The lack of an international agreement signed between the EU and a third country in the field of public procurements is an obstacle for the participation of business entities from these countries in public procurements. Business entities may not invoke the relevant public procurement directive, including making claims that they participate on equal footing with participants from Member States or third countries bound by such an agreement, in a public procurement procedure.
In addition, national authorities are not empowered to apply to third country business entities that have not concluded an agreement with the EU, the transposed rules in their national provisions contained in the relevant directive. This is based on the exclusive competence of the EU in the field of common commercial policy.
The above conclusions are provided by the Decision of the Court of Justice of the European Union (“CJEU”) in case C-652/22. The decision contains important conclusions regarding the participation in public procurements of business entities from third countries that have not concluded an agreement with the EU, although it declares the preliminary inquiry by a Croatian court inadmissible.
A Croatian contracting authority opens a public procurement procedure for the construction of railway infrastructure connecting two cities in Croatia. Colin Inşaat Turizm Sanayi ve Ticaret, a company established in Turkey, contested the legality of the decision awarding the public procurement to another bidder.
The CJEU underlines that the EU is bound with certain third countries by international agreements, generally the Agreement on Government Procurement of the World Trade Organization, which guarantees access to public procurement by business entities in a reciprocal and equal manner. According to the directive applicable to the public procurement in question, third-country business entities that are parties to such an agreement with the EU must receive from contracting authorities treatment no less favourable than that the granted to EU business entities. Economic entities from these third countries are entitled to refer to the provisions of this Directive.
Business entities from third countries that have not signed an agreement with the EU, such as Turkey, do not have the right and cannot participate in a public procurement procedure in the EU, including claiming equal treatment to participants from Member States or third countries bound by such an agreement , which does not allow them to appeal a decision to award a public contract.
The CJEU accepts that questions concerning the access of business entities from third countries to public procurements in the Member States fall within an area in which the EU has exclusive competence. Therefore, Member States are not empowered to legislate or adopt legally binding acts of general application, including where the EU has not adopted acts applicable in this area.
In the absence of an act regarding the access of business entities from third countries that have not concluded such an agreement with the EU, the contracting authority should assess in each individual case whether it should admit these business entities to a public procurement procedure. If such an economic entity appeals the course of the procedure, its appeal can only be considered based on national law, not EU law, therefore the CJEU declares the preliminary inquiry inadmissible.
Despite the above, the CJEU accepts that national authorities cannot require contracting authorities to apply, in relation to economic entities from third countries that have not signed an international agreement with the EU, the national provisions transposing the provisions contained in the applicable public procurement directive orders.
