Non-Discrimination in Public Procurement

Definition: The principle of non-discrimination is a fundamental principle of European procurement law under Art. 18(1) of Directive 2014/24/EU. It requires public contracting authorities not to disadvantage economic operators on grounds of nationality, place of establishment or origin, and covers both overt and concealed forms of discrimination.

Last updated: January 2026 · Legal basis: Art. 18(1) Directive 2014/24/EU; Art. 18, 34, 49, 56 TFEU; § 97(2) GWB; § 19 BVergG 2018

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What is the principle of non-discrimination?

The principle of non-discrimination prohibits any objectively unjustified unequal treatment of bidders and candidates in the procurement procedure, in particular treatment based on the nationality or place of establishment of the undertaking.

The principle of non-discrimination is anchored on several legal levels:

Primary law: Art. 18 TFEU contains the general prohibition of discrimination on grounds of nationality. The fundamental freedoms (Art. 34 ff., 49 ff., 56 ff. TFEU) prohibit restrictions on the free movement of goods, freedom of establishment and freedom to provide services. These prohibitions have direct effect and require no transposition by national law.

Secondary law: Art. 18(1) Directive 2014/24/EU expressly codifies the principle of non-discrimination as a fundamental procurement-law principle. It applies to the entire procurement procedure, from the specification of services through the suitability requirements to the award of contract.

The principle of non-discrimination distinguishes two forms of discrimination:

• Overt (direct) discrimination: express disadvantaging on grounds of nationality, e.g. exclusion of foreign bidders or the requirement of a domestic place of establishment as a suitability criterion.
• Concealed (indirect) discrimination: apparently neutral requirements that in practice predominantly disadvantage bidders from certain countries or regions without objective justification. Examples: excessively specific regional reference requirements; language requirements going beyond what is necessary for performance of the contract; technical specifications limited to national standards.

Significance and function

The principle of non-discrimination is the fundamental precondition for the realisation of the European internal market in public procurement: only where all economic operators, regardless of their origin, have equal access can genuine competition emerge.

Technical specifications: A central field of application of the principle of non-discrimination is the contracting authority's technical requirements. Art. 42 of Directive 2014/24/EU requires that technical specifications be formulated so as not to restrict competition without objective justification. Reference to national standards without acknowledging equivalent European or international standards may be discriminatory (see product neutrality).

Suitability requirements: Selection criteria such as references, turnover thresholds and certification requirements must be proportionate and non-discriminatory. A requirement of references exclusively from the domestic market would generally be inadmissible.

Division into lots: The obligation to divide contracts into lots under Art. 46 Directive 2014/24/EU also serves the principle of non-discrimination, as splitting larger contracts facilitates market access for smaller undertakings, which often come from other Member States.

Consequences of breach: Breach of the principle of non-discrimination gives the affected bidder a right of review. Courts and review chambers may order cancellation of the procurement procedure, prohibit the award, or — where the contracting authority has acted culpably — give rise to claims for damages. The European Commission may launch infringement proceedings in cases of systematic breach.

Legal basis

The principle of non-discrimination is anchored in EU primary and secondary law and in national procurement laws.

• EU primary law: Art. 18, 34, 49, 56 TFEU
• EU secondary law: Art. 18(1) Directive 2014/24/EU; Art. 36(1) Directive 2014/25/EU; Art. 3(1) Directive 2014/23/EU
• Austria: § 19(1) BVergG 2018 (equal treatment and non-discrimination as principles)
• Germany: § 97(2) GWB; § 2 VgV

Related terms

• Principle of equal treatment
• Product neutrality
• Public procurement law
• Procurement procedure
• Award criteria
• Review procedure
• Tender
• Cascade principle

FAQ

Is the requirement that an undertaking have its registered office in Austria or Germany permissible as a suitability criterion? No. Requiring a domestic place of establishment as a suitability criterion is unlawful direct discrimination, because it excludes foreign EU bidders. Exceptions may apply only under very narrow conditions (e.g. for activities that, for security reasons, require physical presence in the country).

May contracting authorities require references exclusively from their own country? No. Reference requirements that accept only domestic experience are generally inadmissible as indirect discrimination. Comparable references from other EU Member States must in principle be recognised. A restriction may only be justified where the specific conditions of the contract country objectively require domestic experience and the requirement is proportionate.

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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.