The much-awaited proposal for revised EU public procurement rules (the ‘EU Public Procurement Act’) was leaked earlier this summer. Given the generalised lack of mainstream interest in procurement issues other than in the context of maladministration scandals, the fact of the leak itself is somewhat interesting and probably reflects the highly (geo)politicised context in which this reform will take place.
Setting that aside, and ahead of its expected formal adoption on 9 September 2026 (probably with some improvements or at least some more proof-reading), I offer below some thoughts on the perils of switching from a set of Directives to a single Regulation, as well as some related concerns on the under-developed contents of the leaked draft in relation to some key issues.
I come a bit late to this party, as many other commentators have already offered their initial reaction earlier this summer (see eg Pedro Telles, Marko Turudic and Abby Semple for some thought-provoking views). I was a bit surprised by the mostly positive views on the switch to a Regulation, despite the acknowledgement that it will bring complications. I will not try to rebut earlier views, though there is clearly scope for some focused back and forth. I am also saving some thoughts on (very many) points of detail, as they may or not make sense depending on the final content of the officially adopted proposal. The below are thus just some reflections on the big ticket issues raised by the leaked draft. It is also my first proper blog post in over a year, so bear with me if it is clunkier than it should be.
Choice of instrument and implications
The switch from a set of Directives to a Regulation is the most radical and problematic policy choice in the leaked draft. In my view, most of the reasons offered in the Explanatory Memorandum and in the recitals are insufficient to justify the adoption of a Regulation and the choice of instrument has a lot more to do with empowering the European Commission in relation to two primary areas concerning geopolitical and policy issues, than with the objective of ensuring a single market for public contracts.
The choice of a Regulation aligns well with the development of a single EU-wide regime for third country access to EU procurement opportunities, and is also necessary for the European Commission to impose ‘what to buy’ constraints on Member States’ procurement decision-making (at all levels of governance), but is not necessary or helpful in relation to most other content. To me, this suggests that there is a need for a coordinated adoption of a Regulation and a revised Directive. Only the subject matter that absolutely requires a Regulation should go into it, and the rest should remain in Directive form — as this is the only legal architecture that can minimise the perils and likely problems of attempting to regulate procurement with a directly applicable legal instrument (which necessarily crowds out national regulatory space).
This is important because there are many issues where a single EU-wide solution will not be easy to define or be made workable and where there is sufficient variance of Member State practice and preferences that the practical problems will outweigh the expected benefits of a single rule. It is also important because there is no EU-wide set of default rules in many aspects — and fundamentally on administrative procedure and administrative jurisdictional issues. This means that all issues not explicitly and exhaustively covered in the Regulation will still generate (potentially) 30+ varying approaches and solutions. To put it simply, it is illusory to think that a Regulation can achieve full (procedural) harmonisation of procurement across the EU, unless its content is to be extended to something resembling the very detailed codes of public contracts in place in many EU countries (and which would, then, probably not work well for jurisdictions with a different approach to procurement regulation).
It is also important because of the practical impossibility to ensure that the Regulation does not encroach on Member States administrative self-regulation. For example, the leaked draft would seem to prevent centralised approaches to important issues (eg exclusion) and also extend to an extreme the possibility for public buyers to directly rely on the Regulation even where it breaches domestic public law requirements (not only in the context of cross-border or collaborative procurement, but also there).
This is also important because of the break-up of the legislative frameworks for all Member States. The adoption of a Regulation would force all Member States to have at least two sets of procurement rules — the directly applicable Regulation and a domestic set of rules for below threshold and not covered procurement. It could be said that this is not different from a Directive. But in law it is because, at least as a point of principle, a Directive allows Member States to have a single set of rules for all procurement by making their domestic transposition applicable beyond the minimum required. This is no longer a possibility in the case of an EU Regulation. It is also important to recognise that Member States may (continue) to take very different approaches to non-covered procurement and this will continue to create issues from the perspective of the integrity of the EU internal market for public contracts (if we are worried about it), as covered procurement seems to only represent around 20% of total procurement expenditure across the EU. Given a goal to revise GPA thresholds upwards, this suggests that the percentage of covered procurement could even reduce in the near future.
Empowerment of the Commission
A second area of concern is the empowerment of the Commission to take measures that would be binding on all public buyers across the EU. This concerns key areas of digitalisation and policy delivery through procurement. While in some areas (mainly on geopolitical issues) this is a continuation of recent shifts in policy and case law, in other areas (green, social and innovation), this is a major new issue. The move towards empowering the Commission seems to presume that it can effectively be mandated for procurement to achieve specific policy goals through the imposition of hard constraints. Setting that presumption aside, in order to allay (anticipated) concerns on the Commission’s power grab, most of the relevant clauses are couched in limitations and exceptions and, ultimately, the empowerment of the Commission will remain weak where the EU does not have exclusive competence. The issues that can arise from this should be carefully considered, as well as the likely limited effectiveness of EU-wide applicable requirements with locally-managed exceptions.
On digital — on which there are some good general ideas as well as a renewed attempt at completing projects that should have been long completed under the current rules, such as the full transition to digital procurement — the empowerment of the Commission to develop (or request standardisation bodies to develop) key aspects of the digital infrastructure meant to support the revised EU system poses a different issue. Namely, that the leaked draft offers no meaningful detail to understand what the EU system of transparency and procurement data may look like. While the headlines make sense (interoperability of platforms, data interconnection, a tiered approach to data access and transparency, digital credentials, etc), there are so many issues requiring definition that the Regulation could end up enabling very different types of system and imposing very different types of requirements to Member States and public buyers. As presented, it largely is a blank cheque for the Commission to develop rather complex systems. It seems to me that a lot more detail and basic constraints should be put into relevant annexes of any future Regulation on procurement.
Goal proliferation
Despite presenting the draft Regulation as a response to the European Court of Auditors’ recent special report on procurement — which clearly took the view that current EU rules contain an excessive number of under-specified and non-prioritised goals, and that revised rules should focus on less and more measurable, clear goals — the draft Regulation contains a proliferation of goals. Not only due to the inclusion of geopolitical and national security considerations in a scale unprecedented in EU procurement rules, but also in the way it not only perpetuates the broad (scattershot) approach to green, social and innovation procurement but exacerbates it with the inclusion of an (unenforceable?) provision on procurement’s strategic goals (Art 5). Quite how public buyers are meant to make structured decisions with such a multiplicity of goals and constraints is anybody’s guess and, in my view, the draft worsens rather than improve the situation on this front. This is of further relevance given the imposition of (exemptable) minimum requirements for the consideration of quality issues related to those goals as award criteria.
Simplification?
The leaked Regulation also contains some aspects of false (or overclaimed) simplification. The clearest example in my view is the regulation of procedures. Seemingly taking a leaf off the book of the recent UK procurement reform, the leaked draft considers there are too many procurement procedures and seeks to reduce their number to four. However, on a closer look, the number remains higher and the practical differences pull in directions that are not always simpler. Take the open-negotiated procedure. Given the obligation to reflect in procurement documents an intention to negotiate, in reality, the relevant provision regulates two procedures in one: an open procedure and a negotiated procedure. Counter-intuitively, the negotiated procedure is (at best) a basket of procedures, as each public buyer can define the negotiations (content, rounds, BAFO, etc) in their own way. Similarly, the procedure representing a direct award in reality contains three (sub)procedures to request negotiations, a tender or direct delivery. Given under-specification, it is unclear whether some of these procedures can contain an element of competition — but, otherwise, requesting a tender seems to make no sense. I have not played out all scenarios in relation to the dynamic simplified procedure, but I have a sense that at least in some conditions, it can allow for a close recreation of the (seemingly eliminated) restricted procedure. This does not straightforwardly seem like a definitive simplification approach.
Relatedly, there are may issues in relation to the procedures that the Regulation contains no rules on (eg on the possibility to ask for clarifications on tenders and its limits, or the boundary between clarification and negotiation). This highlights one of the main risks in pursuing a Regulation. What happens with issues not covered in the Regulation? What is the default/suppletory rule or position? Any chances there is a single rule across EEA jurisdictions?
Fighting risk-aversion and gold plating
Another theme that runs through some of the provisions in the draft Regulation is to seek to prevent risk aversion and gold plating. For example, in relation to qualitative selection and in particular in relation to the turnover volume that can be required of economic operators in order to be eligible for a contract opportunity. The proposal would reduce this from the current 200% to 50% of the value of the contract. However, in both cases, the upper threshold can be exceed in view of specific circumstances of the contract. This is the sort of change that can be both ineffectual where public buyers are unwilling to revise their risk-taking and lead to poor screening of public contracts where (for whatever reasons) public buyers take the opposite view. The very many examples of maladministration of procurement during the pandemic showed us the importance of robust screening and due diligence of economic operators. While it is clear that some flexibility may be required in order to facilitate SME participation (with the obsession with start-ups also requiring some separate analysis), a starting point of requiring public buyers to routinely be ready to contract with providers that would by definition be delivering their biggest contract ever and would need to expand, seems a stretch. There is, in general, a risk of the Regulation seeking to push authorities too far from established approaches and practices. Whether this can lead to a significant change in procurement practice is highly questionable and it is unclear that there will be a monitoring capacity able to take action on instances of non-compliance with that sort of requirement.
Mandatory professionalisation with no resource
A final point worth mentioning is that the draft Regulation would seem to impose hard obligations on Member States to invest in professionalisation and in structured procurement expertise governance. However, meeting those obligations is both expensive and difficult. Realistically, and based on the experience with this sort of requirement (and independent oversight issues) in earlier iterations of review of the EU procurement rules, it seems unlikely that the final text will impose requirements commensurate with the increase in complexity and discretion implicit in the model underpinning the draft Regulation. This could take us to a scenario where the chasm between the legal architecture and the delivery infrastructure are such that procurement practice and outcomes do not meaningfully improve or are even worsened. It is thus very important that the legislative process remains cognisant of the trade off between flexibility, complexity and procurement capability requirements.
Final thought
There are aspects of the leaked Regulation that represent a clear consensus across Member States — mostly, around the need to revise the geopolitical aspects of procurement. This could suggest the Commission can get the Regulation through the legislative process quickly. However, there are other aspects that can be very problematic and that could suffice for the proposal to be embroiled in a long legislative process. In my view, this largely aligns with the divisibility of content between aspects relating to trade and (possibly) digitalisation, and the more technical review of procedural rules and requirements (which I would dare say are the core of procurement legislation and governance). The more I think about it, the more I sense the way forward may require a split between a short Regulation based on the current draft in relation to geopolitics and digital, and a slower process of consolidation and review of the three current Directives into one.