A previous post on this blog asked how much more EU procurement law can take, as multiple strategic goals get piled onto a framework that was already struggling to deliver. This post follows one thread running through several of those goals at once- competitiveness, industrial base, and economic security among them- back to where the pressure actually came from: reciprocity, or the lack of it.

Throughout the years, the EU has, to a considerable extent, provided access to economic operators from third countries in its procurement market; however, such access was not often reciprocated. This asymmetry generated pressure for a mechanism to ensure reciprocity and a level playing field for European businesses trying to compete in the procurement markets of third countries that themselves apply protectionist measures. A leaked draft of the new Public Procurement Act has now given this pressure a concrete shape, setting out, for the first time, how far the EU might actually be willing to go.

WHAT HAS THE EU ALREADY BUILT TO ADDRESS THIS?

A toolkit has been accumulating for years to close that gap:

• Under the 2014 Directive, access for non-EU operators depends on the EU’s international commitments. Article 25 guarantees no-less-favourable treatment to operators, goods, and services from countries covered by the GPA or another EU trade agreement; everyone else, from non-covered third countries, gets no such guarantee. The aim, reflecting international law obligations, was always to nudge more countries from the second category into the first.
• The International Procurement Instrument (IPI), adopted in 2022 after a difficult legislative history, regulates measures concerning economic operators, goods, and services from non-covered third countries. Under the IPI, access to EU procurement markets can be adjusted, through score adjustments or outright exclusion, once a Commission investigation finds that EU operators, goods, or services face impaired access in the relevant third country.
• The Foreign Subsidies Regulation puts the potential distortive effect of foreign government subsidies on EU procurement procedures under scrutiny.¹ Where a subsidy is found to have given a bidder an unfair advantage, the Commission can take measures.
• The Anti-Coercion Regulation lists exclusion from EU procurement among the countermeasures available to the Union when a third country uses economic coercion.
• The Kolin and Qingdao rulings from the Court of Justice of the EU (CJEU), handed down five months apart, addressed the access of economic operators from countries that are neither GPA parties nor covered by a procurement-related trade agreements, Turkish operators in one case, Chinese in the other.
• A draft Industrial Acceleration Act (IAA), published ahead of the main procurement revision, assigns public procurement a strategic role in prioritising security, resilience, competitiveness, and the climate transition, largely by boosting demand for “made in EU” and “low-carbon” products in strategic-sector procurements.²

During the panel entitled “How much party autonomy in public contracts? New era of protectionism” of The PurpLE final conference, Public Procurement & Contracts: Navigating Today, Designing Tomorrow, held in Copenhagen in June 2026, Marko Turudić traces this accumulation and what it signals about the direction EU procurement law is heading.

WHO DECIDES WHETHER A THIRD-COUNTRY OPERATOR GETS IN?

In both of the above-mentioned rulings, the CJEU held that this question falls under the EU’s exclusive competence over the common commercial policy, meaning Member States cannot regulate third-country access themselves; that discretion rests instead with individual contracting authorities, decided case by case. On the same panel, Stéphane de La Rosa picks up this discretion question from the trade-law side, examining why it ended up with contracting authorities specifically rather than with Brussels or the Member States.

This shift has two layers, and it’s worth keeping them separate. One is protectionism aimed outward, at third countries: access, reciprocity, the emerging European preference regime. The other, less discussed, is the possibility of measures developing between Member States themselves, aimed not at third-country operators but at each other, a distinction the chair of the panel Piotr Bogdanowicz draws out:

However, it goes without saying that local-content requirements, dressed up in the language of resilience or European preference, sit awkwardly with the free-movement guarantees on which the Treaties are built.

WHAT DOES THE LEAKED DRAFT ACTUALLY SAY?

The leaked draft answers this itself, with a dedicated chapter on European preference. It defines “covered” status, tied to GPA membership or a trade agreement with the Union, and gives the Commission two distinct powers to work with. One lets it redraw who counts as covered at all: by delegated act, it can strip a country’s status where that country denies reciprocal treatment, where exclusion is needed to guard against dependency risks, or on public-order and security grounds.

The other concerns what happens once a contracting authority is dealing with a non-covered operator, good, service, or work. Contracting authorities get a menu of options here, restricting participation, rejecting non-covered tenders, favouring higher shares of Union content, but using it is discretionary, left to each authority’s own judgment, unlike the IAA, where exclusion is mandatory within the strategic sectors it covers. The Commission can convert that discretion into an obligation by delegated act too. And the chapter explicitly anticipates instruments like the IAA: where other EU legislation makes preference mandatory, this chapter supplies the operating mechanics underneath it.

HOW FAR DOES EUROPEAN PREFERENCE ACTUALLY GO?

The trajectory is becoming increasingly clear. What began as a concern about reciprocity has developed into a broader European preference agenda, with access to the EU public procurement market increasingly becoming a strategic instrument in its own right. The question is no longer simply whether third-country operators can access EU procurement markets, but under what conditions, and whether that access should be granted at all.

The leaked draft suggests that this shift may go beyond reciprocity, with European preference potentially justified by concerns about dependency, security, resilience and industrial capacity. At the same time, much of the decision-making is being pushed towards contracting authorities, leaving them to navigate an increasingly complex set of strategic considerations.

This raises a question for the next stage of EU procurement law: how far can European preference go, and how will it sit alongside the Union’s other strategic objectives? In particular, what happens when European preference, low-carbon requirements and broader sustainability objectives point in different directions? If procurement is expected to deliver on competitiveness, security, resilience, industrial policy and the climate transition at the same time, the challenge may no longer be whether EU procurement can accommodate another strategic goal, but how these goals are to be reconciled when they compete with one another.

Resources

1. Michal Kania and Marta Andhov “Restricting Freedom of Contract – the EU Foreign Subsidies Regulation and its Consequences for Public Procurement” (2024) 24 (1) Journal of Public Procurement 21-41 ↩︎
2. E Uysal, ‘Access Not Guaranteed: The Strategic Turn in EU Public Procurement and Implications for Economic Operators from Turkiye’ ↩︎