Our Public Procurement team reviews a recent judgement of the Court of Justice of the European Union (CJEU). The judgment offers helpful guidance as to when a modification will be considered a change to the ‘overall nature’ of a contract and require a new procurement procedure. In the judgment, the CJEU examined whether changes to methods of remuneration, which did not significantly change the value of the contract, are changes to the overall nature of the contract.
What you need to know
- The case (C-282/24 Polismyndigheten v Konkurrensverke) revolved around the application of the de minimis exemption in Article 72(2) of Directive 2014/24 (Directive). Article 72(2) permits modifications of contracts below certain thresholds provided the overall nature of the contract is not altered.
- The CJEU considered whether the de minimis exemption permits a contracting authority to modify the remuneration model of a framework agreement where the overall contract value changes only marginally. The key question was whether this change would amount to a modification of the “overall nature” of the contract.
- The CJEU clarified that an “alteration of the overall nature” of a framework agreement is not the same as a “substantial modification” under Article 72(4). A change capable of affecting the original procurement outcome does not automatically prevent reliance on Article 72(2).
- The Court ultimately agreed with the opinion of the Advocate General that only modifications leading to a fundamental change in the balance or structure of the framework agreement will amount to an alteration of its overall nature.
Background
The Swedish Police Authority (Polismyndigheten) awarded framework agreements for vehicle towing services in 2020. These agreements were awarded based on the lowest price criterion. The contracts required tenderers to offer a fixed price for towing within a 10 km radius and a per-kilometre charge beyond that distance, with prices fixed for the contract duration.
The Police Authority amended the remuneration model in 2021 to redistribute costs geographically:
- The fixed-price radius was expanded to 50 km
- The fixed prices were increased, and
- The per-kilometre rate was reduced
The total remuneration changed only marginally.
Article 72 of the Directive requires that modifications to public contracts and framework agreements will require a new procurement procedure where those modifications are substantial, unless one of the exemptions apply. Article 72(2) provides for a de minimis exemption for low value modifications, provided the modification does not “alter the overall nature” of the contract or framework agreement.
The key question the court considered was whether the modification of the payment structure and price levels in the framework agreement, altered its “overall nature”. The changes resulted in only a marginal variation in total contract value.
Please note that we previously discussed the Advocate General’s opinion in the Polismyndigheten case in a June 2025 insight on 'Safe Harbours for Contract Modifications'.
Judgment
The CJEU drew a clear distinction between a “substantial modification” and an alteration of the contract’s “overall nature”. These are separate concepts. A modification may be substantial but not amount to a change to the “overall nature” of the contract, so long as it does not fundamentally transform the contract.
The reasoning behind this is that the prohibition on altering the overall nature of the contract is intended to apply where a modification is already accepted as substantial. It cannot therefore be assumed that a substantial modification will always amount to a change to the overall nature of the contract, as this interpretation would deprive Article 72 of any practical effect.
The Court explained that the concept of “overall nature” is limited to the most significant substantial modifications. These modifications entail either:
- A fundamental change in the subject matter or type of framework agreement, or
- A fundamental change in the contractual balance
These changes may be regarded as resulting in a transformation of the framework agreement as a whole.
The Court did not rule out that, in exceptional circumstances, a modification to the method of remuneration could lead to a fundamental change in the balance of a framework agreement. This may be the case even where the change results in only a marginal variation in the total value of the agreement. In those circumstances, the overall nature of the framework agreement may be altered.
The position will arise where a revision to the remuneration method of the framework agreement completely alters its general structure. A revision of this kind could lead to the successful tenderer(s) being placed in a significantly more favourable position than would have resulted from the application of the method of remuneration initially agreed on.
The CJEU also clarified that the de minimis test under Article 72(2) removes the need to assess whether the modification is substantial. This includes whether the modification could have affected the outcome of the original procurement. The Court rejected the approach taken by the Swedish courts. It stated that the fact that a change might have influenced bidders does not, by itself, prevent reliance on the de minimis exemption.
The Court therefore held that Article 72(2) permits changes to the remuneration method in a framework agreement, unless those changes result in a fundamental alteration of the contractual balance.
Conclusion
The decision of the CJEU clarifies the scope of the de minimis exemption in Article 72(2). It firmly distinguishes between “substantial modifications” and alterations of a contract’s “overall nature”. The judgment strengthens legal certainty for contracting authorities. It confirms that low-value adjustments to remuneration models are permissible. This includes changes to pricing structures, provided they do not fundamentally transform the agreement. However, the court sought to preserve vital safeguards against disguised renegotiations that undermine procurement principles.
This judgment paves the way for authorities to rely on the de minimis safe harbour with more certainty than has previously been the case.
We have significant experience in assisting contracting authorities, utilities and tenderers on all aspects of public procurement law. For more information and expert advice, please contact a member of our Public Procurement team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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