Effective primary legal protection under public procurement law currently exists only for public contracts with a contract value of 5,404,000 euros or more in the construction sector and for concessions; for supply and service contracts, the threshold is 216,000 euros; 432,000 euros for supply and service contracts awarded by sectoral contracting authorities and in the defense sector, and 140,000 euros for supply and service contracts awarded by the highest and upper federal authorities. This so-called “above-threshold” category accounts for less than five percent of all public contracts. For contracts below these EU thresholds (sub-threshold contracts), which account for approximately 95 percent of all tenders, the only recourse is the largely ineffective civil law remedy—if the bidder even becomes aware of the contract award before it is made. This is unacceptable.

Introduce effective legal protection under public procurement law for small contracts as well

Companies need effective legal protection under public procurement law for contracts below the EU thresholds. This would strengthen the competitive environment in favor of small and medium-sized enterprises. Small and medium-sized enterprises are particularly affected, as they frequently participate in public contracts with smaller volumes. The federal government should follow the example of other EU member states that have long had effective legal protection in the sub-threshold sector.

Eliminate Arbitrariness in Effective Legal Protection

Many factors support the harmonization of legal protection in both the above-threshold and below-threshold sectors. One is the adjustment of EU thresholds, which occurs regularly every two years. For example, in 2013, the threshold for construction contracts was still five million euros; in 2017, it was 5.225 million euros; and as of January 1, 2026, the threshold is 5.404 million euros. Linking effective legal protection in public procurement to the thresholds thus means that a contract value that was above the thresholds before the adjustment may fall below them after the adjustment. As a result, effective legal protection is no longer granted. This arbitrariness is incomprehensible and must therefore be eliminated.

Improving the Quality of Public Tenders

Effective primary legal protection under public procurement law in the sub-threshold range can also encourage more careful preparation of contract awards and thus lead to an improvement in the quality of public tenders. Developments since the introduction of effective legal protection in the above-threshold range have impressively demonstrated this.

Ending “parochial politics”

The current legal situation, which lacks effective primary legal protection in the below-threshold sector, encourages procurement practices that amount to “parochialism,” since there are no sanctions for violations of procurement regulations. Anyone who takes the principles of competition, transparency, and non-discrimination seriously must advocate for an end to this situation.

What constitutes effective legal protection under public procurement law?

Essential factors for effective legal protection in below-threshold procurement law are: advance notice of public contracts to be awarded, preventing the award of a contract before a review body has made a decision (suspensive effect), the principle of investigation and the right to inspect case files, as well as a short duration of proceedings. Added to this is the short duration of proceedings before the public procurement review bodies (procurement chambers/procurement senates of the higher regional courts). Their jurisdiction should also be established for contracts below the threshold. This would allow for the utilization of the expertise available there and avoid fragmented jurisdictional authority for similar cases involving the same public procurement requirements.