Public procurement: Commission refers 4 Member States to Court of Justice and opens a new case

Elżbieta Bieńkowska, Commissioner for Internal Market, Industry, Entrepreneurship and SMEs, said: "The new rules give administrations powerful tools to obtain better value for taxpayers' money, to steer public procurement into innovative, energy and resource efficient solutions and to insist on socially inclusive approaches. They introduce additional flexibilities to conduct tenders swiftly and efficiently, making it more attractive also for SMEs. Citizens and businesses would then benefit from the new opportunities as quickly as possible."

All Member States were obliged to notify the transposition of the latest public procurement rules by 18 April 2016. The Commission sent letters of formal notice to 21 Member States that had not transposed these rules in May 2016 and followed up with reasoned opinions addressed to 15 of those Member States in December 2016.

The 4 Member States have still not notified the transposition of the following legislation:

The Commission has thus decided to refer these 4 countries to the Court of Justice of the EU. The Commission will call on the Court to impose, depending on the Directive concerned, a daily penalty payment of € 52,972, € 42,377.6 and € 42,377.6 for Austria, of € 12,920, € 11,628 and € 11,628 for Luxembourg, of € 8,992.32 for Slovenia and of € 61,964.32 and € 123,928.64 for Spain, from the day of the judgement until these Directives are fully enacted and in force in national law.

At the same time, the Commission is sending a letter of formal notice to the Netherlands, since it has not qualified the Dutch housing corporations as contracting authorities even though they are involved in public contracts. The Commission considers that the Netherlands breached the transparency obligation in Directive 2014/23/EU and Directive 2014/24/EU. The Netherlands has two months to reply to the arguments raised by the Commission; otherwise, the Commission may decide to send a reasoned opinion.

Next steps:

In case the transposition remains incomplete and the Court of Justice of the EU confirms the Commission's view, the daily penalty would have to be paid from the date of the judgment or a later date set by the Court until the transposition is complete. The final amount of the daily penalty will be decided by the Court, but this cannot exceed the Commission's proposal.


The three directives on public procurement and concessions (Directives 2014/23/EU, 2014/24/EU, 2014/25/EU) adopted in 2014 have profoundly changed the way Member States and public authorities spend a large part of the €2 trillion used on European public procurement every year. The 2014 public procurement rules make public procurement in Europe more efficient and transparent. They encourage the use of electronic procedures, make it easier and cheaper for small and medium-sized enterprises (SMEs) to bid for public contracts, and help administrations achieve environmental, societal or innovative objectives when buying goods and services.

The Commission has in October 2017 put forward a package of measures to help public authorities take full advantage of the possibilities of the new rules. It encourages public authorities to use public procurement as a strategic tool to obtain better value for taxpayers money and to contribute to a more innovative, sustainable, inclusive and competitive economy.

In practice, under Article 260(3) of the Treaty on the Functioning of the EU (TFEU) if a Member State fails to transpose an EU Directive into national law within the required deadline, the Commission may call on the Court of Justice of the EU to impose financial sanctions. The penalties take into account:

  • the seriousness,
  • duration of the infringement,
  • the deterrent effect reflected in the ability to pay of the Member State concerned.

For More Information

  • On the key decisions in the November 2017 infringements package, see full MEMO/17/4767.