In a judgment delivered on 16 October 2025 in Case C-282/24, Swedish Police Authority v Swedish Competition Authority, the Court of Justice of the European Union (CJEU) provided interpretation of Article 72(2) of the Public Procurement Directive (Directive 2014/24/EU).
The case, referred by the Supreme Administrative Court of Sweden (Högsta förvaltningsdomstolen), concerned whether a modification to the remuneration model in a public contract – changing the balance between fixed and variable pricing – could be made without triggering a new public procurement procedure.
The Court held that certain low-value modifications may be permissible, provided they do not fundamentally alter the ‘overall nature’ of the contract, and subject to strict conditions. In its judgment, the Court distinguished between ‘substantial modifications’ and those that alter the ‘overall nature’ of a contract, emphasising that only the latter trigger the requirement for a new procedure under Article 72(2) of the Public Procurement Directive. Put another way, the Court rejected the argument that any change to a public contract post-award affected the tender in such a way that would automatically alters its overall nature.
The dispute arose from changes made to framework agreements for vehicle towing services, originally awarded by the Swedish Police Authority (Polismyndigheten) in 2021. The pricing model was amended to expand the flat-rate zone and adjust price levels. The Swedish Competition Authority (Konkurrensverket) challenged the changes, arguing they were substantial enough to require a new public procurement process.
Background and Facts
The case arose from a dispute in Sweden concerning the modification of framework agreements for vehicle towing services. In 2020, the Swedish Police Authority launched a public procurement procedure for these services, awarding contracts based on the lowest price criterion. The pricing model required tenderers to quote a fixed price for towing within a 10 kilometre (km) radius, and an additional per-kilometre charge for distances beyond that. Prices were to remain unchanged throughout the contract term.
Two framework agreements were concluded in early 2021. Later that year, the Swedish Police Authority and the contractors agreed to amend the remuneration model. The changes aimed to balance cost distribution across police regions, without increasing the total contractual value. The adjustments included expanding the flat-rate radius from 10 km to 50 km, and revising price levels: for example, the fixed price per service rose from 0 SEK to 4,500 SEK, while per-kilometre rates dropped significantly. Overall, the total remuneration decreased slightly compared to the original model. These changes were implemented, without initiating a new procurement procedure.
The Swedish Competition Authority challenged the modification, arguing that it altered the overall nature of the agreements, and therefore required a new procurement process under Article 72(2) of the Public Procurement Directive. They thus sought to impose a public procurement penalty.
The highest instance national court eventually referred a question to the CJEU: does a modification of the remuneration model, altering the balance between fixed and variable prices but leaving the total value largely unchanged, constitute an alteration of the ‘overall nature’ of the framework agreement under Article 72(2) of the Public Procurement Directive?
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 of Stockholm 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 the Advocate General
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, AG Rantos suggested that it is for the referring national court to determine whether the specific modification at issue in this case meets those conditions.
Judgment of the Court
In its judgment, the Court noted that the Directive does not define ‘overall nature’. Interpreting the term in its ordinary meaning, the Court held that it refers to modifications so significant that they transform the contract in its entirety. This concept, for the Court, is distinct from that of a ‘substantial modification’ under Article 72(4) of the Public Procurement Directive. In other words, while substantial modifications may affect competition or the economic balance, only the most fundamental changes, such those altering the subject matter, type, or essential structure of the agreement, would amount to an alteration of its overall nature.
The Court put it that Article 72(2) of the Public Procurement Directive operates as a derogation from the general rule, requiring a new procurement procedure for modifications. Therefore, it must be interpreted strictly. However, it was evident that in the context of the Public Procurement Directive, it was intended to allow a certain level of pragmatic flexibility for minor changes, even if they might have influenced the original tender outcome, provided they, first, remain below the value thresholds, and second, do not fundamentally transform the contract.
The Court therefore rejected the argument that any modification capable of influencing the original tender outcome automatically altered the overall nature of the contract. Such an interpretation, for the Court, would collapse the distinction between Article 72(2) and Article 72(4) of the Public Procurement Directive, rendering the former provision ineffective. Instead, the Court held that the two concepts serve different purposes: ‘substantial modification’ captures a broader range of changes, while ‘alteration of overall nature’ is reserved for the most radical transformations.
The Court observed that Article 72(1)(a) and Article 72(1)(c) of the Public Procurement Directive expressly allow for price adjustments under certain conditions, provided they do not alter the overall nature of the contract. It would therefore be inconsistent to treat all price modifications as altering the overall nature. Moreover for the Court, Article 72(2) of the Public Procurement Directive applies only to modifications of limited value, which inherently limits their impact on the contract’s balance.
The Court consequently concluded that a modification of the remuneration method resulting in only a marginal change in total value cannot, in principle, entail a fundamental change in the subject matter or type of the framework agreement. However, the Court left open the possibility that, in exceptional cases, even a low-value modification could alter the overall nature, if it completely changes the contract’s structure, such as by placing the contractor in a significantly more advantageous position than originally envisaged.
For the contract modification in the specific case at issue, altering the balance between fixed and variable prices without significantly changing the total value does not, in itself, alter the overall nature of the framework agreement. Only if the change fundamentally shifts the balance, effectively transforming its structure, would it fall outside Article 72(2) of the Public Procurement Directive. It was for the referring national court to assess whether such a fundamental change occurred in this case.
Read the judgment
The judgment of the Third Chamber of the Court of Justice of the European Union in Case C-282/24, Swedish Police Authority v Swedish Competition Authority, delivered on 16 October 2025, can be read here.