Research stay at LCEL - Luxembourg Centre for European Law, 25-30.10.2026

 

This week, thanks to the kind hospitality of Professor Takis Tridimas, I had the great pleasure of completing a short research stay at a truly exceptional institution – the Luxembourg Centre for European Law (LCEL).

The research activities is co-financed by the funds granted under the Research Excellence Initiative of the University of Silesia in Katowice.

My work focuses on the European Commission's landmark proposal of September 9, 2026, regarding public procurement and concessions. The proposed reform introduces a shift toward strategic procurement, strengthening the role of public purchasing in areas such as sustainability, resilience, innovation, and European economic security. Crucially, the new legal framework significantly increases procedural flexibility by fostering a wider deployment of structured negotiations and interactive dialogue under streamlined core procedures. Furthermore, the Act establishes a highly integrated, EU-wide digital procurement ecosystem, designed to replace fragmented national structures, optimize supplier verification, and leverage real-time data analytics.

It has been an incredibly productive time diving deep into the upcoming Public Procurement Act and its implications for the EU internal market.

Prof. Sope Williams and Prof. Geo Quinot - Guest Lecture Series at the Faculty of Law and Administration of the University of Silesia in Katowice

As part of our ongoing international cooperation initiatives, the Faculty of Law and Administration had the distinct pleasure of hosting another set of distinguished academic voices. This week, our guest speakers were Professor Sope Williams from George Washington University and Professor Geo Quinot from Stellenbosch University. Both scholars delivered exceptionally engaging lectures addressing fundamental pillars of public procurement law:

• Professor Sope Williams presented a comprehensive lecture focused on preventing and combating corruption in public procurement systems. 
• Professor Geo Quinot explored the complex dynamics and interactions between public and private law within the context of public procurement and Public-Private Partnerships (PPPs).

These presentations provided our students and faculty members with invaluable global insights into the legal and structural challenges shaping modern public purchasing.

Judge Gerard Hogan’s Visit to the Faculty of Law and Administration of University of Silesia

As part of my role in developing international cooperation at the Faculty of Law and Administration of the University of Silesia in Katowice, I have the great pleasure of organizing guest visits for academic representatives from all over the world.

This week, we had the privilege of hosting an exceptional guest. On Friday, October 9, 2026, the Faculty of Law and Administration had the honor of hosting Hon. Mr Justice Gerard Hogan of the Supreme Court of Ireland and former Advocate General of the Court of Justice of the European Union in Luxembourg. During his visit, Hon. Mr Justice Gerard Hogan delivered two exceptionally valuable presentations: a lecture for students on the Marleasing doctrine and a talk for faculty members on the issue of judicial neutrality.

These outstanding lectures served to strengthen knowledge regarding European law and its role in shaping the Single Market. From my perspective, the lectures were particularly significant in the context of the ongoing work on the new Public Procurement Act.

For the interview with Prof. Gerard Hogan and Dr Paulina Konca (University of Silesia), see here.

 

 

European Commission Proposal for a Regulation of the European Parliament and of the Council on public procurement and concessions - Public Procurement Act

The European Commission has been signaling for a long time that the current legal framework, dating back to 2014, no longer effectively fulfills its role. The European Court of Auditors and the Council, in turn, pointed to declining competitiveness in public procurement, limited participation of SMEs and foreign entities, as well as an increasing reliance on procedures where only a single bid is submitted. Parallel evaluations commissioned by European institutions showed that the 2014 package of directives led to legal uncertainty, left procedures too rigid, and failed to equip public buyers with the tools to handle today's challenges regarding geopolitical and economic security. As a result, on September 9, 2026, the European Commission presented a draft of a new regulation on public procurement and concessions. The general assumptions of the reform of EU public procurement law are discussed below.

Introduction

EU public procurement regulations are currently based on three directives from 2014. These are the so-called Classical Directive (2014/24/EU), the Utilities Directive (2014/25/EU), and the Concessions Directive (2014/23/EU). Furthermore, the core body of public procurement regulation is supplemented by the Defense Directive (2009/81/EC) and the Remedies Directive (89/665/EEC). Public procurement regulations at the EU level are also contained in over 60 different EU legal acts (Janssen, W.A., 2025. The Coherence of EU Public Procurement Law. Brussels: European Commission). The main objective of the Classical Directive was to make purchasing procedures more flexible by simplifying the rules in force, among other things, by granting contracting authorities greater freedom in choosing tendering procedures. The possibility of using negotiated procedures, such as competitive procedures with negotiation and competitive dialogue, was also significantly expanded, and an innovation partnership procedure was introduced, which was intended to support the procurement of products or services not yet available on the market and requiring research and development work. Another significant objective of the Classical Directive was to support social and environmental goals, which was intended to turn public procurement into an instrument for implementing EU policies, including the strategic goals set out in the Europe 2020 document. The Classical Directive imposed, among other things, an obligation to comply with environmental, labor, and social laws, and introduced mechanisms enabling the application of social clauses and ecological criteria.

In order to open up the public procurement market to small and medium-sized enterprises, the rule of dividing contracts into lots was introduced, and requirements regarding the minimum annual financial turnover of contractors were limited to a maximum of twice the contract value, which was intended to eliminate economic barriers for smaller companies. A significant element of the reform was also a radical simplification of formalities through the introduction of the European Single Procurement Document (ESPD), which is a standardized self-declaration by the contractor. The Classical Directive also introduced the full digitalization of public procurement across the European Union, including mandatory electronic communication, e-submission of bids, and e-invoicing, which was intended to increase transparency and make it easier for companies to participate in cross-border procedures. Furthermore, the Classical Directive formally anchored the concept of the most economically advantageous tender (MEAT), encouraging a shift away from selection based solely on price and promoting the evaluation of the price-quality ratio as well as the use of life-cycle costing. The 2014 package of directives was introduced during a period of a relatively stable global geopolitical and economic situation. During the time they have been in force, however, three key events took place that fundamentally affected the assessment of the directives' adequacy to the situation. These events include the outbreak of the Covid-19 pandemic in 2020, the outbreak of the war in Ukraine in 2022, and the increasingly tense situation in US-China relations. These three events radically changed the playing field and the rules governing the functioning of economies and societies, both on a global and European scale. As a result of these events, new challenges emerged in areas related to public procurement. The most significant include the need for a more flexible application of legal provisions, ensuring supply chain security, raising the level of EU security on a general scale as well as in individual countries—especially those considered part of the so-called NATO Eastern Flank—and increasing the competitiveness of EU companies, which for many years had been unable to withstand competition from enterprises in China and the US.

An analysis of the geographical structure of the largest enterprises clearly indicates the absence of European entities in the top ten stock market giants, which are dominated by corporations from the United States and Asia. A modern assessment of the position of the world's largest companies requires taking into account two key criteria: generated operating revenues and market capitalization. According to the official Fortune Global 500 ranking, the world's 500 largest corporations generated a combined record revenue of $41.7 trillion, which accounts for more than one-third of global GDP (Fortune, 2025). The American retailer Walmart maintained its leading position for the 12th consecutive time, achieving a result of $681.0 billion. It was followed closely by the rapidly growing Amazon with a revenue of $638.0 billion. Chinese state-owned enterprises also have a significant impact on the structure of the ranking: the power company State Grid took third place ($548.4 billion), followed by the fuel giants China National Petroleum and Sinopec Group. The highest-ranked entity from Europe in this respect is the German automotive group Volkswagen with an annual turnover of approximately $351–363 billion, followed by European commodity and energy giants such as Shell, Glencore, BP, and TotalEnergies. A different balance of power is presented by the criterion of market capitalization, which reflects stock market valuation and investor expectations regarding future profits. In this category, American technology companies hold absolute primacy, highlighting the lack of European entities in the top ten stock market giants. Data aggregated by the Statista platform shows that Apple Inc. takes first place on the podium with an estimated valuation of $3.14–3.30 trillion, ahead of Microsoft and the NVIDIA corporation, whose value skyrocketed as a result of the global artificial intelligence revolution (Statista, 2025). The only entity from outside the technology sector capable of competing in the top five market valuations remains the Saudi oil giant Saudi Aramco, valued at around $2.20 trillion. Although Europe lags behind leaders from the US and Asia in the technology segment, it maintains a fairly strong position in specialized industrial and luxury goods sectors. The undisputed stock market leader on the European continent remains the Dutch manufacturer of microprocessor production equipment ASML Holding, with a valuation exceeding $600 billion, resulting from its global monopoly in the advanced EUV lithography segment (CompaniesMarketCap, 2025). The top European brands in terms of market value also include the French luxury goods conglomerates LVMH and Hermès, the German software company SAP, and the Danish pharmaceutical company Novo Nordisk. See Fortune Global 500, Fortune 2025, fortune.com [accessed: 02.10.2026]; Top companies in the world by market capitalization, Statista 2025, statista.com [accessed: 02.10.2026]; Largest companies in the EU by market capitalization, CompaniesMarketCap 2025, companiesmarketcap.com [accessed: 02.10.2026].

The increasing inadequacy of the 2014 package of directives was recognized at the level of EU bodies. Consequently, work was undertaken to prepare a new regulatory act that would address existing problems and become better adapted to the current and future challenges facing the Union and its member states. Below, the genesis of the draft of the new regulation on public procurement and concessions will be presented from the perspective of documents and reports prepared as part of the functioning of EU institutions. The Origins of the Draft of the New Regulation on Public Contracts and Concessions from the Perspective of EU Institutional Documents The proposal by the European Commission on September 9, 2026, of the draft of a new regulation on public contracts and concessions was preceded by the publication of several key documents prepared by or on behalf of EU institutions. These include: Special Report 28/2023: Public procurement in the EU prepared by the European Court of Auditors; the report Much More Than a Market by Enrico Letta; the report The future of European competitiveness by Mario Draghi; and the European Parliament Resolution on public procurement (2024/2103(INI)).

The Origins of the Draft of the New Regulation on Public Contracts and Concessions from the Perspective of EU Institutional Documents

The proposal by the European Commission on September 9, 2026, of the draft of a new regulation on public contracts and concessions was preceded by the publication of several key documents prepared by or on behalf of EU institutions. These include: Special Report 28/2023: Public procurement in the EU prepared by the European Court of Auditors; the report Much More Than a Market by Enrico Letta; the report The future of European competitiveness by Mario Draghi; and the European Parliament Resolution on public procurement (2024/2103(INI)).

Special Report 28/2023: Public procurement in the EU issued by the European Court of Auditors

Special Report 28/2023: Public procurement in the EU issued by the European Court of Auditors

Special Report No 28/2023 of the European Court of Auditors (ECA) provided a detailed assessment of the level of competitiveness in the EU public procurement market between 2011 and 2021. The ECA highlighted that the EU public procurement market generates annual expenditures of around two trillion euros. The auditors' main conclusion is that competitiveness in the EU public procurement market has significantly declined, and the 2014 reform of EU directives failed to deliver the expected results in terms of simplifying procedures. Furthermore, the ECA audit revealed an increase in the number of single-bid procedures from 23.5% in 2011 to 41.8% in 2021, while the average number of bids per procedure dropped from 5.7 to 3.8. It was also noted that the duration of procurement procedures lengthened from just under 63 days to over 96 days, and the participation of SMEs and cross-border procurement remained low. Consequently, the ECA called on the European Commission and the member states to set measurable targets for improving competition, remove administrative barriers, and integrate market monitoring.

The report Much More Than a Market by Enrico Letta, April 2024.

The report Much More Than a Market by Enrico Letta, April 2024.

In the report Much More Than a Market, Enrico Letta indicates that public procurement constitutes a powerful yet underutilized strategic lever which, despite generating 14% of EU GDP, remains overly fragmented and bureaucratic. The author points out that although increasing public and private investment is crucial for achieving the EU's strategic objectives, it is not sufficient on its own, as ensuring a more efficient and effective implementation (spending) of these funds remains equally important. Letta lists three key elements that must be urgently woven into the EU approach to raise the quality of public spending and multiply its positive impact on the economy. First, the Union must firmly embed the principles of the circular economy within the Single Market, which requires actively integrating sustainable practices and innovation into economic frameworks, since a circular market will support environmental sustainability while simultaneously stimulating growth by promoting innovative business models and new consumer behaviors. Second, it is necessary to make much better use of public procurement practices by adopting purchasing strategies that are not only transparent and competitive but also sustainable, thereby allowing public spending to actively support broader EU goals by leveraging market power to stimulate innovation. Third, the author stresses that the successful realization of such ambitious strategies depends directly on the competencies of public sector organizations, making measures aimed at strengthening the capacity of national administrations essential for ensuring efficiency and accountability in the deployment of resources.

The report The future of European competitiveness by Mario Draghi, September 2024.

The report The future of European competitiveness by Mario Draghi, September 2024.

In Mario Draghi's September 2024 report, public procurement—accounting for 14–19% of the EU's GDP—was identified by the author as a key lever for rebuilding competitiveness and safeguarding the EU's strategic autonomy. In the context of analyzing the European Union's competitiveness, the public procurement system plays a dual role. On the one hand, it serves as an essential tool for stimulating the development of strategic sectors, while on the other, it exposes deep structural flaws within the Single Market. According to the author, the most severe problem remains the drastic fragmentation of procedures at the member state level. Draghi's core recommendation is the introduction of mandatory, uniform EU standards in public procurement, which will level the playing field for domestic technology and cloud providers in market segments that require digital sovereignty. Additionally, the author believes that the criteria for the most advantageous tender should move away from the current dogma of the lowest price and instead focus on achieving strategic goals, long-term security, and supply chain resilience. Since joint procurement for defense equipment or cross-border transmission infrastructure represents European public goods—which would be underfunded without coordinated action—their implementation should ultimately be supported by joint funds at the EU level.

European Parliament Resolution on public procurement.

The European Parliament Resolution on public procurement constitutes a direct response to the competitiveness challenges outlined, among others, in Mario Draghi's report, and a precursor to the revision of EU regulations by the European Commission. The main objective of the resolution was to outline the necessity of moving away from selecting bids solely based on the lowest price criterion, which, according to MEPs, leads to unfair competition. The priority is to be the MEAT criterion—namely, selecting the most economically advantageous tender that factors in quality, sustainability, and significant social aspects. Another strategic objective is the radical simplification of procedures and the fight against bureaucracy by "slimming down" the EU legal framework, standardizing procedures, and introducing uniform document templates across the European Union, since the current regulations create an excessive regulatory burden.

Furthermore, the resolution places emphasis on strengthening the resilience and strategic autonomy of the community, postulating that public procurement should become a tool that stimulates the development of key, emerging industrial sectors in Europe and secures the continuity of supply for critical technologies, products, and services. The new rules are intended to open up public procurement to a greater extent for small and medium-sized enterprises and the social economy by simplifying qualification criteria and preventing exclusions based on purely formal grounds. A significant element is also the full digitalization of purchasing procedures and better utilization of data within interoperable platforms, which aims to increase transparency, streamline processes, and facilitate the detection of fraud and corruption. In the area of market protection against unfair competition, the European Parliament called for the active application of EU trade defense instruments against contractors from third countries who engage in unfair market practices or benefit from state subsidies that run counter to competitiveness principles.

The Commission Proposal – Public Procurement Act: Main Objectives, Regulation in Place of Directives, and the Structure of the Regulation

The European Commission completed its internal preparatory work on the new public procurement regulation and, on September 9, 2026, officially adopted the legislative proposal COM(2026) 590 final for a new regulation on public procurement and concessions, also known as the Public Procurement Act. The main burden of the conceptual work was borne by the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW).

Commission view on the PPA

Main Objectives of the Draft Regulation

The objectives of the proposal presented by the Commission include, among others:

• Simplifying regulations in the field of public procurement and concessions
• Ensuring greater flexibility and consistency of the rules.
• Adopting a more strategic approach to public procurement.
• Enhancing economic security and strategic autonomy.
• Improving data and digital tools.
• Allowing a more liberalized approach to negotiations.
• Introducing mandatory award criteria that reflect the importance of quality.
• Establishing new chapters dedicated to security, resilience, and European preferences.

The Commission proposed that the future EU regulation on public procurement and concessions take the form of a Regulation instead of the three directives currently in force. The proposal will therefore repeal and replace the Classical Directive, the Utilities Directive, and the Concessions Directive, and will amend a number of regulations covering various sectors. This represents a fundamental legal shift. Pursuant to Article 288 TFEU, an EU regulation is binding in its entirety and directly applicable in the member states to unify the law. A directive, on the other hand, sets a goal for member states to achieve but requires national implementation (transposition into domestic law) and leaves discretion as to the choice of forms and methods, serving to harmonize regulations. The Commission's proposal covers a wide range of procurement-related provisions that were previously scattered across more than a dozen sectoral instruments (ranging from the Ecodesign Regulation to the Corporate Sustainability Due Diligence Directive), as part of an exercise the Commission refers to as a "thorough regulatory clean-up." Since the future framework is to take the form of a Regulation, member states will lose their previous discretion regarding over-implementation (so-called gold-plating) or introducing derogations during the transposition of new EU legislation.

The regulations contained in the so-called Defense Directive remain unchanged.

See more here

Structure of the Draft of the New Regulation

The Draft Regulation is divided into seven key parts, covering general provisions, participating entities, procedures and contracts, concessions, the digital ecosystem, transparency, and final provisions.

Part I constitutes the foundation of the entire legal act, defining its subject matter, scope of application, and dynamic mechanisms for determining and updating financial thresholds. It introduces core constitutional principles of the Single Market into the EU legal order, imposing an absolute obligation on public buyers to ensure equal and non-discriminatory treatment of EU contractors and those covered by international agreements. The actions of contracting authorities must be grounded in transparency, proportionality, and integrity, and the previous primacy of the lowest price is permanently replaced by the requirement to pursue the best price-quality ratio (BPQR), without creating unjustified barriers to competition.

Part II focuses on the subjective side of public procurement and is divided into two main titles. The first title defines public buyers and regulates the specificities of utility sectors such as energy and transport, while providing procedures for requesting the European Commission to exempt a given sector from the regulation in situations where it operates under conditions of full market competition. The second title regulates the status of contractors, introducing precise rules for the operation of consortia, reliance on the capacity of third parties, and subcontracting, which aims to prevent abuses. This part also codifies the exclusion regime, dividing exclusions into mandatory ones—covering serious crimes such as corruption, terrorism, fraud, environmental crimes, and child exploitation—and optional ones, applied when there are justified doubts regarding the contractor's reliability. Transparent rules for verifying financial, technical, and professional capacity at the qualification stage are also established here.

Part III is the procedural and strategic core of the regulation, consisting of three titles. The first title integrates planning, contract value estimation, market consultations, and the conduct of negotiations, which are permitted across all available procurement procedures subject to appropriate transparency safeguards. The catalog of procedures includes open, dynamic, innovation, and extraordinary procedures for crisis situations. The second title links public procurement to the horizontal policies of the European Union through five dedicated chapters: green procurement mandating support for the circular economy and energy efficiency; socially responsible procurement promoting accessibility and reserved contracts for persons with disabilities; procurement for innovation regulating intellectual property rights; a chapter on cybersecurity and the resilience of critical infrastructure; and a European preference mechanism allowing the EU market to be protected against contractors from third countries that do not apply reciprocity rules. The third title contains horizontal provisions regulating links to the subject matter of the contract, technical specifications, standards, labels, and the best price-quality ratio (BPQR) award criterion, as well as conflicts of interest, abnormally low tenders, framework agreements, contract amendments, and termination.

Part IV is dedicated entirely to concession contracts, separating them due to their specific nature involving the transfer of operating economic risk to the concessionaire. These provisions place emphasis on structural risk assessment, determine rules for estimating value and limiting the duration of concessions to protect free competition, and define the management framework for these contracts.

Part V designs the digital public procurement ecosystem, implementing principles of full interoperability of IT systems and e-Procurement. It enables secure electronic communication between the market and public administrations, and obliges the European Commission to create automated tools supporting the verification of entities regarding the absence of grounds for exclusion and the origin of goods.

Part VI regulates transparency and governance, mandating member states to establish National Public Procurement Data Spaces that will feed into a central, EU Public Procurement Data Space managed by the Commission for global market monitoring. The second title of this part obliges member states to appoint a national coordinating body for the procurement system and positions the professionalization of civil service staff as a strategic element of modern state governance.

Part VII concludes the regulation with final provisions, granting the Commission powers to adopt delegated acts and completely repealing the previous 2014 package of procurement directives. It also carries out cascading amendments to over a dozen related EU acts and establishes the timeline for the reform, providing for a seven-year deadline to review the effects of the regulation and a two-year, deferred vacatio legis to allow the market to achieve full operational and IT alignment with the new rules.

Key Areas of Proposed Changes in the Regulation

Public Procurement Procedures

The proposal replaces the existing procedures with three new ones, namely:

• Open procedure (Articles 34-35),
• Dynamic procedure (Articles 36-40),
• Innovation procedure (Articles 41-45).

It will also be possible to apply a special procedure provided for under specific circumstances (Articles 46-49). The Regulation assumes that public buyers will have a fundamental choice between two procedures, namely the open procedure and the dynamic procedure, which is similar to what is currently known as a dynamic purchasing system (Article 31). Both the open procedure and the dynamic procedure may include a qualification stage and/or negotiations with bidders if the buyer so decides.

The rules for conducting negotiations have been compiled into a new provision that applies to individual procedures as needed (Article 33). Negotiations may cover technical details, quantities, delivery schedules, and commercial terms. However, they cannot concern key contract award criteria or who is eligible to submit a bid. Public buyers must clearly specify in advance what is and what is not subject to negotiation. They must also treat all bidders fairly and protect confidential commercial information. It is worth recalling that under the current legal framework, a buyer must justify the use of a negotiated procedure by citing specific statutory grounds, such as the complexity of the contract, the inability to define specifications, or a prior unsuccessful procurement procedure. Under the draft of the new regulation, a buyer could decide to negotiate within an open or dynamic procedure without the need to provide a substantive justification. Within the open procedure, buyers can still completely waive negotiations and award the contract based on initial bids, but only if they indicated this possibility at the very beginning of the procedure in a document named the competition public summary. In an open procedure, any interested contractor can express interest and submit an (initial) bid from the very start of the procedure. The dynamic procedure, on the other hand, is designed for repetitive purchases. In this procedure, contractors join a previously established pool for the duration of its validity and are subsequently invited, for individual contracts, to submit bids or negotiate. In the event that too many suppliers respond to a specific invitation, random selection is applied. The completely new innovation procedure allows public buyers to define a societal challenge instead of a rigid specification, and then conduct market consultations, qualification, testing, validation, and evaluation, ultimately purchasing the resulting solution directly from the selected participant (or participants). Interestingly, contracts for research and development (R&D) services, including pre-commercial procurement, have been entirely excluded from this regulation. They have been reserved for a parallel legislative proposal: the European Innovation Act, which is being processed at the same time.

Award Criteria for the Most Advantageous Tender – BPQR (Best Price Quality Ratio)

Public buyers will evaluate tenders based on the "best price-quality ratio," applying, subject to few exceptions, a minimum weight for quality criteria. Quality criteria must account for at least 30% of the total points awarded, and for labor-intensive contracts, this figure increases to at least 50% (Article 98). Public buyers will have the flexibility to choose the quality criteria applied. They may also establish a fixed price based on which contractors would compete solely on the basis of quality criteria (Article 98(2) in fine). The proposed solution stands in stark contrast to current arrangements, which give contracting authorities the option to award contracts solely on the basis of price or on the basis of the "most economically advantageous tender," without any top-down mandated minimum weights for quality criteria. The provisions regarding award criteria represent one of the most significant substantive changes and mark a shift towards a mandatory, pan-European standard based on quality criteria. Public buyers may depart from the quality criteria rule and rely on a "comply or explain" mechanism only if quality has been secured through specifications or performance clauses of the public contract (Article 98(5)).

Strategic Procurement

Article 5 of the proposed regulation requires that public procurement be driven by the strategic policy objectives of the European Union, in particular with regard to competitiveness and innovation, environmental and climate targets, as well as social justice, decent working conditions, and an inclusive society. It is worth noting that the current directives contain principles of non-discrimination, equal treatment, and proportionality, and allow (although do not mandate) the inclusion of environmental, social, and innovation-related considerations in technical specifications, qualification criteria, or award criteria, largely at the discretion of the contracting authority. The proposal transforms many of these previously optional tools into a structured, mandatory system of strategic policy objectives with separate chapters that public buyers must take into account when awarding public contracts. The proposal also moves horizontal regulations regarding the subject matter of the contract ("what to buy") to dedicated chapters structured around environmental (Articles 50-54), social (Articles 55-58), innovation (Articles 59-65), and security and resilience (Articles 66-69) priorities. The Regulation provides clearer legal bases for environmental criteria throughout the procurement cycle, a stronger link to the circular economy and energy efficiency, and a legal framework for the Commission to impose mandatory green requirements for specific product categories by means of an implementing act. The regulation also clarifies social outcomes (including labor market integration, working conditions, gender equality, and human rights in supply chains), along with reserved contracts and tailored rules for social, health, and education services. With respect to innovation procurement, in addition to introducing the innovation procedure, the rules on intellectual property are clearer (contractors as a rule retain ownership of IP developed under the innovation procedure, subject to exceptions related to overriding public interest), alongside a new, mandatory requirement to use Building Information Modeling (BIM) for works contracts valued above €25 million. The Regulation also provides solutions for security and resilience by introducing a broad, open-ended catalog of "security and public safety interests" that public buyers must consider throughout the procurement cycle, including harmful strategic dependencies, cybersecurity, and critical infrastructure. The proposal also introduces a dedicated regime for terminating contracts or excluding contractors during their execution on security grounds.

Exclusion from the Procurement Procedure

The list of mandatory grounds for exclusion has been expanded. The directive covered seven categories of serious criminal offenses. The Regulation adds four more, namely: environmental crimes, offenses related to the violation of EU restrictive measures (sanctions), fraudulent use of non-cash payment instruments, and sexual exploitation and child abuse (Article 25(1)). The optional grounds for exclusion have also been extended. Two new categories have been introduced: insufficient reliability to rule out a risk to the security or public safety interests of the Union or a member state, and the receipt of foreign subsidies distorting the internal market, if so determined in an implementing act of the Commission (Article 26(4)). The proposal significantly restructures the regime of exclusion grounds. A key change is also the elimination of the self-cleaning procedure (remedial procedure) in respect of mandatory grounds for exclusion. Under Directive 2014/24/EU, self-cleaning was available for all grounds for exclusion. In the Regulation, it has been restricted solely to optional grounds (Article 26(2)). A contractor convicted of an offense constituting a mandatory ground is subject to exclusion regardless of any remedial measures taken. Member states may designate a national authority to assess the sufficiency of the evidence submitted (Article 26(2) in fine).

For more information on the dedicated authority competent in matters of exclusions, see here.

Security and Resilience

A new chapter dedicated to "security and resilience" aims to clarify how security issues should be taken into account in public procurement (Articles 66-69). It contains an open-ended catalog of security and public safety interests that must be considered when awarding a public contract. The catalog of security-related issues includes, among others, the protection of critical infrastructure, the prevention of espionage and technology leakage, the cybersecurity of systems and networks, the protection of classified information, and the prevention of unjustified influence from third countries. The chapter also regulates matters concerning the termination of contracts and the exclusion of contractors during the execution of a contract on security grounds (Article 67). Public buyers must identify and counter risks to security and public safety at every stage of procurement, starting from planning and market consultations through to contract performance.

In the case of contracts executed by entities designated as critical under Directive (EU) 2022/2557, specific requirements regarding resilience and security of supply apply, including supply chain diversification, stockpiling obligations, business continuity planning, and commitments to scale up production capacity (safeguarding against a surge in demand). For companies in the technology sector, the most severe risk stems from the mandatory exclusion of suppliers designated as high-risk vendors under the upcoming Cybersecurity Act 2.0 (CSA2) in relation to ICT components to be used in key ICT assets. This exclusion is mandatory, operates without the possibility of applying a self-cleaning procedure, and occurs automatically upon such a designation. Companies providing ICT products or services to the public sector should closely monitor developments regarding CSA2 and already assess their level of exposure to this risk.

European Preferences

A new chapter dedicated to "European preferences" defines covered contractors, goods, services, and works based on whether they originate from contractors in countries that have signed the WTO Agreement on Government Procurement (GPA) or from a third country that has concluded a bilateral or multilateral trade agreement with the European Union (Articles 70-76). The Regulation also establishes a legal framework for the Commission to introduce mandatory European preferences in sectoral EU legal acts, while specifying exceptions in which public buyers may decide not to apply these preferences.

In the context of introducing the chapter on European preferences, it is worth mentioning two judgments of the Court of Justice of the European Union (CJEU) in the Kolin (C-652/22) and Qingdao (C-266/22) cases, which altered the rules governing the access of foreign companies to the European public procurement market. These rulings regulated the legal status of contractors from so-called third countries that are not signatories to international public procurement agreements with the European Union, most notably the Agreement on Government Procurement (GPA). The first of these, the case of Kolin İnşaat Turizm Sanayi ve Ticaret AŞ, concerned a Turkish construction contractor that submitted a bid in a railway tender organized in Croatia and sought to determine whether a company from a country not covered by EU reciprocal agreements could rely on EU directives and the principle of equal treatment to challenge a contracting authority's decision. Conversely, the CRRC Qingdao Sifang Co. Ltd case involved the exclusion of a Chinese train manufacturer from a Romanian public tender for the purchase and maintenance of electric multiple units, based on Romanian national regulations that strictly limited the participation of contractors from specific third countries. Summarizing the key conclusions from both judgments, the CJEU issued a consistent ruling based on several core pillars. Most importantly, it ruled that there are no automatic rights for contractors from third countries, meaning that companies from nations such as China or Turkey cannot rely on the principles of EU law—including equal treatment, proportionality, or transparency—in non-covered sectors, since the Union is under no legal obligation to guarantee them the same rights as EU contractors.

At the same time, the Court emphasized the exclusive competence of the European Union in this area, pointing out that regulating the access of third-country entities to the procurement market falls within the scope of the common commercial policy; consequently, member states cannot independently introduce general, national bans that automatically eliminate such companies from procedures. In the absence of top-down international agreements, decisions to admit or exclude such contractors are made individually by the respective contracting authorities within the documentation of a specific procedure, whereby contracting authorities retain the full right to introduce less favorable terms of treatment or to refuse market access entirely. Finally, the CJEU indicated that verification and potential appeals submitted by bypassed contractors from non-covered third countries can only be reviewed on the basis of the national law of the given member state, and not on the grounds of EU procurement directives. These judgments directly contributed to streamlining the rules for opening European public funds to global competition and influenced amendments to national legislation across the European Union.

The draft regulation introduces a horizontal framework for European preferences.

Public buyers may:

• Limit participation in the procurement procedure to contractors from the Union or entities covered by international agreements
• Impose requirements regarding a minimum share of EU-origin content
• Grant preferences in the evaluation of bids by lowering the price or awarding additional points, or reject bids in which the share of EU or covered content falls below 50% of the estimated contract value.

Any such measures must be specified in advance in the competition public summary. Furthermore, the Commission may close specific procurement procedures to non-covered contractors or restrict this scope in cases where a third country denies EU contractors reciprocal access to its market. The solutions proposed in the regulation are permissive (optional) rather than mandatory. In the absence of a specific decision by the public buyer or a Commission act closing the procedure, non-EU contractors retain their current access. Restrictions are determined based on the origin of the contractor in accordance with Regulation (EU) 2022/1031. Public buyers may also waive the requirements regarding European preferences under specific circumstances, namely in emergencies, in the absence of EU or covered supplies, or in the case of disproportionately high costs.

Contract Modification

The area of contract modification holds significant practical importance. Both the current and the proposed legal frameworks are based on a similar principle: "minor," non-substantial changes to a contract are permitted without the need to conduct a new public procurement procedure, whereas introducing major or more fundamental changes is prohibited unless a specific statutory ground applies (Article 106). The draft regulation reduces the de minimis threshold, introducing a single fixed value for every type of contract, which stands at 15% of the initial contract value, assessed cumulatively with respect to successively introduced modifications (Article 106(2)). Furthermore, the proposal allows categories of substantial modifications that are broadly similar in nature to the current regime; however, it does not carry over the existing 50% price limit for these categories. Instead, the value of 50% of the initial estimated contract value becomes a transparency trigger. A modification below the 50% threshold must be made public within 20 days of its introduction, whereas a change exceeding 50% must be publicly disclosed in advance, before it takes effect, subject to a narrow exemption for emergencies (Article 106(6)). Public buyers may incorporate mechanisms into the tender and contract documentation that allow them to "adapt" contracts without triggering the modification provisions. However, these mechanisms must be clear, precise, unequivocal, and objectively justified. Furthermore, they must maintain the economic balance of the contract (Article 105).

Digitalization

The draft regulation creates a new digital infrastructure environment. This includes a pan-European interoperability network for electronic communication between public buyers and contractors, regardless of the e-procurement platform used. It also introduces an electronic eligibility verification service based on a digital business credential tool that implements the "once-only" principle. Furthermore, the proposal establishes National Public Procurement Data Spaces, which will feed into the Public Procurement Data Space at the Union level for monitoring and enforcement purposes. E-procurement service providers will be required, among other things, to be established and controlled within the European Economic Area (EEA). They will also be obliged to store procurement data within the territory of the EEA. This requirement is clearly intended to counter security concerns arising from foreign ownership of public procurement infrastructure. Regarding governance, member states will be required to designate a national coordinating body and implement national professionalization strategies and support structures. They will be subject to an enhanced, data-driven monitoring and reporting obligation to the Commission.

Next Steps

The European Commission's proposal is now entering the ordinary legislative procedure, in which the European Parliament and the Council act as co-legislators. Before its final adoption, the draft may be subject to amendments. According to the Commission's own timeline, the regulation will enter into force 20 days after its publication; however, it will become applicable two years later, reflecting, among other things, the scale of the required institutional and digital expansion. It is also worth noting that Ireland holds the Presidency of the Council of the European Union until the end of 2026 and will play a crucial role in the legislative process. The Irish government has identified the draft regulation as a top-priority action.

The task of Irish officials is to chair the initial meetings of working groups and steer negotiations at the Council level in order to forge a unified position among the member states. Contracting authorities and contractors operating across the EU should begin assessing today how the new procedures, the default BPQR method, the European preferences toolkit, and the digital ecosystem obligations will impact their procurement strategies—long before the new legal framework becomes directly applicable.

It is worth considering a remodeling of tendering strategies. It is becoming essential to build stronger bids based on quality, innovation, sustainability, and supply chain resilience. It is also wise to prepare for more intensive dialogue, as negotiations will become significantly more commonplace. This will translate into a need to invest in pre-market engagement before a procedure is launched, as well as training teams in conducting negotiations with contracting authorities. Analyzing one's own supply chain will also be critical. Entities that rely on subcontractors, goods, or services from outside the EU must evaluate their level of exposure to the new restrictions under European preferences. Consequently, it may prove necessary to consider restructuring supply sources or partnerships to maintain competitiveness in EU public procurement.

Public Procurement and Contract Law Exploring Intersections, Defining Boundaries. Hart Publishing. 2026.

This open access anthology explores intersections and boundaries between public procurement and contract law, examining how these legal regimes diverge, influence, and occasionally overlap during the performance stage of public contracts. While public procurement processes are largely harmonised across Europe through the EU Public Procurement Directives, the performance phase is only partially regulated. A sizeable part of public contract implementation remains subject to national laws, governed through a combination of administrative and contract law. This gives rise to a set of foundational questions: Does public procurement law fully occupy the legal space of public contract performance? In which instances-if any-does contract law retain relevance? Are classical contract law concepts transformed or distorted when applied to public contracts, and how does this affect mechanisms such as arbitration? To what extent do the answers to these questions vary depending on the regulatory model adopted by a given jurisdiction?

Part 1 introduces the topic, covering regulatory models for public contracts from procurement and contract law perspectives. Part 2 examines general issues such as legal review asymmetries, tacit modifications, due diligence, loyalty obligations, and the doctrine of hardship under EU law. Part 3 explores contemporary challenges, including digitalisation and sustainability. Part 4 analyses arbitration in public contract disputes.

This book is an essential resource for scholars, lawyers, practitioners, policymakers, and students, providing analytical depth and practical guidance to help navigate the complexities of public contracts.

The book is avaiable here