Above-Threshold Area in Public Procurement Law 2026
Above-threshold area in public procurement law: EU-wide tender obligation once thresholds are reached – legal framework, procedure types, deadlines and legal protection.
Definition: The above-threshold area in public procurement law refers to the area of public procurement in which the estimated contract value exceeds the thresholds set by the EU and thus the full EU procurement law with its strict transparency, procedural and legal protection requirements applies.
Last updated: January 2026 · Legal basis: Directives 2014/24/EU, 2014/25/EU, 2014/23/EU; GWB/VgV; BVergG 2018
Definition and delimitation
The above-threshold area is the scope of application of the EU procurement directives: as soon as the estimated total contract value (net, excluding VAT) exceeds one of the EU thresholds, the full requirements of EU procurement law apply, including the EU-wide notice obligation, the minimum deadlines and the special legal protection regime. It stands in contrast to the below-threshold area, in which simplified national rules apply.
Current thresholds (2024/2025)
The thresholds are adjusted every two years by the European Commission; the following values apply for 2024/2025:
| Type of contract | Public contracting authorities (central) | Public contracting authorities (other) | Sector contracting authorities |
|---|---|---|---|
| Supply and service contracts | EUR 143,000 | EUR 221,000 | EUR 443,000 |
| Works contracts | EUR 5,538,000 | EUR 5,538,000 | EUR 5,538,000 |
| Concessions | EUR 5,538,000 | EUR 5,538,000 | EUR 5,538,000 |
Legal framework in the above-threshold area
In the above-threshold area, the full GWB procurement law (§§ 97 et seq. GWB) in conjunction with the subordinate regulations (VgV, SektVO, KonzVgV, VSVgV) applies in Germany. In Austria, the above-threshold area of the BVergG 2018 applies (Part 1, Section 2: Classic area; Section 3: Sector area).
The EU directives do not have direct effect; they are transposed by national law. In the event of transposition deficits, bidders may, under certain circumstances, rely directly on the directives.
Procedure types in the above-threshold area
In the above-threshold area, the following types of procedure are available to public contracting authorities:
| Procedure type | Legal basis | Use case |
|---|---|---|
| Open procedure | Art. 27 Dir 2014/24/EU; § 119 para. 3 GWB | Standard procedure; unrestricted participation |
| Restricted procedure | Art. 28; § 119 para. 4 GWB | Pre-selection through call for participation |
| Negotiated procedure with notice | Art. 29; § 119 para. 5 GWB | Particular complexity; urgency |
| Negotiated procedure without notice | Art. 32; § 119 para. 5 GWB | Narrow exemptions |
| Competitive dialogue | Art. 30; § 119 para. 5 GWB | Very complex contracts |
| Innovation partnership | Art. 31; § 119 para. 7 GWB | Development + purchase of new solutions |
The open procedure is the standard procedure type; all other procedures require particular justifications.
Notice obligation (TED)
In the above-threshold area, EU-wide notice via TED (Tenders Electronic Daily) is mandatory; without this publication, an unlawful de facto award exists. The notice is published using the standardised eForms format (mandatory from October 2023 in Germany, from February 2024 in Austria).
Minimum deadlines
The above-threshold area prescribes minimum deadlines that ensure that bidders from all EU Member States have sufficient time to prepare.
In the open procedure, the bid deadline is regularly 35 days from dispatch of the notice; in the case of electronically available procurement documents it can be reduced to 30 days, and in the case of a prior information notice published in advance to 15 days.
Legal protection in the above-threshold area
The above-threshold area has a specific, two-instance review system: in Germany these are the public procurement chambers (1st instance) and the higher regional courts as appeal courts (2nd instance); in Austria the Federal Administrative Court or the regional administrative courts.
The procedure is designed to correct unlawful procurement decisions even before contract conclusion (primary legal protection). The initiation of a review procedure generally results in a provisional award prohibition (automatic suspensive effect under § 169 GWB).
FAQ
What is the difference between above- and below-threshold area? In the above-threshold area, the full EU procurement law with EU-wide notice obligation, strict deadlines and special legal protection applies; in the below-threshold area, simplified national rules apply.
How is the threshold calculated? The decisive factor is the estimated total contract value net (excluding VAT) at the time of initiation of the procurement procedure; in the case of lots, the total amount of all lots is decisive.
What happens if a contracting authority has mistakenly awarded in the below-threshold area although the threshold was exceeded? There is an unlawful direct award; unsuccessful bidders can initiate a review procedure and, if appropriate, apply for a finding of ineffectiveness of the contract.
Last updated: January 2026 All information without guarantee. For legally binding information, please consult a law firm specialising in procurement law.
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