The European data space in public procurement: opportunities, challenges and prospects (Part 1)

EU regulation has changed significantly since the first rules on the reuse of public sector information were introduced in 2003. The European Data Strategy, adopted in 2020, has broadened this regulatory approach in two key respects. First, it promotes governance models that build in, by design and by default, respect for a range of relevant legal rights and interests, such as personal data protection, intellectual property and trade secrets, as highlighted in the Data Governance Act. Second, it extends the scope of the rules beyond the public sector to include obligations on private entities, as shown by the Data Act approved in November 2023.

In this context, data spaces are gaining prominence, not only because of the importance of the sectors they cover (health, mobility, the environment, energy) but also because of their key role in overcoming the technical and legal obstacles to data sharing. In Spain, this has already been provided for in law through a specific section of the Public Sector Procurement Platform.

The Strategy envisages the creation of a “common European data space” for public administrations, with the aim of improving transparency and accountability, fighting corruption and supporting the enforcement of EU law. However, it acknowledges that data are fragmented and that their quality needs to improve, particularly in public procurement.

Why a data space for public procurement? Given the importance of public procurement, which accounts for around 14% of EU GDP, the aim is to foster a more innovative economy. Although there is plenty of information on public procurement, its current usefulness to taxpayers, authorities and buyers is limited, according to the Commission.

The 2014 rules encouraged the use of electronic means to publish information, but they had limitations. They apply only to contracts above thresholds set at EU level (which restricts them to 20% of public procurement), exclude the contract performance phase and do not require open formats for the automated reuse of information.

Despite progress in standardising data collection, a more ambitious approach is proposed to realise the full potential of public procurement data. The plan is to create an EU platform combining tools based on advanced technologies, particularly artificial intelligence.

The benefits include better-informed decision-making by public bodies, closer scrutiny by authorities and society, and more effective access for businesses and SMEs to information on procurement procedures.

What are the legal challenges? One is that the publication obligation is currently limited to contracts above EU thresholds, which leaves out most tenders and relies on Member States to impose additional obligations. The Commission aims to create a harmonised data set and make contract completion notices mandatory, so as to obtain a complete view of the procurement cycle.

The reliability of published data is another challenge, and automated, data-driven processing models are advocated to overcome digitalisation problems and ensure interoperability. The initiative needs a solid legal basis, with clear legal obligations for Member States and public bodies.

In short, the proposal for a European Data Space for Public Procurement promises to have a positive impact on contracting activity, businesses and society, but faces legal challenges that call for robust, up-to-date regulation.