Inhalte
On the upcoming Wednesday, July 16, 2025, the Federal Cabinet will discuss the draft bill for the Act to Accelerate the Award of Public Contracts (Procurement Acceleration Act). A possible adoption of this reform of procurement law could have fatal consequences for the design of primary legal protection in procurement procedures.
Background of the planned procurement law reform
Already in the last legislative period, there were efforts to reform procurement law. Bureaucracy was to be simplified and reduced, procedures accelerated and digitalized, and start-ups and innovations strengthened. However, these efforts in the form of the Procurement Transformation Package ultimately fell victim to discontinuity.
Building on this, the current government is planning various changes to procurement law provisions to make public procurement simpler, faster, and more flexible.
Elimination of the suspensive effect: What does this mean?
One of the most significant changes is the intended elimination of the suspensive effect of a legal remedy against the decision of the procurement review body rejecting the application for review. The coalition agreement already states: “We will accelerate the award of public contracts by eliminating the suspensive effect of legal remedies against decisions of the procurement review bodies to the Higher Regional Courts.” Specifically, § 173 (1) and (2) GWB are to be replaced by the following provision: “If the procurement review body has rejected the application for review, the immediate complaint shall have no suspensive effect with respect to the decision of the procurement review body.”
If the applicant is thus unsuccessful at first instance, the prohibition on awarding the contract lapses immediately with the decision of the procurement review body and not only after the expiry of the appeal period. This is intended to accelerate the award of public contracts.
However, there will then be virtually no more second-instance proceedings. The primary legal protection interest of the applicant is to obtain the contract, not to have it established after the contract has been awarded to a competitor that he was actually right. This restriction of judicial review could also endanger the uniformity and further development of procurement law jurisprudence if the Higher Regional Courts no longer have a practical opportunity to amend the decisions of the procurement review bodies.
Compatibility of the new regulation with EU law
This raises the legal question of whether such a new regulation is still compatible with EU directive law and constitutional law. According to the reasoning of the draft bill, sufficient primary legal protection would still be guaranteed, as European law only requires one judicial instance.
Article 2 (9) of Directive 2007/66/EC stipulates that an alleged unlawful measure of the review body or an alleged infringement in the exercise of its powers must be capable of being the subject of an action or review by another body independent of the contracting authority and the review body, which is a court within the meaning of Article 234 of the Treaty.
According to the explanations in the draft bill of the Federal Ministry for Economic Affairs and Energy, the procurement review bodies are courts capable of review within the meaning of Article 267 TFEU (formerly Article 234 EC Treaty), because the ECJ has affirmed their right to refer questions. Therefore, no further review by another court is required. However, it is well known that procurement review bodies under German law are review bodies and not courts, so there could already be an incompatibility with the intention of the directive.
Compatibility of the new regulation with constitutional law
According to the reasoning of the draft bill, there is also no unconstitutional violation of the principle of legal protection under Article 19 (4) of the Basic Law. Its inapplicability was established by the Federal Constitutional Court in its decision of June 13, 2006 (1 BvR 1160/03), since the state, in the role of purchaser, does not fundamentally differ from other market participants and therefore does not exercise public authority. However, this argument overlooks the fact that it is a decision in the below-threshold area, where procurement law, in the opinion of the Federal Constitutional Court, remains internal administrative law. The decision is therefore not readily transferable to the above-threshold area, which is precisely intended to enforce subjective rights.
Hope for progress instead of regression in procurement law
As early as the late 1990s, the German legislator assumed that the procurement directives also serve to enforce fair market access opportunities for companies and thus establish subjective rights. The objective in the explanatory memorandum to the law at that time included compliance with procurement regulations by introducing “necessarily […] judicial legal protection” with regard to Article 19 (4) of the Basic Law. Consequently, the right of companies to compliance with procurement regulations (now regulated in § 97 (6) GWB) as well as the appeal process from the procurement review bodies to the Higher Regional Court, which still applies today, were established. The de facto abolition of this appeal process would therefore be more of a step backward than forward.
The EU Commission is also currently planning a reform of procurement law, which is expected in the second half of 2026. It therefore remains to be seen which national changes will actually be implemented this year and how a change in European law will affect this. Ultimately, there remains hope that the planned changes to § 173 (1) GWB will not be implemented, at least after the hearing of the associations.
