The annual meeting of the European Procurement Law Group a few weeks ago was a good excuse to find focused time to think about the ongoing process of review of the EU public procurement rules—as we are working on an edited book with a series of recommendations and reform proposals. My draft chapter focuses on the scope of application of EU procurement law.
In the draft, I argue that the cornerstone of procurement regulation–what actually constitutes a ‘public contract’–is not clear, despite decades of ECJ case law. This undermines the coherence and effectiveness of EU internal market law.
Against the background of the ongoing review, I focus on the scope of application of Directive 2014/24/EU to highlight some aspects of the interaction between the EU procurement rules and other instruments of EU internal market law, including new and proposed tools seeking to (further) leverage procurement as a policy delivery instrument—such as the International Procurement Instrument or the Foreign Subsidies Regulation, as well as the increasing range of mandatory (sustainability) requirements focused on procurement.
After a review of recent trends in the interpretation (and narrowing) of the scope of application of Directive 2014/24/EU, I sketch an alternative functional approach that, in my view, would provide conceptual consolidation, realign EU procurement rules with their internal market logic, and potentially improve their fit as a policy delivery instrument.
I make two key reform proposals:
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New definition of ‘procurement’ to step back from current focus on ‘acquisition’ and ‘choice’ by the contracting authority, and to include preparatory activities with potential negative impacts on the internal market
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New definition of ‘public contract’ to eliminate the requirement of ‘pecuniary interest’
As always, I would be very interested in any feedback.
The draft can be freely downloaded from SSRN: Sanchez-Graells, Albert, Expanding the Scope of EU Public Procurement Law — Realigning the Procurement Directive with Its Internal Market Logic while Improving Its Fit with Strategic Procurement? (April 11, 2025). Available at SSRN: https://ssrn.com/abstract=5213497.