European Papers (May 2017)
Good Contracting Authorities Can Predict the Future: A Note on Finn Frogne
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2017 2(1), 411-423 | European Forum Insight of 12 May 2017 | (Table of Contents) I. Modifications to public contracts: Finn Frogne in context. - I.1. Facts of the case and parties' arguments. - I.2. The Court of Justice's decision. - II. Discussion. - II.1. The lack of a comprehensive approach to the contract. - II.2. The Court's take on option clauses as counterweight for strict interpretation of the law. - III. Conclusion. | (Abstract) In a coherent line of case law, developed in particular in pressetext Nachrichtenagentur GmbH, the CJEU has recognised that the awarding authorities can change, under certain conditions, existing public contracts. The principles developed by this case law have been eventually incorporated in the 2014 Public Procurement package (Directives 2014/23, 2014/24 and 2014/25). The main principle is that commonly referred to as the substantial modification test. When a potential change is so relevant that it would amount to a new award, such a change may not be implemented without first retendering the contract. In its Finn Frogne decision (judgment of 7 September 2016, case C-549/14, Finn Frogne A/S v. Rigspolitiet ved Center for Beredskabskommunikation), the Court of Justice has further developed this case law, examining a type of situation which had not, until now, been the object of specific attention by the Court: namely situations of unforeseen events that lead to modifications to the contract which are not intended to change the way in which the contract is performed, but rather, are designed to "cut losses" of the parties in the context of ending existing contracts. A modification which, as the Court acknowledges, can be described as an agreement with a dispute settlement component). Along with some useful contributions, the judgment leaves some doubts and concerns on the adequateness of the Court's approach.
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