Minor price change = no change in over­all char­ac­ter?

On Octo­ber 16, 2025, the ECJ ruled in its judg­ment (Ref.: C- 282/24) that a change in the remu­ner­a­tion method in a frame­work agree­ment award­ed on the basis of the low­est price award cri­te­ri­on is not auto­mat­i­cal­ly to be regard­ed as a change in the over­all nature of the frame­work agree­ment. This applies as long as the total con­tract val­ue changes only slight­ly and there is no fun­da­men­tal shift in the eco­nom­ic bal­ance.

Our video dis­cussing the judg­ment:

Issue: Remu­ner­a­tion adjust­ment for tow­ing ser­vices in Swe­den

The deci­sion of the Euro­pean Court of Jus­tice (ECJ) sheds light on a cen­tral ques­tion regard­ing flex­i­bil­i­ty in pub­lic pro­cure­ment law: To what extent may a con­tract­ing author­i­ty adjust the con­tract terms with­out hav­ing to ini­ti­ate a new pro­cure­ment pro­ce­dure?

The ini­tial sit­u­a­tion: In 2020, the Swedish police author­i­ty (Polis­myn­digheten) invit­ed ten­ders for a frame­work con­tract for tow­ing ser­vices. The only award cri­te­ri­on was the low­est price. The price cal­cu­la­tion com­bined a fixed price for ser­vices with­in an ini­tial radius of 10 km and a vari­able remu­ner­a­tion per kilo­me­ter for dis­tances beyond that. Two frame­work agree­ments were con­clud­ed on this basis at the begin­ning of 2021.

The adjust­ment and its con­se­quences: Dur­ing 2021, the police author­i­ty and the con­trac­tors agreed to adjust the remu­ner­a­tion terms ret­ro­spec­tive­ly. The aim was to dis­trib­ute costs more even­ly with­out increas­ing the total con­tract val­ue. The change includ­ed an exten­sion of the fixed price radius from 10 km to 50 km and an adjust­ment of the prices. The police author­i­ty stat­ed that the appli­ca­tion of this new remu­ner­a­tion mod­el had led to a slight reduc­tion in the total remu­ner­a­tion.

The Swedish Com­pe­ti­tion Author­i­ty (Konkur­rensver­ket) saw this adjust­ment as an infringe­ment and applied for a fine against the police author­i­ty. The court upheld this and sen­tenced the author­i­ty to pay a fine of around 106,650 euros. The changes were to be regard­ed as sub­stan­tial and chang­ing the over­all char­ac­ter.

Fol­low­ing an appeal, the Swedish Supreme Admin­is­tra­tive Court (Högs­ta för­valt­nings­dom­stol) referred the ques­tion to the ECJ as to whether this change in the remu­ner­a­tion modal­i­ty con­sti­tutes a change in the over­all char­ac­ter with­in the mean­ing of Art. 72 (2) of Direc­tive 2014/24/EU.

Key point of the deci­sion: Clear dis­tinc­tion between “sig­nif­i­cant change” and “over­all char­ac­ter”

The ECJ had to clar­i­fy the scope of the term “change in the over­all nature” with­in the mean­ing of Art. 72 (2) of the Pub­lic Pro­cure­ment Direc­tive 2014/24/EU. This has impli­ca­tions for the appli­ca­tion of Ger­man law, as there is a cor­re­spond­ing pro­vi­sion in Sec­tion 132 (4) GWB.

1. the nec­es­sary dif­fer­en­ti­a­tion

The ECJ ruled that a dis­tinc­tion must be made between a mate­r­i­al change and a change to the over­all nature of the con­tract.

Pur­pose of the flex­i­ble reg­u­la­tion: With Art. 72 (2) of the Pub­lic Pro­cure­ment Direc­tive, the Union leg­is­la­tor want­ed to pro­vide a far-reach­ing pos­si­bil­i­ty for sim­pli­fied amend­ments below cer­tain val­ue thresh­olds. This pro­vi­sion serves to ensure a cer­tain degree of flex­i­bil­i­ty and the pos­si­bil­i­ty for con­tract­ing author­i­ties to react prag­mat­i­cal­ly to cir­cum­stances.

Delim­i­ta­tion: If every sub­stan­tial mod­i­fi­ca­tion were also to be regard­ed as a change in the over­all nature of the con­tract, Art. 72 (2) of the Pub­lic Pro­cure­ment Direc­tive would be prac­ti­cal­ly inef­fec­tive. The term “over­all nature” only cov­ers the most impor­tant mate­r­i­al changes that entail a fun­da­men­tal change in the sub­ject mat­ter or nature of the con­tract or a fun­da­men­tal shift in the bal­ance.

2. the val­u­a­tion of the change in remu­ner­a­tion

A sim­ple change to the remu­ner­a­tion method — such as a shift in the ratio of fixed to vari­able remu­ner­a­tion — does not in itself con­sti­tute a fun­da­men­tal change to the sub­ject mat­ter of the frame­work agree­ment.

The cru­cial point is that a change in the remu­ner­a­tion method that leads to a minor change in the over­all val­ue does not in any case mean a fun­da­men­tal change in the sub­ject mat­ter or nature of the frame­work agree­ment.

Excep­tion in the case of upheaval: Only in excep­tion­al cir­cum­stances, such as a dras­tic change in the ratio between fixed and vari­able remu­ner­a­tion, can such an adjust­ment lead to a fun­da­men­tal shift in the bal­ance and thus to a change in the over­all char­ac­ter. This must be exam­ined if the change caus­es a com­plete upheaval in the sys­tem and puts the award recip­i­ent in a sig­nif­i­cant­ly more favor­able posi­tion.

Tips for pub­lic clients: prag­mat­ic solu­tions with legal cer­tain­ty

The rul­ing under­lines that a prag­mat­ic, solu­tion-ori­ent­ed approach to pub­lic pro­cure­ment law must always go hand in hand with pro­fes­sion­al excel­lence and trans­paren­cy.

• Use of the scope for flex­i­bil­i­ty: The val­ue lim­its in Art. 72 Para. 2 of the Pub­lic Pro­cure­ment Direc­tive (10% for ser­vices, 15% for works con­tracts) pro­vide a clear frame­work for nec­es­sary adjust­ments lim­it­ed in val­ue as long as the over­all char­ac­ter is not changed.

• Doc­u­men­ta­tion of the bal­ance: Com­plete doc­u­men­ta­tion is key to legal cer­tain­ty. When­ev­er the remu­ner­a­tion method is adjust­ed, it must be pos­si­ble to prove that the change does not cause a fun­da­men­tal shift in the eco­nom­ic bal­ance.

• Exam­i­na­tion in the event of a change of sys­tem: Cau­tion is required if the change of remu­ner­a­tion modal­i­ty rep­re­sents a com­plete upheaval of the sys­tem of the orig­i­nal con­tract, as this may con­sti­tute a change in the over­all char­ac­ter of the con­tract.

Tips for bid­ders and appli­cants: Pro­tect your rights to fair com­pe­ti­tion

As a bid­der, you are enti­tled to expect that the com­pe­ti­tion will be fair and trans­par­ent and that sub­se­quent changes will not under­mine the orig­i­nal pro­ce­dure.

• Focus on the eco­nom­ic bal­ance: In the event of known con­tract amend­ments, check not only the val­ue lim­its, but also whether the eco­nom­ic bal­ance has been fun­da­men­tal­ly shift­ed in favor of the con­trac­tor.

• Crit­i­cal­ly scru­ti­nize remu­ner­a­tion meth­ods: If a client makes a far-reach­ing shift from fixed to vari­able costs or vice ver­sa, this can have a sig­nif­i­cant impact on the bid­der group and the bid cal­cu­la­tion.

• Ensure legal pro­tec­tion: The pro­ce­dure serves to ensure com­pli­ance with the prin­ci­ples of equal treat­ment and trans­paren­cy. Effec­tive legal pro­tec­tion before the pub­lic pro­cure­ment tri­bunals and high­er region­al courts applies to the upper thresh­old range.