1. European Limits to the Modification of Contracts with a Particular Focus on Review Clauses: too Demanding for Certain Types of Contracts? Ph.d LL.M María Fuentes maria.fuentes@jur.ku.dk

2. European Limits to the Modification of Contracts Introduction – factual situation New changes introduced by the New Public Procurements Directives from 2014 /already advanced by the case law from the Court of Justice Reasons for changes – traditional corruption practice among the Member States as follows for instance from the EU Anti- corruption report from 2014 (Austria, Czech Republic, France, Germany, Ireland, Portugal, Spain and the Netherlands)

3. European Limits to the Modification of Contracts What is the change about? - conditions under which modifications are possible without a need to re-tender the contract: Article 72 and article 82 of the new Public Sector Directive and of the new Utilities Directives respectively Special focus on review clauses and options – conditions under which modifications are possible

4. European Limits to the Modification of Contracts Article 72(1)(a) irrespective of their monetary value,provided for in the initial procurement documents clear, precise and unequivocal scope and nature of possible modifications conditions under which they may be usedwould alter the overall nature of the contract or the framework agreement Article 72(1)(a) “where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the contract or the framework agreement;”

5. European Limits to the Modification of Contracts Status Quo: in Denmark, Italy, Spain and the United Kingdom review clauses and options and drafted in a rather broad manner giving considerable discretion to the contracting authority or the parties to unilaterally request or to agree on modifications – in many of the instances the wording of review clauses and options doubtfully complies with the EU requirements Important point of discussion: EU requirements might be relative easy to comply with in case of “easy contracts” but might be extremely difficult for complex contracts such as PPP, IT contracts, construction contracts, concession contracts – realistic? What to do with them? Include a solution to address these type of cases? See how national courts and review bodies are handling or would handle this in practice?

6. European Limits to the Modification of Contracts If you have any comments or information that would be useful for me, please contact me at maria.fuentes@jur.ku.dkmaria.fuentes@jur.ku.dk Thank you for listening!