This article is an opinion piece by current students or alumni of the College of Europe. The views expressed are those of the authors and do not necessarily reflect the opinions or positions of the College of Europe. Responsibility for the content lies solely with the authors.

By Anna HAESAERT

In this interview, Prof. Dr. Sarah Schoenmaekers, professor of European Economic Law at Maastricht University, professor of Construction Law at Hasselt University and member of the Commission’s Stakeholder Expert Group on Public Procurement, shares her perspective on the ‘Buy European’ and ‘Made in Europe’ requirements in relation to Public Procurement law. 

Question One: ‘Buy European’ and preferential treatment are high up the agenda of the European Commission. To what extent can economic operators of third countries participate in European Public Procurement procedures and how does the Commission intend to change this? 

Answer: The access of third-country economic operators to the EU procurement market falls within the scope of the Union’s common commercial policy. This policy is based on tariff and trade agreements relating to trade in goods and services, such as the Marrakesh Agreement establishing the World Trade Organisation Agreements to which the EU and its Member States are party. While public procurement has always been excluded from the main multilateral WTO disciplines, within the framework of the WTO the Agreement on Government Procurement was set up in 1994 (generally referred to as ‘GPA’). This means that when a State is a party to the GPA, it has access to the EU Public Procurement market. States with whom the EU has made individual trade agreements in which public procurement is covered, access for its economic operators is also granted to the EU market. If a state is not party to the GPA or does not have an individual trade agreement with the EU, its economic operators do not have guaranteed access to the EU market. 

This situation was not problematic until recently when two cases were brought before the Court of Justice: The Kolin case (C-652/22) and the Qingdao case (C-266/22). These two cases were solved in opposite ways at national level. So, what to do with economic operators from non-covered countries like China and Turkey that participate in a European procurement procedure? In Kolin, the Croatian national legislator said that if you are not a party to the GPA nor have an individual trade agreement with the EU, then these economic operators must be excluded from public procurement. However, in Qingdao, the Romanian legislator interpreted this situation as having access to the EU market. The Court of Justice ruled that this issue is part of the exclusive competence of the Union under the Common Commercial Policy and so it is not up to the national legislator. However, the EU legislator did not provide further specific guidance on this issue. The recently proposed Industrial Accelerator Act does provide some rules on this issue, but there are still no general rules, so it remains for the national authority concerned to decide whether an economic operator from such a third country can participate in the public procurement procedure. 

There are three general EU legal tools to regulate against self-preferencing systems of foreign governments. These rules are often aimed at ‘punishing’ third countries if they do not open their market to the EU. 

• A first tool is the international procurement instrument, which is an EU regulation which provides that third countries with whom the EU does not have individual trade agreements and do not open their market for EU economic operators, then the EU can adopt an International Procurement instrument measure. Such a measure can imply that the Commission can order the national contracting authorities to impose a score judgement or exclude tenders entirely from that country. 
• A second tool is the Foreign Subsidies Regulation. If a third country gives foreign subsidies to an economic operator (either an EU economic operator or from a third country), that can hinder competition in the EU, then the Commission can prohibit the award to the company that received such a measure. 
• A third tool is the EU Anti-Coercion Regulation that allows the Union to take measures in the field of public procurement in a situation where a third country tries to influence the EU. 

More recently, the Commission developed several specific EU measures, relating to specific industries to deal with the participation of third country economic operators. The defence sector was already specifically excluded from the general public procurement rules due to national security. The new measures were focused on specific products that are strategic or products of which there is a shortage. Examples of these specific measures are the EU Chips Act where the EU aimed to increase production. Similarly, the Net Zero Industry Act aims to increase the production of renewable energy and products such as heat pumps and solar panels. More concretely, if the Commission has determined that the proportion of a specific net-zero technology originating in a third country accounts for more than 50% of the supply of that specific technology within the Union, contracting authorities are obliged to include in their procurement conditions an obligation that not more than 50% of the value of the specific net-zero technology can be supplied from each individual third country or by a tenderer or subcontractor from such individual country. In this way limitations are set on the proportion of products in supply contracts sourced from third countries. Important to refer to as well is the 2025 proposed Regulation regarding the security of supply of critical medicinal products  which does not only allow Member States and the Union to provide financial support to strategic objectives but obliges contracting authorities, in case of a high level of dependency on a single or a limited number of third countries, to apply procurement requirements that favour suppliers that manufacture a significant portion of critical medicines in the Union. It is important to note that these sector specific regulations are all very ‘piece-meal’ as they deal with very specific sectors. 

Another recent EU procurement tool is the European Defence Industry Programme, which was set up in December 2025 to enhance cooperation in defence procurement by incentivising Member States to aggregate demand for defence products, ultimately leading to greater interoperability. The Regulation provides for financial support from the Union for the common procurement of defence products, for example by three contracting authorities from different Member States. Funding will only be made available if the cost of components originating outside the Union is not higher than 35% of the cost of the components of the end product and no component is sourced from a third country that contravenes the security and defence interest of the Union and its Member States. Only legal entities established in the Union and having their executive management structures in the EU are eligible to be recipients of Union funding. 

A last example of financial Union contributions can be found in the field of cybersecurity, for the procurement of advanced cybersecurity equipment tools and data infrastructure. In the first quarter of 2026 the Commission expects to propose the EU Cloud and AI Development Act. Due to the Union’s increased reliance on digital services provided by foreign companies, the Commission may propose specific rules that permit discrimination against foreign providers, of course while respecting its international obligations. It could be possible that the exception in the GPA is invoked, which allows deviation from the equal treatment principle if this is indispensable for national security reasons. Security is not only about classic war material but can include cybersecurity and AI tools as well. Due to a shortage of European providers of AI, it may however be more likely that the Commission’s focus will be on the boosting of investment and funding possibilities.

Question Two: Under the current Public Procurement rules, obligations to ‘Buy national’ are not allowed. How can the EU legally implement ‘Buy European’ preferences without violating internal market rules?

Answer: The internal market rules apply only between the EU Member States, meaning that the Member States cannot prefer their own products and put other Member States at a disadvantage. However, there are exceptions to this general rule such as the public interest exception. This exception allows for situations involving public health reasons where it is crucial to have for example a certain type of medicine or ambulance service. 

Products coming from third countries follow the same rules as the economic operator from a third country: if the product comes from a GPA country or a country with whom the EU has a trade agreement, then it should receive the same access as EU products to the internal market. The Public Procurement Directives do not provide further guidance in this respect. The Utilities Directive does mention that if the proportion of product originating in a third country exceeds 50%, then the tender may be rejected. However, if there are two tenders and one of them is above and the other one below 50%, then the preference should be given to the ‘European’ product. This rule only applies under the Utilities Directive for water, transport, energy, etc, in the context of goods and not services.

1. What about European companies selling goods or services from third countries not a party to the GPA and not having concluded a trade agreement with the EU?

Answer: Equal access should be given to European companies and equal access for products should only be offered to covered countries. In a situation where a European company offers products coming from a third country that is not covered, I believe that situation is not covered by the current Directives. It remains to be seen how such a situation will be dealt with. Even the proposed Industrial Accelerator Act does not solve this issue as its scope is limited to very specific industries and is not applicable to general cases. Following the Kolin and Qingdao judgements which focused exclusively on the economic operators, the Commission issued an interpretative document in which it was explicitly asked whether products stemming from a third country fall under the same rules. The Commission asserted that this situation remains unclear as the judgements were not about goods but only about economic operators.

2. Will the EU non preferential rules of origin be used to label products as ‘made in Europe’?

Answer: If the word ‘label’ is defined as a name tag on a product, then it can be observed that the Industrial Accelerator Act does not use the name ‘label’ in combination with the place where a product is produced. It is only used in relation to the carbon intensity and CO2 measures. In relation to the origin of the product, reference is made to the Union Customs Code. However, it seems that there is no specific obligation to have a specific label.

Question Three: To what extent does ‘made in Europe’ and ‘Buy European’ challenge the international obligations of the EU? 

Answer: ‘Made in Europe’ as such is not problematic as it only concerns stimulating production in the EU. In that regard it is only important that the EU’s Member States live up to the EU’s state aid rules. However, as the Commission has a lot of leeway to grant block exemptions to different sectors of the economy, such as aid for clan industrial projects, Member States have plenty of possibilities to grant aid.

The ‘Buy European’ policy does in essence also not challenge the international obligations of the EU, as it includes the GPA countries as well as third countries with whom the EU has concluded an international agreement with. For this reason, it is for example not possible to exclude American companies from the purchase of ICT tools (unless one could proof that these are related to national security concerns). In February this was a hotly debated issue in the Netherlands, where NS granted an ICT contract to Enterprise Services Nederland which is part of DXC, an American company.

Now the proposal for the Industrial Accelerator Act indicates in article 8(2) that the Commission can adopt delegated acts to exclude a third country if such exclusion is justified to avoid dependencies that may threaten the security of supply in the Union of the products in question. I must say that I have questions regarding the legality of that provision as I am not sure that the national security exception in the GPA includes security of supply as well. To me it seems that the clause was meant originally for essential security and defence related issues and is now opened too widely. 

Question Four: Proposed legislation like the Automotive Package and Industrial Accelerator Act aim to enhance strategic autonomy. How should the EU balance preferential treatment for European products with competition, efficiency, and innovation?

Answer: An impact assessment preceded these legislative proposals, and the Commission claims it is a balanced regulatory approach as it is limited to specific sectors such as steel and aluminium. Moreover, the Commission aims to make it easier to get a permit and create faster procedures for investment procedure. In terms of efficiency, it is anticipated that in the short term, it will be more expensive. However, in the longer term the benefits are predicted to be substantial as the losses in the beginning will be offset by investments in the new fields which will create more jobs and economic prosperity. Due to public procurement's obligation to ‘Buy European’, it is expected that a better economic environment will be created as well as a better capacity to respond and that demand will drive innovation. In my opinion, it remains important that these efforts remain a ‘piece meal’ approach. It is good that there is no general European preference requirement for the whole economy as that would stifle innovation as economic operators would become ‘lazy’ without the competition from foreign economic operators. From an economic point of view, preferencing is usually not promoting the highest level of innovation that is possible. However, as other countries such as China subsidise their one industry heavily, the EU is forced to take action to ensure that the EU market remains a competitive environment.

Question Five: Could preferential treatment for European suppliers trigger trade disputes or retaliation from the US or China, and how can the EU mitigate these geopolitical risks?

Answer: Certainly, and it has already happened. This is especially noticeable when looking to the US that increases its tariff to retaliate against measures of other countries. In relation to China, the European Commission imposed its first IPI measure on 19 June 2025. The measure was directed against China for putting in place an overarching system of generally applicable preferences for the procurement of Chinese medical devices that has led to a systematic discrimination of imported medical devices and foreign economic operators, implementing a comprehensive ‘Buy China’ policy. So, the Commission imposed an IPI measure in the form of exclusion of tender submitted by economic operators originating in China for all Union procurement procedures concerning all categories of medical devices with a value of more than 5 million Euros. In addition, not more than 50% of the total value of the contract can be subcontracted to operators originating in China or involve goods or services originating in China. At the time, the Commission held the opinion that the adoption of the IPI measure would create leverage to convince China to remove discriminatory barriers to the advantage of Union manufacturers and could lead to the creation of additional employment in the sector in the EU. Of course, China was not convinced and retaliated. Characterizing the IPI measures as protectionist, it excluded all participation by EU undertakings in China’s public procurements regarding medical devices.   

While the FSR officially aims to protect the internal market against distortions caused by foreign subsidies, there is a risk that it leads to less foreign investments in the EU and hence to a reduction of innovation and overall wealth. In addition, foreign governments can impose retaliative measures upon EU companies. More in general, third countries with whom the EU has not concluded a trade agreement can simply not allow EU companies to participate in their tender procedures.

The EU is mitigating these risks by concluding a lot of trade agreements (e.g. Mercosur, India), financing the production capacity in the EU, and stimulating ‘Buy European’ in public procurement through sector specific legislation.

Question Six: To what extent do you think that the ‘Buy European’ and ‘Made in Europe’ criteria in Public Procurement will impact competition in the European market. 

Answer: Whenever ‘Buy European’ policies were introduced such as in the Critical Raw Materials Act and the Net Zero Act, it is always combined with sustainability related issues as it was thought that Europe was a forerunner in this area. This combination of a ‘Buy European’ preference and sustainability ensures that both the sustainable economy is supported and that dependencies on fossil fuels from your ‘enemies’ are reduced. However, it is important to note that it was always thought that Europe was a forerunner in sustainability and green technology, but more recently it has been observed that China is exporting almost twice as much clean technology as the EU. In 2015, China introduced a ‘made in China’ policy, bringing many advantages to both China and the EU in the form of cheap products for consumers. However, China is dealing with an overcapacity and because of that Chinese companies are investing less in innovation and the development of their products. So, the EU can learn from that in the sense that it should not make the ‘Buy European’ policy too broad and general. In my opinion, as long as the ‘made in Europe’ policy is limited to very specific sectors, then it will work. So, if it is limited in scope, it can have positive effects, especially as our economic security is a precondition for our general security. We need money to build strong armies and military equipment in times like these. The more competition, the better, especially in a real free market. In the case that other countries do not follow this free market rule, supporting the EU economy is justified if it is proportionate otherwise this will have negative effects for the economy. 

In Public Procurement the focus is often on the lowest price rather than best quality or sustainability which are often more expensive, and this is problematic. In this way, only a short-term view is considered. However, the Public Procurement Directives are currently under review, and it is very likely that the revised directive will include a prohibition to award only based on the lowest price. So, sustainability and quality will be taken more into account, which might automatically lead to more ‘Buy European’.

About the Authors

Sarah SCHOENMAEKERS 

Sarah Schoenmaekers is Professor of European Economic Law at Maastricht University, Professor of Construction Law at Hasselt University and a practising lawyer at OMNIUS (Belgium). 

At Maastricht University, Sarah Schoenmaekers is the Director of Studies of all master programmes of the Faculty of Law. She coordinates the course State Aid and Public Procurement in the European Union and teaches European Competition Law. 

She is a visible member of the academic community and frequently publishes on public procurement and State aid. She speaks regularly at international conferences. In February 2026 Sarah Schoenmaekers held her inaugural lecture on the topic ‘Made in Europe’ and ‘Buy European’  - From gentle branding to bold commanding? It was published with WJS Uitgevers.

Anna HAESAERT 

Anna Haesaert is an LL.M. candidate in European Legal Studies at the College of Europe. She holds an LL.M. from Maastricht University and is registered parallel to the College in the Master in Belgian Law at the KU Leuven. She previously completed traineeships with an in-house legal counsel at a world-leading R&D hub in nanoelectronics and digital technologies and in a Belgian law firm. Her research interests include Competition Law and Intellectual Property. She is part of the board of the Competition Society of the College of Europe.