- Local content is one of the most controversial economic policies in public procurement: it is a form of protectionism and discrimination against suppliers from other countries.
- In its initial phase, the government’s current proposal envisages introducing local content standards into the practices of companies owned by State Treasury. Some of this may fall within a legally permissible “grey area”. However, further extending the policy to every entity that qualifies as a public contracting authority under the Public Procurement Law and EU directives, or to companies holding a dominant position in a relevant market, does not.
- Historically, the CJEU has unequivocally regarded local content requirements as discriminatory and contrary to EU law. Some of the examples cited by the Ministry of State Assets as “good practices” also correspond to the cases in which such conduct was found to breach the principles of the single market.
- Introducing a wider range of qualitative criteria into the Public Procurement Law does not, in itself, change the logic of this field of law or permit the promotion of domestic suppliers. Nor does the latest CJEU case law allow this.
- The idea of promoting domestic suppliers conflicts with the principles of both EU public procurement law and of Polish Public Procurement Law. It will lead to more litigation and is likely to reduce competition, with the associated adverse economic and social consequences.
After months of announcements, the government has shown its hand and presented the rules for its long-promised “repolonization” of public procurement, promoting it under the banner of local content. Initially, companies owned by State Treasury are to favor domestic entities in their investment processes. Ultimately, the recommendations are also intended to cover local authorities and government institutions.
Local content is a particularly questionable and risky economic policy concept. Previous attempts to implement it in European Union countries have been judged discriminatory by the Court of Justice of the European Union. This paper discusses the main risks associated with incorporating this concept into the domestic legal order.
What Is Local Content?
Local content should be treated as a slogan rather than a term of legislation or legal language. It has neither a generally accepted statutory definition nor even a uniform meaning in economics. According to the definition cited by the OECD, “local content is part of a broader set of ‘localization’ policies that favor domestic industry over foreign competition by requiring businesses and the state to use domestically produced goods or services as production inputs”.[1]
Local content is therefore a broad concept of supporting domestic producers and, consequently, a form of protectionism, understood as favoring domestic production and restricting foreign competition.[2] Economists agree that measures of this kind have a harmful effect on overall welfare.[3]
Outline of the Government Proposal
Under the new State Purchasing Policy, adopted by the Council of Ministers for 2026–2029, increasing domestic businesses’ participation in the public procurement market is the government’s first objective under the priority of “strengthening the resilience of the state”.[4] The document identifies two areas in which local content will be promoted: 1) investment processes involving companies with State Treasury shareholdings; and 2) a change in the approach to applying public procurement law. The policy explicitly distinguishes increasing domestic content from ensuring national security, treating the two goals as separate elements of the same priority.[5]
The directions set out in the State Purchasing Policy are specified in guidelines published by the Ministry of State Assets on 9 April 2026.[6] Crucially, they formally apply only to companies with State Treasury shareholdings, which are intended to set the direction of change in local content. Public announcements nevertheless indicate that measures of this kind are ultimately also intended to cover local authorities and government institutions, in practice encompassing most entities that use public procurement.[7]
The Ministry of State Assets’ guidelines define domestic content according to the following criteria:
- The ultimate parent unit is located in Poland: 25%.
- The business’s principal activity is carried out in Poland: 25%.
- The business is tax-resident in Poland and pays income tax in Poland: 15%.
- More than 50% of the business’s employees are Polish citizens or live in Poland, work in Poland, and pay income tax and social security contributions in Poland: 15%.
- The business has its registered office in Poland, entered in the National Court Register (KRS) or the Central Register and Information on Economic Activity (CEIDG), and has continuously carried on business in Poland for at least three years: 10%.
- More than 50% of the business’s annual turnover is generated in Poland: 10%.[8]
The document does not recommend amendments to public procurement law: these would be impossible under EU law and highly questionable from the perspective of the Polish Constitution. Instead, its recommendations are a set of guidelines for exploiting a statutory “grey area” to promote domestic suppliers. Examples include dividing contracts into parts[9] or defining their scope to encourage the shortest possible supply chains, which should favour domestic suppliers.[10]
The key recommendation, however, involves using existing qualitative public procurement criteria, such as environmental, social or innovation criteria, to promote domestic suppliers.[11] This is confirmed by the examples in the ministry’s presentation. These include the French model of assessing tenders in terms of transport-related CO₂ emissions and the proportion of staff employed in the area where the contract is performed, as well as Italian methods referring to the share of subcontractors and experience of performing contracts in the region.[12]
Despite numerous declarations of respect for the four freedoms and the EU single market, as well as for the principles of the Public Procurement Law (hereafter, the “PPL”), there is no doubt that the entire project aims to circumvent the requirements of EU and domestic law as cleverly as possible.
The Legal Framework for Local Content
The overriding principle of EU economic law is to counter protectionism and the preferential treatment of domestic businesses at the expense of the single market.[13] The substantive core of the EU’s economic constitution consists of the four freedoms—the movement of goods, capital, persons and services—and the protection of competition on the internal market.[14] Competition law requires market participants to operate on the basis of fair and open competition. Public procurement law performs an analogous function, but in relation to the state acting as a purchaser.[15] The state’s scope for arbitrary action is thereby constrained.
The Polish legislature is also required to implement the principles of a competitive order by the Polish Constitution. Article 20 establishes the social market economy as the basis of Poland’s economic system. Its distinctive features include the principle of open markets, the requirement to protect competition and the prohibition of protectionism.[16]
At the level of secondary legislation, EU principles are given concrete form in the procurement directives: Directive 2014/24/EU (the Public Sector Directive), Directive 2014/25/EU (the Utilities Directive) and Directive 2009/81/EC (on procurement in the fields of defense and security). The Public Sector Directive has the broadest application and the greatest practical significance. It leaves no doubt that EU public procurement law, together with the national legislation implementing it, including Poland’s PPL, is an instrument for implementing the four freedoms and must remain consistent with them.
Article 18(1) of the Public Sector Directive expressly states: “The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favoring or disadvantaging certain economic operators.”
This structure is reflected in the principles of the national PPL.[17] Public contracts must be awarded in accordance with principles including: (1) the protection of fair competition; (2) equal treatment of suppliers; (3) transparency; (4) proportionality (Article 16 PPL); (5) efficiency, or “best value for money” (Article 17 PPL); and (6) the requirement for written procedures (Article 20 PPL).
| Motive (1) of Directive 2014/24/EU
“The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency.” |
The principles of protecting fair competition and ensuring equal treatment of suppliers will be particularly important in assessing practices described as local content. They require contracting authorities to refrain from directly or indirectly favoring particular participants in a procedure without objective justification.[18]
The principle of protecting fair competition implements a fundamental premise of the social market economy: the state should seek to establish and protect a competitive order. For contracting authorities, it entails specific requirements governing procurement: (1) relevance—the conditions for participation imposed on suppliers should relate to the subject matter of the contract; (2) clarity—the requirements must be precise; and (3) transparency—the same requirements must apply to all suppliers.[19]
The principle of equal treatment means treating suppliers equally at every stage of the procedure, without granting privileges or applying measures that discriminate against them on the basis of their characteristics. Compliance entails applying a single standard to all suppliers in the same or a similar situation, rather than giving them identical assessments.[20]
Companies with State Treasury Shareholdings and Local Content
As noted above, companies with State Treasury shareholdings are to serve as a testing ground for local content. This is an interesting example of the phenomenon described in German legal scholarship as “escape into private law”.[21] It occurs when public authorities, which operate under public law, begin using private-law forms that give them incomparably greater freedom of action under the guise of acting as equal participants in economic transactions. In public law, authorities may do only what the law expressly permits. By contrast, entities established by the state and operating under private law—companies controlled by the State Treasury—enjoy a significantly wider margin of action. This problem is one of the adverse side effects of the state’s growing presence in the economy and of private-law entities taking over the duties of public administration. One of the clearest examples to date has been litigation over judicial review of decisions made by the Polish Development Fund when awarding subsidies.[22]
Companies with State Treasury shareholdings, even when they perform tasks traditionally associated with public administration, are very often not subject to the public procurement requirements described above because they formally operate as private-law entities. They are required to apply the PPL only in a limited range of cases. These primarily include legal persons established for the specific purpose of meeting needs in the general interest that are not industrial or commercial in character, and that are more than 50% controlled, financed or supervised by entities in the public finance sector,[23] as well as utilities contracting entities.[24]
PGNiG S.A., for example, was a public contracting authority until its merger with Orlen in 2022, but Orlen, as its successor, is no longer subject to these provisions.[25] State equity holdings in the economy therefore facilitate the creation of a legal “grey area” that allows those in power to circumvent the premises of domestic and EU law, giving them greater scope for arbitrary power in the economy.
This does not mean, however, that applying local content requirements has no legal consequences for companies with State Treasury shareholdings. Where a company’s shareholders include both private individuals or entities and the State Treasury, determining the company’s interest involves balancing private and public interests, which may reduce private investors’ profits.[26] The concept of the public interest is a general clause fundamental to public law as a whole, defining the framework for state action.[27] It should not, however, apply to local content criteria, because they fall outside the constitutional model of the social market economy.
Moreover, several statutes, including the PPL and the Competition and Consumer Protection Act, expressly identify the protection of competition as a value generally recognized in Polish law and protected in the public interest.[28] It is therefore difficult to justify measures whose essence is to restrict competition and strengthen protectionist mechanisms by invoking the public interest. This is particularly so because ministerial guidelines do not fall within the constitutional catalogue of sources of law, whereas statutes, ratified international agreements and the Constitution itself do.
Separate concerns also arise in the case of companies holding a dominant position in a relevant market—for example, Orlen in the domestic fuel market. These are discussed in the section on competition.
Local Content and Its Predecessors in CJEU Case Law
Although the term local content has become popular only in recent years, the use of more or less concealed forms of protectionism to circumvent EU Treaty principles is nothing new. Central to their assessment is the “Dassonville formula”, named after the CJEU’s 1974 judgment. Under this formula, measures having an effect equivalent to quantitative restrictions prohibited by the Treaty include “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”.[29] This formula has naturally also been applied to public procurement law.
| CJEU judgment of 20 March 1990, Du Pont de Nemours Italiana, C-21/88, EU:C:1990:121, point 11
“It must be stressed in this connection that a system of that kind, which favours goods processed in a particular region of a Member State, prevents the authorities and public bodies concerned from procuring some of the supplies they need from undertakings situated in other Member States. Accordingly, products originating in other Member States suffer discrimination in comparison with products manufactured in the Member State concerned, with the result that the normal course of intra-Community trade is hindered.” |
As early as 1990, the Court of Justice delivered a judgment in Du Pont de Nemours Italiana SpA, a case in which the contracting authority required the supplier to source at least 30% of its purchases from southern Italy. Requirements of this kind were held to constitute measures having equivalent effect to quantitative restrictions on imports and to be contrary to EU law.[30] A year later, the Court confirmed that position in an almost identical case, again concerning the reservation of a specified share of subcontracting for entities from southern Italy.[31] Incidentally, an analogous factual situation was presented by the Ministry of State Assets as a positive example of local content. In another Italian case in 1992, the Court once again held that reserving a specified share of contracts exclusively for subcontractors from the region was an impermissible, concealed form of discrimination.[32]
A case directly concerning local content requirements involved the Danish state-owned company Aktieselskabet Storebæltsforbindelsen.[33] The company announced a tender for the construction of a bridge across one of Denmark’s straits, including a “Danish clause” in the contractual conditions: “The contractor is obliged to use to the greatest possible extent Danish materials, consumer goods, labor and equipment.” The breach was so obvious that, during the court proceedings, the Danish government expressly acknowledged its incompatibility with the Treaties and defended itself only by pointing out that the clause had been removed before the contract was signed. Even so, the clause was found to be unlawful.
| CJEU judgment of 22 June 1993, Commission v Denmark, C-243/89, EU:C:1993:257, point 23
“The Danish clause laid down in condition 6, clause 2, of the general conditions is incompatible with Articles 30, 48 and 59 of the Treaty, a fact which is, moreover, not disputed by the Danish Government.” |
Local content, understood as promoting particular suppliers solely on the basis of their country of origin, is therefore clearly contrary to EU law. This is confirmed both by the case law and by the literature.[34]
Qualitative Requirements in the PPL and Local Content
There is also a more sophisticated argument for permitting local content: that the expansion of qualitative criteria in public procurement law, particularly requirements relating to sustainable development, has relaxed existing EU law requirements and created room for local preferences. It relies in particular on Article 18(2) of the Public Sector Directive, under which “Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labor law established by Union law, national law, collective agreements or by the international environmental, social and labor law provisions listed in Annex X”. In Tim SpA—Direzione e coordinamento Vivendi SA, the Court expressly held that the EU legislature intended to elevate this provision to a principle equivalent to the “classic” principles of fair competition, equal treatment of suppliers, non-discrimination, transparency and proportionality.[35]
This principle is reflected in the national provisions of the PPL. For example, a contracting authority’s needs analysis may include social, environmental or innovation aspects (Article 83(3)(3)). The contracting authority may set requirements relating to economic, environmental and social aspects, innovation, employment, or the confidentiality of information supplied to the contractor during performance (Article 96(1)). It should also estimate environmental externalities when calculating procurement costs (Article 245(3)(2)).
In practice, these requirements may create some scope for promoting local content, but in a very different way from that indicated in the government’s guidelines. It is conceivable, for example, that criteria concerning transport-related CO₂ emissions will favor suppliers located close to the contracting authority. However, this also means that, for a contracting authority in Białystok, such a criterion would favor suppliers near Kaunas in Lithuania over those near Wrocław in Poland.
According to CJEU case law, Article 18(2) introduces only one principle—sustainable development—which must be balanced against the principles of protecting fair competition and ensuring equal treatment of suppliers. It must be implemented objectively and proportionately. This is illustrated by Contse SA and Others v Instituto Nacional de Gestión Sanitaria (Ingesa).[36] In a tender for home respiratory treatments and other assisted breathing techniques, Spain’s National Institute of Health Management required suppliers to have offices open to the public in the provincial capital and production plants within 1,000 km of that capital. The Court held that a safety criterion was legitimate, but that the distance requirement was disproportionate to the objective pursued.
A recent dispute concerning a German contract for cloud services for public administration is also instructive. The German government’s approach was far more restrained than Poland’s local content proposal: it sought to base the procurement partly on digital sovereignty criteria, for which the Federal Office for Information Security (BSI) had published guidance.[37] A consortium of SAP and Deutsche Telekom won the tender, but Google immediately challenged it.[38] This example illustrates the most likely consequence of pressing ahead with local content in public procurement law: a sharp rise in disputes over the discriminatory nature of such measures.
Locality cannot be an end in itself. Even supporters of introducing the concept into domestic law acknowledge that treating locality as the main objective would amount to protectionism that would, at the very least, be difficult to justify.[39] Neither EU nor domestic public procurement law recognizes a principle of “promoting locality”. At most, locality may be a side effect of low emissions, security of supply or innovation. Nor may the criterion directly discriminate against or favor particular suppliers. A requirement to provide a service rapidly in the healthcare sector, for example, may be specified; this would probably correlate with having at least a branch near the contracting authority. However, it is impermissible to require the beneficial owner to have a particular nationality or the supplier to have its registered office in a particular Member State.
Local Content and Suppliers from Third Countries
The debate over local content also regularly invokes the CJEU’s October 2024 judgment in Kolin Inşaat, which is cited, for example, in the State Purchasing Policy.[40] This appears, however, to result from a confusion of concepts. The judgment in no way authorizes preferential treatment for domestic suppliers, because it concerned an entity from outside the European Union. The interpretation set out in that judgment was also incorporated into the national Public Procurement Law by an amendment in 2025.[41]
The judgment concerned the Turkish company Kolin Inşaat Turizm Sanayi ve Ticaret AȘ, which was in dispute with Croatia’s State Commission for the Supervision of Public Procurement Procedures. Türkiye is neither an EU Member State nor a party to the GPA, the plurilateral WTO agreement on the reciprocal opening of public procurement systems. Nor has it concluded an agreement reciprocally granting Turkish suppliers the right to participate in EU public procurement procedures on an equal footing with EU suppliers. The Court therefore held that Kolin Inşaat could not rely on the EU procurement directives to challenge the contract award decision, because the EU public procurement market had not been opened to Turkish entities.[42] The decision whether to admit an entity from a third country thus rests with the contracting authority in the Member State concerned.[43]
The judgment is implemented in Polish law by the new Article 16b PPL, under which a contracting authority: (1) may, but need not, decide to open a procedure to an entity from a third country; and (2) may set less favorable procurement conditions for suppliers from third countries. However, even on the most basic, literal interpretation, this provision cannot be applied to entities from EU Member States.
It is all the more puzzling that the Draghi report is cited as context for the local content project.[44] The report advocated greater economic integration within the EU and support for the competitiveness of the Union as a whole, rather than its fragmentation. Draghi proposed, for example, a preference for European entities in defense procurement[45] and an EU-wide response to asymmetries between bids caused by subsidies from third countries,[46] not 27 parallel and mutually conflicting national public procurement policies. The European Commission currently expressly classifies local content requirements in third countries as barriers to international trade.[47] Introducing analogous measures into trade between Member States is a glaring example of conduct contrary to EU law.
Local Content and Restrictions on Competition
Local content requirements restrict competition in the sectors where they apply.[48] This entails all the adverse consequences of market monopolization: reduced economic freedom, increased corruption and dysfunctional ties between business and government, as documented by the empirical literature. The state would thereby not only betray its constitutional duty to promote a competitive order, but also create a situation in which one public policy—economic nationalism—sabotaged another: competition policy. This violates a fundamental value of the rule of law, namely the coherence and internal consistency of the legal system.
Even companies with State Treasury shareholdings that are not subject to the PPL cannot enjoy complete freedom of contract where they hold a dominant position in a relevant market. Applying onerous or dissimilar contractual conditions is one of the forms of abuse of a dominant position listed in the Competition and Consumer Protection Act (Article 9(3)). This prohibition covers ambiguous, discriminatory criteria, including at the preliminary negotiation stage,[49] that differentiate the conditions of competition in a market. A breach may also be established by identifying “any condition imposing on one party a burden greater than that generally accepted in relations of that kind”,[50] leading to economically unjustified differences in the conditions of competition.[51] Such abuse is discriminatory—strictly anticompetitive—and infringes the affected business’s freedom of economic activity.[52] Applying criteria that differentiate according to the origin of capital should prompt a response from the competition authority where the entity concerned holds a dominant position. It is immaterial that the practice is based on ministerial guidelines: these do not fall within the catalogue of sources of law, and companies with State Treasury shareholdings are subject to competition law on the same terms as other businesses.
Bid rigging is another important aspect of the risks posed by local content. It is the most serious breach of competition rules in Polish law and the only criminal offence under competition law (Article 305 of the Criminal Code). Economic literature identifies high market concentration, symmetry between market participants, high barriers to entry and low innovation as conditions encouraging bid rigging.[53] All are likely consequences of implementing local content policies.
In its guidelines for fighting bid rigging, the OECD expressly recommends criteria that are as open, non-discriminatory and non-preferential as possible in relation to legal form, nationality and ownership.[54] Particularly in regions with high levels of corruption, a centrally imposed policy of supporting domestic suppliers risks creating a legal “grey area” that facilitates unlawful agreements and frustrates the state’s efforts to combat bid rigging.
Assessment of the Government Guidelines
The government’s guidelines should be seen as introducing chaos into the public procurement system. They create an additional requirement for assessing suppliers that fits neither the underlying values of this field of law, nor its principles, nor even its detailed provisions. Although the guidelines currently apply only to companies with State Treasury shareholdings, the announcements concerning government institutions and local authorities are probably already producing a chilling effect[55] that will influence how public procurement law is applied.
As established above, a degree of regionalization in public procurement is not problematic in a limited range of factual circumstances, provided that it serves other principles, such as sustainable development, and does not disproportionately restrict the protection of fair competition or equal treatment of suppliers. Local content cannot, however, be an end in itself, at least under EU and domestic law as they currently stand. In particular, favoring entities on the basis of nationality cannot be an objective.
The most likely consequence of implementing the requirements, particularly given the Prime Minister’s fairly firm statements about enforcement, is growing chaos in the domestic public procurement system. Contracting authorities would have to apply guidelines requiring preferential treatment for domestic entities while simultaneously complying with binding legislation requiring non-discriminatory and equal application of procurement law to all entities from EU countries or countries party to procurement agreements with the Union.
In the short term, this will lead to more procurement disputes and probably more cases before the National Appeals Chamber and the courts hearing appeals against its decisions. In the medium term, it may lead to a CJEU judgment declaring such practices forbidden, in line with existing case law. The darkest scenario, fortunately still very unlikely, is that the entire local content project is deemed fully lawful, eroding the EU public procurement system and bringing back protectionism in this area. Such an outcome would, however, require the CJEU to reject the entire logic not only of the procurement directives, but also of the Treaty.
Specific Problems
Beyond this overall assessment, several specific problems and risks arise from extending the use of local content understood as preferential treatment for suppliers deemed Polish.
Balancing Principles
Expanding public procurement law to include criteria relating to sustainable development or social considerations is, in itself, a major challenge to the integrity of this field of law. It requires officials applying the PPL to balance additional values alongside the traditional ones of protecting competition, ensuring equality between suppliers and achieving economic efficiency in procurement.
On the one hand, this process has many positive aspects, associated with moving away from the lowest-price criterion. On the other, it undoubtedly increases the discretion of individual contracting authorities, makes procurement more difficult, and raises the likelihood of appeals and disputes. The government is now effectively attempting to create a new principle of public procurement law that is absent from the legislation and enforced through both a change in procurement culture and fear of financial consequences. Given how alien this principle is to the PPL’s existing system of values, it risks making contract awards essentially arbitrary.
The Hierarchy of Legal Acts
The government is neither introducing a statutory definition of local content nor amending the PPL. The only documents currently in circulation are the State Purchasing Policy and the Ministry of State Assets’ guidelines for companies with State Treasury shareholdings. Both are merely policy instruments and fall outside the constitutional catalogue of sources of law. Without a statutory amendment, which would plainly conflict with EU law principles, there is essentially no legal basis for applying a local content principle in local authorities or government institutions.
Unclear Guidelines
The Ministry of State Assets’ guidelines are themselves unclear and, at times, internally contradictory. They require contracting authorities both to design qualitative criteria so as to maximize domestic content and to do so while respecting fair competition and equal treatment of suppliers. These two goals cannot be achieved simultaneously.
More Complex Procedures
The uncertainty of the criteria and their general incompatibility with domestic and EU law entail far greater complexity in all procedures in which local content criteria are to apply—and, according to the announcements, they are to apply universally. It is easy to imagine the uncertainty and documentation requirements generated by the condition that “more than 50% of the business’s employees are Polish citizens or live in Poland, work in Poland, and pay income tax and social security contributions in Poland”. This means more bureaucracy both for suppliers, which will have to maintain this documentation, and for contracting authorities, which will have to verify it to ensure that a supplier is Polish enough.
Conclusion: The Beginning of the Single Market’s Retreat?
Apart from all the substantive arguments against local content, the particularly unfortunate timing of the push for this policy deserves attention. Amid rising nationalist sentiment in Europe and an increasingly confrontational geopolitical environment, promoting protectionist solutions in public procurement could trigger something far more serious than another dispute over the permissible limits of state economic policy. With mounting pressure from powers hostile to the European Union, which are also conducting disinformation campaigns and cognitive operations aimed at undermining Western cohesion, pushing measures that challenge the logic of the single market risks setting off a chain reaction that gradually fragments the European economic area.
The potential effect of political imitation is particularly troubling. A look at the calendar of German state elections shows that two Alternative for Germany politicians could become state premiers as early as this autumn.[56] Combined with the AfD’s successes in local elections, this would mean that nationalist right-wing politicians would be responsible for the vast majority of public procurement in two eastern states,[57] one of which borders Poland. Given the AfD’s strong position in the other eastern states and the pressure it exerts on governments in Thuringia and Saxony, in which another populist party, Sahra Wagenknecht’s BSW, already participates, the worst-case scenario cannot exclude attempts to close off public procurement markets throughout eastern Germany in response to Polish economic nationalism that harms German firms.
One possible scenario is that such public procurement trade war would ultimately be defused by judgments from Polish and German courts and the CJEU. Faced with such facts, the Court would have no choice but to find Polish or German local content in breach of the Treaties, as it did in response to attempts by Italy and Denmark. If, however, Jordan Bardella were to join such war as France’s new president representing the National Front,[58] local content could become the first stone to set in motion changes to the directives, ultimately restricting the single market and European integration.
The scenario outlined above would materialize if the darkest assumptions came true. Whether that will happen is unclear, since it depends on political factors, which, as Otto von Bismarck rightly observed 150 years ago, lie outside the realm of the exact sciences. The most likely consequence of introducing local content is a period of legal chaos that will settle after the first CJEU judgments recognize the practice as yet another attempt to circumvent the EU Treaties in order to discriminate against entities from other countries. Yet the risk of dismantling the single market in public procurement has never been as high as it is now.
The extraordinary shallowness of commitment to the European project revealed by the local content proposal is also deeply troubling. For many months, various public and private entities discussed an idea that is plainly contrary to EU law and the principle of the social market economy. That the project reached the stage of official guidelines, an announcement by the head of government and, as that announcement suggests, widespread implementation means that public administration lacks safeguards. These are not legal safeguards—there is a whole list of provisions incompatible with local content—but cultural ones, without which even the best legal system cannot function. Only a profoundly unreflective system could produce such a result, especially in such risky times and circumstances. The first lesson from this process is the urgent need for a course in EU law for public administration officials.
References
[1] OECD, Local content requirements, Trade Policy Brief, February 2019.
[2] C. Waymouth, Is ‘Protectionism’ a Useful Concept for Company Law and Foreign Investment Policy? An EU Perspective, in: U. Bernitz, W.-G. Ringe (eds), Company Law and Economic Protectionism: New Challenges to European Integration, Oxford University Press, Oxford 2010.
[3] W. Poole, Free Trade: Why Are Economists and Noneconomists So Far Apart?, Federal Reserve Bank of St. Louis Review 86(5), September–October 2004.
[4] Ministry of Development and Technology, Polityka zakupowa państwa na lata 2026–2029 [State Purchasing Policy for 2026–2029], March 2026.
[5] Ibid., pp. 33–34.
[6] Ministry of State Assets, Dobre praktyki w zakresie zwiększenia przez spółki z udziałem Skarbu Państwa udziału komponentu krajowego w kluczowych procesach inwestycyjnych [Good practices for increasing domestic content in key investment processes undertaken by companies with State Treasury shareholdings], 9 April 2026.
[7] See M. Kosiarski, Rząd wreszcie odkrywa karty w sprawie local content [The government finally shows its hand on local content], Prawo.pl, 13 April 2026.
[8] Ministry of State Assets, op. cit., p. 5.
[9] Ibid., p. 12.
[10] Ibid., p. 13.
[11] Ibid., p. 19.
[12] Ministry of State Assets, Local content. Z korzyścią dla Polski [Local content. For Poland’s benefit], pp. 8–9.
[13] On the foundations of EU economic law, see M.A. Dauses, Prawo gospodarcze Unii Europejskiej [European Union economic law], C.H. Beck, Warsaw 1999, pp. 157 ff.
[14] E.-J. Mestmäcker, The development of German and European competition law with special reference to the EU Commission’s Article 82 Guidance of 2008, in: L.F. Pace (ed.), European Competition Law: The Impact of the Commission’s Guidance on Article 102, Elgar Publishing, Cheltenham 2011, p. 47.
[15] E.-J. Mestmäcker, Wettbewerbsfreiheit und Wohlfahrt [Freedom of competition and welfare], Max Planck Private Law Research Paper 12/2, p. 10.
[16] Cf. K. Zaradkiewicz, Artykuł 20 [Article 20], in: M. Safjan, L. Bosek (eds), Konstytucja RP. Tom I. Komentarz do art. 1–86 [The Constitution of the Republic of Poland. Volume I. Commentary on Articles 1–86], C.H. Beck, Warsaw 2016.
[17] Act of 11 September 2019—Public Procurement Law (Journal of Laws 2024, item 1320, as amended).
[18] Judgment of the National Appeals Chamber (KIO) of 14 June 2023, KIO 1492/23, LEX no. 3581887.
[19] See M. Sieradzka, Zasada uczciwej konkurencji w postępowaniu o ustalenie zamówienia publicznego [The principle of fair competition in public procurement proceedings], Glosa 2011/2, pp. 87–94.
[20] Judgment of the National Appeals Chamber of 9 April 2015, KIO 638/15, LEX no. 1710429.
[21] See H.-U. Erichsen, W. Martens (eds), Allgemeines Verwaltungsrecht [General administrative law], De Gruyter, Berlin, New York 1992, pp. 404–411; and, for example, the Federal Constitutional Court’s judgment of 22 February 2011, 1 BvR 699/06, para. 48.
[22] See P. Oliński, „Tarcze” PFR problemem dla przedsiębiorców i sądów administracyjnych [PFR’s “shields”: a problem for businesses and administrative courts], FOR Briefing 2/2023, Civil Development Forum, 16 January 2023.
[23] See Article 4(3) PPL and the commentary in H. Nowak, M. Winiarz (eds), Prawo zamówień publicznych. Komentarz [Public Procurement Law. Commentary], Public Procurement Office, Warsaw 2023.
[24] See Article 5 PPL and the commentary in H. Nowak, M. Winiarz (eds), op. cit.
[25] See PGNiG announcement of 17 October 2022.
[26] See A. Weber-Elżanowska, Wpływ instytucji prawnych rynku kapitałowego na efektywność spółek Skarbu Państwa [The impact of capital market legal institutions on the efficiency of companies with State Treasury shareholdings], C.H. Beck, Warsaw 2017, Chapter IV.
[27] A. Żurawik, „Interes publiczny”, „interes społeczny” i „interes społecznie uzasadniony”. Próba dookreślenia pojęć [“Public interest”, “social interest” and “socially justified interest”: an attempt to clarify the concepts], Ruch Prawniczy, Ekonomiczny i Socjologiczny 75(2), 2018.
[28] See M. Wieloński, Realizacja interesu publicznego w prawie zamówień publicznych [Pursuing the public interest in public procurement law], Faculty of Journalism and Political Science, University of Warsaw, Warsaw 2012, pp. 46 ff.
[29] CJEU judgment of 11 July 1974, Dassonville (8/74, EU:C:1974:82).
[30] CJEU judgment of 20 March 1990, Du Pont de Nemours Italiana (C-21/88, EU:C:1990:121).
[31] CJEU judgment of 11 July 1991, Laboratori Bruneau (C-351/88, EU:C:1991:304).
[32] CJEU judgment of 3 June 1992, Commission v Italy (C-360/89, EU:C:1992:235).
[33] CJEU judgment of 22 June 1993, Commission v Denmark (C-243/89, EU:C:1993:257).
[34] See, for example, A. Wójtowicz-Dawid, Idea local content a zamówienia publiczne [The idea of local content and public procurement], Przegląd Prawa Publicznego 5, 2023.
[35] CJEU judgment of 30 January 2020, Tim (C-395/18, EU:C:2020:58).
[36] CJEU judgment of 27 October 2005, Contse and Others (C-234/03, EU:C:2005:644).
[37] Federal Office for Information Security, C3A—Criteria enabling Cloud Computing Autonomy.
[38] See C. Budras, J. Jansen, N. Záboji, Google-Konsortium bremst deutsche Cloud aus—gegen Wildberger [Google consortium puts the brakes on German cloud project—against Wildberger], Frankfurter Allgemeine, 27 April 2026.
[39] See J. Kola, Rethinking local content requirements in EU public procurement within the paradigm of sustainable development, Ruch Prawniczy, Ekonomiczny i Socjologiczny 87(3), 2025.
[40] See Ministry of Development and Technology, op. cit., p. 32.
[41] Act of 9 July 2025 amending the Public Procurement Law and the Act on Concession Contracts for Works or Services (Journal of Laws, item 1165).
[42] CJEU judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C-652/22, EU:C:2024:910, paras 48–51.
[43] Ibid., para. 63.
[44] Ministry of State Assets, op. cit., p. 2.
[45] The Draghi report, The future of European competitiveness, Part B: In-depth analysis and recommendations, September 2024, p. 169.
[46] Ibid., p. 222.
[47] See the example of South Africa: European Commission, Access2Markets, Trade barriers.
[48] OECD, op. cit., p. 1.
[49] Judgment of the Antimonopoly Court of 12 September 2002, XVII Ama 101/01.
[50] Judgment of the Warsaw Court of Appeal of 17 December 2010, VI ACa 427/10, quoted in A. Jurkowska-Gomułka, M. Kozak, R. Molski, A. Piszcz, B. Targański, in: A. Jurkowska-Gomułka, A. Piszcz (eds), Ustawa o ochronie konkurencji i konsumentów. Komentarz [Competition and Consumer Protection Act. Commentary], C.H. Beck, Warsaw 2025, Article 9.
[51] Ibid.
[52] Decision of the President of the Office of Competition and Consumer Protection of 20 December 2007, no. DOK-98/2007, quoted in ibid.
[53] OECD, OECD Guidelines for Fighting Bid Rigging in Public Procurement (2025 Update), 11 September 2025, p. 6.
[54] Ibid., p. 17.
[55] The Prime Minister mentioned, for example, restricting EU funding for local authorities that fail to comply with the local content principle. See Chancellery of the Prime Minister, NA ŻYWO | Wypowiedź Premiera Donalda Tuska na inauguracji „Local Content. Z korzyścią dla Polski” [LIVE | Prime Minister Donald Tusk’s remarks at the launch of “Local Content. For Poland’s benefit”], YouTube, 9 April 2026, 16:05.
[56] Elections in Saxony-Anhalt take place on 6 September and in Mecklenburg-Western Pomerania on 20 September. In both states, current polls put support for the AfD above 35%.
[57] In Germany, the largest number of tenders is organised at municipal level, followed by state level. See BMWi, Vergabestatistik, Bericht für das Gesamtjahr 2023 [Procurement statistics: report for the full year 2023], p. 20.
[58] Bardella and the French nationalists hold views similar to those of the Polish government in this respect. See Z. Lilley, Far right publish details on how they would prioritise French nationals for jobs, The Connexion, 24 September 2024.