Public Procurement of Artificial Intelligence: Recent Developments and Remaining Challenges in EU Law

Abstract

EU Member States are increasingly experimenting with Artificial Intelligence (AI), but the acquisition and deployment of AI by the public sector is currently largely unregulated. This puts public procurement in the awkward position of a regulatory gatekeeper—a role it cannot effectively carry out. This article provides an overview of recent EU developments on the public procurement of AI. It reflects on the narrow scope of application and questionable effectiveness of tools linked to the EU AI Act, such as technical standards or model contractual clauses, and highlights broader challenges in the use of procurement law and practice to regulate the adoption and use of ‘trustworthy’ AI by the public sector. The paper stresses the need for an alternative regulatory approach.

Keywords: Artificial intelligence, public procurement, EU AI Act, model clauses, standards

JEL Classification: D73, H57, K23, K24, K49, L59