Közbeszerzési Jog 2026/3. – Tanulmány 
Roberto Caranta: Local content and local value in EU public procurement procedures / Roberto Caranta: Helyi tartalom és helyi érték az uniós közbeszerzésekben 
DOI: 10.55413/193.A2600301.KOJ 
A helyi/lokális tartalom vagy érték támogatása ellentétes az uniós közbeszerzési joggal. Az Európai Unió joga ugyan most is lehetővé teszi a megbízható közbeszerzési gyakorlatok és/vagy szélesebb társadalmi érdekek szolgálatának jogszerű alkalmazását, amelyek esetenként a helyi gazdaságok javára válva növelhetik a helyi értéket (bevételeket). Ezeket a lehetőségeket a közelgő reform során ki kell szélesíteni anélkül, hogy az amúgy is nehezen értelmezhető határokon átnyúló közbeszerzés miatt aggódnánk. A korrupcióval és más visszaélésszerű magatartásokkal kapcsolatos aggályok sem gátolhatják meg a helyes és jogszerű beszerzési gyakorlatokat, megmerevítve az uniós szintű közbeszerzési eljárásokat.  
Címkék: közbeszerzés, megkülönböztetésmentesség, helyi tartalom, helyi érték 
Pursuing local content or local value is against EU public procurement law. However, EU law already accommodates some possibilities to legitimately engage in sound procurement practices and/or pursue wider societal interests that may incidentally be beneficial to local economies, thus enhancing local value. Those possibilities should be expanded in the forthcoming reform without agonising about otherwise elusive cross-border procurement. Nor should concerns about corruption and other abusive practices deter from sound and legitimate buying practices, sclerotising award procedures across the EU.  
Keywords: public procurement, non-discrimination, local content, local value 
1. Introduction 
[1] Historically, European integration started with the creation of market without internal frontiers. However, creating a market was seen as a means rather than the end. Article 2 of the Treaty establishing the European Economic Community provided that “[i]t shall be the aim of the Community, by establishing a Common Market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, continuous and balanced expansion, increased stability, and accelerating the increase of the standard of living and closer relations between its Member States”. The Common Market was to be the tool to improve the life of the peoples in the then six Member States. The means to end nexus is less clear in the present Treaties. Article 3(3) of the Treaty on European Union (hereinafter referred to as “TEU”) states that “[t]he Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment”. The internal market seems to have gained a place of its own as it is followed by a full stop. However, the long list of desiderata that follows indicates that market integration is not alone, nor top among the objectives of the European Union (hereinafter referred to as “EU”). Rather, the internal market is to be considered as instrumental to a “highly competitive social market economy”. 
[2] The admissibility of measures of local content and local value in EU public procurement, concessions and public-private partnerships (PPPs) must therefore be evaluated not just in the light of market integration but in view of building a “highly competitive social market economy”. 
[3] This article will first trace the aims of EU public procurement legislation, recall the limited measures in which the traditional objective of increasing contracting across borders has been achieved and point at the emergence of new aims (Section 2). The core issue of the article – i.e. whether and within which limits local content and local value are allowed in procurement by law – will be analysed next (Section 3). However, as the 2014 directives are currently being revised, there is pressure to expand the space for local content and for local value in public procurement. Some possible sensible measures will then be proposed to enhance sound procurement practices mindful of wider general interests (Section 4). The conclusions will discuss some risks possibly associated with enhanced flexibility and plead for a differentiated approach (Section 5). 
2. The objectives of EU public procurement law 
[4] The directives on public contracts are firmly rooted in the legal Internal Market framework. For instance, the preamble of Directive 2014/24/EU of the European Parliament and of the Council on public procurement (hereinafter referred to as “Directive 2014/24/EU”) refers to Article 53(1), Article 62 and Article 114 of the Treaty on the Functioning of the European Union (hereinafter referred to as “TFEU”), the articles on free movement and the harmonisation of the rules on the Internal Market. The Court of Justice of the European Union (hereinafter referred to as “Court”) refers to the “fundamental rules of TFEU, in particular those relating to the free movement of goods, the freedom of establishment and the freedom to provide services”. In Case C–264/18. P.M. and Others, the Court moved its reasoning from Recital 1 of Directive 2014/24/EU, which indicates that the award of public contracts must comply with the principles of TFEU, including the provisions concerning the freedom of establishment and the freedom to provide services. The Court then referred to its settled case-law according to which “the purpose of coordinating, at European Union level, the procedures for the award of public contracts is to eliminate barriers to the freedom to provide services and goods and therefore protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State”. 
[5] The recent European Commission (hereinafter referred to as “Commission”) evaluation of the 2014 Directives indicated that cross-border procurement typically remained low, with only a small share of contracts awarded to firms established in other EU Member States or third countries. More specifically, according to a recent Study by the World Bank, only about 2 % of all awards and 4 % of the awarded value was granted to economic operators not established in the awarding country. However, the average level of indirect cross-border procurement is about one-fifth of overall procurement. 
[6] It is true that the Court and more recently the European Court of Auditors seem rather to refer to ‘competition’ tout court, but in so doing they are at odds with the legal bases legitimising the adoption of the directives. 
[7] Starting with the 2014 public procurement and concession directives and with an acceleration in the past few years, the objectives of EU public procurement law have been widened to include sustainability in different shades (green and socially responsible), innovation, resilience and more recently international trade and industrial policy aims. More specifically, more and more pieces of sectoral legislation have enlisted public procurement and the massive resources associated with it to pursue different policy objectives. 
[8] While arguably pursuing some of those objectives might dent competition tout court – for example if you exclude third country economic operators the number of bidders will often decrease – those pieces of sectoral legislation are keen in forbidding their use to discriminate within the Internal Market. For instance, Article 25(6) of the Net Zero Industry Act concerning ‘Sustainability and resilience contribution in public procurement procedures’ specifies that “[a] Member State shall not discriminate against, or subject to unjustified different treatment, a provider or net-zero products from another Member State”. 
[9] So far, therefore, the internal market logic of the EU public contracts legal framework seems to be very much intact. 
3. Local content and local value in EU procurement law 
[10] Given the link between the EU public contract law and the Internal Market, ‘buying local’ cannot be but very difficult if not impossible. This is the case, for sure, with outright discriminatory requirements in the contract documents. The early precedent is the well-known ‘Danish clause’ case, an infringement procedure concerning a procurement by Aktieselskabet Storebaeltsforbindelsen which was then responsible for drawing up the project and, as the contracting authority, for the construction of a road and rail link across the Great Belt, including the construction of a bridge across the Western Channel of the Great Belt. One clause of the general conditions which forms part of the contract documents (hereinafter referred to as “general conditions”) provides that “[t]he contractor is required to use to the greatest possible extent Danish materials, consumer goods, labour and equipment”. Unsurprisingly, the Court found that the tender procedure was conducted on the basis of a clause which was not in conformity with (then) Community law. 
[11] A subtler situation was analysed in Case C–234/03. Contse, a case concerning a procurement for services of home respiratory treatments and other assisted breathing techniques in the provinces of Caceres and Badajoz. Two requirements are of special interest here. On the one hand, the tenderer had to have at least one office open to the public for a minimum of eight hours a day, morning and afternoon, five days a week, in the provincial capitals concerned. On the other hand, award points were to be given to suppliers who, at the time of submission of the tenders, owned oxygen-producing factories situated within 1,000 kilometres of the province concerned. The requirements were justified by the fact that the service concerned the health of particularly vulnerable category of patients and by the ensuing need to ensure that the services are supplied at all times, reducing risks concerning supplies by favouring the tender which minimises those risks. The Court had none of this and held that the elements in the calls for tender were all liable to hinder or render less attractive the exercise of the freedom to provide services. 
[12] Furthermore, the Court held the requirement as to the office to be disproportionate, as a technical support service for longer hours was already foreseen and enough to ensure in the initial period that the life or health of patients was not put into jeopardy. Moreover, the tender documents provided for a transition period during which the undertaking already providing the service was to transfer the management of the service to the new contractor, in order to ensure that the treatment of patients is not interrupted. Concerning the award criterion, the Court was ready to admit that the “reliability of supplies may be included in the elements to be considered in order to ascertain the most economically advantageous tender in the case of a service […] which aims to protect the life and health of persons by providing a suitable and diversified production close to the place of consumption”. However, the Court did not consider the distance a relevant factor in assessing the reliability of supplies, as oxygen is bottled in specific plants that always hold a fifteen days stock as a minimum, which by the way makes the ownership of production plants irrelevant and ultimately not linked to the subject matter of the contract. 
[13] Another relevant case is Case C–552/13. Grupo Hospitalario Quirón. The procurement contracts at issue concerned the management of public services regarding surgical procedures in the fields of minor, general and digestive tract surgery, gynaecology, urology and traumatology and orthopaedic surgery. A clause in the technical specifications required that the tender’s premises were to be located in the municipality of Bilbao. The requirement was linked to the need to ensure proximity and accessibility of the private support hospital in the interests of patients, their families and the medical personnel from public hospitals who are required to travel to that establishment, criteria which are clearly inherent in the nature of the services sought. However, the Court observed that the requirement at issue, “having regard to the geographical location in the main proceedings, a territorial constraint on performance”, was by its nature not such as to enable those objectives to be achieved while ensuring equal and non-discriminatory access to those contracts by all tenderers. Those objectives might well be achieved by a hospital situated in a municipality adjacent to Bilbao, also considering that many patients who ought to receive the services reside outside of Bilbao. The facts of the case are somewhat specific. One might have retorted that it is easier to reach a hospital located in a regional capital rather than on the outskirts as roads and public transport lines tend to converge towards a main city. However, that might not be the case, and delimiting a proper area would have required complex studies not just on the transport networks but also on the population. What we have in the end is that the ‘geographical location’ criterion was struck down based on a very speculative understanding by the Court of the interest of patients and medical personnel. 
[14] Case C–234/03. Contse was upheld and even expanded in Case C–436/20. ASADE. The Court was ready to reaffirm its own precedents concerning the possibility to reserve the participation to procurement procedures concerning the provision of social services in the form of personal assistance to the benefit of non-profit organisations, and this even outside the specific – and quite strict – conditions set in Article 77 of Directive 2014/14/EU. However, the Court shut the door before any attempt to ‘localise’ the procurement. The arrangements laid down by a regional Spanish lawmaker were struck down because no EU-wide publicity had been foreseen. According to the Court, the specificity of the contracts at issue do not dispense contracting authorities from complying with the principle of transparency along with Article 75 of Directive 2014/24/EU which require the publication of a notice in the Official Journal of the European Union (OJEU). Moreover, and more disturbing, the Court declared illegal the selection criteria requiring that, from the time of submission of their tenders, tenderers are to be located in the territory of the place where the social services proposed to be provided. While willing to concede that to such a criterion may ensure the proximity and accessibility of the relevant social services in line inter alia with Article 1 of Protocol No 26 of the TFEU on services of general interest, the Court then refers to Case C–234/03. Contse to claim that “Even if the establishment of the economic operator in the territory of the place where it is called upon to provide the social services concerned is necessary in order to guarantee the proximity and accessibility of those services, such an objective could, in any event, be attained just as effectively by requiring that that the economic operator satisfies that condition only at the stage of performance of the public contract in question”. However, in Case C–234/03. Contse a transitional period during which the undertaking already supplying the service transfers management of the service to the new contractor was foreseen in order to ensure that treatment of patients is not interrupted. As far as it can be gauged from the judgment, nothing like this was foreseen in Case C–436/20. ASADE, thus heightening the risk that an essential service is sacrificed on the altar of a somewhat broader competition.  
[15] The Court is therefore ready to strike down any direct – and many indirect – procurement requirements leading to ‘localise’ public contracts, and to delay after the contract award the verification of legitimate requirements such as those relating to services that need to be provided in loco. 
[16] Case C–436/20. ASADE is specifically relevant here as it is representative of a more generalized trend in the case law to strike down on proportionality grounds what are sensible selection requirements and to procrastinate the verification of essential qualities of the contractor to the contract performance phase. As discussed elsewhere, while such an approach might favour wider participation in the award procedure, it exposes contracting authorities and ultimately the beneficiaries of services of general interests, including the weak and needy sections of the population, to finding only après coup that the contractor is not suited to perform its job thus compromising the quality and continuity of service provisions. 
[17] A limited and very indirect ‘localisation’ of public contracts may be achieved through other instruments that, while not targeted towards local economic operators to avoid breaches of the non-discrimination principle, may well benefit local economic operators, including SMEs, and this especially so in the case of non-specialised contracts. This is the case for preliminary market consultations under Article 40 of Directive 2014/24/EU. If they are held at least partly in presence such as in the case of town hall meetings, they are bound to attract proportionally more local companies. Subdivision into lots, a standard practice under Article 46 of Directive 2014/24/EU, favours SMEs and specifically, due to the limited value which make lots not very attractive for bidders from afar, local SMEs. A widespread trend favours short supply chains, especially for food products, which more often than not benefit local producers. 
[18] Some measure of ‘localisation’ of public procurement might be connected to the protection of cultural traditions. Cultural traditions are cherished in the EU. The last phrase in Article 3(3) TFEU indicates that the Union “shall respect its rich cultural and linguistic diversity and shall ensure that Europe’s cultural heritage is safeguarded and enhanced”. Article 167(1) TFEU provides that “The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore”. Arguably, procurement requirements related to cultural traditions that are necessarily local might be lawful under EU law as exceptions to the Internal Market free movement requirements. This might be the case with some food procurement stressing the locally traditional products – including ‘geographical indication’ (GI) products – in an educational setting. 
[19] Involving more local economic operators in public procurement is not just a matter of law. Organisational choices play an important role. Massive outsourcing of service provisions in the past few decades has led to bigger contracts thus disproportionally favouring large national and possibly multinational undertakings and much limiting the room for SMEs, including local SMEs. The example of catering in schools is much telling. Once outsourcing is reversed and school kitchens are directly managed by the local or regional authorities, local producers have easy access to much smaller procurement opportunities. Public contracts may fall below the EU threshold and may not be of certain cross-border interest, thus making the above discussed case law irrelevant. Rethinking the way public services are provided and making good use of the freedom of organization of service delivery enshrined in Article 14 and in Protocol 26 TFEU are a good way to make public procurement more local in a sensible way. Moreover, EU State aid law exempts from notification under EUR two million measures by local and regional authorities to offer training to the undertakings active on their respective territory, with a specific advantage for SMEs. This might be used to train local goods and service providers to bid in procurement contracts. 
4. The forthcoming reform of the 2014 directives 
[20] Out of fear of discrimination against bidders from other Member States, the present public procurement framework is characterized by much rigidity. For instance, under the last phrase of Article 33(1) of Directive 2014/24/EU, save in exceptional cases duly justified, in particular by the subject of the framework agreement, the term of a framework agreement shall not exceed four years. The term is even shorter for reserved contracts for certain services under Article 77(3), as their duration shall not be longer than three years. Contract changes, including extension of the duration of the contract, are much limited under Article 72. Additionally, the case law is even adding rigidity in name of competition as the Court imposed maxim value in framework agreements. Once this value is exceeded, a new award procedure needs to be launched. 
[21] The fear of favouritism limiting cross-border participation in public procurement in turn leads to a preference for those legal solutions that require frequent calls for tenders and consistent retendering. This approach, however, makes little if any common sense from a commercial standpoint. Corporate procurement tends to build reasonably stable and thus reliable supply networks rather than treating each contract as an isolated monad just for the sake of competition. Collaboration is the name of the game in procurement in the United Kingdom (hereinafter referred to as “UK”), including for the building of major infrastructures. Collaboration is needed to achieve sustainability goals. Even in a public law setting outside the EU, procurement is an important tool in the hands of the so-called ‘anchor institutions’, i.e. those big buyers that may allow a (local) economic network to thrive. 
[22] As already recalled, public procurement across the Member States stays stubbornly low, and this is probably due to very mundane causes such as the huge differences in languages and in legal and administrative traditions that make bidding across borders expensive and thus reduce or nullify any competitive advantage possibly enjoyed by an economic operator from another Member State. It is not by coincidence that indirect cross-border trade is more relevant as this entails economic operators having made the decision to invest and become local in the countries where they have established themselves. One might even suspect that the general right of establishment guaranteed under Article 49 TFEU is more conductive to (indirect) cross-border procurement than the whole massive secondary legislation embodied in the public contract directives. One might even wonder if the normative and organisational effort required by those are worth it given the limited results in terms of additional market opening. 
[23] A specific EU law of public contracts is, however, not going to disappear, not least because those rules are today instrumental in achieving strategic outcomes ranging from innovation to environmental social conditions, from resilience to industrial policy or international trade. As already indicated in Recital 2 to Directive 2014/24/EU, “[p]ublic procurement plays a key role in the Europe 2020 strategy […] as one of the market-based instruments to be used to achieve smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. For that purpose, the public procurement rules […] should be revised and modernised in order to increase the efficiency of public spending, in particular facilitating the participation of small and medium-sized enterprises (SMEs) in public procurement, and to enable procurers to make better use of public procurement in support of common societal goals”. 
[24] The many aims of EU public procurement law have been expanded considerably in the past few years, so that its rules are not just here to stay, but they may be expected to be strengthened in the forthcoming reform. In this context, possible local benefits from public buying should not be demonised. Ages ago already, in Case C–31/87. Beentjes the Court recognised the possibility to favour the employment of workers unemployed in the long term. Local economic operators are normally better placed to employ those workers and win the contract. 
[25] It is argued here that EU public contract rules should not stay misaligned with both commercial common sense and legitimate policy concerns only for the sake of the Internal Market and of wider competition. A number of measures might help in aligning public procurement more closely with those former benchmarks. There should be no strict limits to the duration of contracts and to the possibility of renewing those contracts when the contractor has performed its tasks well. The creation of long-lasting partnerships between public buyers and sellers should indeed be favoured to enhance quality of delivery. Market benchmarking could be used to limit the risks of developing abusive relationships. In a more general sense, competitive award procedures with negotiations should become standard procedure, as it is already the case in the utilities sectors, as they allow fine-tuning the needs of the contracting authority and entities to market reality. By the way, this is the approach now followed in UK providing for an open procedure and for a competitive flexible procedure as standard award procedure. In the same vein, preliminary market consultation should become a generally accepted practice. Generally speaking, sound public procurement procedures require somewhat reducing the distance from commercial procurement and in particular to embed more flexibility in buying practices in the EU. Moreover, sound public procurement requires making sure that a prospective contractor is suitable when awarding the contract, not afterwards as it is now required by the case law in pursuing a possible but in any case marginally wider cross-border competition. 
[26] From a public law perspective, the needs of SMEs should be taken seriously. So far, the approach is that any measure in favour of SMEs should not go against the principle of equal treatment among economic operators interested in bidding for public contracts. All measures taken in 2014 directives aim at most at reducing the competitive disadvantages of SMEs. However, as the Court has repeatedly held, “the principle of equal treatment, which is one of the fundamental principles of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified”. Arguably, SMEs find themselves in a different situation compared to larger economic operators and specific measures to their benefit could and should be introduced. 
5. Conclusions 
[27] Explicit policies and buying practices favouring local economic operators are clearly against EU law. However, too often EU public contract rules and the case law take possible collateral effects narrowing participation to public procurement as a reason to strike down buying decisions that make commercial common sense and/or answer legitimate policy concerns (see Section 3 and Section 4 above). On the other hand, allowing more flexibility in public procurement is often seen as posing risks for corruption and favouritism. 
[28] Arguably, however, the legal basis allowing for EU legislation in our area aims at wider cross-border participation, not at wider competition tout court. As already indicated, the limited participation to public procurement across the Member States is mostly due to factors that have little to do with protectionism or localism. The fear to reduce the pool of potential tenderers should not therefore stand in the way of sound public procurement practices, including as seen in the prism of general interests different from purely economic considerations. 
[29] Concerning integrity risks, they are relevant for EU public contracts legislation only in so far as normally – but not necessarily, think of international cartels – corruption, collusion, conflicts of interests and so forth tend to happen to the detriment of foreign or simply non-local (including national) bidders. This could be dubbed as the – possible – ‘dark side of local buying’. As true as this may be, those risks and their perceptions vary wildly among the Member States. There is no reason – and it will be anyway inconsistent with the proportionality principle – why contracting authorities and entities in low-risk Member States should be straightjacketed away from sound procurement practices in line with commercial common sense and practice and/or from legitimate buying strategies. It would seem to be more sensible to leave to each Member State to decide about the level of integrity risks and how to deal with it. A counterargument might be that if high-risk Member-States do not act, this might well affect economic operators from other Member States. One should, however, in my opinion refrain from binding all contracting authorities and entities in the EU to address a localised, only possible and anyway incidental risk to the Internal Market freedoms. The real overall issue is that the Member States are very different, and harmonisation entails the risk of both under- and over-regulation. 
[30] In conclusion, while pursuing local content or local value is against EU law, EU law already accommodates some possibilities to legitimately engage in sound procurement practices and/or pursue wider societal interests that may incidentally benefit the local economies thus enhancing local value. Those possibilities should be widened in the forthcoming reform without agonising about elusive cross-border procurement. Nor should concerns about corruption and other abusive practices deter from sound and legitimate buying practices, sclerotising award procedures across the EU. What needs being achieved through procurement is “highly competitive social market economy” which requires sound procurement practices that are both attentive to societal goals – including local development – and go beyond mere economic concerns. 
(Megjelent: Közbeszerzési Jog, 2026/3. sz.)