In Competition… Competition & Public Procurement Law: July 2026 Update
August 2026Welcome to the twelfth edition of In Competition.
In this publication, we review competition law and public procurement developments from the preceding calendar month.
July was a month about process rather than outcomes, and specifically about how much a regulator may take and how much a contracting authority must give. In Luxembourg the Grand Chamber settled a question that has shaped every dawn raid protocol in Europe, holding that business emails are protected communications but that no prior court order is needed to seize them from a company system. Two weeks later the President of the General Court declined to shield documents held in the United States from a Commission information request. In London the Technology and Construction Court applied the rewritten Appendix H to the 2026 TCC Guide for the first time and ordered a borough to disclose rival bidders’ evaluation records. No sooner had that happened than the TCC had occasion to apply the new guidelines in Prime Way Care v. Southwark LBC [2026] EWHC 1845 (TCC).
Two policy documents landed as this edition was being finalised. On 5 August the Cabinet Office published Procurement Policy Note 026, a new Social Value Model for central government, and the Irish Government published Procuring for Our Future, Ireland’s first national public procurement strategy. Both operate on a horizon that will outlast the current pipeline, and both reward early reading. PPN 026 has already generated a buzz of commentary about its underlying policy motives, as well as the changes it could bring for social and environmental criteria in public procurement. Because these technically fall within August, we will apply our editorial rules strictly and resist the temptation to talk about them in this edition. Look out for them in our review of August, which should be with you in early September.
The thread running through the month is asymmetry of information, and its narrowing. Regulators are being confirmed in their access to material held by businesses, while suppliers challenging public awards are being told they are entitled to more of the material held by authorities. Both movements point the same way. Whatever an organisation writes down during an evaluation or an investigation should be written on the assumption that somebody else will read it.
Competition enforcement and investigatory powers
Grand Chamber rules on the seizure of business emails (16 July 2026)
In IMI – Imagens Médicas Integradas and Others v Autoridade da Concorrência, Joined Cases C-258/23 to C-260/23, the Grand Chamber answered a reference arising from inspections carried out by the Portuguese Competition Authority between January 2021 and March 2022 under warrants issued by the Public Prosecutor’s Office. The companies argued that the seizure of emails exchanged between their employees breached the right to respect for communications under Article 7 of the Charter.
The Court held that business emails exchanged through a company system are communications within Article 7, notwithstanding that their content is exclusively professional. It nonetheless held that EU law does not require prior authorisation by a court before such material is seized at business premises. Regulation 1/2003 and the ECN+ Directive leave Member States free to designate the authorising body, which may be the competition authority itself, a court or a prosecutor. Where prior court approval is not required, the power must be laid down by law, confined to material related to the subject matter of the inspection, hedged with safeguards against arbitrariness and subject to full and effective judicial review after the event. Authorisation by a prosecutor does not dispense with that later review. For devices owned by individuals rather than the company, the Court set a higher bar, indicating that access may require prior review by a court or an independent administrative body.
Why does this matter?
This sits directly alongside the General Court ruling on personal devices covered in our June edition, and together the two decisions draw the line that matters in practice. The company system is open; the individual’s device is not, at least not without prior scrutiny. For groups with EU subsidiaries, the exposure is therefore whatever sits in the middle, which in most businesses means bring your own device arrangements and personal messaging used for work. Two questions decide the outcome of a raid: whether a device is a company system or a personal one, and whether the material taken relates to the subject matter of the inspection. The first is answered by IT policy and the second by the terms of the decision authorising the inspection. Both need to be settled before an inspection team arrives rather than argued at the door. Dawn raid protocols written before this summer are now out of date.
Source: EUR-Lex, CELEX 62023CJ0258. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62023CJ0258
Court of Appeal upholds the hydrocortisone findings (28 July 2026)
The Court of Appeal dismissed appeals by Auden Mckenzie and Actavis UK against the Competition Appeal Tribunal’s judgment upholding the CMA’s findings that the companies charged excessive and unfair prices for hydrocortisone tablets between 2008 and 2018. The Court found that none of the grounds advanced came close to displacing the conclusions reached below. The CMA had imposed penalties totalling around £266 million in July 2021. The Tribunal rejected the pricing appeals in 2023, subject to a reduction of some £26 million to reflect a period in which a former parent did not control the business. Because the Court of Appeal had already, in September 2024, upheld the market sharing finding, every infringement finding in the case has now survived appeal. The underlying facts remain striking: a pack costing under £1 in 2007 was priced above £70 by 2016, and annual NHS expenditure rose from roughly £500,000 to more than £80 million.
Why does this matter?
Excessive pricing has long been the least predictable abuse in United Kingdom practice, and the appellate history here has been correspondingly untidy. It is now settled, and the settled position favours the regulator. The point of wider application for public sector buyers is that a price the purchaser accepted, and had the power to challenge, can still be unlawful. The relevant department never objected to what it was paying, and that did not assist the suppliers. Authorities buying under frameworks and single source arrangements where no live comparator exists should not treat their own acquiescence as evidence that a price is defensible. Suppliers to the public sector should assume that internal records of how a price was set will one day be read by somebody adverse. There is also an exclusion dimension: findings of this kind engage the exclusion and debarment provisions of the Procurement Act 2023, which is a consequence that outlasts the penalty.
Source: CMA press release, 28 July 2026. https://www.gov.uk/government/news/court-upholds-cma-findings-that-firms-charged-excessive-and-unfair-prices-for-lifesaving-nhs-funded-medicine
Commission opens an in-depth investigation into Saipem and Subsea7 (22 July 2026)
The Commission opened a Phase II investigation under the EU Merger Regulation into the proposed combination of Saipem and Subsea7, to be known as Saipem7, in Case M.12236. The transaction was notified on 16 June 2026 and the Commission now has until 26 November 2026 to decide. The Commission’s preliminary view is that the merger is largely complementary in several areas, including offshore wind and conventional offshore projects, but that it would further consolidate the market for subsea umbilicals, risers and flowlines, generally shortened to SURF. The Australian Competition and Consumer Commission has opened its own in-depth review on comparable grounds. No remedies had been formally offered when the investigation was opened.
Why does this matter?
This is the most consequential merger review of the month for construction, engineering and energy infrastructure clients, and the concern is concentrated in a single market rather than spread across the transaction. Developers and contractors procuring subsea work for oil and gas, offshore wind and carbon capture infrastructure should expect to be approached during the market test, and should treat that as an opportunity rather than an interruption. Customer evidence on switching, bidding patterns and who genuinely bids against whom carries disproportionate weight in a Phase II of this kind, and a customer who declines to engage has no influence over the remedy that emerges. Anyone with a tender that straddles the November decision date should be thinking now about what a remedies package would mean for pricing and for continuity of the bidder set.
Source: European Commission press release IP/26/1657. https://ec.europa.eu/commission/presscorner/detail/en/ip_26_1657
First review of the Foreign Subsidies Regulation (14 July 2026)
The Commission published its first review of the Foreign Subsidies Regulation under Article 52(2), together with a Staff Working Document, almost three years after the regime became operational. The headline conclusion is that the FSR is fit for purpose and has filled a genuine gap. The volume figures are the more revealing part of the report. The Commission had anticipated 30 to 40 concentration notifications a year and received 273 between October 2023 and 31 May 2026, roughly three times the expected rate, of which about 97 per cent were cleared at preliminary review and only three progressed to in-depth investigation. The Commission acknowledges the burden of collecting and reporting foreign financial contributions and proposes targeted simplification rather than a rewrite, including higher notification thresholds for concentrations and a simpler form for public procurement filings. Detailed proposals are expected in the autumn, with adoption intended in 2027.
The month also produced a reminder that FSR information requests are hard to resist. On 20 July the President of the General Court refused interim relief to Goldwind against a wide-ranging request for information issued in March 2026, in Case T-335/26 R, on the ground of urgency alone. The Court noted that the eighteen month investigation deadline is indicative rather than binding and would not expire until August 2027 in any event, and that the applicant had itself contributed to the length of the procedure through repeated requests for extensions.
Why does this matter?
For anyone bidding into European public contracts, the FSR has been the quiet compliance cost of the last three years, and the simplification of the procurement filing is the part of this review that matters most. The important qualification is one of timing: nothing changes until 2027, so the current declaration obligations apply to every tender in the meantime. The recurring practical difficulty in consortium bidding has never been the legal test but the data gathering, because a lead bidder must collect foreign financial contribution information across its own group and across partners who may regard the request as intrusive. That is a contractual problem, solved in the consortium agreement, and it is easier to solve before a tender than during one. Goldwind is the cautionary note on the enforcement side: a request perceived as disproportionate is not, on that basis alone, a request that can be paused.
Source reference to confirm: Commission Q&A on the findings of the first FSR review, QANDA/26/1607, 14 July 2026, together with the review report and Staff Working Document.
Public procurement
The TCC applies the rewritten Appendix H and orders disclosure of rival bidders’ scores (21 July 2026)
In Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC), Mr Justice Constable ordered a London borough to disclose anonymised evaluation records for the five bidders still in contention in an adult home care framework procurement, into a confidentiality ring confined to lawyers. The borough had run a two-stage procurement under the Procurement Act 2023 for a multi-lot framework. The claimant was eliminated at the first stage on a workforce management question capped at 500 words and carrying a minimum pass score. The borough resisted disclosure on the basis that no case of unequal treatment had been properly pleaded and that the prima facie threshold from Roche Diagnostics v Mid Yorkshire Hospitals NHS Trust was not met. The Court read the pleading as a whole, construed it generously, and found the threshold satisfied. Given the narrow scope of the request and the availability of a lawyers-only ring, disclosure was proportionate.
The significance lies less in the outcome than in the framework the judgment applied. The Court treated paragraphs 6 and 7 of the guidance note at Appendix H to the 2026 TCC Guide as part of the legal framework, and the rewritten text is materially stronger than its predecessor. Authorities are now expected to disclose key decision materials relating to complaints made against them, rather than strongly encouraged to do so. For award and disqualification challenges, the guidance identifies what that expectation ordinarily covers: evaluator instructions, individual and consensus scores, moderation minutes, the contemporaneous documents generated by the evaluation actually carried out, and the product of any independent check that actually took place.
Why does this matter?
The shift from encouragement to expectation changes the default position when a complaint arrives. An authority should now assume that a complaint about evaluation will be met by an obligation to produce the evaluation record, and that resisting will be measured against a guidance note the Court treats as part of the framework. The exposure is rarely the decision itself. It is the paper: moderation that happened but was not minuted, scores adjusted without a contemporaneous note, an independent check described in the debrief but never documented. Records of that quality are difficult to defend once they are in a confidentiality ring. For bidders, a complaint that is coherently pleaded now arrives with a realistic prospect of early disclosure, which materially changes what can be achieved inside the eight-working day standstill period (for tenders under the PA 23) or ten day standstill period (for those covered by the Public Contracts Regulations 2015 or Utilities Contracts Regulations 2015) and therefore what a well drafted pre-action letter is worth. The narrower and better targeted the request, the more likely it is to succeed.
Source reference to confirm: judgment citation [2026] EWHC 1845 (TCC), 21 July 2026, and the current text of Appendix H to the 2026 TCC Guide.
Sector notes
Construction and engineering
Two items converge on this readership. Saipem and Subsea7 puts the SURF market under Phase II scrutiny until late November, and PPN 026 doubles the social value weighting at the £5 million threshold where most of the sector’s central government work sits. The near term date to watch remains the Government response to the CMA’s civil engineering market study, due around mid-August on the 90 day commitment given when the final report was published on 21 May. Contractors should audit alignment with the Construction Playbook now, on the working assumption that what is currently recommended may shortly be mandated.
Rail
No new sector-specific developments in this window. The Government response to the road and rail market study remains the item that will shape procurement models, and PPN 026 will apply to central government rail procurement above £1 million from January 2027. Rail suppliers should also note the FSR review, given how much rolling stock and infrastructure bidding involves groups with non-EU state financial contributions.
Insurance
The month’s three procedural decisions share a single practical consequence for insurers: the record is more likely to be produced and read than it was a month ago. IMI and the Broadcom order widen what an authority can obtain in an investigation, and Prime Way Care widens what a challenger can obtain in a procurement dispute. For those writing directors and officers, professional indemnity and public sector risk, the question worth asking of insureds is not whether their decision was defensible but whether their documentation of it is.
Concluding thoughts
July 2026 brought three themes into focus. First, investigatory powers have been settled in the regulator’s favour on both sides of the privilege question: business emails may be taken from company systems without a prior court order, and privilege claimed under non-EU law will not, at least on an interim basis, keep documents out of Brussels. The boundary that remains genuinely contested is the individually owned device. Second, disclosure in procurement litigation has moved from something authorities were encouraged to give to something they are expected to give, and a court has now treated that expectation as part of the legal framework. Third, procurement policy in both jurisdictions is being restated as economic policy, in the United Kingdom through a doubled social value weighting tied to performance consequences, and in Ireland through a first national strategy published as the EU regime itself is being rewritten.
The practical message is consistent across all three. The decisions organisations take in evaluations and investigations are increasingly likely to be reviewed by somebody with access to the underlying record. What that record contains, and whether it was created at the time or reconstructed afterwards, is now the difference between a defensible position and an expensive one.
If you would like to discuss any of the issues raised in this update, please contact Paul Henty.
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