Primary Law in Public Procurement 2026

Definition: In the context of EU procurement law, primary law refers to the directly applicable provisions of the EU treaties (TEU, TFEU) and the fundamental freedoms derived from them, which form the highest-ranking legal source and override all public procurement.

Last updated: January 2026 · Legal basis: TFEU, TEU, ECJ case law

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Primary law as the highest legal source

EU primary law – consisting of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) – constitutes the highest level of the European legal order and shapes the whole of procurement law. Primary law is followed by secondary law (directives, regulations) and finally national law. Primary law applies directly and overrides conflicting national law.

Relevant fundamental freedoms

For procurement law, the following TFEU fundamental freedoms are particularly relevant, imposing non-discrimination requirements and transparency obligations on public contracting authorities:

• Free movement of goods (Art. 34 et seq. TFEU): Prohibition of quantitative import and export restrictions; relevant for the procurement of goods.
• Freedom to provide services (Art. 56 et seq. TFEU): Right to provide services cross-border; central to service contracts.
• Freedom of establishment (Art. 49 et seq. TFEU): Right to take up and pursue self-employed activities in other Member States.
• Free movement of capital (Art. 63 et seq. TFEU): Relevant for concessions and shareholdings.

Significance below the thresholds

Primary law gains particular importance below the thresholds, where the EU procurement directives do not apply directly, but the primary-law principles of non-discrimination and transparency continue to apply. In settled case law (including Case C-324/98 Telaustria), the ECJ has made clear that public contracting authorities must observe the fundamental freedoms even for awards below the EU thresholds where the contract has a cross-border interest.

Principles of procurement law derived from primary law

The central principles of procurement law – equal treatment, non-discrimination, transparency, proportionality and mutual recognition – are derived from EU primary law. These principles are not only codified in the procurement directives, but apply as overarching legal principles regardless of whether a specific contract falls within the scope of the directives.

FAQ

Does primary law also apply to small contracts? Yes, where a cross-border interest exists. For purely local contracts without cross-border relevance, the influence of primary law is limited.

What is the difference between primary and secondary law? Primary law refers to the EU treaties themselves; secondary law refers to the directives, regulations and decisions adopted on the basis of the treaties.

Can a bidder rely directly on primary law? Yes, where it is directly applicable. In procurement procedures, bidders may invoke primary-law non-discrimination requirements before national courts and procurement review authorities.

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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.