Community Law in Procurement Law 2026

Community law in procurement law: EU primary and secondary law as the foundation of European procurement law – directives, regulations and the principle of primacy.

Definition: Community law (today: Union law) refers to the entirety of European Union legal norms – consisting of primary law (the Treaties) and secondary law (directives, regulations, decisions) – which forms the basis of the European harmonisation of public procurement law.

Last updated: January 2026 · Legal basis: TFEU; Directives 2014/24/EU, 2014/25/EU, 2014/23/EU; CJEU case law

Concept and historical development

The term "Community law" stems from the era of the European Community (EC) and has, since the entry into force of the Lisbon Treaty in 2009, been replaced by the more accurate term "Union law"; in practice, however, both terms are still used synonymously. In procurement law, Community/Union law has outstanding importance, as it sets the essential legal framework for the award of public contracts above the EU thresholds.

European harmonisation of procurement law began with the first EC procurement directives in the 1970s and was brought up to date with Directives 2014/24/EU, 2014/25/EU and 2014/23/EU.

Primary law as a foundation of procurement law

EU primary law – in particular the Treaty on the Functioning of the European Union (TFEU) – contains the fundamental freedoms and general legal principles that shape procurement law even below the thresholds.

Relevant primary law provisions include:

Art. 18 TFEU: prohibition of discrimination
Arts. 34–37 TFEU: free movement of goods
Art. 49 TFEU: freedom of establishment
Art. 56 TFEU: freedom to provide services
Art. 345 TFEU: Member States' property regime
Art. 346 TFEU: security exemption

The CJEU has derived from these fundamental freedoms general procurement principles (transparency, equal treatment, mutual recognition) which apply even to contracts below the thresholds where they have a cross-border interest.

Secondary law: the procurement directives

Procurement-law secondary law consists of directives requiring Member States to adapt their national law accordingly – they are not directly applicable but require transposition.

The central procurement directives are:

Directive 2014/24/EU: classical procurement by public contracting authorities
Directive 2014/25/EU: utilities procurement (water, energy, transport, postal services)
Directive 2014/23/EU: concession procurement
Directive 89/665/EEC as amended by 2007/66/EC: legal protection (review procedures)
Directive 2009/81/EC: defence and security contracts

Primacy of Union law

Community/Union law enjoys primacy of application over national law; where a national procurement provision contradicts Union law, it must be set aside. This primacy has been recognised by the CJEU since the Costa v ENEL judgment (1964) and applies without restriction in procurement law. National courts and procurement review bodies are required to set aside national law that conflicts with Union law.

CJEU case law

The Court of Justice of the European Union (CJEU) has substantially developed European procurement law through its case law; its judgments are binding on all Member States. Landmark CJEU rulings in procurement law concern, among others, the Teckal exemption (in-house procurement), the incompatibility of HOAI minimum rates with Union law (C-377/17), questions of bidder reliability, and the scope of review obligations.

FAQ

Is Community law the same as EU law? Yes; "Community law" is the historical term; since the Lisbon Treaty (2009) the correct term is "Union law". The two terms are substantively identical.

Does EU procurement law also apply below the thresholds? Not directly; but the principles derived from primary law (transparency, equal treatment, prohibition of discrimination) also apply to contracts below the thresholds where they have a cross-border interest.

What does primacy of application mean for national procurement law? Where a national procurement provision contradicts EU law, it must not be applied by authorities and courts; EU law prevails.

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