Procurement Law Development in Denmark: from competitive procedure with negotiation to sustainability criteria

Two recent rulings from the Danish Complaints Board for Public Procurement mark significant developments in procurement law in Denmark that are relevant to public procurers across the EU. One case concerns the use of negotiated procedure with prior publication, while the other concerns the use of sustainability contract award criteria.

Easing of requirements for competitive procedure with negotiation

On July 11, 2025, the Danish Complaints Board for Public Procurement (hereinafter "the Complaints Board") ruled on the case Ketner-Utsch A/S against the Danish Tax Administration c/o The Danish Motor Vehicle Agency. The case involved the Danish Motor Vehicle Agency's procurement procedure for the production and delivery of license plates, which was a 10-year contract conducted through a negotiated procedure with prior publication.

Ketner raised three main claims: i) that the Danish Motor Vehicle Agency had unjustifiably used a negotiated procedure, ii) that the requirement that the license plates offered should consist of "aluminium plate made of aluminium strip" was not in accordance with the case law of the European Court of Justice and article 42(4) of the directive 2014/24/EU and iii) that the agreement was classified as a contract and not a framework agreement.

In relation to i) and iii), Ketner argued, among other things, that the Danish Motor Vehicle Agency had previously – at least in the latest four tenders in 2015, 2019, 2020, and 2024 – conducted similar procurement as open or restricted procurement – and as framework agreements, and that there had been no significant changes in the nature of the contract that could justify the use of negotiation.

Furthermore, Ketner referred to the judgment of the European Court of Justice in the so-called "DYKA Plastics"-case (C-424/23 of 16/1-2025), where requirements for specific materials would fall under the rules of Article 42(4) of the directive 2014/24/EU. 

The Complaints Board did not uphold the complaint on any point.

The Complaints Board's decision

The Complaints Board found that use of negotiated procedures with prior publication must be interpreted restrictively, and negotiated procedures could not be used "unless a procedure without negotiation would probably not lead to a satisfactory result". However, in the case in question, the Complaints Board emphasized that the Danish Motor Vehicle Agency had documented special circumstances: It was a contract of considerable complexity, including requirements for integration with the Danish Motor Vehicle Agency's IT system (DMR), special requirements for safety stock, product guarantee and price regulation, etc. Regarding the claim that it was a framework agreement and not a contract, the Complaints Board found that the contract in question contained a mutually binding contractual relationship where the supplier from the start of the contract is assigned the performance of all tasks related to the production and delivery of license plates. 

Regarding the claim that it was unjustified to refer to the fact that the license plates offered should consist of "aluminium plate made of aluminium strip", the Complaints Board found that the Danish Motor Vehicle Agency had been entitled to the stated wording with reference to the fact that the DYKA judgment did not apply to the specific situation. It was subsequently ascertained that the requirement was an unavoidable consequence of the contract's subject-matter. Reference was made to Article 42(3) of Directive 2014/24/EU regarding the possibility of applying national technical regulations - and to the requirement of "aluminium strips" as set out in Danish Circular No. 10705 from 1995(?). Noted that the complainant had not alleged that specific suppliers were favoured or eliminated due to the requirement.

International perspectives

The Ketner ruling marks a much-needed and significant change in practice in Denmark and has potentially opened for a more flexible use of negotiated procedures. The decision may likewise be interpreted as reopening the possibility for standardized supply procurements to, as a rule, be procured through the competitive procedure with negotiation – albeit still only under special circumstances.

The Complaints Board does not directly address whether it is a prerequisite for the contracting authority to have already documented in the procurement documents or in an internal note that the conditions for using the negotiated procedure are met. However, it will still be in the contracting authority's interest for this to be clearly stated before commencing the procurement process.

Regarding the framework agreement, it implies that if a contract – which otherwise has (had) the characteristics of a framework agreement – is exclusive and binding, then the agreement can be defined as a contract with a duration longer than 4 years and can avoid specifying the maximum and estimated value in the contract notice. It may sound tempting, but we would still be reluctant to "define ourselves out of" a framework agreement.

The decision regarding the technical specifications must be seen as a specific decision where, from a EU perspective, it may seem somewhat remarkable that we have a Danish circular that apparently forms the basis for the procurement rules in Denmark not needing to be interpreted in line with EU law.

All three decisions in this judgment have general interest and significance, and it will be exciting to see how EU practice develops in these areas. 

The same applies to sustainability, which is even more topical, see immediately below, where the Complaints Board has taken another important step by referring the issue of sustainability award criteria to the European Court of Justice.

Sustainability criteria: Submission to the European Court of Justice

With a ruling of August 15, 2025, the Complaints Board has referred questions for a preliminary ruling to the European Court of Justice. The questions arise from a complaint brought by Balmung Medical Handel GmbH against the Danish Regions concerning a procurement procedure for the purchase of syringes and needles.

As part of the procurement, the tenderers had to answer "Yes" or "No" to the following requirements for each subcontract and for each product offered: a) "It is weighted positively if the manufacture of the product/products is made by a company that is certified according to ISO14001, EMAS or equivalent" and b) "It is weighted positively if the manufacture of the product/products is made by a company that has an official Science Based Target initiatives approved climate target or equivalent."

In the complaint, Balmung claims that the Regions have acted in violation of the principles of equal treatment and transparency in Article 18(1) of the directive 2014/24/EU, and in violation of Article 67(2) and (3) by applying the criterion "Sustainability", as this criterion is not suitable for identifying the most economically advantageous tender, as the criterion concerns the general suitability of the tenderers and is thus not related to the subject-matter of the contract. 

On the other hand, the Regions argue that the award criteria are aimed at the manufacturer of the products and not the supplier and that the relevant market for the framework agreement is the market for distributors (wholesalers) and not manufacturers. The Regions believe that the requirements are sufficiently related to the subject-matter of the contract, as a subcontractor (manufacturer) that is certified according to the ISO 14001 standard or has an official Science Based Target initiatives-validated climate objective is, through its experience with structured and systematic work with environmental management, better equipped to support the supplier in fulfilling its obligations under the framework agreement.

The Complaints Board's submission 

The Complaints Board has decided to stay the case for a preliminary reference to the European Court of Justice pursuant to Article 267 TFEU.

The CJEU is asked to answer six specific questions concerning the interpretation of Article 67(2) and (3) and Article 70 of the directive 2014/24/EU in relation to the award criteria and contract requirements applied. 

Abbreviated and summarized the questions are:

1. Is Article 67(2) and (3) of the directive 2014/24/EU to be interpreted as precluding the use of an award criterion on sustainability where positive weight is given to the fact that the manufacturer is certified in accordance with ISO14001 and has a Science Based Target initiatives-approved climate objective?
2. Should Article 70 of the directive 2014/24/EU be interpreted as precluding a contractual requirement that, in connection with the performance of the contract, the supplier must work purposefully with an effective environmental management system, expand the company's environmental efforts, improve its environmental impact and remedy environmental and occupational health and safety problems during the life cycle of the product?

International perspectives

When a requirement or criterion related to the subject matter of the contract has long been a difficult question when setting ambitious targets for supplier sustainability performance requirements, it can be challenging to pinpoint the exact elements that have a sustainability impact on the specific procurement. It is a balance between pushing the market in the desired direction to get them to care more about sustainability, while not putting obstacles in the way of small and medium-sized companies, which you want to have the same access to participate in procurements as large companies.

The Complaints Board's references in the ruling to both the considerations behind Article 31 of the directive 2024/1760/EU (CSDDD), which opens up the possibility that the general environmental and social obligations in the CSDDD may have an impact on award criteria and contract requirements, and the Commission's desire when adopting directive 2014/24/EU to provide better opportunities for requirements for more sustainability-focused procurement, are read as a recognition that the framework should (perhaps) change. Although a broader access may seem appealing for the procurement assessment, the commercial evaluation of competition for each individual procurement will remain unchanged and crucial to hitting the market correctly. 

It is noted that the questions to the European Court of Justice are not directly focused on the significance of whether there will be a difference if the requirement is imposed on the underlying producer of the goods, and not on the supplier/bidder itself. This interesting issue is therefore pending the Complaints Board's ruling.

Both the Ketner-Utsch ruling and the preliminary reference on sustainability criteria tackle complex issues that either currently confront other EU countries or will inevitably emerge as procurement practices evolve across Europe.

The preliminary reference on sustainability criteria is particularly timely, coinciding with the European Commission's strategic emphasis on Green Public Procurement (GPP) criteria and requirements as a cornerstone of the European Green Deal. 

The central question of when environmental certifications and climate targets can legitimately serve as award criteria resonates across all EU countries as they navigate the delicate balance between advancing sustainability objectives and maintaining compliance with fundamental EU procurement principles of equal treatment, transparency, and proportionality.

Regarding GGP, it should be noted that the referenced ISO standard is - currently - only used for documentation/verification of other contract requirements. It will be exciting to follow!