contrary to the principles. 
The amendments have concerned the basic economic conditions of the original 
tender and affected the attractiveness of the procurement procedure from a risk 
perspective that could not have been foreseen when the tenders were submitted. It 
may be assumed that the outcome of the procurement procedure would have been 
affected had the amendments been known from the outset as another supplier 
could have submitted the most economically advantageous tender under different 
conditions. For those reasons, the amendment agreement is contrary to the 
principles of equal treatment and transparency and means that the overall nature of 
the framework agreement has been altered. The fact that the assessment of 
whether the overall nature of the framework agreement has been altered is similar 
to the assessment to be made, according to the case-law of the Court of Justice of 
the European Union, as to whether an amendment is substantial, is in the nature of 
the matter since both concepts are corollaries of the abovementioned principles. 
The need for a preliminary ruling 
25 The Swedish Police Authority has calculated the value of the amendments made 
to the framework agreement concluded with Lidköpings Biltjänst Hyr AB at an 
amount lower than the value stated in Paragraph 9 of Chapter 17 of the Law on 
public procurement and Article 72(2) of the Procurement Directive. In order to 
determine whether, on that basis, it was permissible for the Swedish Police 
Authority to enter into the amendment agreement, the Supreme Administrative 
Court must rule on whether the modification of the remuneration model that was 
made can be considered to have altered the overall nature of the framework 
agreement. 
26 In its previous case-law – which predates the introduction of the current Public 
Procurement Directive – the Court of Justice has held that the principles of equal 
treatment and transparency preclude the provisions of an existing contract from 
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being amended, without a new procurement procedure, in such a way that they are 
materially different in character from the original contract (pressetext 
Nachrichtenagentur, C-454/06, EU:C:2008:351, paragraph 34). An amendment is 
to be considered to be substantial, inter alia, when it introduces conditions which, 
had they been part of the initial award procedure, would have allowed for the 
acceptance of a tender other than the one initially accepted (paragraph 35 of that 
judgment). In principle, an amendment which is substantial may not be made after 
the contract has been awarded unless the possibility of making the amendment has 
been provided for in the terms of the contract initially concluded (Finn Frogne, 
paragraphs 30 and 36). Amendments made on the basis of existing provisions of a 
contract may also, in exceptional cases, require a new procurement procedure 
where, in view of the particular characteristics of the services concerned, the 
conditions being amended were a decisive factor in concluding the contract (Wall, 
C-91/08, EU:C:2010:182, paragraph 39). 
27 Article 72 of the Public Procurement Directive is in part intended to codify that 
case-law. Article 72(4) expresses the principle that only substantial modifications 
call for a new procurement procedure. Article 72(1) and (2) sets out a number of 
situations in which modifications may be made, irrespective of whether or not 
they are substantial, in several cases, provided that they do not alter the overall 
nature of the contract or framework agreement. In addition to the exception for 
changes of lesser value, that requirement also applies to modifications under clear, 
precise and unequivocal review clauses and to modifications resulting from 
unforeseeable circumstances. 
28 The exception for changes of lesser value, as expressed in Article 72(2), has no 
direct basis in the case-law of the Court of Justice of the European Union. In 
Commission v Germany (C-160/08, EU:C:2010:230, paragraphs 99 to 101), a 
change was deemed to be substantial on the basis that its value was higher than 
the threshold laid down in the applicable directives, and in Pressetext 
Nachrichtenagentur (paragraphs 61 to 63) a minor adjustment of the price to the 
detriment of the supplier was held not to be a substantial change of the terms of 
the contract. However, the fact that a change which is deemed to be substantial in 
itself may nevertheless be permitted on account of its low value appears to be new 
in the context of the current Public Procurement Directive. 
29 The Court of Justice has not ruled on the conditions under which an amendment to 
a framework contract may require a new procurement procedure on the ground 
that it alters the overall nature of the framework contract, either in the case of 
amendments of lesser value (Article 72(2)) or in the case of amendments pursuant 
to review or option clauses or as a result of unforeseeable circumstances 
(Article 72(1)). Nor has the Court of Justice ruled on the corresponding provisions 
of Directive 2014/23/EU on the award of concession contracts or Directive 
2014/25/EU on procurement by entities operating in the water, energy, transport 
and postal services sectors and repealing Directive 2004/17/EC. 
POLISMYNDIGHETEN 
 
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30 The preamble to the Public Procurement Directive (recital 109, which deals with 
modifications due to unforeseeable circumstances) gives examples of 
modifications that may alter the overall nature of a contract or framework 
agreement. Those examples refer to changes in the subject matter of the contract 
and the type of procurement. Otherwise, there is no clear guidance in the preamble 
as to what is meant by the overall nature being altered. 
31 In the light of the foregoing, the Supreme Administrative Court finds that it is 
necessary to request a preliminary ruling from the Court of Justice of the 
European Union. 
Question 
32 Can a modification of the remuneration model in a framework agreement 
originally awarded on the basis of the award criterion of the lowest price offered, 
whereby the balance between fixed and variable prices is altered and the price 
levels are adjusted to such an extent that the total contract value does not change 
to more than a marginal degree, mean that the overall nature of the framework 
agreement is to be considered to have been altered within the meaning of 
Article 72(2) of the Public Procurement Directive?