Willem Janssen: ‘European public procurement legislation is becoming too complex’

European procurement rules overlap and sometimes contradict each other. This is evident from research conducted by professor Willem Janssen on behalf of the European Commission. His advice: go back to the drawing board and reform these rules as a whole.

A significant portion of European GDP, around 14 to 19 per cent, is spent through public procurement. In the Netherlands, this amounts to 86 billion euros annually, money that goes to ICT services, healthcare, or infrastructure projects, for example.

From three to more than sixty procurement directives

For a long time, procurement was regulated by only three European procurement directives. Janssen: 'The procurement legislation is intended to ensure that contracts are awarded in a fair and transparent manner. The current thinking is that it is not just about the lowest price, but also about a green and social world. We are spending money for future generations. What we saw was that governments continued to go for the lowest price and that little was achieved in terms of lower CO2 emissions, circular working and suchlike.'

That is why many additional rules have been added in recent years. There are now more than 60 directives and regulations that regulate procurement from the perspective of climate, trade and social inequality. Janssen: ‘Take, for example, a proposed rule that if you build a wind turbine, 70 per cent of the blades must be circular.’

On behalf of the European Commission, Janssen looked at the coherence of the procurement legislation. His research shows that not all of these rules are well aligned.

The sheer number of laws and rules means that a lot can go wrong

The rules are useful in themselves, but Janssen recognises that the sheer number of laws and rules means that a lot can go wrong. ‘This leads to fragmentation. Governments and market parties no longer know which rules apply and which laws are in the pipeline.’

In addition, some rules are formulated in far too broad terms. ‘This also leads to uncertainty about exactly which requirements you have to meet.’

Some rules contradict each other

And even more problematic: ‘Some rules contradict each other: even if you want to follow the law, it is impossible to comply with the rules.’

His advice to the European Commission is therefore to opt for an omnibus approach. 'Don't look at individual parts of the law, but reform all the rules at once. Look at them in context, choose what you think is important and, above all, keep in mind whether it is workable in practice and whether it will achieve your goal.'

Whether his advice will be taken on board will become clear next year. That is when the concrete proposals for the new procurement directives are due to be ready in Brussels.

More information

Willem Janssen is Endowed Professor of Public Procurement Law at Groningen University and Associate Professor of European and Dutch Public Procurement Law at Utrecht University.

The advice can be found via this link.

The complete study can be consulted on this website.