School lease with extension escapes procurement penalty

Högsta förvaltningsdomstolen has rejected Konkurrensverket's appealDomstol and its request for a preliminary ruling from the EU Court of Justice, in a judgment of 11 September 2026 (mål nr 1017-25) concerning Nacka kommun's 2023 lease for school premises. There is therefore no ground to impose an upphandlingsskadeavgift on the municipality.Domstol The judgment affirms the lower courts: the contract was a mixed contractDomstol whose main subject was the acquisition of a tenancyDomstol, which falls outside lagen (2016:1145) om offentlig upphandlingDomstol.

The contract, signed on 20 February 2023 without prior advertising and running from 1 August 2023 to 31 July 2033, covered about 8,155 square metres in a building the municipality already rented for school activities plus about 2,120 square metres in an extension the landlord, Sickla Industrifastigheter KB, was to erect directly adjoining the existing premises. The extension expanded the leased area by about 26 percent. Konkurrensverket argued the agreement combined a lease with a works contract, that the works were its main subject, and that the deal was therefore an unlawful direct award.

The court agreed with Konkurrensverket on one step and disagreed on the decisive one. As regards the extension, the lease of the new space was a works contract: the municipality had exercised decisive influence over the design and demanded tenant adaptations going beyond what a tenant ordinarily requires of such a building, citing Kommissionen mot Österrike (C-537/19). The agreement was therefore a blandat kontrakt, to be procured under the rules for its main subject per 2 kap. 2 § lagen om offentlig upphandling.

The main subject, the court held, is fixed by an objective assessment of the whole procurement, following Kommissionen mot Italien (C-412/04): the preponderant performances characteristic of the contract, as opposed to those merely accessory or complementary and required by the contract's very purpose. Here the municipality continued school activities it already ran on the property; discussions arose from a need to take in more pupils, and the landlord used a building right next to the existing school to offer the extra space. The contract's characteristic feature was that the municipality would continue renting and running the school in the existing premises, with the extension accessory and complementary in both economic and functional terms. Its main subject was thus acquisition of hyresrättDomstol, to which the Act does not apply under 3 kap. 19 §Domstol.

No preliminary ruling was needed: the relevant EU provisions had already been interpreted by the EU Court of Justice and, in light of that case law, there was no reasonable doubt about their interpretation in these circumstances.

Legal basis: lagen (2016:1145) om offentlig upphandling (1 kap. 9-10 §§, 2 kap. 1-2 §§, 3 kap. 19 §, 10 kap. 1 §, 21 kap. 1 § 3) with articles 2.6, 2.7, 3.2 and 10 a of Directive 2014/24/EU, applied in Högsta förvaltningsdomstolens dom of 11 September 2026 in mål nr 1017-25.