European Union: Completion And Entry Into Force Of New Regulatory Framework Governing Public Procurement

On 30 June 2017, the new Belgian regulatory framework on public procurement entered into force. This follows the publication of three Royal Decrees which complete the new regulatory framework:

  • On 23 June 2017, the Belgian Official Journal (Belgisch Staatsblad/Moniteur belge) published a Royal Decree of 18 June 2017 on the award of public procurement contracts in the special sectors (Koninklijk Besluit van 18 april 2017 plaatsing overheidsopdrachten in de speciale sectoren/Arrêté royal du 18 avril 2017 relatif à la passation des marchés publics dans les secteurs spéciaux – the "Special Sectors Royal Decree");
  • On 27 June 2017, the Belgian Official Journal published a Royal Decree of 22 June 2017 which contains new rules on the performance of the public works contracts and concession contracts (Koninklijk Besluit van 22 juni 2017 tot wijziging van het Koninklijk Besluit van 14 januari 2013 tot bepaling van de algemene uitvoeringsregels van de overheidsopdrachten en van de concessies voor openbare werken en tot bepaling van de datum van inwerkingtreding van de Wet van 16 februari 2017 tot wijziging van de Wet van 17 juni 2013 betreffende de motivering, de informatie en de rechtsmiddelen inzake overheidsopdrachten en bepaalde opdrachten voor werken, leveringen en diensten/Arrêté royal du 22 juin 2017 modifiant l'Arrêté royal du 14 janvier 2013 établissant les règles générales d'exécution des marches publics et des concessions de travaux publics et fixant la date d'entrée en vigueur de la Loi du 16 février 2017 modifiant la Loi du 17 juin 2013 relative à la motivation, à l'information et aux voies de recours en matière de marchés publics et de certains marchés de travaux, de fournitures et de services – the "Royal Decree on Contract Performance"); and
  • On 29 June 2017, the Belgian Official Journal published a Royal Decree on 25 June 2017 on the award and performance of concession contracts (Koninklijk Besluit van 25 juni 2017 betreffende de plaatsing en de algemene uitvoeringsregels van de concessieovereenkomsten/Arrêté royal du 25 juin 2017 relatif à la passation et aux règles générales d'exécution des contrats de concession – the "Royal Decree on Concession Contracts").

The Special Sectors Royal Decree and the Royal Decree on Contract Performance implement the Law of 17 June 2016 on public procurement (Wet van 17 juni 2016 inzake overheidsopdrachten/Loi du 17 juin 2016 relative aux marchés publics – the "Law on Public Procurement") which, in turn, implements into Belgian law: (i) Directive 2014/24/EU of 26 February 2014 on public procurement (classical sectors) ("Directive 2014/24/EU); and (ii) Directive 2014/25/EU of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors (i.e., the so-called special sectors) ("Directive 2014/25/EU").

The Special Sectors Royal Decree is largely inspired by the Royal Decree of 18 April 2017 on the award of public procurement contracts in the classical sectors (the "Classical Sectors Royal Decree" – See VBB on Belgian Business Law, Volume, 2017, No. 5, p. 23, available at In order to simplify the regulatory framework, the Special Sectors Royal Decree repeals and replaces the previous rules which differed depending on whether the entities procuring services in the special sectors were governed by public or private law. The Special Sectors Royal Decree adopts the terminology and content of Directive 2014/25/EU. It reproduces the rules set out in the Classical Sectors Royal Decree, except for a few provisions which are not taken over, such as the rule on preventing conflicts of interests.

The Royal Decree on Contract Performance complements the Classical Sectors Royal Decree, which does not deal with the performance phase. It applies to both the classical and special sectors. In particular, it contains rules on the modification of contracts during their term and rules on subcontracting that seek to combat what is referred to as "social dumping."

Finally, the Royal Decree on Concession Contracts implements the Law of 17 June 2016 on concession agreements (Wet van 17 juni 2016 betreffende de concessieovereenkomsten/Loi du 17 juin 2016 relative aux contrats de concessions) which, in turn, implements into Belgian law Directive 2014/23/EU of 26 February 2014 on the award of concession contracts (See VBB on Belgian Business Law, Volume 2016, No. 3, p. 11; No. 6, p. 28; and No. 7, p. 18, available at The Royal Decree on Concession Contracts provides a new regulatory framework which, to guarantee legal certainty, applies to all concession contracts but which is, at the same time, more flexible than that applicable to public works contracts. It is also innovative in that it regulates service concessions, which, before 2014, were not regulated at the EU level.

Following the entry into force of the new regulatory framework on public procurement, Belgium has finally implemented Directive 2014/23/EU, Directive 2014/24/EU and Directive 2014/25/EU. It was timely for this to happen as these Directives were required to be implemented into national law by 18 April 2016 (See VBB on Belgian Business Law, Volume, 2017, No. 5, p. 23, available at

For the sake of completeness, the new regulatory framework on public procurement will be complemented later this year by two additional Royal Decrees which are still under preparation:

  • a Royal Decree on governance, giving effect to Title IV "Governance" of Directive 2014/24/EU and Directive 2014/25/EU; and
  • a Royal Decree amending the Royal Decree of 3 April 2013 on the role of the Council of Ministers, the transfer of competencies and the authorisations with regard to the award and performance of public procurement contracts, design contests and public works concessions at the federal level (Koninklijk Besluit van 3 april 2013 betreffende de tussenkomst van de Ministerraad, de overdracht van bevoegdheid en de machtigingen inzake de plaatsing en de uitvoering van overheidsopdrachten, ontwerpenwedstrijden en concessies voor openbare werken op federaal niveau/Arrêté royal du 3 avril 2013 relatif à l'intervention du Conseil des Ministres, aux délégations de pouvoir et aux habilitations en matière de passation et d'exécution des marchés publics, des concours de projets et des concessions de travaux publics au niveau federal).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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