Public Procurement

REVIEW OF PUBLIC PROCUREMENT REGIME

Adoption of a proposal by the European Commission for a Public Procurement Act to revise the Public Procurement Directives has been rescheduled to September 2026.

INTERNAL MARKET RESILIENCE

Regulation (EU) 2024/2747 establishing a framework of measures related to an internal market emergency and to resilience of the internal market applies from 29 May 2026. As previously noted, it establishes measures to effectively anticipate, prepare for and respond to the impact of crises on the internal market, including rules on public procurement during the internal market vigilance and emergency modes. Title V provides for public procurement by the Commission on behalf of Member States, as well as joint procurement, during a vigilance mode or emergency mode, and procurement by the Member States during an emergency mode.

CONTRACT MODIFICATIONS

Article 72 of the Public Contracts Directive sets out circumstances in which modifications of contracts “during their term” are permissible. In Case C-820/24, the CJEU ruled that Article 72 means that a public contract cannot be considered to constitute a contract “during its term” where the successful tenderer has performed in full the services which were to be provided under the contract at issue, the contracting authority has definitively received those services and the successful tenderer has submitted the final invoice, even if that contracting authority has not yet paid the price set out therein. This follows the Advocate General’s Opinion, where we looked at the background of the case (see our January 2026 horizon scanner). The judgment indicates that Article 72 cannot be relied on to award additional works to an incumbent contractor after performance is complete, even where payment has not been made.

EXCLUSION OF TENDERERS

Case C-268/25 concerns a request for a preliminary ruling relating to exclusion of tenderers under the Public Contracts Directive and Utilities Directive, under which economic operators that have submitted a tender and have not fulfilled their obligation to pay taxes on time are to be mandatorily excluded from the procurement procedure.

The Court found that the relevant provisions prevent national rules whereby a temporary grouping of undertakings must be excluded from a public procurement procedure because it cannot exclude or substitute one of its members, which fulfilled its (definitively established) obligation to settle its tax debts only after the expiration of the tender submission deadline, merely because it proposed doing so only after it was informed of the existence of the exclusion ground by the contracting authority. This follows the Advocate General’s Opinion (which we considered in our May 2026 horizon scanner).