Legal rules and implementation

EU directives on public procurement cover tenders that are expected to be worth more than a given amount. The core principles of these directives are transparency, equal treatment, open competition, and sound procedural management. They are designed to achieve a procurement market that is competitive, open, and well-regulated. This is essential for putting public funds to good use.

These directives also ensure EU companies have access to rapid and effective review. The EU network of review bodies helps guarantee the effective enforcement of public procurement rules at national level.

The section on legal rules, implementation and enforcement covers current public procurement rules and the monitoring and enforcement of rules including the possibility to file a complaint.

Current legal framework, rules, thresholds and guidelines

By 18 April 2016, EU countries had to transpose the following three directives into national law

• Directive 2014/24/EU on public procurement
• Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors
• Directive 2014/23/EU on the award of concession contracts (More information)

These new rules simplify public procurement procedures and make them more flexible. This will benefit public purchasers and businesses, particularly SMEs.

• Simpler procedures for contracting authorities will open up the EU's public procurement market, prevent 'buy national' policies and promote the free movement of goods and services. As a result, contracting authorities will obtain better value for money.
• The new rules, including a new electronic self-declaration for bidders (ESPD), pave the way for the digitalisation of public procurement, which will considerably increase the efficiency of the public procurement system. For instance, only the winning company needs to submit all the documentation proving that it qualifies for a contract. This will drastically reduce the volume of documents needed for selecting companies.
• Through the limiting of turnover requirements and the option of dividing tenders into lots, SMEs will gain easier access to public procurement.
• Public procurement is becoming a policy strategy instrument. Under the new rules, public procurement procedures will also help public purchasers to implement environmental policies, as well as those governing social integration and innovation.

EU public procurement reform: less bureaucracy, higher efficiency

From 18 April 2016, new rules have changed the way EU countries and public authorities spend a large part of the €1.9 trillion paid for public procurement every year in Europe. This date was the transposition deadline for three directives on public procurement and concessions adopted two years ago. In other words, it was the date by which EU countries must have put in place national legislation conforming to the directives.

The new rules will make it easier and cheaper for small and medium-sized enterprises (SMEs) to bid for public contracts, will ensure the best value for money for public purchases and will respect the EU’s principles of transparency and competition. To encourage progress towards particular public policy objectives, the new rules also allow for environmental and social considerations, as well as innovation aspects to be taken into account when awarding public contracts.

But the success of the new legislation also depends on its effective enforcement in EU countries and the readiness of the 250 000 public buyers in the EU to capitalise on the benefits of the digital revolution, cut red tape, and make procurement processes more efficient and business-friendly for the benefit of citizens.

Overview of the new EU procurement and concession rules introduced on 18 April 2016 (287 KB)

Thresholds

EU law sets minimum harmonised rules for tenders whose monetary value exceeds a certain amount and which are presumed to be of cross-border interest. The European rules ensure that the award of contracts of higher value for the provision of public goods and services must be fair, equitable, transparent and non-discriminatory. For tenders of lower value however, national rules apply, which nevertheless must respect general principles of EU law.

Current thresholds

Reports

• Commission report on negotiations for access of Union undertakings to the markets of third countries in fields covered by Directive 2014/25/EU

Public procurement reform: all you want to know in simple language

Contracting authorities and entities

The current list of contracting authorities and entities with regards to the 2004 Directives can be found in the Annexes to Commission Decision 2008/963/EC.

EU guidelines for contracts not covered by the above directives, either fully or in part

EU guidelines for contracts not covered by the above directives, either fully or in part, can be found in this Commission interpretative communication from 2006. This communication applies to

• low-value contracts below the Directives’ thresholds that still have cross-border interest
• contracts above EUR 207 000 for which the Directives only provide limited rules (e.g. health and legal services)

It interprets existing case-law from the European Court of Justice and suggests best practice to comply with internal market requirements. This includes the minimum transparency and non-discrimination provisions required when awarding low-value contracts.

Explanatory notes

These notes were drafted on the basis of the former Directives (Directive 2004/17/EC and Directive 2004/18/EC). Taking due account of the intervening changes to the corresponding provisions in the current Directives, the explanatory notes may still be of use.

• Competitive dialogue – public supply, public works and public service (51 KB)
• Framework agreements – public supply, public works and public service (57 KB)
• Definition of exclusive or special rights – water, energy, transport and postal services (27 KB)
• Contracts involving more than one activity – water, energy, transport and postal services (24 KB)
• Communication from the Commission to the European Parliament and the Counci on Public Procurement rules in connection with the current asylum crisis
• Public-public cooperation: Commission staff working paper on the application of EU public procurement law to relations between contracting authorities (157 kB)

The 2004 Public Procurement Directives

The 2004 ‘Sector Directive’ and the ‘Classical Directive’ on public procurement were repealed on 17 April 2016.

In December 2011, the European Commission issued proposals to amend Directives 2004/17/EC on procurement in the water, energy, transport and postal services sectors (COM/2011/895 final) and 2004/18/EC on public works, supply and service contracts (COM/2011/0896 final), as well as for the adoption of a Directive on concession contracts. The new Directives were adopted by the European Parliament and the Council of the European Union on 26 February 2014. EU countries have until April 2016 to transpose the new rules into national law (except with regard to e-procurement where the deadline is October 2018).

• Green paper on the modernisation of EU public procurement policy - Towards a more efficient European Procurement Market (2011)
• Synthesis of replies to Green Paper (2011)
• Commission interpretative communication from 2006 on contracts not covered by the 2004 Public Procurement Directive

Background documents on the 2014 public procurement reform

Implementation review reports

• Second edition of the Annual Public Procurement Implementation Review 2013
• First Annual Public Procurement Evaluation Report 2012