Contracting authorities cannot, without justification and without including the words “or equivalent,” specify in public procurement technical specifications that products must be made of a particular material

Background 

DYKA Plastics NV v Fluvius System Operator CV (C-424/23)

This case involves a dispute between DYKA Plastics NV and Fluvius System Operator CV, brought before the Court of Justice of the European Union (CJEU). The issue centers on how public authorities set technical requirements in public procurement contracts—specifically, whether they can require the use of certain materials (like vitrified clay or concrete) and exclude others (like plastic), without allowing for equivalent alternatives.

Key Legal Issue

The main question is: When a public authority specifies certain materials in a contract, do they have to allow for “or equivalent” alternatives, or can they insist on only one type of material?

Court’s Decision

The CJEU clarified that, according to EU public procurement law (Directive 2014/24/EU, Article 42):

• General Rule: When a contract refers to a specific material, origin, or type of product, the authority must also accept “equivalent” alternatives. This ensures fair competition and equal access for all suppliers.

• Exception: The only time an authority can insist on a specific material (and exclude alternatives) is if it is strictly necessary for the project. In other words, if the project absolutely requires a certain material and no other material can do the job, then the authority can exclude alternatives—but this must be clearly justified.

• No Unjustified Exclusion: If there is no strong technical reason for excluding alternatives, then the authority cannot simply require one type of material. Doing so would unfairly limit competition and could break EU rules on equal treatment and non-discrimination.

Why This Matters

This ruling protects suppliers from being unfairly excluded from public contracts just because they offer different (but equivalent) products. It also ensures that public authorities cannot artificially restrict competition by specifying unnecessary technical requirements.

In Short

Public authorities must allow for alternative, equivalent materials in public procurement contracts unless they can prove that only one specific material is suitable for the job. This helps keep public tenders open, fair, and competitive across the EU.