Buying European: Governing Through Public Procurement and the Europeanization of National Administration

29 set

Tempo di lettura: 11 min

Teresa De Sena

The European proposal for a Regulation on public contracts and concessions aims to establish a harmonized and uniform legal framework on public procurement among Member States. This contribution highlights the main innovations of the proposed Regulation and their imaginable implications for the future governance of public contracts and concessions. It argues that the proposed Regulation may change not only the way public procurement is perceived but reshapes the role of public procurement and intensify the Europeanization of national administrative functions.

Introduction

On the 9th of September 2026, the European Commission presented the proposal for a ‘‘Regulation of the European Parliament and of the Council on public contracts and concessions’’, comprising 149 articles structured in six parts. The proposal seeks to establish a common legal framework for public procurements across the ordinary sectors, special ones, and concessions, subject to the specific provided exemptions.

This regulation would replace the current directives n. 23/2014/EU, 24/2014/EU, 25/2014/EU, which have shaped national legislations on public procurement for more than a decade, and it would introduce new paradigms to public contracts, potentially establishing a coherent and uniform European regulatory framework.

Primarily, the proposal conceptualizes the objectives that should guide public procurement and transform it into a ‘‘strategic investment tool’’ to mainly strengthen the Union’s industrial base, strategic autonomy and its economic security, also correlated with the objectives to pursue environmental sustainability and social justice (Article 5). The objectives set out in this provision concede with those identified by Mario Draghi and Enrico Letta’s report as essential conditions for the future of the European competitiveness and the protection of the integrity of the Single Market.

Secondly, public buyers may be required to make purchasing decisions by considering not only their own needs but also the strategic policies of the Union: the question is not merely how public administrations purchase, but which interests they pursue when purchasing. This perspective may have significant consequences for the purposes pursued by national administrations, broadening their own conception of public functions and implementing the already ongoing process of Europeanization of national administrative activities.

Harmonization and innovation for a uniform and coherent regulatory framework

The choice of legal instrument per se warrants initial consideration. The Commission proposes replacing the current directive-based framework with a directly applicable regulation. The legal basis is Article 114 TFEU, which allows the Union to adopt measures for the ‘‘approximation’’ of national provisions aimed at the establishment and functioning of the Single Market. This choice appears to respond clearly to the persistent fragmentation in Member States’ implementation of public procurement directives. Indeed, by adopting directly applicable rules, the proposed Regulation would reduce divergences arising from national transpositions, although differences in implementation practices may persist.

In line with the Better Regulation Guidelines, the Commission conducted several evidence-based assessments (i.e., stakeholders’ consultations, ex-post evaluations and impact assessments) on the effectiveness, efficiency, coherence and relevance of the aforementioned 2014 Directives. Some of the findings were concerning. Indeed, the evaluation revealed that on one hand, the legal clarity in the field of implementation has not been reached, while on the other one the remaining objectives, like simplification or procurement procedures flexibility, have been only partially achieved. The assessments therefore supported the need for further intervention by the European Union.

Substantively, the objectives pursued by the Regulation are intended to be translated into concrete practices throughout the entire procurement life cycle.

First, in terms of simplification and flexibility, the proposal aims to reduce the number of existing procedures and proposes two main procedures, complemented by the innovative and the special ones (Art. 31). In detail, the ‘innovation procedure’ would promote the development of innovative solutions for specific societal challenges identified by the public buyer, the latter assess proposals through a value assessment framework and, after having tested and valuated the approaches, award the contract to the best economic operator; while the ‘special procedure’ could be used only under the conditions laid down by Article 47, including where the economic operator cannot be substituted due to the nature of the service or for competition-related reasons; for additional, commodity-market, or exceptionally advantageous supplies; and for certain categories of public service contracts identified by specific Common Procurement Vocabulary (CPV) codes, including education, healthcare, hotel and restaurant services.

The aforementioned procedures rise some concerns. First, under the open procedures, where the contracting authority decides to enter into negotiations, it would be required to conduct them with all interested economic operators who are not subject to grounds for exclusion, differently from the currently open procedures where the negotiation is an exception and not the rule. This requirement may prove particularly burdensome and could cause further delays, thereby undermining the objectives of simplifying and expediting the tendering process. For instance, the potential use of random-based algorithms to select the five economic operators with whom to initiate negotiations within the dynamic procedures could compromise the legitimacy of the entire procedure in the absence of adequate safeguards regarding transparency, non-discrimination and the accessibility of the model . Moreover, the conduct of innovation and special procedures entails significant organizational burdens for public buyers. Therefore, without an adequate strengthening of administrative capacity and of material resources available to public authorities (particularly the smaller and less organized ones), the effective implementation of these tendering procedures could be significantly impaired.

A further and crucial dimension of the reform concerns European economic security and strategic autonomy. These objectives represent a direct response to the current geopolitical landscape, which has revealed the potential role of public procurement as a concrete strategic lever. The provisions contained in Chapter 4, from Articles 66 to 69, would enable or require public buyers to address risks that may interfere with the Union’s or Member States’ security and public safety. More broadly, the Regulation takes into consideration third-country influence on supply-chain dependence, the exchange of sensitive information and cybersecurity. Economic security would therefore be addressed throughout the entire procurement life cycle. In particular, Article 67 would allow public buyers to withdraw from the contract, or exclude certain economic operators, where the supplier does not comply with national security or public safety obligations.

A careful reading of these provisions, and mainly of Article 66, reveals two relevant concerns that are closely interconnected. Indeed, the Commission deliberately places the concepts of security and public safety of the Union and of the Member States on an equal footing, with the aim of shaping the entire public procurement procedure around the broader objective of safeguarding European economic security. However, as is well known, national security - still lacking a uniform definition and largely dependent on the assessments of individual national governments - falls within the exclusive competence of the Member States. The proposed Regulation therefore performs a specific operation: it draws the concept of national security into that of supranational security, placing the latter under the broader umbrella of the objectives of open strategic autonomy and the protection of the integrity of the Internal Market. This leads to the second concern: public administrations would be entrusted with assessing the measures necessary to safeguard security and public safety, thereby de facto granting public buyers the power to make political, rather than merely discretionary, assessments in both the national and supranational interest. Should the proposal be adopted in its current form, its most concerning implication is not what is expressly stated, but rather what lies behind the regulatory framework deliberately constructed to confer a supranational dimension upon the already ambiguous concept of national security.

Finally, the introduction of European preference requirements (from Articles 70 to 77) represents another core element established by the regulation under consideration. Through these provisions, the Union gives public buyers the possibility of restricting a tender in favor of European operators or subcontractors (including in the case of joint participations, if at least one operator is from the Union), or covered operators from third countries (i.e. the ones from third countries whose international agreements comprehend the specific procurements, and relative objects, fall within the Union’s public procurement commitments in that agreement, Art. 70, par. 2). This implies that public buyers may restrict the participation to the tender in line with the objective of European strategic autonomy. The regulation therefore seeks to strengthen the independence of Member States from third countries whose involvement may excessively affect the functioning of the Single Market. From this perspective, public procurement can radically influence the European policy trajectory towards the ‘‘Buy European Strategy’’, re-establishing the balance of economic powers and addressing the ‘‘the changing global trade policy landscape’’ by reducing dependency on third-country procurement.

In the wake of the ‘Buy European’ strategy and the Industrial Accelerator Act, the regulatory proposal under examination introduces the possibility of significantly restricting participation in public procurement procedures on the basis of the European preference criterion. In light of the analysis developed in the previous section, it is evident how this criterion is strongly instrumental to strengthening European strategic autonomy and the independence of the Internal Market. Nevertheless, its potential risks from both a competition and trade perspective cannot be overlooked. From a strictly competition law perspective, three main concerns may arise. First, the European preference criterion remains inherently discriminatory on the basis of nationality or the geographical origin of products, even when it is intended to serve the interests of the Union. This may distort the competitive level playing field, potentially undermining overall economic efficiency and the quality of the services procured. A further, and potentially more serious, risk lies in the possibility that Member States may use the objective of strengthening European supply chains to conceal forms of State aid, thereby contributing to the fragmentation of the Single Market and exacerbating asymmetries between Member States with greater industrial capacity and those with more limited spending capacity. Finally, from the perspective of industrial policy and trade relations with non-EU countries, the direction pursued by the Union in recent years appears increasingly clear: strategic autonomy tends to encourage the market ‘to turn inwards rather than to open itself further to external markets’. Access to non-EU markets remains possible, but primarily through actors considered reliable by the Union. This raises the question of whether such a strategy, although clearly delineated, is entirely beneficial to European economic interests. Striking an appropriate balance between antitrust rules and the objective of strengthening European economic security therefore represents a significant and increasingly visible challenge. Although the Commission characterised these objectives as complementary within the emerging system of global trade governance, the Draghi Report subsequently highlighted how the global market based on multilateral relations has been progressively undermined, particularly in light of recent US trade protectionist policies. Accordingly, as reiterated in the European Economic Security Strategy, European economic interests require more assertive protection, including through their assessment from the perspective of the Union’s economic security. The European preference clause must therefore be understood within a broader and more complex framework of economic policies, in which the protection of free competition and market openness may increasingly be traded off against greater control over, and reinforcement of, the economic security of the Internal Market.

The innovations proposed by the Regulation demonstrate how public procurement may contribute to the achievement of European objectives of industrial and digital sovereignty and should be examined in conjunction with other current proposals made by the Union. Considering the ones mentioned also in the Public Procurement Act, both the Industrial Accelerator Act and the Cloud and AI Development Act may demonstrate that the application of public procurement legislation needs to be coordinated with sectorial specific provisions in order to avoid renewed fragmentation and the risk that European objectives are only formally implemented.

From a European policy objective to a Europeanisation of the public function?

The proposal may stimulate a broader reflection on the evolution of the public function in consideration of the latest European developments.

Indeed, the Public Procurement Act would not merely regulate the modalities through which national administrations purchase goods, services and works, but would also provide the European objectives towards which the national administrative action must be directed. This process of Europeanization of the public functions at national level would represent the intensification of a process that began years ago.

National public procurement legislation has been influenced by the Union since the first directives adopted in 1992, and even more by those adopted in 2014, with the aim of promoting competition and fostering market access. Nevertheless, the proposed Regulation may have an even more significant effect, as it emphasizes on the role of procurement as a strategic lever which could lead to a significant institutional transformation through which Union-level objectives increasingly inform the exercise of national public functions.

This development could be interpreted as a gradual Europeanisation of the public function, whereby objectives defined at Union level increasingly orient the exercise of national administrative functions. This may reveal that the Union is acting as a security provider ‘‘in its own right and as articulating a conception of European order and European society’’.

The Public Procurement Act, coordinated with the other European proposals to strengthen European Strategic Autonomy and Market sovereignty, could constitute an important step in the development of a new European era, where the Union act in a more self-assertive manner to adequately address an increasingly competitive global geopolitical, social and economic scenario.

The future role of public procurement

The proposal’s most significant innovation appears to lie not only in the specific provisions concerning the procurement life cycle, but also in the redefinition of what public procurement is for.

Although the primarily most notable aspects of the proposal concern the objective of simplification, harmonization, and clarification of the overall European legislation on public contracts, its broader significance lies in the potential transformation of the procurement. Within this consideration, procurement may evolve from an instrument designed to mainly satisfy the national public interest into an investment tool to enforce and maintain European sovereignty and strategic autonomy.

National administrations may therefore become essential actors in pursuing European security, market integrity and resilience. Public authorities would no longer be only a qualified buyer but strategic actors in the implementation of European policies and in fostering the Union’s competitiveness vìs-à-vìs third countries. This raises a broader question: how will national administrations be able to balance strategic objectives, competition and costs and service quality?

Finding a balance among these elements is one of the core challenges of the modern public governance. Meeting this challenge would require adequate administrative capacity, specialized training and the availability of reliable data. Digitalization, data interoperability and the integration of social and green objectives into public procurements may contribute to this process. After the Recovery and Resilience Facility (RRF), some changes have been occurred in Member States’ procurement frameworks, but without an integrated policy implementation, their effects may remain limited.

Furthermore, the proposed innovations may foster European competitiveness and improve market access for SMEs. As emerged from the open consultations conduced in the preparation of the proposal, SMEs identified digitalization, simplification and improved data availability as crucial elements for facing difficulties caused by national fragmentation. Furthermore, the European preference provisions, may reduce existing burdens for SMEs entering the market. These potential benefits should therefore be understood as expected outcomes whose actual impact will depend on the implementation of the proposed Regulation.

The ultimate significance of this transformation will depend on the text ultimately adopted by the European Parliament and the Council and, above all, on its implementation in practice.

Nevertheless, the proposed Regulation outlines some clear features of the emerging perspectives of European intervention. Although the harmonization of public procurement legislation is both desirable and potentially beneficial, particularly with a view to further liberalizing the market and strengthening intra-European exchanges, the increasingly prominent and recurrent emphasis on the objectives of enhancing European economic security and open strategic autonomy continues to raise undeniable concerns.

On the one hand, as illustrated in the previous sections, the Union is gradually consolidating its intervention in areas which, under the fundamental European Treaties, would fall within the sphere of political choices reserved to the single Member States. What was originally conceived as an exceptional basis for intervention by the European institutions - Article 114 TFEU being a notable example- may now risk becoming the rule and evolving into a conventional practice. On the other hand, although public procurement procedures undoubtedly constitute essential tools for influencing the competitiveness and accessibility of markets, they are, by their very nature, one of the most characteristic expressions of administrative action. An excessive Europeanisation of the public function, and therefore of the concrete activity of contracting authorities, may consequently alter the balance between national and supranational interests, with potential repercussions on the very conception of administrative action and the pursuit of the public interest.

Finally, from a strictly administrative-law perspective, it will be particularly relevant to examine the coordination between the proposed Regulation, which applies exclusively to above-threshold procurement, and the residual national legal frameworks governing sub-threshold contracts. An inadequate coordination between these parallel regulatory regimes could ultimately undermine the harmonization pursued by the European regulator, particularly considering the envisaged repeal of the currently applicable 2014 Directives.