Before the publication of the 2014 Public Procurement Directives, the rules on the modification of contracts were not codified. The legislator considered necessary to add a whole new section 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 (CJEU). According to the CJEU rulings, 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 material changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. To understand the line of reasoning of the Court, this article provides a summary of the landmark cases before, during and after the implementation of the 2014 Directives.
Keywords: contract modifications; substantial amendment; material modification; illegal award; essential conditions; renegotiations