Europäisierung des vergaberechtlichen Primärrechtsschutzes bei Unterschwellenaufträgen

Up to 90% of all public contracts fall below the European threshold values. For these contracts, the European competition procurement law and its specific bidder protection do not apply. This raises the important, yet still unresolved question of legal protection in the sub-threshold area. Despite the decision of the Federal Constitutional Court, which deems the legal protection situation to be constitutional, the discussion has not subsided.

The author examines the requirements of EU primary law and the Basic Law concerning procurement law protection. She reviews the currently available legal protection options in Germany and concludes that bidders are largely without legal protection. The existing legal protection does not meet the requirements of either European or constitutional legal protection. Even in the sub-threshold area, European law will sooner or later compel the German legislator to establish effective legal protection, thereby making procurement law increasingly European.