(Reference for a preliminary ruling– Directive 2014/24

European Union law

3Recitals107 and 110 of Directive 2014/24 state:

‘(107)It is necessary to clarify the conditions under which modifications to a contract during its performance require a new procurement procedure, taking into account the relevant case-law of the Court of Justice of the European Union. A new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. This is the case in particular if the amended conditions would have had an influence on the outcome of the procedure, had they been part of the initial procedure.

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(110)In line with the principles of equal treatment and transparency, the successful tenderer should not, for instance where a contract is terminated because of deficiencies in the performance, be replaced by another economic operator without reopening the contract to competition. However, the successful tenderer performing the contract should be able, in particular where the contract has been awarded to more than one undertaking, to undergo certain structural changes during the performance of the contract, such as purely internal reorganisations, takeovers, mergers and acquisitions or insolvency. Such structural changes should not automatically require new procurement procedures for all public contracts performed by that tenderer.’

4Article72 of Directive 2014/24, entitled ‘Modification of contracts during their term’, provides as follows:

‘1.Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:

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(d)where a new contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either:

(i)an unequivocal review clause or option in conformity with point(a);

(ii)universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; or

(iii)in the event that the contracting authority itself assumes the main contractor’s obligations towards its subcontractors where this possibility is provided for under national legislation pursuant to Article71;

(e)where the modifications, irrespective of their value, are not substantial within the meaning of paragraph4.

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4.A modification of a contract or a framework agreement during its term shall be considered to be substantial within the meaning of point(e) of paragraph1, where it renders the contract or the framework agreement materially different in character from the one initially concluded. In any event, without prejudice to paragraphs1 and 2, a modification shall be considered to be substantial where one or more of the following conditions is met:

(a)the modification introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of other candidates than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;

(b)the modification changes the economic balance of the contract or the framework agreement in favour of the contractor in a manner which was not provided for in the initial contract or framework agreement;

(c)the modification extends the scope of the contract or framework agreement considerably;

(d)where a new contractor replaces the one to which the contracting authority had initially awarded the contract in other cases than those provided for under point(d) of paragraph1.

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Swedish law

5The first subparagraph of Paragraph13 of Chapter17 of Lagen (2016:1145) om offentlig upphandling (Law No1145 of 2016 on public procurement; ‘the Law on public procurement’), provides that a contract or a framework agreement might be modified with one contractor being replaced by another, without a new procurement, if:

‘(1)the new contractor fully or partially replaces the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, and

(2)the circumstance that a new contractor fully or partially replaces the initial contractor did not entail other substantial modifications to the contract or framework agreement.’

6According to the referring court, it is apparent from the second subparagraph of Paragraph13 of Chapter17 of that law that such a replacement of the contractor presupposes that the new service provider is not excluded under a ground for exclusion laid down by that law and that it meets the qualification conditions established in the original contract.