Non-discrimination Principle in Public Procurement 2026

Definition: The non-discrimination principle in public procurement prohibits contracting authorities from disadvantaging or favouring tenderers or candidates on extraneous grounds — in particular on the basis of nationality, origin or other characteristics irrelevant under procurement law.

Last updated: January 2026 · Legal basis: Art. 18 TFEU, Directive 2014/24/EU Art. 18(1), GWB § 97(2), BVergG 2018 § 20(1)

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Non-discrimination as a cornerstone of procurement law

The non-discrimination principle is, alongside the principle of transparency and the principle of competition, one of the three fundamental pillars of European procurement law, and it derives directly from the fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU). Article 18 TFEU prohibits any discrimination on grounds of nationality within the scope of application of the Treaties. In the procurement context this means: every undertaking from an EU Member State must have the same opportunity to take part in public procurement procedures.

Article 18(1) of Directive 2014/24/EU codifies this principle at procedural level: contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

Prohibited forms of discrimination

The non-discrimination principle covers both direct and indirect discrimination.

Direct discrimination

Explicit preference for domestic tenderers or tenderers from particular regions, e.g.:

• Limiting the tender to undertakings with their registered office in the country
• Favouring local providers in the evaluation
• Requiring a local establishment as a selection criterion without objective justification

Indirect discrimination

Formally neutral requirements that in practice disadvantage tenderers from other countries or regions, e.g.:

• Language requirements going beyond the subject matter of the contract
• Requiring national certifications without recognising equivalent foreign evidence
• Short tender deadlines that leave foreign tenderers no realistic chance to compete

Permissible differentiations

Not every difference in treatment amounts to discrimination — objectively justified differentiations are permitted.

Permissible differences include:

• Selection requirements (e.g. evidence of a particular professional qualification), provided they are necessary for the contract and proportionate
• Requirements that the contractor comply with certain national standards (where strictly necessary for performance)
• Language requirements where the subject matter objectively demands them (e.g. local advisory services)

Non-discrimination and regional procurement

One of the most frequent misapplications of the non-discrimination principle concerns regional support measures: contracting authorities may not build regional preferences into procurement procedures (e.g. bonus points for local providers). Such measures infringe the non-discrimination principle and — where there is cross-border relevance — the fundamental freedoms of the TFEU.

Legal consequences of breaches

Breaches of the non-discrimination principle may be invoked by affected tenderers in review proceedings. In such proceedings, the contracting authority must demonstrate that its requirements are objectively justified and proportionate.

FAQ

May a contracting authority give preference to SMEs? Indirectly, yes: instruments such as division into lots (§ 97(4) GWB) make participation easier for SMEs without favouring or discriminating against individual undertakings. Direct preference for particular SMEs, by contrast, would be discriminatory.

Does the non-discrimination principle also apply to undertakings from third countries (outside the EU)? Not automatically. The Union-law non-discrimination principle primarily protects EU tenderers. Third-country undertakings can only invoke the principle where an international agreement (e.g. the WTO Government Procurement Agreement, GPA) so provides.

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