In the Weel A/S judgment of 17 June 2021 in case C-23/20, the Court of Justice of the European Union confirmed and clarified its previous case law (judgment of 19 December 2018 in case C- 216/17) regarding framework agreements.
The case concerns a framework agreement with one participant that was awarded by two Danish regions through an open procedure. The framework agreement was to be concluded with one region and the other region could participate “optionally”.
However, the invitation to tender did not contain any information on:
- the estimated value of the contract (for either region);
- the maximum value of the framework contract;
- the estimated or maximum quantity of products which could be purchased under the framework agreement.
The Court first confirmed its previous case-law according to which the principles of equal treatment and transparency require that a contracting authority which is initially party to the framework agreement may commit itself only to a certain maximum quantity and/or value, both for its own account and for the account of those potential contracting authorities which are clearly identified in that agreement. Once the maximum quantity is reached, the agreement ceases to have any useful effect.
However, the Court of Justice made the following two observations in this regard:
- non-substantial modifications remain possible during implementation; and
- the maximum quantity or value of the services to be provided under a framework agreement can be included indiscriminately in the notice or in the contract documents. Indeed, contracting authorities are obliged to provide free, direct and full access to tender documents from the date of publication of a notice.
Next, the Court had to answer the question of whether the estimated and maximum value must be stated as a whole or per participating tenderer (or potentially participating tenderer).
The Court of Justice answered that the estimated and maximum quantity and/or value refer to the totality of the services to be provided under the framework agreement. However, there is nothing to prevent the contracting authority from laying down additional requirements in the contract documents. Thus, the contracting authority could, for example, subdivide the maximum quantities into the requirements of several contracting authorities concerned.
Finally, the Court stated that the sanction of ineffectiveness does not apply where a contract notice is published in the Official Journal of the European Union, even though, firstly, the estimated quantity and/or value of the supplies to be provided under the proposed framework agreement are not indicated in that contract notice but in the contract documents and, secondly, neither that contract notice nor those contract documents specify a maximum quantity and/or value for the supplies to be provided under that framework agreement.
Please contact Peter Teerlinck or Raluca Gherghinaru for further information about this case and/or general legal advice relating to public procurement.