A single law, not 27 versions: Why the change in form of the new EU regulation on public procurement is so important | In Principle

The news is not yet official. The proposal for an EU regulation on public contracts and concessions (replacing three procurement directives from 2014) leaked on social media in July 2026, but formal publication of the proposal is not expected until September. Until then, the contents are supposed to be confidential. Nonetheless, it has been discussed among procurement specialists for weeks. If the decision holds to reframe European public procurement law as an EU regulation rather than a set of directives, it will be the most sweeping change in the legal architecture of this area in decades. That issue is no longer a secret.

National public procurement law—the directives gain a new life

For over half a century, European public procurement law has been based on directives. Each new generation of laws, from the 1971 directives and the 2004 package to the set of directives from 2014 currently in force, has required implementation into the national legal system of each member state.

That legal form was justified under the earlier logic of European integration, when the same rules for eliminating barriers of access to European public procurement contracts had to find a path through diverse legal systems in an unprecedented process of harmonisation. The flexibility offered by national implementation was a necessity. But with time, the same mechanism began working against its own ends: instead of paving the way toward consolidation, the transposition process became an area where national differences not only survived, but hardened.

This situation was aptly summarised by Prof. Martin Trybus at a public procurement conference at the University of Nottingham: after implementation in the member states, the procurement directives “gain a new life.” This was a witty but bitter reflection on the lack of uniformity in public procurement law across what is supposed to be a uniform European market.

This can be seen in the large number of requests to the Court of Justice for preliminary rulings, revealing doubts on the part of national courts on whether the implementing legislation is consistent with the directives. According to an evaluation by the European Commission, in 2016–2025 the Court of Justice responded to 107 requests for preliminary rulings under Directive 2014/24/EU alone. The questions raised covered nearly all of the key institutions of public procurement law, from the grounds for exclusion of contractors and “self-cleaning” mechanisms, to in-house procurements, subcontracting, contract modifications, and general principles of EU law. The same Commission document pointed to the frequently aired issue of excessive national regulation—“gold-plating”—which is regarded as the main source of legal uncertainty and added costs for accessing public contracts across the EU. Consequently, instead of a single EU legal architecture governing access to procurement on the internal market, we have 27 different systems, each of which has somewhat differently interpreted the same rules and formal requirements.

This situation is no longer acceptable from the perspective of the rules for accessing the EU procurement market, where the requirements imposed on contractors for access to public contracts must be unambiguously provided by law—clear, predictable, and verifiable when submitting a bid (e.g. C-27/15, Pippo Pizzo v CRGT Srl). The lack of uniformity can mean that a bidder doesn’t learn about the final shape of national public procurement law until the tender is decided (or in Poland, typically not until an interpretation of the law as it applies to the specific case is issued by the National Appeal Chamber or the Public Procurement Court, but they don’t always speak in the same voice).

One argument raised in the debate is that the diversity of legal systems and administrative traditions across the member states speaks in favour of the use of directives to be implemented in each member state, rather than a directly applicable EU regulation (D. Klingler, “Revision of the Public Procurement Directives: In Search of the North Star,” (2026) EPPPL 1, 1–5). But, at least from the perspective of Polish practice, this argument can be turned around: this very diversity is today a disfunction which should be fixed via an EU regulation—not a value to be protected against such a regulation.

The regulation will obviously not eliminate all of the problems, but it will address their source: discretion in national implementation and interpretation. A regulation will apply directly, in identical wording, across all 27 member states simultaneously, without a two-year window for transposition and without national discretion in framing the text of the law. Pedro Telles put it succinctly: “Hiding non-compliance or actively exploiting potential non-compliance will become a lot more difficult going forward” (“The draft proposal for the Public Procurement Act has leaked,” telles.eu, 10 July 2026).

From Kolin to European preferences—but no further

There is no doubt now that an EU-wide Public Procurement Act—in response to the diverse interpretations following the ruling by the Court of Justice in C-652/22, Kolin— will introduce a uniform and transparent instrument for applying European preferences in public procurement. In this aspect as well, uniformity is vital. Framing the relations between the EU market and contractors from third countries lies within the exclusive competence of the EU, and a regulation would exercise this authority directly, leaving no room for member states to make their own determinations.

The ruling in Kolin sparked various responses in different national legal systems, from cautious approaches to more radical ones—as in Poland, where the construction arose of a general ban on access by contractors from third countries (which a specific contracting authority could waive), along with the denial of any right to appeal by entities regarded as third-country contractors, without even the possibility of challenging whether that classification was correct. An EU regulation would exclude that sort of diversity, while at the same allowing contracting authorities to apply European preferences, so long as they respect the rights of contractors from jurisdictions covered by the Agreement on Government Procurement or equivalent trade agreements concluded with the EU.

Regulating European preferences would also signal a clear distinction between the EU’s “made in Europe” procurement philosophy and the ideologically similar but structurally separate national concept of “local content.”

European preferences from the EU would be a decision at the level of the internal market concerning relations with third countries, and in this sense would promote the strategy of investing in the growth of European competencies.

By contrast, a national preference for “local content”—regardless of the intention—is a barrier to trade on the internal market, which in principle conflicts with the foundations of the EU market enshrined in the Treaty on the Functioning of the European Union. I anticipate that defining in a regulation the permissible scope and conditions for origin-based preferences will leave no room for preferences at the national level.

But there are also those calling for a more unambiguous resolution. Prof. Marko Turudić proposes that the new regulation should include a recital expressly addressing this issue, which “would remove any perceived ambiguity on which national local content initiatives currently trade” (“Wishlist Item 1—A Local Content Recital in the New Public Procurement Regulation,” Upravno Pravo, 20 July 2026).

A European preference in procurement is an instrument financed from public funds in the hands of contracting authorities, through which they can support the growth of European competitiveness by correcting access to public contracts where EU firms face unfair competition from third-country players (“unfair” because they operate under less restrictive legal and regulatory regimes).

But the philosophy of a European preference must also help build European supply. If European supply in a given sector is poorly developed or non-existent, it will not be created by a procurement preference consisting solely of earmarking the existing demand for selected entities, i.e. European firms (Klingler, supra).

Market distortions due to the participation of entities from third countries can be corrected by protecting selected market participants on an ad hoc basis, i.e. reserving existing demand for European companies. However, long-range competitive supply is not built in this way, because it requires a planned process for investing public money in innovation. Whether an EU regulation—rather than the existing set of directives and national implementing acts—will meet this demand, which has been flagged for years, and offer the appropriate legal infrastructure for the growth of the “made in Europe” philosophy, remains an open question.

Commentary on the details after publication of the proposal

The leaked proposal runs to some 170 pages, and contains a range of new solutions, each deserving a separate analysis, once the proposal is officially published.

But what is most important to the public procurement community at this stage is the choice of the legal form for EU public procurement law. An EU regulation is another step towards integration of European public procurement. It is a declaration that the internal market for public procurement will also be a common market in the legal dimension, and that the rules for access to public contracts should be provided by EU law itself, not by national versions of EU law.

This transition may prove painful to the member states in the short term, but advantageous in the long run if it helps achieve the aim of a uniform public procurement market.

Mirella Lechna-Marchewka, attorney-at-law, Infrastructure, Transport, Public Procurement & PPP practice, Wardyński & Partners