Policy Brief – Equal Treatment and Non-Discrimination of Economic Operators, June 2026

This policy paper, authored by Ana Duraku for the European Movement in Albania (EMA), examines the principle of equal treatment and non-discrimination of economic operators in public procurement in Albania, providing an in-depth normative and jurisprudential analysis of the compatibility of the legal and practical framework with EU standards. The paper argues that although Albanian public procurement legislation has evolved from the early UNCITRAL-based model towards a more modern framework through Law No. 162/2020 and has achieved partial alignment with the EU acquis, the practical implementation of the principles of equality and non-discrimination remains fragmented and vulnerable to arbitrary interpretation.

The paper analyses three interrelated dimensions: (i) the Albanian legal framework, tracing the historical development of procurement regulation from Law No. 7971/1995 to Law No. 162/2020, as well as its interaction with the Constitution, the Code of Administrative Procedures, and Law No. 10221/2010 “On Protection from Discrimination”, in order to assess whether the normative basis provides effective safeguards against unequal treatment; (ii) the European Union legal framework and the case law of the Court of Justice of the European Union, with particular emphasis on established standards relating to transparency, proportionality, the prohibition of favouritism, and the prohibition of altering procedural rules during the procurement process, as well as the conceptual distinction between procedural equal treatment and non-discrimination in market access; and (iii) national implementation practice, through an examination of decisions issued by the Administrative Court of Appeal and the Public Procurement Commission, with the aim of identifying decision-making trends, the gap between legal regulation and practical application, and the most common forms of indirect discrimination manifested through vague criteria, disproportionate requirements, and selective clarifications.

The paper concludes that the most common violations do not take the form of overt discrimination but rather indirect practices that generate unfair advantages or restrict competition, demonstrating that formal alignment with European directives is insufficient without the functional harmonisation of enforcement mechanisms. It highlights that the jurisprudence of the courts and the Public Procurement Commission has established a minimum mandatory standard for procedural legality; however, contracting authorities continue to create space for arbitrary discretion through ambiguous drafting, qualification criteria functioning as unnecessary barriers to participation, and selective interventions during the evaluation process.

The paper concludes with a set of concrete recommendations addressed to contracting authorities and the broader policymaking environment, emphasizing that equal treatment and non-discrimination should not remain merely declaratory legal principles but should become operational standards of daily practice.

Policy Brief – Equal Treatment and Non-Discrimination of Economic Operators, June 2026

*This material was produced within the project “Building Partnership on Fundamentals: Empowered CSOs in the EU accession process”, with the financial support of the European Union. Its content is the sole responsibility of the European Movement in Albania and the authors, and does not necessarily reflect the views and positions of the European Union.

The project “Building Partnership on Fundamentals: Empowered CSOs in the EU accession process” is being implemented by the European Movement in Albania (EMA), with the financial support of the European Union – IPA Civil Society Facility 2021, in cooperation with the Academy of European Integration and Negotiations (AIEN), Slovak Foreign Policy Association (SFPA) and the Center for Transparency and Freedom of Information (CTFI).