The award of public contracts in the Member States of the EU is subject to public procurement regulation. This regulation only affects the award of public contracts. Once contracts have been awarded, conflict issues between the parties must be decided by the national courts of the Member States. In doing so, the courts must apply national contract law principles and rules. Based on a legal analysis of case studies involving conflict issues such as mistake; interpretation of contract; implication of terms; unfair terms; and unforeseen circumstances, this paper argues that national courts may encounter difficulties in applying contract law principles and rules in accordance with EU public procurement regulation.
This may cause legal uncertainty among economic operators thus creating barriers that hinder cross-border trade. The authors therefore recommend that the European Commission broadens its current policy and regulatory efforts, aiming at the harmonization of European contract law, to public contracts.