Rethinking the procurement Directives: Do we even need a regulatory framework for EU public procurement at all?

The last big thinking piece I will be writing about the revision of the Directives is about questioning the need for secondary legislation at all in EU public procurement. The reason for that being that successive waves of Directives have failed in opening up the public procurement market so we might as well leave without them. With direct cross-border procurement still below 5% of all contracts and import penetration in the public sector languishing at 7.4% what cost-benefit analysis would ever approve of the amount of rules applicable to public procurement?

My take is that the upcoming revision will end up be more detailed, more technical and more pervasive than the outgoing regulatory regime. If that is the case, why bother with having EU public procurement rules at all?

If opening up the market does not work with the current approach, we might as well simply leave to the member States to comply with Treaty principles as they see fit as well as with the rest of EU legislation that might be applicable to public procurement in general. The rest of objectives usually pursued via procurement do not need detailed procurement rules to be achieved, it just so happens standardised procurement processes are an easy way to enforce compliance. But said compliance can be enforced via other means.

In this scenario, member States would have to design regulatory approaches that fit well with them while at the same time maintaining compliance with EU law in general, instead of forcing everyone to proceduralise procurement in a similar way. I am under no illusions most would not change their rules (for now) but over time we would have a more varied approach to public procurement within the EU...and I don't believe to be making this argument, but here we are.

While I am a fan of EU integration and its harmonisation I am under no illusion that, for example, the backward looking approach to technology and how it could be used to digitise procurement processes instead of replicating in digital format has set us back for the last decade. But as I said before, it warrants its own post.

For now I will leave this thought exercise: what would happen if we had no EU secondary legislation applicable to public procurement?