In an Opinion delivered in the context of a dispute between the Swedish Police Authority and the Swedish Competition Authority, Advocate General (AG) Rantos advised the Court of Justice of the European Union (the Court) on the interpretation of Article 72(2) of Directive 2014/24/EU (the Public Procurement Directive).
He proposed that minor modifications to public contracts may be permissible without triggering a new public procurement procedure, provided that such changes do not alter the overall nature of the contract and that transparency and competition are not undermined.
The dispute in Case C-282/24, Swedish Police Authority v Swedish Competition Authority, referred by the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen), concerned the conditions under which a minor modification to an existing framework agreement necessitated a new public procurement process. At issue was whether the Swedish Police Authority’s decision to adjust the pricing model in its towing services contracts, without increasing the total contract value, constituted a substantial change requiring re-tendering.
The referral arose in the context of proceedings concerning the imposition of a procurement penalty on the Swedish Police Authority (Polismyndigheten) by the Swedish Competition Authority (Konkurrensverket).
Background and Facts
The Swedish Police Authority had entered into framework agreements with two service providers for vehicle towing services. These agreements for towing services, in 2020, were awarded based on the lowest price criterion, with a specific pricing model: a fixed price applied for towing within a 10 km radius, and an additional per-kilometre charge applied beyond that distance.
After the agreements were in force, the Swedish Police Authority and the contractors in 2021 mutually agreed to modify the remuneration model. The key changes included: expanding the flat-rate radius from 10 km to 50 km; adjusting the price level accordingly; and no increase in the total value of the framework agreements. The Swedish Police Authority said at the time that the changes were justified as being necessary to balance internal cost distribution across different police regions. These changes were implemented without initiating a new public procurement procedure.
The Swedish Competition Authority challenged this modification, arguing that it altered the overall nature of the original agreements and therefore required a new public procurement process under Article 72(2) of Directive 2014/24/EU (the Public Procurement Directive). They thus sought to impose a public procurement penalty.
The central legal question was thus whether such a modification, though minor in value, constituted a substantial change that altered the ‘overall nature’ of the contract, thereby triggering the obligation to re-tender.
Proceedings before the national courts in Sweden
At first instance, the Administrative Court of Stockholm (Förvaltningsrätten i Stockholm) sided with the Swedish Competition Authority, imposing a penalty on the Swedish Police Authority. It found that the changes were significant enough to potentially alter the outcome of the original procurement process, thus violating the principles of equal treatment and transparency.
On appeal, at second instance before the Administrative Court of Appeal of Stockholm (Kammarrätten i Stockholm) in Case No. 7456-22 (Mål nr. 7456-22), lodged by the Swedish Police Authority, the Administrative Court of Appeal upheld the decision of the first instance national court. It agreed that the changes were substantial and altered the overall character of the framework agreement.
Upon further appeal by the Swedish Police Authority to the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen), it decided to refer the matter to the Court of Justice of the European Union (CJEU) under the reference for a preliminary ruling under Article 267 TFEU.
Opinion of Advocate General Rantos
Advocate General Rantos delivered his Opinion in the case. He began by situating the case within the broader objectives of the Public Procurement Directive, stating that it aims to ensure that public contracts are awarded in a manner that respects the principles of transparency, equal treatment, and competition. More specifically, Article 72(2) of the Directive allowed for modifications of limited value to public contracts or framework agreements without triggering a new public procurement procedure, provided that such modifications do not alter the overall nature of the contract. AG Rantos emphasised that this provision was designed to strike a balance: it allowed contracting authorities some flexibility to adapt contracts to evolving needs, while safeguarding the integrity of a public procurement process.
AG Rantos argued that the concept of the ‘overall nature’ of a contract must be understood in qualitative rather than merely quantitative terms. He noted that a modification may be minor in monetary value, but still substantially alter a contract’s structure, purpose, or competitive conditions. Conversely, a change that affects a significant portion of the contract’s value might not necessarily alter its overall nature if it remains within the original framework’s logic and objectives.
Therefore, he sought it necessary to consider whether the changes transformed the economic balance of the contract or favoured certain contractors in a way that would have affected the outcome of the original tender.
Whilst he acknowledged that expanding the flat-rate zone from 10 km to 50 km could significantly affect the profitability of a contract for the service providers, he also noted that the modification was mutually agreed upon, the total value of the framework agreement remained unchanged, and the core subject matter of the contract (vehicle towing services) remained intact. Also important, for him, was that the modification did not introduce new services, new contractors, or new selection criteria; and thus, it merely adjusted the remuneration model within the same operational scope.
Therefore, he concluded that while the change may have economic consequences, it may alter the overall nature of the contracts in a way that could distorted competition or undermined transparency. Whilst a modification of limited value that does not alter the overall nature of the contract may be permissible under Article 72(2) of the Directive, Advocate General Rantos suggested that it is for the referring national court to determine whether the specific modification at issue in this case meets those conditions.
Analysis
The Opinion underscores the importance of contractual flexibility, especially in longer-term framework agreements, and heeds caution against an overly rigid interpretation of Article 72(2) that would discourage practical adjustments in service delivery. He argues that contracting public authorities must be able to respond to operational realities without being forced to restart a public procurement process for minor adjustments. However, he stressed that transparency must still be maintained. Contracting authorities should document and justify any modifications, ensuring that they are objectively verifiable and publicly accessible.
Read the Opinion
The Opinion of Advocate General Rantos in Case C-282/24, Swedish Police Authority (Polismyndigheten) v Swedish Competition Authority (Konkurrensverket), delivered in April 2025, can be read here.