Sub­se­quent con­tract amend­ment: between flex­i­bil­i­ty and pub­lic pro­cure­ment law

“We have to adjust the remu­ner­a­tion — but does that jeop­ar­dize the entire ten­der?”

This issue is often a crit­i­cal point in long-term coop­er­a­tion between pub­lic clients and ser­vice providers. Whether price esca­la­tion claus­es are miss­ing or unfore­seen events ren­der a cal­cu­la­tion invalid — the fear of a nec­es­sary re-ten­der­ing res­onates with every con­tract amend­ment. How­ev­er, a recent rul­ing by the ECJ in the Polis­myn­digheten case (Case C‑282/24) now pro­vides impor­tant clar­i­ty for pro­cure­ment prac­tice.

The case: When tow­ing costs become a legal dis­pute

The start­ing point was a case involv­ing a Swedish police author­i­ty that had con­clud­ed frame­work agree­ments for tow­ing ser­vices. Short­ly after the con­tract was con­clud­ed, the remu­ner­a­tion mod­el was adjust­ed: A radius was increased, fixed prices were raised and kilo­me­ter prices were low­ered. What sound­ed prag­mat­ic led to a hefty fine from the Swedish Com­pe­ti­tion Author­i­ty for an alleged­ly unlaw­ful mate­r­i­al change. The case even­tu­al­ly end­ed up before the ECJ.

The most impor­tant insight: dif­fer­en­ti­a­tion is manda­to­ry

The cen­tral mes­sage of the rul­ing is a relief for prac­ti­tion­ers: a “sig­nif­i­cant change” is not auto­mat­i­cal­ly to be equat­ed with a “change in the over­all nature” of the con­tract. Both terms are inde­pen­dent test cri­te­ria.

In essence, this means:

• Green light for adjust­ments: The sub­se­quent adjust­ment of remu­ner­a­tion mod­els with­in frame­work agree­ments is per­mis­si­ble as long as the total con­tract val­ue only increas­es slight­ly and the bal­ance of the con­tract is not fun­da­men­tal­ly shift­ed.

• The lim­it of what is per­mit­ted: Only when the object or type of con­tract is fun­da­men­tal­ly changed — for exam­ple by replac­ing a con­struc­tion con­tract with a ser­vice con­tract or by con­vert­ing a con­tract into a con­ces­sion — is the red line for “chang­ing the over­all char­ac­ter” crossed.

Clas­si­fi­ca­tion: Sci­en­tif­ic back­ground and method

In his com­men­tary in the EWS (issue 1/2026), start­ing on page 36, Daniel Schölzel points out that this deci­sion rep­re­sents an “impor­tant clar­i­fi­ca­tion”, but at the same time a “missed oppor­tu­ni­ty”. While we high­light the prac­ti­cal con­se­quences here, the analy­sis in the spe­cial­ist arti­cle is based on the in-depth sci­en­tif­ic deriva­tion by the ECJ. Mr. Schölzel high­lights the clas­sic legal canon of inter­pre­ta­tion used by the ECJ — from the gram­mat­i­cal to the sys­tem­at­ic to the tele­o­log­i­cal inter­pre­ta­tion of Art. 72 of the Pub­lic Pro­cure­ment Direc­tive — with which the con­cep­tu­al sep­a­ra­tion of the char­ac­ter­is­tics was clear­ly jus­ti­fied.

Sig­nif­i­cance for the nation­al con­text in Ger­many

The deci­sion has a direct impact on Ger­man pro­cure­ment prac­tice and the appli­ca­tion of Sec­tion 132 GWB, which trans­forms the Euro­pean require­ments into nation­al law. For Ger­man con­tract­ing author­i­ties, the rul­ing pro­vides impor­tant guid­ance and con­firms a legal opin­ion that the High­er Region­al Court of Düs­sel­dorf, for exam­ple, had already indi­cat­ed in 2022. There is now more cer­tain­ty that the terms “sub­stan­tial change” and “change in the over­all nature” are to be under­stood sep­a­rate­ly from each oth­er in Sec­tion 132 GWB. In addi­tion, the pro­vi­sion opens up scope for flex­i­bil­i­ty, which must not be obstruct­ed by equat­ing terms of change too close­ly.

Con­clu­sion: gray areas remain — doc­u­men­ta­tion is every­thing

Despite the new clar­i­ty, one fly in the oint­ment remains: the ECJ has failed to define the term “change in the over­all char­ac­ter” con­clu­sive­ly and with legal cer­tain­ty. The ques­tion of when there is a fun­da­men­tal shift in the bal­ance remains unclear.

In prac­tice, this means that the risk of pend­ing inef­fec­tive­ness in bor­der­line cas­es (Sec­tion 135 ARC) remains, as a con­tract notice is reg­u­lar­ly not pub­lished if no change in the over­all char­ac­ter is assumed. Care­ful review and doc­u­men­ta­tion of the scope and qual­i­ty of the amend­ment there­fore remain essen­tial.

The com­plete aca­d­e­m­ic com­men­tary with all details on the legal sys­tem can be found in the cur­rent issue of the jour­nal Europäis­ches Wirtschafts- und Steuer­recht (EWS), issue 1/2026, from page 36 onwards.