EU Procurement Is Changing But Does it Carry the Same Unsolved Problems?

“Yes, I’m changing.” So says Tame Impala, the Australian psychedelic-rock project. And so, in a sense, does EU public procurement law. Increasingly, public procurement has been asked to do more: deliver sustainability, support competitiveness, strengthen resilience, protect security of supply and, contribute to the Union’s strategic autonomy. Mario Draghi’s report on EU competitiveness and Enrico Letta’s report “Much more than a Market” point in a similar direction. The real question is not whether public procurement is changing; it clearly is, but whether it can carry all these new expectations at once. Every one of these goals arrives with its own claim to urgency. None of them arrives with a plan for how procurement is meant to deliver all of them simultaneously.

The PurpLE final conference, Public Procurement & Contracts: Navigating Today, Designing Tomorrow, held in Copenhagen in June 2026, brought together the questions this post draws on, and the recently published Public Procurement and Contract Law: Exploring Intersections, Defining Boundaries (eds. Marta Andhov, Michał Kania and Sylvie Cécile Cavaleri) gives some of them fuller doctrinal treatment. A leaked draft of the new Public Procurement Act (PPA) has now given those questions an unexpected occasion to be revisited. 

So, what do our panels and the Anthology tell us about the strategic use of public procurement?

DID THE 2014 DIRECTIVE DELIVER SUSTAINABILITY?

Under the 2014 Public Procurement Directive, using public procurement to pursue social and environmental goals became the most predominant expression of its strategic potential. The 2014 Directive took a permissive approach to sustainability, allowing but not requiring contracting authorities to incorporate environmental and social considerations into their contracts. The European Green Deal changed that gradually, layering mandatory sustainability criteria from EU environmental legislation onto procurement piece by piece. Discussions focused on which obligations can be built into which criteria, and on how sustainability sits alongside the principles of procurement, such as transparency and equal treatment.

The verdict on all this, delivered directly, was: not good enough. In the session on the future of EU procurement legislation, chaired by Grith Skovgaard Ølykke, with Professor Willem Janssen and Professor Roberto Caranta, the panel opened with an overview of the existing framework and why reform was needed at all: legal certainty, simpler rules, effectiveness, digitalisation, and a more strategic use of procurement covering sustainability, innovation and SMEs. But the assessment’s conclusion was blunt: conceptually, sustainable public procurement had progressed. Practically, it had also generated complexities, which Grith explains below:

Legal certainty, it seems, is still very much a work in progress. Flexibility was one the flagship promises of the 2014 reform. Contract authorities were offered a larger toolbox of procedures and techniques.

Yet, in practice, they continue to rely overwhelmingly on the same familiar instruments, open procedures, a lower price, while many still complain that meaningful negotiation remains confined to carefully prescribed circumferences.

Simplification delivered similarly nuanced results. A reform intended to reduce administrative burdens and accelerate procurement is widely perceived as having achieved neither…[c]ompetition remains present, although perhaps less on enthusiastically so…[a]nd cross-border procurement offers a similarly reassuring sense of continuity. Despite decades of integration efforts, direct cross-border awards remain at roughly the same modest levels as when the Commission first started measuring them in the 90s. The internal market clearly functions, but often in ways more visible in value chains than in procurement statistics.

Strategic procurement has become one of the success stories of the reform, at least conceptually. Green, social, and innovation objectives have moved from the markets to the mainstream. Recent developments in the court’s case law suggest that procurement is increasingly accepted as a vehicle for pursuing broader public policy objectives, particularly in the social sphere. The practical application, however, remains uneven and has contributed to adding further layers of complexity to an already intricate system.

What happens once the contract is signed is one of these complexities, and a more neglected one. Article 18(2) of the 2014 Directive puts on the Member States the obligation to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law.¹ As Professor Désirée Klingler, Patrick Zimmermann and Professor Steven Van Garsse set out in Chapter 11 of the Anthology, “Sustainability and its Enforcement in Private and Public Contracts”, this article “provides a clear legal basis for embedding sustainability into the performance of public contracts”, subject to the requirement of a link to the subject matter. The authors note that “the enforcement of sustainability appears largely aligned across private and public contracts in the jurisdictions examined”. In other words, the mechanisms exist. The reluctance to use them can’t be explained by their absence.

So why the reluctance? Some of it is practical: extra financial and human resources, patchy data, the need to keep public services running rather than retendering, as I explore with Kateřina Mitkidis in Chapter 12 of the Anthology. But practical reasons only go so far. Professor Sope Williams makes the harder case on the Sustainability in Performance of Public Contracts Panel of the PurpLE Conference: non-enforcement is often an integrity problem.

This raises the obvious follow-up: What should be done? Do we need legal reform or enhanced institutional capacity? Klingler’s Swiss data and Williams’s South African examples, discussed back-to-back during the same session, suggest it’s both, and that neither works alone.

The solution seems to be a combination of both: legal reform is the necessary foundation, but without institutional capacity behind it, it risks producing compliance theatre rather than compliance. Will the upcoming reform fix this? Based on the leaked draft, it seems unlikely. 

While the draft appears to retain the rationale of the infamous Article 18(2) by requiring, among other things detailed below, contractors’ compliance with environmental, social and labour law in contract performance, its provisions on green and socially responsible procurement introduce no significant change to how contracts are actually performed. The draft even specifies that merely meeting minimum obligations already required by environmental, labour, or social law doesn’t, on its own, count as green or socially responsible public procurement. This settles, in my opinion, in the negative, the debate over whether there is a standalone “principle of sustainability”², since mere legal compliance isn’t enough to satisfy it. 

Nevertheless, it seems that, without having solved one of the challenges of strategic public procurement (in this case, sustainable public procurement and contract enforcement), we appear to have simply moved on from it.

WHAT ELSE IS PUBLIC PROCUREMENT EXPECTED TO DELIVER NOW? 

The leaked draft sets out four strategic goals side by side:

1. boosting the Union’s competitiveness through a thriving internal market, closing the innovation gap and reinforcing the manufacturing and industrial base;
2. achieving the Union’s climate and environmental objectives;
3. pursuing a fair and inclusive society; and
4. securing the Union’s economic security, including through strategic independence.

The successor to Article 18(2) seems to suggest that public procurement’s shoulders are to bear the weight of all these goals, requiring public buyers to ensure that, in the performance of public contracts, economic operators comply with obligations relating to these strategic goals. One might wonder: to what do we owe this abundance of new strategic goals?

Where did this abundance come from? Part of the answer is reciprocity. The EU has long given third-country operators considerable access to its procurement market without always getting the same in return, and a toolkit has been accumulating for years to close that gap, from CJEU rulings to a draft Industrial Acceleration Act.³ That toolkit, what each piece of it actually does, and where the leaked draft’s own answer to third-country access seems to be heading, is worth its own post, and gets one here.

WHERE, IN ALL OF THIS, ARE THE SMEs?

Somewhere in this abundance of strategic goals, SMEs get lost again. It’s a familiar pattern: every reform cycle promises to fix SME access, and every reform cycle produces the same set of participation-side fixes without touching the harder question of whether SMEs can actually compete. Professor Gustavo Piga, another expert on the Sustainability in Performance of Public Contracts Panel, made the point with a Usain Bolt analogy: competition only means something if it has categories. You don’t put a toddler in a lane next to an Olympic champion and call the result fair, even if both were technically allowed to enter the race.

The leaked draft barely engages with this. Where SMEs appear at all, it is in the context of lowering barriers to participation, easier market access through digital tools, division into meaningful lots and faster payment. None of this addresses whether SMEs, once inside the competition, actually stand a fair chance of winning against operators several categories larger than theirs.

New Rules, Same Old Mistakes?

Priorities have multiplied, and so have the expectations placed on procurement to deliver them. But the framework has struggled with the ambitions it already had, sustainability enforcement chief among them, even as new ones- economic security, resilience, strategic autonomy- get added on top. So, yes: “Yes, I’m Changing.” But perhaps the more appropriate Tame Impala reference, after all, is “New Person, Same Old Mistakes.” 

References

1. Marta Andhov, “Commentary to Article 18(2),” in R. Caranta and A. Sanchez-Graells (eds.), Commentary of the Public Procurement Directive (2014/24/EU) (Edward Elgar, 2021) 186–206. ↩︎
2. Marta Andhov, “Contracting Authorities and Strategic Goals of Public Procurement – A Relationship Defined by Discretion?” in S. Bogojević, X. Groussot and J. Hettne (eds.), Discretion in EU Procurement Law (Hart Publishing, 2019) 117 – 137; Ezgi Uysal, “Sustainability Clauses in ‘Public’ Contracts,” (2024) 20(1) European Review of Contract Law 105–127. ↩︎
3. Marta Andhov, “EU and Public Procurement: Making Better Use of the Existing Tool Box – The Response to Competition from Third Country Bidders,” in M. Wiberg (ed.), EU Industrial Policy in a Globalised World – Effects on the Single Market (SIEPS Project, 2020), 73–87. ↩︎