Appeal Instance in Public Procurement Law 2026

Definition: The appeal instance in public procurement law is the competent Higher Regional Court, which decides on immediate appeals against decisions of the public procurement tribunal and thus forms the second and usually final factual review instance in procurement review proceedings.

Last updated: January 2026 · Legal basis: Sections 171–181 GWB, Section 116 GWB

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What is the appeal instance?

The Higher Regional Court as the appeal instance forms the second tier of the two-tier German procurement remedies system: public procurement tribunal (first tier) and Higher Regional Court (second tier).

The chain of instances in German procurement review law is deliberately kept short to avoid permanently blocking the procurement procedure. Following the decision of the public procurement tribunal, an immediate appeal can be lodged with the competent Higher Regional Court. There is, in principle, no further ordinary instance (e.g. the Federal Court of Justice); the BGH can only be called upon, with leave to appeal, on legal questions of fundamental importance.

Competent Higher Regional Courts

Which Higher Regional Court has jurisdiction as the appeal instance depends on the public procurement tribunal that issued the decision.

In Germany, the Higher Regional Court in whose district the public procurement tribunal competent for the contracting authority is located is the competent court. For decisions of the federal public procurement tribunals (at the Federal Cartel Office), the OLG Düsseldorf is generally responsible. For decisions of the state procurement tribunals, the respective Higher Regional Court of the federal state is competent.

Proceedings before the appeal instance

The appeal proceedings before the Higher Regional Court are designed to be expeditious and follow special procurement-law procedural rules.

Essential procedural features:

• Mandatory legal representation: All parties must be represented by a lawyer admitted to the Higher Regional Court
• Short deadlines: The appeal must be lodged and substantiated within two weeks of service of the public procurement tribunal's decision
• Suspensive effect: The appeal has no automatic suspensive effect; however, the complainant may apply for suspension of enforcement
• Oral hearing: The Higher Regional Court generally holds an oral hearing (Section 176 GWB)
• File inspection: The Higher Regional Court reviews the case on the basis of the procurement file and the parties' submissions

Decision-making powers of the Higher Regional Court

As the appeal instance, the Higher Regional Court decides as a fully-fledged review body and is not limited to a review of points of law.

The Higher Regional Court may:

• Dismiss the appeal as inadmissible
• Reject the appeal as unfounded
• Annul the decision of the public procurement tribunal and refer the case back to it
• Decide on the matter itself and require the contracting authority to take certain measures

Further legal remedies

A further appeal on points of law to the Federal Court of Justice against the decision of the Higher Regional Court is only possible in narrowly defined exceptional cases.

A further appeal on points of law is admissible if the Higher Regional Court has granted leave because the legal question is of fundamental importance (Section 179 GWB). The BGH then only decides on questions of law, not on questions of fact.

FAQ

Can the proceedings before the Higher Regional Court permanently block the procurement procedure? The court is expected to decide as swiftly as possible. However, upon application, it may suspend enforcement of the public procurement tribunal's decision, which can lead to a temporary block.

Is there an appeal instance for the sub-threshold area as well? In the sub-threshold area, there is no statutorily regulated chain of instances comprising the public procurement tribunal and the Higher Regional Court. Legal protection here must be sought via the administrative courts or civil claims, which in practice is significantly more difficult.

Is the Higher Regional Court also competent for interim relief? Yes. The Higher Regional Court decides, upon application, on the suspension of enforcement of the public procurement tribunal's decision and thus on interim relief in the appeal proceedings.

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Last updated: January 2026 All information without guarantee. For legally binding advice, please consult a law firm specialising in public procurement law.