Cross-Border Joint Procurement

Cross-border joint procurement extends the benefits of collaborative purchasing beyond national borders, allowing contracting authorities in different countries to pool their purchasing power for common needs. It is particularly relevant for border regions where public services naturally span national boundaries, for research and academic institutions with pan-European programmes, and for defence and security procurement involving allied nations. EU procurement law facilitates cross-border joint procurement while acknowledging that navigating different national legal frameworks adds complexity that requires explicit pre-agreement between the parties.

What is Cross-Border Joint Procurement?

Article 39 of Directive 2014/24/EU specifically addresses joint procurement between contracting authorities from different member states. It establishes the legal basis for such cooperation and the conditions under which it can operate lawfully.

The directive permits contracting authorities from different member states to jointly award a contract, conclude a framework agreement, or operate a dynamic purchasing system. However, because EU procurement law is implemented differently in each member state's national legislation, and because the procurement procedures are governed by national law, the parties must agree in advance on which national law applies to the joint procedure.

Article 39(4) provides that where a joint procurement involves authorities from different member states, and the entire procedure is conducted jointly, the participating authorities shall agree in writing which national procurement law applies. They may choose the law of the member state in which the lead contracting authority is established, or the law of any member state whose contracting authorities are participating, provided that applicable national law so permits.

Where the procedure is only partly conducted jointly (for example, a joint needs assessment and specification, but individual awards by each participating authority under its own national law), each authority applies its own national law to the parts of the procedure it conducts.

Cross-border joint procurement requires a more detailed governance agreement than domestic joint procurement. The parties must address: which law applies, which language the procurement documents are in, how evaluation is conducted and by whom, how disputes between the participating authorities are resolved, and what happens if one authority wishes to withdraw or modify its requirements during the process.

In practice, cross-border joint procurement has been most active in the health sector (particularly for pandemic-related procurement, where the European Commission coordinated procurement of vaccines and medical equipment on behalf of multiple member states) and in defence procurement, where multinational programmes are common.

Why it matters for bidders

Cross-border joint procurement can create very large unified procurement opportunities across multiple national markets. For suppliers, a single competitive process provides access to buyers in multiple countries. This is particularly valuable in markets where the volume of any single country's requirement would not justify the investment in a full product development or localisation cycle.

The challenge is complexity: cross-border procurement documents may be in multiple languages, the applicable law may be from a jurisdiction you are less familiar with, and contract conditions may reflect compromises between different national legal traditions. Understanding which national law governs the procedure helps you assess your position accurately.

Example

Three Scandinavian countries (Sweden, Norway, and Denmark) establish a joint procurement for a shared early warning meteorological system. The contracting authorities are all national meteorological institutes. They agree that Swedish procurement law governs the joint procedure because the Swedish institute is the lead. A single contract notice is published on TED covering requirements from all three countries. The winning supplier enters into a framework agreement with all three institutes under a single competition, with individual call-off contracts adapted to each country's specific technical integration needs.

Frequently Asked Questions

Is cross-border joint procurement common in practice?

It is less common than domestic joint procurement, primarily because of the legal and practical complexity of reconciling different national systems. It is most established in specific sectors: health (particularly the EU Joint Action on Health Security procurement), defence (NATO and EDA programmes), and research infrastructure. Border regions with established cross-border cooperation frameworks (such as the Benelux countries or the Nordic Council) have developed working models for operational procurement cooperation.

How does cross-border joint procurement work with Norway and Switzerland, which are not EU member states?

Norway, as an EEA member, is bound by EU procurement law through the EEA Agreement, which incorporates the EU procurement directives. Norwegian contracting authorities can participate in cross-border joint procurement under the same framework as EU member states. Switzerland has a bilateral agreement with the EU that includes procurement access provisions, but Switzerland is not part of the EEA and the legal framework is more complex. Swiss contracting authorities wishing to participate in EU cross-border procurement should seek legal advice on the applicable framework.

Can a single contract notice cover requirements from multiple countries in a cross-border procurement?

Yes, and this is one of the efficiency benefits of cross-border joint procurement. A single notice on TED can describe the combined requirements of all participating contracting authorities, attract responses from the full European supplier base, and result in a single framework agreement or contract that serves all participants. The contract notice must clearly identify all participating contracting authorities and the combined scope of the requirement.