Summary of the Case C‑285/18 Irgita and the national court’s response to the CJEU’s judgement
Authored by: PhD student Magdalena Maria Socha
Reviewed by: Associate Professor Willem Janssen
Introduction
In the Irgita[1] case, the Court of Justice of the European Union (hereinafter: the CJEU or the Court) addressed some issues related to the conclusion of the in-house transactions as well as the ratione temporis of public procurement directives. Additionally, the CJEU reflected on the possibility to conclude an in-house transaction when there is already a public contract in force for the provision of the exact same services.
The main objective of this article is to analyse and comment on the Court’s approach to the situation when two public contracts overlap with each other.[2] Firstly, the article begins with the factual background of the case along with its legal context. Secondly, it summarizes questions posed by the national court and briefly reviews the CJEU’s response to each of them. Thirdly, it analyses the possibility to conclude a public contract for the provision of goods, works, or services if there is already an existing contract for the same type of purchase. Finally, the article concludes with a brief summary of how the case ended at the national level.
Facts
The Municipality of the City of Kaunas (Lithuania) launched a procurement procedure for services relating to the maintenance and management of plantations, forests, and parks in the city of Kaunas. In March 2014, contract for the provision of those services was awarded entirely to a private undertaking – Irgita. The duration of the contract was set for 3 years, until March 2017. The contract specified the maximum quantity of services that could be sought from Irgita, however, it did not require the City of Kaunas to order all relevant services or a specific minimum quantity of services from Irgita. Additionally, payment to Irgita was to be made on the basis of the services ordered and rendered according to the tariffs laid down in the contract.
In May 2016, the City of Kaunas concluded an in-house transaction with Kauno švara, for the provision of services that were essentially the same as those for which Irgita had been made responsible by the contract of March 2014.
Kauno švara is a legal person controlled by the contracting authority. The city of Kaunas owns 100% of its shares. Additionally, in 2015, Kauno švara achieved 90.07% of its turnover from activities performed solely for the benefit of the contracting authority.
Irgita challenged the contract concluded between the City of Kaunas and Kauno švara, claiming that the contracting authority was not entitled to enter into an in-house transaction as its contract with Irgita was still in force. In addition, Irgita argued that the above contract distorted competition and was discriminatory towards other economic operators operating in the city of Kaunas.
After two instances, the case finally found its way to the Lithuanian Supreme Court, which referred it for a preliminary ruling to the CJEU.
Legal context
Before summarizing the questions posed by the national court, it is worth noting that the implementation of Article 12 of the Directive 2014/24/EU[3] in Lithuanian law is not an copy-paste exercise. The Lithuanian legislature introduced additional requirements for the conclusion of in-house transactions in both the Lithuanian Law on Public Procurement as well as in the Lithuanian Competition Act, which consequently limit the application of Article 12 of the Directive 2014/24.[4]
Specifically, in the light of the Lithuanian Law on Public Procurement, ‘an in-house transaction may be concluded only in an exceptional case when (…) the continuity, good quality and availability of services cannot be ensured if they are purchased through public procurement procedures.’[5] While Lithuanian Law on Competition requires that public institutions must ensure freedom of fair competition when carrying out economic activities.[6]
Questions to the CJEU
In the light of the above, the Lithuanian Supreme Court has posed the following questions to the CJEU:[7]
1)Does the in-house transaction, which is the subject of this proceedings, come within the scope of application of Directive 2004/18[8] or Directive 2014/24?
3a) Can Member States limit the possibility for public authorities to enter into in-house transactions by stipulating further criteria to those laid down in Article 12 of Directive 2014/24?
3b) If the answer to question 3a is positive – Do the conditions to which Member States subject the conclusion of in-house transactions must be enshrined in the positive law?
4) Is the conclusion of an in-house transaction that satisfies the conditions laid down in Article 12(1)(a) to (c) of Directive 2014/24 discriminative or does it infringe competition?
Assessment of the CJEU
Question 1:
Does the in-house transaction, which is the subject of this proceedings, come within the scope of application of Directive 2004/18 or Directive 2014/24?
Procedures for the conclusion of the disputed in-house transaction were initiated at a time when Directive 2004/18 was still in force but the contract between the City of Kaunas and Kauno švara was concluded in May 2016, when the new Directive 2014/24 has already replaced the Directive from 2004.
As a rule, the directive that applies to the public contract is the one in force at the time when the contracting authority chooses the type of procedure to be followed and decides definitively whether a prior call for competition needs to be issued for the award of a public contract.[9] However, in the case at issue, an award of a contract did not involve the procurement procedure but the conclusion of an in-house transaction. Therefore, in this case, the Court found it necessary to examine when the contracting authority made the definitive decision to have recourse to an in-house transaction.
Before signing the contract with Kauno švara, the City of Kaunas requested the consent of the Lithuanian Public Procurement Authority to conclude the in-house transaction. The issue in the present case was that this Authority received the request when the “old” Directive 2004/18 was in force but issued its permission when the “new” Directive 2014/24 was already covering public procurement transactions.
The CJEU found out that only by following the consent of the Public Procurement Authority could the contracting authority definitely decide whether it was obliged to initiate competition before the award of a public contract to Kauno švara.[10]It is worth emphasizing Court’s consideration of the question of what rules apply at what time contributes to the clarification of doubts on this issue.
Therefore, the CJEU found that the “new” Directive 2014/24 applies to the present case.
Question 3a:
Can Member States limit the possibility for public authorities to enter into ’in-house transactions’ by stipulating further criteria to those laid down in Article 12 of Directive 2014/24?
By this question, the national court seeks to verify whether Article 12 of Directive 2014/24 precludes the Member States from imposing additional criteria for the conclusion of ‘in-house’ transactions.[11] To answer it, the Court starts its considerations by stating that the purpose of the Directive 2014/24 is to coordinate national procurement procedures above a certain value. Then, it refers to the recital 5 of Directive 2014/24, which states that: nothing in this Directive obliges the Member States to contract out or externalise the provision of services that they wish to provide themselves or to organise by means other than public contracts within the meaning of this Directive.[12]
Based on this, the CJEU provides arguments for the minimum harmonization and emphasizes that the Member States have freedom of choice of means to provide services, perform work or obtain supplies. That freedom implies the choice, which is made at the stage prior to the procurement and thereby allows imposing an additional condition for the conclusion of an in-house transaction. Additionally, the Court observes that Directive 2014/24 does not require the Member States to have recourse to a public procurement procedure and consequently cannot compel them to have recourse to an in-house transaction where the conditions laid down in Article 12(1) are satisfied.[13]
Therefore, the Court concludes that the Member States may impose further criteria for the conclusion of an in-house transaction to those laid down in Article 12 of Directive 2014/24 if those additional requirements are in line with the fundamental principles set out in the Treaty on the Functioning of the European Union (TFEU). These principles are especially: free movement, freedom of establishment, freedom to provide services as well as equal treatment, non-discrimination, mutual recognition, proportionality, and transparency.
Question 3b:
Do the conditions to which Member States subject the conclusion of in-house transactions must be enshrined in the positive law?
In order to answer this question, the Court repeats what has been already emphasized above. If a Member State decides to impose additional requirements for the conclusion of in-house transactions, it needs to respect various principles, among others principle of transparency.[14]
Consequently, the principle of transparency, as well as the principle of legal certainty, require that conditions to which the Member States subject the conclusion of in-house transactions should be made by means of rules that are sufficiently accessible, precise, and predictable in their application to avoid any risk of arbitrariness.[15] Therefore, it is for the national court to determine whether additional conditions laid down in the Lithuanian law are in line with the above requirements.
Question 4:
Is the conclusion of an in-house transaction that satisfies the conditions laid down in Article 12 of Directive 2014/24, discriminative or does it infringe competition?
The question seems quite relevant as it, in a way, calls into question the legality of in-house transactions. Surprisingly, the Court gives a rather concise answer to it. Firstly, it emphasizes that although the in-house transactions are excluded from the scope of Directive 2014/24, the contracting authorities are still obliged to comply with principles of equal treatment, non-discrimination, mutual recognition, proportionality, and transparency. Secondly, according to Recital 32 of Directive 2014/24, cooperation between entities belonging to the public sector excluded from the scope of the Directive should still not result in distortion of competition in relation to private economic operators.[16]
In short, in-house transactions – although excluded from the scope of Directive 2014/24 – must still comply with the principles and should not infringe competition. Based on that, the CJEU made a conclusion that this is at the discretion of the referring court to assess whether the in-house transaction at issue in the main proceedings, which overlaps with the public contract still in force and performed by Irgita, is compatible with the above-mentioned principles and does not distort competition. Additionally, the CJEU suggested that while determining this issue, the national court might take into consideration the potential breach of contractual obligations by the City of Kaunas or take a closer look into how precise the contracting authority has defined its requirements in particular by not stating the minimum volume of services to be provided by Irgita. Moreover, the CJEU suggested considering whether such an in-house transaction might qualify as an amendment to the public contract with Irgita.[17]
To sum up, the CJEU deduced that the conclusion of an in-house transaction that satisfies the conditions laid down in Article 12(1)(a) to (c) of Directive 2014/24 as such is not compatible with the EU law.
Overlapping public contracts
Are contracting authorities allowed to conclude a public contract when there is already another public contract in force for the provision of exactly the same services? The CJEU seems to address this question in para. 63 of its judgment in Irgita:
In this case, it is particularly the task of the referring court to assess whether, by concluding the in-house transaction at issue in the main proceedings, the subject matter of which overlaps with that of a public contract still in force and performed by Irgita, as the party to whom that contract was awarded, the contracting authority has not acted in breach of its contractual obligations, arising from that public contract, and of the principle of transparency; whether it had to be established that the contracting authority failed to define its requirements sufficiently clearly, in particular by not guaranteeing the provision of a minimum volume of services to the party to whom that contract was awarded, or, further, whether that transaction constitutes a substantial amendment of the general structure of the contract concluded with Irgita.[18]
Following the wording of this paragraph, the answer to the above question on the overlap of contracts is likely ‘it depends. The Court does not explicitly address this issue. It seems that it is possible to conclude an in-house transaction (so a public contract) when there is already another identical public contract in force, under several conditions. By applying textual interpretation to paragraph 63, those conditions would be:
- Conclusion of an in-house transaction does not constitute a breach of contractual obligations arising from the public contract which was concluded first;
- Conclusion of an in-house transaction does not infringe the transparency principle;
- Contracting authority sufficiently clearly described its requirements in the first public contract, among others by stating the minimum volume of services to be provided;
- In-house transaction does not qualify as a substantial amendment of the initial public contract.
Textual interpretation, however, instead of providing answers, poses even more questions and uncertainties. Assuming, that the Court provided in paragraph 63 sort of a “guidance” – it is not clear whether the conditions deducted from paragraph 63 apply only to in-house transactions overlapping with the existing public contract or maybe as well applicable to a public contract that overlaps with a framework agreement or to two “regular” public contracts duplicating each other. In the absence of regulations relating to overlapping public contracts, an indication from the CJEU as to whether its considerations in the Irgita should also be applied to similar cases in practice would help to dispel many doubts. Finally, the Court does not specify whether all the above conditions should be met simultaneously or only fulfillment of a few is enough for the conclusion of an in-house transaction that overlaps with another public contract.
Below, each of the arguments extracted from paragraph 63 is examined in the context of their application to overlapping public contracts.
Breach of the contractual obligations – protection of legitimate expectations
As a point of departure, it needs to be emphasized that there is no binding, general contract law per se at the EU level,[19] therefore contractual obligations of the parties, as well as considerations relating to the potential amendments of particular contracts, will vary depending on the national regulations of Member States. This standpoint is confirmed in Irgita as the Court states: it is a particularly task of the referring court to assess whether, by concluding the in-house transaction, the subject of which overlaps with that of a public contract still in force and performed by Irgita, as the party to whom contract was awarded, the contracting authority has not acted in breach of its contractual obligations.[20]
In the situation when a public contract overlaps with another public contract, and the contracting authority decides to purchase within the “new” contract, although the initial public contract has not yet expired – in the light of Court’s indication above it is possible to arguethat the affected contractor could claim a breach of the rule of legitimate expectations arising from national contract law.
The principle of legitimate expectations will vary depending on its interpretation under national contract law.[21] One of the available definitions describes legitimate expectations as a “concept that relates to […] a situation where a contracting party’s conduct creates reasonable and justifiable expectations on the part of an investor to act on reliance on said conduct, such that a failure to honour those expectations could cause the investor to suffer damages.”[22] The CJEU has also addressed the issue of the protection of legitimate expectations by saying that the principle of the protection of legitimate expectations, which is one of the fundamental principles of the Community, extends to any individual in a situation where the Community authorities, by giving him precise assurances, have caused him to entertain legitimate expectations. Such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources.[23] However, a person may not plead breach of the principle unless he has been given precise assurances by the administration.[24]Although this case does not concern public procurement, it may by analogy apply to issues arising from overlapping public contracts in the procurement context. Firstly, Court’s reasoning relates to the legitimate expectations of a private entity in relation to the public authority. Additionally, the CJEU emphasizes that the protection of legitimate expectations is one of the fundamental principles of the EU which implies its general application to contractual relations in the Member States.
Therefore, an economic operator falls within the protection of the legitimate expectations, when the contracting authority undertakes to purchase from it in a manner that fulfills the requirements of precise, unconditional and consistent assurances. It seems thus reasonable from the economic operators’ perspective, to include a clause in the public contract according to which they have exclusive rights for delivery during the term of the contract. In such a situation, the contracting authority, bound by a public contract, should not risk buying the same goods or services from a “new” contractor. Irgita’s contract did not contain such a clause,[25] which could potentially have contributed to procuring part of the services from another contractor.
Infringe the transparency principle
It has been pointed out that in the light of the CJEU reasoning in Irgita, the principle of transparency would require the contracting authorities to clearly indicate in the initial public contract their right to purchase services covered by that contract from a different supplier, while the initial contract was still in force.[26] Such a requirement could be justified under the conditions of paragraph 63. Assuming that the contractual expectation of the parties is an important institution in the national contract law interpretation, the situation like in the main proceeding could constitute a breach of contractual obligations.
Additionally, the principle of transparency requires that a bidder who was awarded the public contract should be sufficiently informed of what to expect during its term. Consequently, the second award of an identical contract by the means of an in-house transaction to another supplier undermines the principle of transparency.[27] Thus, the requirement to include in the initial public contract whether contracting authorities are allowed to conclude overlapping subsequent contracts seems to fit the Court’s requirements established in paragraph 63 of Irgita.
Minimum volume of public contract / framework agreement
The current EU regulation on public procurement does not require contracting authorities to establish the minimum value of neither public contracts nor framework agreements. In the Irgita however, the Court indicated that by “not guaranteeing the provision of a minimum volume of services to the party to whom that contract was awarded” contracting authority failed to define its requirements sufficiently clearly.”[28] Therefore, it appears that the CJEU implies that there is in fact an obligation, under the principle of transparency, for the contracting authority to define the minimum volume of public contracts /framework agreements,[29] and such an interpretation may have significant consequences.
Recently the CJEU has ruled in the cases Autorità[30] and Simonsen & Weel[31] that contracting authorities must estimate in framework agreements the total quantity or value and maximum amount of purchases to be covered by call-off contracts awarded under the framework agreement. Those judgments have had a massive impact on public procurement practice[32] and led to many debates among academics.[33] Although the requirement to establish a maximum value of a framework agreement does not follow directly the Directive 2014/24, some Member States have already changed their national legislation in this regard.[34] For instance, prior to Autorità, French Public Procurement Code contained a provision saying that framework agreements may be concluded without estimating their maximum value. After the CJEU judgment in Autorità, this provision has been removed. Now, French law says that framework agreements may be concluded either with a minimum and a maximum value or quantity; or with only a maximum value or quantity.[35]
This example illustrates how huge impact the case-law of the CJEU has on the national legislation of the Member States in the area of public procurement. The Irgita case touches upon similar issues and might add further questions to the Autorità and Simonsen & Weel debate. As of today, contracting authorities are not bound by the minimum purchase. However, it remains to be seen what direction the case law will take in this regard.
Possible amendment of the initial contract
In the first place, it is worth noting that the CJEU makes a reference to the possible “amendment of the general structure of the contract concluded with Irgita” and not to modification of the contract. Since the amendment of contract is mentioned in the judgement, only once,[36] it is not clear whether the Court’s intention was to refer to Article 72 of the Directive 2014/24/EU or to the national contract law of the Member State involved.
Assuming that the Court meant contract modification within the meaning of Directive 2014/24/EU, there might be ground, which may justify the qualification of overlapping contracts as a possible contract modification, namely the change of the contractor (Article 72.1.d).
In order to assess whether the conclusion of the second contract may be considered as a change of the contractual partner, several conditions must be fulfilled. New contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either an unequivocal review clause or option; succession into the position of the initial contractor or in the event that the contracting authority itself assumes the main contractor’s obligations towards its subcontractors.[37] From the facts of the Irgita, it appears that none of these prerequisites have been fulfilled, thus this argument cannot apply. The last resort for this reasoning could be Article 72.2 of Directive 2014/24/EU, according to which, even if the conditions for change of contractual partner described above are not fulfilled, such a change is still possible if the value of the modification is (both) below the thresholds and below the 10% of the initial contract value and does not alter the overall nature of the contract,[38] so called ‘modification de minimis’.[39] In the Irgita scenario, however, modification de minimis arising from Article 72.2 is not applicable. Article 72.4.d second sentence foresees that a modification will be substantial ‘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 Article 72.1.d’. Consequently a change of contractor contrary to Article 72.1.d always alter the overall nature of the contract and cannot be qualified as a de minimis modification.[40]
Therefore, Irgita’s overlapping public contracts cannot be justified as a change of the contractual partner.
National court’s response to the CJEU’ judgement in Irgita[41]
EU rules on public procurement do not explicitly address the issue of overlapping public contracts. Following the analysis of the Court’s arguments in Irgita, it seems that the conflict between the two public contracts for the provision of the same services should be solved in light of the national contract law of the Member States. For this reason, it is relevant to take a closer look at the Lithuanian Supreme Court’s approach to the problem, after the CJEU‘s assessment. In this case, the national court found that several public contracts cannot be established for the same procurement. In order to support this statement, the Lithuanian Supreme Court argued that although there is no clear provision prohibiting the conclusion of overlapping public contracts, both public procurement and competition law essentially presuppose the selection of one winner, and not the mechanism of coexistence of several contractors.
Additionally, the Lithuanian Supreme Court pointed out, that the assessment of the legality of the in-house transaction at issue is closely connected with the possible violation of the Irgita’s rights, namely its legitimate expectations. Firstly, the national court found that the contractual clause under which the contracting authority undertakes to pay only for the services actually performed cannot be interpreted in such a way that an additional transaction with a third party may be concluded for the provision of services falling within the scope of the initial public contract. Secondly, the Lithuanian Supreme Court made a reference to national case law, according to which the contracting authority, after warning the supplier, has the right to unilaterally terminate the service contract during its term, if the services become no longer necessary. The need to purchase services should disappear not only in relation to the supplier who was performing the contract, but in general. Therefore, upon such termination of the contract, the same services cannot not be re-purchased from another business entity. By analogy, the fact that the services for which the initial contract with Irgita was concluded are still required, Irgita has legitimate expectations regarding the immutability of the initial public contract.
Consequently, the Lithuanian Supreme Court found that the internal transaction in dispute violated Irgita’s rights and its legitimate expectations for the continuous and integral execution of the initial public contract, and therefore can be recognized as illegally concluded.[42]
Conclusions
Summing up, the issue of overlapping public contracts arising from the Irgita case has not been entirely solved by the CJEU. The Court provided some guidance on how to address this problem but the final decision on the legality of overlapping public contracts has been left to the national courts’ discretion. The Lithuanian Supreme Court’s final decision in Irgita may serve as an example of national rules that preclude the conclusion of overlapping public contracts.
[1] CJEU, Case C‑285/18, Kauno miesto savivaldybė v UAB ‘Irgita’ and UAB ‘Kauno švara’, EU:C:2009:357, (further: Irgita)
[2] The Irgita case has been widely discussed in the academic literature. Both scholars and practitioners have already commented on the aspects related to the conclusion of in-house transactions, the level of harmonization and self-organisation, or competition law considerations arising from this case. This article, therefore, does not contain any comments from this perspective. For more in this regard, please see among others: W. Janssen and E. Olsson, On Competition, Free Movement and Procurement. Irgita’s Public Cooperation Conundrum, European Procurement & Public Private Partnership Law Review (EPPPLR) 2020, vol. 15, issue 1. See also: W. Hartung In-House Procurement – The Discretion of Member States Confirmed, the Relationship with Competition Law Remains Open, EPPPLR, vol. 14, issue 4. See also: H. Mani and Z. Ilyas, Irgita’s Contribution on Institutionalised and Non-Institutionalised Cooperation: Existing Obligations or Far-reaching Consequences?, available at: https://research.cbs.dk/en/studentProjects/irgitas-contribution-on-institutionalised-and-non-institutionalis, accessed: 20/5/2022. See also: M. Lechna-Marchewka, In-house procurement may not be compatible with EU law, available at: https://codozasady.pl/en/p/in-house-procurement-may-not-be-compatible-with-eu-law, accessed: 20/05/2022.
[3] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC Text with EEA relevance, OJ L 94, 28.3.2014, p. 65–242, (further Directive 2014/24).
[4] Irgita, para. 43.
[5] Irgita, para. 9.
[6] Irgita, para. 10.
[7] The questions have been paraphrased. This article skips question 2, which was not answered by the Court. For the original wording of the questions, see: Irgita, para. 29.
[8] Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ L 134, 30.4.2004, p. 114–240, (further Directive 2004/18).
[9] Irgita, para. 31.
[10] Ibid.
[11] Irgita, para. 40.
[12] Irgita, para. 45.
[13] Irgita, paras. 44, 45, 46.
[14] Irgita, para. 54.
[15] Irgita, para. 55.
[16] Irgita, paras. 62, 63.
[17] Irgita, para. 63.
[18] Ibid.
[19] R. Schulze and F. Zoll, European Contract Law, Nomos Verlagsgesellschaft 2021, p. 12.
[20] Irgita, para. 63.
[21] This is only relevant for those jurisdictions in which administrative law does not apply. Considerations in this paragraph make a reference to the principle of legitimate expectations arising from private (not public) law.
[22] I. Knoll-Tudor, Legitimate Expectations, Jus Mundi 2022, available at: https://jusmundi.com/en/document/wiki/en-legitimate-expectations, last access: 6/7/2022. Definition established by the Arbitral Tribunal constituted under Chapter Eleven of the North American Free Trade Agreement in the case: Thunderbird v. Mexico (2006). See more at: https://icsid.worldbank.org/sites/default/files/parties_publications/C3765/Respondent%27s%20Counter-Memorial/Pi%C3%A8ces%20juridiques/RL-0066.pdf.
[23] CJEU, Joined Cases T‑66/96 and T‑221/97 Mellett v Court of Justice [1998] ECR‑SC II‑A‑449 and II‑1305, paras 104 and 107. Reference found in: CJEU, Joined Cases T‑376/05 and T‑383/05, TEA-CEGOS, SA and Services techniques globaux (STG) SA and GHK Consulting Ltd v. Commission of the European Communities, ECLI:EU:T:2006:47, para. 88.
[24]CJEU, Case T‑290/97 Mehibas Dordtselaan v Commission [2000] ECR II‑15, para. 59, andCase T‑273/01 Innova Privat-Akademie v Commission [2003] ECR II‑1093, para. 26.
[25] Irgita, para. 13.
[26] W. Janssen and E. Olsson, On Competition, Free Movement and Procurement. Irgita’s (n. 2), p. 9.
[27] Ibid, p. 9.
[28] Irgita, para. 63.
[29] W. Janssen and E. Olsson, On Competition, Free Movement and Procurement. Irgita’s (n. 2), p. 9.
[30] CJEU Case C-216/17, Autorità Garante della Concorrenza e del Mercato – Antitrust and Coopservice Soc. coop. arl v Azienda Socio-Sanitaria Territoriale della Vallecamonica – Sebino (ASST) and Others, EU:C:2018:1034, (further Autorità).
[31] CJEU Case C-23/20, Simonsen & Weel A/S v Region Nordjylland og Region Syddanmark, EU:C:2021:490, (further Simonsen & Weel).
[32] In countries where framework agreements are commonly used, for instance in Denmark, Sweden, Finland or France.
[33] See for instance: C. Risvig Hamer, The New Future for Framework Agreements, Public Procurement Law Review (PPLR) 2022, Issue 4; M. Andhov, Commentary to Article 33 in R. Caranta, A. Sanchez-Graells (eds.) EU Public Procurement Commentary on Directive 2014/24/EU (Edward Elgar 2021); A. Brown May a contracting authority make use of a framework agreement which it has not signed and is it mandatory to state the total quantity of services that may be called off under that agreement? The Court of Justice ruling in Case C-316/17 (2019) PPLR 2019, pp. 89–94. See also: M. Peláez Muras, Antitrust and Coopservice: Procurement Aggregation is A Serious Thing (Adjudicating Too), November 2019, available at SSRN: https://ssrn.com/abstract=3489863, last access: 26/11/2022.
[34] For instance: France, Finland or Spain. See more in C. Risvig Hamer and M. Comba (eds.) Centralising Public Procurement. The Approach of EU Member States, Edward Elgar Publishing 2021.
[35] Code de la commande publique: Section 1: Accords-cadres, Article R2162-4, available at: https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000037701019/LEGISCTA000037724334/, last accessed : 7/6/2022.
[36] Irgita, para. 63.
[37] Directive 2014/24/EU, Article 72.1.d
[38] Below 10 % of the initial contract value for service and supply contracts and below 15 % of the initial contract value for works contracts. In the discussed case we are analysing service contract, therefore the 10% has been indicated.
[39] P. Bogdanowicz, Contract Modifications in the EU Procurement Law, Edward Elgar Publishing 2021, para. 3.111.
[40] P. Bogdanowicz, Commentary to Article 72 ‘Modifications of contracts during their term’, in R. Caranta and A. Sanchez-Graells, Commentary of the Public Procurement Directive (2014/24/EU), Edward Elgar Publishing 2021, para. 72.81
[41] Lithuanian Supreme Court Decision of 17 December 2019, Civil case no. e3K-3-494-469/2019, Judicial process no. 2-56-3-00681-2016-0, Procedural decision category 2.6.11.4.1. My thanks goes out to Deividas Soloveičik and Gabrielė Radžiūtė for granting me access to the judgment.
[42] Ibid.
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