Dusseldorf Higher Regional Court refers Armed Forces Planning and Procurement Acceleration Act to Federal Constitutional Court: is removing suspensive effect of appeals unconstitutional?

On 14 February 2026, the German Armed Forces Planning and Procurement Acceleration Act (Gesetz zur beschleunigten Planung und Beschaffung für die Bundeswehr) (the “Planning and Procurement Acceleration Act”) came into force (in German only). In this Act, the German Bundestag, or lower house of parliament, is responding to the current security situation and seeking to create a procurement framework enabling the armed forces to swiftly and significantly strengthen their deterrence and defence capabilities by introducing a wide range of simplified procurement rules designed to meet the armed forces’ sharply increased need for supplies, works and services as quickly as possible.

These simplified rules also involve significantly curtailing the effectiveness of the legal protection available under procurement law. The new provision in section 16(1) of the German Armed Forces Procurement Acceleration Act (Bundeswehrbeschaffungsbeschleunigungsgesetz) (“Armed Forces Procurement Acceleration Act”) provides that an immediate appeal against a decision by a procurement review board regarding an application for review no longer has suspensive effect once the board has rejected the application. In such a situation, a public contracting authority is able to award a contract straight after the board has issued its decision, meaning that if an applicant loses, they are reliant on secondary protection, which is far less effective. The public procurement division at Dusseldorf Higher Regional Court (OLG Düsseldorf) regards this provision as unconstitutional (in German only) and has stayed an ongoing procurement review procedure in order to refer the matter to the Federal Constitutional Court (Bundesverfassungsgericht) (“Constitutional Court”) for it to be reviewed (Case OLG Düsseldorf, VII-Verg 6/26).

This shows how the recent reforms to public procurement law governing procurement by the German armed forces, or Bundeswehr, are already being scrutinised from a constitutional perspective. In our Noerr Insight series of articles on the Armed Forces Planning and Procurement Acceleration Act, we too have been taking a critical look at the marked reduction in effective primary legal protection, which was discussed by various stakeholders throughout the parliamentary process.

In our Noerr Insight of 25 July 2025, we looked at the government’s draft of the above Act at the time and examined its objectives and areas covered by it. The article also took a critical look at the removal of the suspensive effect of immediate appeals.

We explained the opinion of the Bundesrat, or upper house of parliament, on the government draft and the next steps in the legislative process in our Noerr Insight of 5 November 2025. Unlike in the parallel legislative process at the time concerning the German Public Procurement Acceleration Act (Vergabebeschleunigungsgesetz), which generally provided for the removal of the suspensive effect of immediate appeals (see in particular our Noerr Insight of 20 October 2025), the Bundesrat raised no objections to this provision in its opinion during the preliminary parliamentary proceedings on the Planning and Procurement Acceleration Act.

Although the Bundestag passed the above Act on 15 January 2026, which included some amendments compared to the government’s draft, as outlined by us in our Noerr Insight of 10 February 2026, the provision in section 16(1) remained unchanged.

In this Noerr Insight, we give an overview of the latest (and anticipated) developments regarding the German Planning and Procurement Acceleration Act. We begin by briefly outlining the background to the referral of the case to the Constitutional Court (see A.), identify the key legal issues that will form the basis of the decision (see B.), examine the potential implications for procurement practice and the Procurement Acceleration Act, which is scheduled to come into force on 1 July 2026 (see C.), and outline how companies and public contracting authorities can now best position themselves (see D.).

A. Facts of the case and subject of the referral to the Constitutional Court

The referral involves a procurement review procedure that is now pending before the public procurement division of Dusseldorf Higher Regional Court following an immediate appeal. The case concerns procurement for the German armed forces falling within the scope of the Armed Forces Procurement Acceleration Act. The applicant and appellant is a company which applied for the contract and submitted a bid during a procedure to enter into a framework agreement for the procurement of parcel lockers for the collection and distribution of military clothing and equipment for soldiers on Bundeswehr premises.

I. Course of the proceedings

However, the contracting authority intended to accept a bid by another company that had also participated in the procurement procedure. The applicant challenged this by filing an application for review with the 1st Federal Procurement Review Board. The board rejected the application on 21 January 2026. The applicant then challenged this on 30 January 2026 by filing an immediate appeal to the public procurement division of Dusseldorf Higher Regional Court. As the Planning and Procurement Acceleration Act (and thus the provision in section 16(1) of the Armed Forces Procurement Acceleration Act) had not yet entered into force at that time, the immediate appeal initially had suspensive effect in accordance with section 173(1), first and second sentences of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen) (“Competition Act”). This suspensive effect lapsed two weeks after the expiry of the appeal period. To prevent the contract from also being awarded for the duration of the appeal proceedings, the appellant simultaneously applied for the suspensive effect to be extended until a decision had been reached on the appeal. Under the previous law, the appeal court could extend the suspensive effect of an appeal until a decision had been reached pursuant to section 173(1), third sentence of the Competition Act at the appellant’s request if the procurement review board had rejected the application for review.

On 14 February 2026, the German Planning and Procurement Acceleration Act came into force, and with it the provision under section 16(1) of the Armed Forces Procurement Acceleration Act. The suspensive effect of the immediate appeal then ceased to apply to the procurement procedure at issue, as did the public procurement division’s option to extend it. On 17 February 2026, while the suspensive effect would still have been in force under the previous legal situation, the contracting authority entered into the tendered framework agreement with the other company.

II. Referral to the Federal Constitutional Court

The public procurement division at Dusseldorf Higher Regional Court considers the provision in section 16(1) of the Armed Forces Procurement Acceleration Act to be unconstitutional. As it is also relevant to the decision in the review procedure at issue, it referred the matter to the Constitutional Court, and asked whether it is compatible with the guarantee of effective legal protection (Article 19(4), first sentence of the Basic Law (Grundgesetz), or German constitution) and the general right of access to the courts (Article 20(3) of the Basic Law).

B. Removal of suspensive effect of immediate appeals as unconstitutional?

This means that the Constitutional Court will now have to conduct a review on the constitutionality of a provision under Article 100(1) of the Basic Law. Given the sole and exclusive competence of the Constitutional Court to determine whether a provision is incompatible with the Basic Law, a court which regards a law whose validity is relevant to its decision to be unconstitutional is obliged to stay the proceedings and seek a decision by the Constitutional Court.

I. Guarantee of legal protection and right of access to the courts

The Constitutional Court will therefore have to judge whether the legislature was entitled to regard the interest in a swift award (and thus in implementing the measure immediately) as outweighing the unsuccessful bidder’s interest in being awarded the contract, as expressed in section 16(1) of the Armed Forces Procurement Acceleration Act. In its referral, Dusseldorf Higher Regional Court relies primarily on the guarantee of effective legal protection and the general right of access to justice and considers these to have been violated by the provision.

The guarantee of effective legal protection under Article 19(4), first sentence of the Basic Law is a fundamental procedural right. It guarantees not only the formal right and possibility (theoretical or actual) of bringing a matter before the courts, and thus access to the courts, but specifically the effectiveness of legal protection, meaning that a substantive right to genuinely effective judicial review exists. Furthermore, the constitution guarantees legal protection before the courts under the general right of access to justice set down in Article 20(3) of the Basic Law, so that in cases not covered by the first sentence of Article 19(4) protection exists against the alleged infringement of a legal right.

It is clear that if the suspensive effect of an immediate appeal following an unsuccessful application is removed, effective legal protection can only be sought at first instance before the procurement review board. As the contracting authority is able to award the contract immediately after winning an appeal before the review board, the unsuccessful bidder is left with no option but to seek secondary legal protection in the form of damages, since a validly awarded contract cannot be rescinded. Damages proceedings entail considerable risks for a company in terms of the burden of proof and presentation of evidence. And since they are geared towards purely financial compensation, they cannot replace the testimonials and experience that can only be gained by actually performing the contract. This puts above all young companies at a significant disadvantage.

II. Constitutional Court’s decision of 13 June 2006 as a benchmark?

The Constitutional Court’s decision of 13 June 2006 (Case 1 BvR 1160/03), which was handed down solely in relation to legal protection in the sub-threshold area of public procurement, may provide an initial point of reference for the action currently before the Constitutional Court. In that case, the Court found in relation to the sub-threshold area that it is not constitutionally objectionable for legal protection in this area to be governed by the general regime of legal protection, without any special provisions having been created for the enforcement of primary legal protection.

It also held that in procurement decisions, the scope of protection afforded by the guarantee of legal protection under the first sentence of Article 19(4) of the Basic Law is not affected. It explained that this was because this fundamental right is intended to guarantee legal protection only where the individual is in a relationship of typical dependence and subordination to the holder of state authority. It pointed out that a contracting authority does not, however, act as an organ of public authority within the meaning of Article 19(4), since the state acts as a buyer in the market to meet its demand for specific goods or services, maintaining that in this role as a buyer it does not differ fundamentally from other market participants and does not rely on its superior public authority when making a procurement decision. It must also be borne in mind here that Article 19(4) does not guarantee a multi-tiered system of appeal, but instead the legal remedy provided for by the relevant rules of procedure. If these provide for a system of appeal, this is also covered by Article 19(4), first sentence of the Basic Law.

By contrast, the Constitutional Court ruled in this decision that the right to judicial protection under Article 20(3) of the Basic Law is available to unsuccessful parties bidding for public contracts, meaning that they may invoke that right when asserting that a legal right granted to them by the legal system has been violated. This concerns, for example, the principle of equal treatment during procurement procedures under Article 3(1) of the Basic Law, which every state body must observe regardless of the form of action taken.

It will therefore be crucial to consider that even under national law procurement review boards are not courts. They are authorities whose decisions constitute administrative acts and whose members are not judges. This also prevents such boards from making a referral under Article 100(1) of the Basic Law, which is precisely what the public procurement division of Dusseldorf Higher Regional Court has done in this case. Since it does not have the power to set aside legislation, the procurement division would therefore be obliged for example to apply a provision which it considers unconstitutional without having the option of referring it to the Constitutional Court. Legal protection before the procurement review boards is therefore not full legal protection; this only takes place at the level of the second-instance public procurement divisions.

III. Distinction between above-threshold and sub-threshold contracts

How the Constitutional Court will ultimately rule on this matter also depends on the degree of distinction it makes between above-threshold and sub-threshold contracts. In its decision, the Court specifically noted that contracts awarded below the thresholds are a “mass phenomenon”. If specific procedural safeguards were always needed for such contracts to enable effective protection under primary law, this could significantly impede the work of administrative authorities. The administrative burden associated with such contracts would increase, and this could lead to bottlenecks when performing public tasks requiring the products or services to be procured through the contract. Based on these considerations, in relation to the sub-threshold area the Court assessed the legislature’s decision based on a normative assessment to regard the interest in reaching a swift decision on the award, and thus in the possibility of implementing the measure immediately, as outweighing the unsuccessful bidder’s interest in being awarded the contract as being in line with the constitution.

This interpretation suggests that especially in the high-value above-threshold sector, where the economic interests of companies are far more substantial, the same assessment by the legislature can no longer be left unchallenged under constitutional law, or at least should be weighed up far more carefully. On top of this, the interests in reaching a swift decision during tenders in the above-threshold sector are hardly affected by the suspensive effect of an immediate appeal. Of the just under 24,000 procurement procedures in the above-threshold sector in 2024, only 100, or around just 0.4 per cent, were the subject of an immediate appeal. The suspensive effect was subsequently extended in only 38 cases, accounting for a mere 0.16 per cent of all contracts in the above-threshold sector. Comparable figures from previous years show that the contracting authorities’ competing interests hardly conflict with a company’s particularly strong economic interest in securing a contract in the above-threshold sector. In particular, the principle of expediency in public procurement procedures with their specific time limits for decisions and the fact that even second-instance proceedings before the procurement divisions are often completed within a few months already balance these interests.

Moreover, it is not only the economic interests of companies that support having a procedural framework offering effective primary legal protection. Removing the suspensive effect of the immediate appeal may also adversely affect the public interest in lawful administrative action and in the economical use of budgetary resources.

We can expect the Constitutional Court to address these central issues and hand down a decision providing fundamental constitutional answers to the most contentious aspects of the reforms to public procurement law.

C. Implications for procurement practice and the Procurement Acceleration Act

For the time being, the judicial review procedure now ongoing will not affect the provision in section 16(1) of the Armed Forces Procurement Acceleration Act. In the context of procurement for the German armed forces, an immediate appeal will therefore no longer have a suspensive effect if requests for review are unsuccessful. This means that from the perspective of procurement practice there is no legal obligation to also “stand still” in such appeal proceedings beyond what is strictly required and to refrain from awarding the contract (see D. below).

I. Possibility of the awarded contract being invalid

However, should the Constitutional Court deem section 16(1) of the Armed Forces Procurement Acceleration Act to be incompatible with the Basic Law, the question arises whether in situations where the authority awards contracts during an ongoing appeal procedure, as in this case, the contract is invalid and the tender proceedings have to be continued. This may give rise to the need to continue the procurement process, with the associated loss of time and efficiency, and at the same time to significant risks of the authority being held liable for damages.

II. Decisions in the context of the Public Procurement Acceleration Act

Apart from this, there are also key overlaps with the recently adopted Public Procurement Acceleration Act, which is due to come into force on 1 July 2026. This Act provides that for all review procedures in the above-threshold sector the suspensive effect of an immediate appeal will lapse if the applicant is unsuccessful before the public procurement division. The division does not have the option of extending or ordering a suspensive effect. This means that the Constitutional Court will effectively not only decide on the provision in section 16(1) of the Armed Forces Procurement Acceleration Act, but also on the fundamental decision of the legislature to regard effective primary legal protection in the above-threshold area of public procurement law as insignificant in normative terms. In theory it may be possible that the interests of contracting authorities in procurement for the armed forces are to be assessed differently than in other areas of public procurement. Nevertheless, this does not alter the clear imbalance of the provision, which completely and definitively discontinues effective primary protection for all companies, whereas only a two-digit number of public procurement processes (and within the scope of the Armed Forces Procurement Acceleration Act in fact only a fraction of this small number) are affected in the first place and authorities still have the option to apply for awarding of the contract to be authorised in advance.

This drastic curtailment of effective primary legal protection is even accompanied and reinforced by numerous other measures. These include the greater scope for decisions by a single judge in procurement divisions and decisions without an oral hearing. The legislature would therefore be well advised to amend the law and to postpone the entry into force of the provision abolishing the suspensive effect of immediate appeals, as well as the associated consequential amendments introduced by the Procurement Acceleration Act. The Bundesrat had strongly criticised the reduction in effective primary legal protection under the Public Procurement Acceleration Act, particularly in light of the interactions with other interim relief, and had called for adjustments. However, the German Bundestag failed to respond to these calls.

III. Multiple referrals or stays of other appeal proceedings

It is also conceivable that other procurement divisions may consider section 16(1) of the Armed Forces Procurement Acceleration Act to be unconstitutional. In this case, they will also have to suspend the relevant appeal proceedings and seek a ruling from the Constitutional Court. Thus the application for a review of constitutionality already pending before Dusseldorf Higher Regional Court does not rule out other cases being referred and does not affect a court’s obligation to actually seek a decision by the Constitutional Court where the conditions for a specific review of constitutionality are met.

Whether public procurement divisions which do not consider section 16(1) to be unconstitutional will stay ongoing appeal proceedings by analogous reference to section 148 of the German Code of Civil Procedure (Zivilprozessordnung) regarding the suspension of proceedings where prejudicial issues are involved and await the Constitutional Court’s decision remains to be seen, but this is doubtful in view of the principle of expediency in public procurement law during review procedures and the fact that procurement divisions are bound by law and justice.

D. Recommendations for businesses and contracting authorities

Businesses and public contracting authorities should keep close tabs on how this judicial review progresses, as it may give rise to important developments, opportunities and risks for public procurement.

I. Opportunities and challenges for businesses

The outcome of the referred case will affect above all companies which are appealing an authority’s decision to award a contract to another business in a review procedure. If the Constitutional Court deems section 16(1) of the Armed Forces Procurement Acceleration Act to be incompatible with the Basic Law, an award that has nevertheless been made may be invalid, meaning that the procurement procedure must be continued and there is still a chance to win the contract. In view of this, companies should therefore not give up too early by refraining from filing an immediate appeal and should steadfastly pursue their rights.

Companies that have been awarded a contract by a contracting authority despite an ongoing appeal by a competitor are also affected, since there is a risk that the awarding of the contract may be invalid and that they may subsequently “lose” it. If these companies already joined the action as parties during the first-instance proceedings before a public procurement division, they should actively participate in the proceedings not only to secure a favourable decision for themselves but also to minimise the likelihood of an immediate appeal.

II. Risks for contracting authorities

In future, contracting authorities will face the question of whether to award the contract despite ongoing appeal proceedings. If this award is to be regarded as invalid on the grounds of the unconstitutionality of section 16(1) of the Armed Forces Procurement Acceleration Act, there is a risk of having to continue the procurement procedure while incurring considerable losses of time and money. Besides this, contracting authorities will frequently find themselves confronted with claims for damages or costly reversals of the contract in such situations.

Public contractors should therefore carefully consider whether they really wish to award a contract while an appeal is pending. There is certainly no obligation to do so. Instead, they remain free to await the outcome of the appeal or, depending on the stage of the procurement procedure, to continue it until it is at the award stage but without actually awarding the contract. In this way, there may be a risk of the procedure being set back, but not of the contract award being invalid, together with protracted damages proceedings and disputes over the reversal of the contract running in parallel.

We will continue to monitor closely how the judicial review of the removal of the suspensive effect of immediate appeals under section 16(1) of the Armed Forces Procurement Acceleration Act progresses and other changes to procurement law and to keep you up to date. Companies and public authorities would be well advised to engage expert legal assistance and to prepare for future opportunities and challenges at an early stage.