Short answer
EU procurement law does not impose a simple maximum level of specificity. A contracting authority may define a demanding contract and require the capacity needed to perform it. A requirement becomes vulnerable when it is not genuinely linked to the contract, goes beyond what its value, objectives or risks require, is unclear or unverifiable, rejects equivalent solutions, or directly or indirectly favours particular operators.
Directive 2014/24/EU applies different rules at four stages. Technical specifications describe what must be supplied. Selection criteria test whether an operator can perform. Award criteria compare admissible tenders. Performance conditions govern the successful contractor after award. A condition lawful at one stage may be unlawful if used to exclude bidders at another.
Financial requirements have the clearest numerical guardrail: minimum annual turnover normally cannot exceed twice the estimated contract value. Environmental characteristics and experience must be contract-linked and supported by proportionate evidence. A criterion is not automatically discriminatory merely because few operators can satisfy it, but its operational need, competitive effect and treatment of equivalents must remain defensible.
Start with the general test, not the preferred supplier
For classical public-sector procurement within its scope, Directive 2014/24 was transposed into national law by April 2016. Its current consolidated text, verified through 1 January 2026, begins with Article 18:
Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner. —
Article 18 also prohibits designing a procurement to artificially narrow competition by intentionally favouring or disadvantaging operators. But intention is not the only practical risk. The detailed provisions independently require equal access, proportionality, objective criteria and equivalent proof.
A defensible requirement should answer five questions:
- What contract outcome or risk does it address?
- Is it linked to the works, supplies or services being procured?
- Could a less restrictive requirement protect the same need?
- Can a reasonably informed bidder understand and prove compliance?
- Will equivalent products, labels, certificates, experience and delivery methods be assessed fairly?
Technical specifications may be demanding, but not supplier-shaped
Article 42 allows technical specifications to define characteristics and relevant production or life-cycle processes. They may use sufficiently precise performance or functional requirements, including environmental characteristics and measurable standards for reliability, interoperability, accessibility or safety.
The boundary is equal access. Specifications must not create unjustified obstacles to competition. References to European or other recognised standards must normally include “or equivalent”. A named make, source, patent, type, origin or supplier-specific process is permitted only exceptionally. Where no sufficiently precise and intelligible description is possible, the reference must be accompanied by “or equivalent”. A separate exception applies where the reference is justified by the subject matter itself, but the Court interprets that route restrictively.
That wording is substantive, not decorative. The authority must assess whether another solution satisfies the defined performance in an equivalent manner. Requiring the incumbent's interface, a local proprietary certificate or a model-specific component without demonstrating necessity can unlawfully lock in a provider.
The Court's 16 April 2026 judgment in Case C-568/24 makes the detail test concrete. Specifications for a surgical robot covered mobility, modularity, weight, footprint and arm arrangement. The Court said that increasing detail increases the risk of favouring one manufacturer's products and must be necessary for the procurement objective. Requirements identifying a product type and eliminating alternatives require “or equivalent” unless they inevitably follow from the contract's subject matter. The authority need not publish its objective justification with the notice, but must be able to justify the detail under proportionality.
Financial capacity must reflect contract risk
Article 58 treats economic and financial standing as a selection question: does the operator have the capacity to perform? Authorities may seek turnover, asset-liability ratios or professional risk insurance, but every requirement must be related and proportionate to the subject matter.
For turnover, the Directive supplies a presumptive ceiling:
The minimum yearly turnover that economic operators are required to have shall not exceed two times the estimated contract value, except in duly justified cases such as relating to the special risks attached to the nature of the works, services or supplies. —
If a higher figure is necessary, the authority must state the main reasons in the procurement documents or individual report. A generic desire for “financial strength” is weaker than a documented exposure to exceptional performance, timing or liability risk. For lots, the calculation normally follows each lot, although simultaneous lots can justify a grouped requirement.
Experience must prove ability, not reproduce the incumbent's identity
Article 58(4) permits sufficient experience demonstrated by suitable references from past contracts. The question is whether the evidence reasonably predicts performance to an appropriate quality standard. It is not whether the bidder previously performed an identical contract for the same authority, in the same Member State, using the same organisation.
Complexity, scale or delivery risk may justify specific references. Arbitrary geography, exact customer type or several identical contracts can exclude competent entrants without improving assurance. Comparable evidence of the required capability must remain acceptable.
The stage also matters. General company experience and resources ordinarily establish selection. Article 67(2)(b), however, allows the organisation, qualifications and experience of staff assigned to perform the contract to be scored where those people can significantly affect performance. In its 26 March 2015 judgment in Ambisig, Case C-601/13, the Court accepted team experience as an award criterion for intellectual training and consultancy services. Current Article 67 now expresses that distinction directly.
This prevents disguised double counting. An authority should not first require sufficient corporate experience and then award extra points for the same general suitability unless the second criterion truly compares the quality of the tendered performance.
Environmental requirements can be specific and competitive
Environmental characteristics may appear in technical specifications, award criteria or contract performance conditions. Their legality depends on the role they perform.
- A specification can require linked emissions, efficiency, composition or production characteristics.
- An award criterion can score verifiable environmental performance across the product's life cycle.
- A performance condition can govern waste handling, delivery emissions or execution after award.
Article 43 permits labels where their requirements are linked and appropriate, objectively verifiable and non-discriminatory, adopted through an open process, accessible, and set by an independent third party. The authority must accept equivalent labels and, in specified circumstances, other appropriate proof. If a label contains unrelated corporate-policy criteria, the authority may use only the relevant underlying specifications rather than demand the label as a whole.
The Court's 10 May 2012 judgment in Commission v Netherlands, Case C-368/10, concerned earlier Directive 2004/18. It held that a named eco-label could not replace its detailed specifications. Current Articles 42–44 reflect that approach.
Specificity does not become discrimination solely because the market is small. In Concordia Bus Finland, Case C-513/99, the Court considered emissions and noise criteria that few operators could meet:
the fact that one of the criteria adopted by the contracting entity to identify the economically most advantageous tender could be satisfied only by a small number of undertakings, one of which was an undertaking belonging to the contracting entity, is not in itself such as to constitute a breach of the principle of equal treatment. —
The criteria were objective, disclosed, uniformly applied and connected to the fleet offered. The judgment does not license tailoring: competitive effect still requires investigation and justification.
Do not demand a performance condition at the selection stage
Some requirements concern what the winner must obtain or do during performance rather than what every bidder must already possess. Article 70 permits linked economic, environmental, social, employment and innovation-related performance conditions if disclosed in the call for competition or procurement documents.
In its 8 July 2021 judgment in Sanresa, Case C-295/20, the Court classified regulatory consent for a future cross-border waste shipment as a performance condition, not professional suitability, financial standing or technical experience. It then held:
a tenderer’s tender may not be rejected solely on the ground that, at the time of submitting the tender, the tenderer has not produced proof that it meets a condition of performance of the contract concerned. —
The authority could instead ask for relevant past waste-shipment experience as evidence of ability to obtain authorisation and perform. The same stage distinction matters for permits, equipment, facilities or staff needed only when performance begins.
A practical pre-publication check
Before approving a restrictive requirement, the authority should document:
- its classification as specification, selection criterion, award criterion or performance condition;
- its operational objective, supporting evidence and link to the contract;
- market availability and effect on small, new and cross-border operators;
- why a less restrictive functional requirement is insufficient;
- the equivalent products, labels, certificates and references accepted; and
- the verification method and scoring rule, disclosed consistently in the documents.
National transposition, remedies and below-threshold rules still matter. Utilities, concessions and defence procurement have separate EU directives. Even outside Directive 2014/24's thresholds, Treaty principles may apply where a contract has certain cross-border interest.
Conclusion
A requirement is not unlawful because it is exacting or because only a few bidders can meet it. It becomes unlawful when specificity loses its connection to the contract, exceeds the need, hides the evaluation method, blocks equivalent proof, or moves a future performance obligation into an exclusionary participation rule.
The safest design starts with the outcome and risk, chooses the correct stage, tests proportionality and market effect, and keeps equivalent routes genuinely open.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.