Review of Procurement Law Pending

Procurement law aims to increase competition on the internal (European) market. The European Commission recently published a consultation for an elaborate evaluation of the procurement directives. This evaluation will be used to test whether procurement law is (still) effective. Should this evaluation lead to a review, this will also affect the Public Procurement Act in the Netherlands.

The consultation of the European Commission is a non-committal request for input and feedback on procurement law. From 13 December 2024 to 7 March 2025, contracting authorities, companies, trade unions and small and medium-sized enterprises (SMEs) from all Member States may share their experiences and/or make proposals for amendments or new laws. The European Commission will use this feedback to examine whether current regulations are still effective.

The consultation has already yielded some feedback and input. Below, please find a number of amendments as proposed by market parties and contracting authorities: 

• Increasing the European threshold values in order to reduce the administrative burden for the contracting authorities;
• Abolishing the European Single Procurement Document (“ESPD”) and introducing a digital database in which the relevant statements, certificates, orders and self-cleaning measures of all European enterprises can be consulted;
• Enforcement of procurement law by a European or national supervisory authority, so that the challenging of violations is not the full responsibility of (injured) entrepreneurs;
• Enshrining concrete sustainability requirements and wishes into the Public Procurement Act in order to make socially responsible sourcing less non-committal.

The last point from the list above is in line with a position advocated by Willem Janssen (endowed professor of Procurement Law) in an interview in NRC dated 13 January 2025. Janssen thinks that current procurement law poses an obstacle to the green transition. According to current regulations, contracting authorities cannot give precedence to local parties, for example, whereas contracting with local parties would in fact be more sustainable. In Janssen's opinion, procurement law should change so that governments will become obliged to contract in a sustainable manner. At the same time, this position causes friction with the heart of procurement law: an internal European market in which enterprises from all Member States have equal chances of securing a contract. 

Now is the time to give priority to sustainability, perhaps partly at the expense of the internal market, but in favour of the climate. Although the European legislator eventually sets the course, the consultation does offer a chance to influence this course. Please do not hesitate to give your feedback on your experiences with procurement law.

If the evaluation by the European Commission leads to an amendment of the procurement directives, the Public Procurement Act in the Netherlands will eventually also be amended. At Kennedy Van der Laan we keep a close eye on these developments in procurement law. 

Do you have any questions with regard to this article, or do you need help formulating your input for the consultation? Please contact Gracia de Vries.