Cartel Procurement Law 2026
Cartel procurement law: the part of German public procurement law governed by the GWB above EU thresholds, named after competition (antitrust) law.
Definition: Cartel procurement law refers to the part of German public procurement law codified in Part Four of the Act against Restraints of Competition (GWB, §§ 97–184) that applies to procurements above the EU thresholds and is enforced by the public procurement tribunals as adjudicating bodies under antitrust law.
Last updated: January 2026 · Legal basis: GWB §§ 97–184; VgV; SektVO; KonzVgV; VSVgV
What is Cartel Procurement Law?
Cartel procurement law (Kartellvergaberecht) is the umbrella term for the procurement regime codified in the GWB that transposes the EU procurement directives into German law and governs competition for public contracts above the thresholds. The name does not mean that procurements are linked to cartels; rather, it reflects the fact that German procurement law was historically anchored in the GWB – the German antitrust act – and that review is handled by the public procurement tribunals of the federal and state cartel authorities.
Cartel procurement law applies to all procurements that exceed the EU thresholds. Below those thresholds, sub-threshold procurement law applies (UVgO, VOB/A Part 1, state-level procurement statutes).
Sources of Cartel Procurement Law
Cartel procurement law consists of a multi-tier framework of statutes and regulations.
- GWB §§ 97–184: core provisions of procurement law, legal remedies (public procurement tribunal, immediate appeal)
- VgV (Procurement Regulation): detailed rules for supply and service contracts in the classical sector
- SektVO (Sectors Regulation): procurement by sector contracting entities (energy, transport, water, postal services)
- KonzVgV (Concession Award Regulation): concession awards
- VSVgV (Defence and Security Procurement Regulation): defence and security-sensitive procurement
- VOB/A Part 2: works contracts above the thresholds
Legal Remedies under Cartel Procurement Law
Cartel procurement law provides a specific legal remedies path that differs from the administrative-law or civil-law remedies applicable to sub-threshold procurements.
The remedies path is structured in two tiers:
- Public procurement tribunal (§§ 155 et seq. GWB): the primary review body; the tribunals of the federal government (attached to the Federal Cartel Office) and of the federal states have jurisdiction. Proceedings carry fees, are generally non-public, and conclude with a decision.
- Higher Regional Court (§ 171 GWB): immediate appeal against decisions of the tribunal to the competent Higher Regional Court (cartel senate). The Federal Court of Justice (BGH) decides at last instance (§ 179 GWB).
Distinction from Sub-threshold Procurement Law
Cartel procurement law applies only above the thresholds; below the EU thresholds different rule sets apply without formal tribunal review.
| Feature | Cartel procurement law (above) | Sub-threshold procurement (below) |
|---|---|---|
| Thresholds | At and above EU thresholds | Below EU thresholds |
| Primary source | GWB §§ 97 et seq. | UVgO, VOB/A Part 1, state procurement statutes |
| Review | Public procurement tribunal, Higher Regional Court | Varies (tribunal, administrative court, no formal remedies) |
| EU dimension | Transposition of EU directives | EU primary law principles only |
Related Terms
- Procurement Regulation (VgV)
- Review Procedure
- Concession Award Regulation
- State-level Procurement Statutes
FAQ
Why is it called "cartel procurement law" when it has nothing to do with cartels? The name has historical roots: German procurement law was anchored in the GWB (Act against Restraints of Competition) when the EU procurement directives were transposed in 1998. Because that act traditionally contains antitrust law, the term "cartel procurement law" became established usage for the procurement portion of the GWB.
Does cartel procurement law also apply to private undertakings? In principle, no. Cartel procurement law binds contracting authorities. Private undertakings are only subject to it where they act as sector contracting entities or where they receive subsidies that establish contracting authority status.
What happens if a contracting authority fails to apply cartel procurement law where it should? A direct award in breach of procurement law (a so-called "de facto" award) can be challenged by passed-over bidders before the public procurement tribunal. The possible consequence is a finding that the concluded contract is ineffective.
Last updated: January 2026 All information provided without guarantee. For legally binding advice, please consult a law firm specialising in public procurement law.
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