EU Court confirms that economic operators from third countries without a free trade agreement with the EU do not have guaranteed access to public procurement in the Union
On 21 September 2023, the Court of Justice of the European Union (CJEU) delivered its preliminary ruling in Case C-916/21 (Joint Tender), confirming that economic operators from third countries that have not concluded a free trade agreement (FTA) with the European Union do not have a guaranteed right of access to public procurement markets within the Union.
The case arose from a public procurement procedure initiated by the City of Paris for the award of a contract for the provision of advertising space on public street furniture. The procedure was open to all economic operators, regardless of their nationality or place of establishment. However, the winning bid was submitted by a Chinese company, which led to a challenge by a French company that argued that the Chinese company should not have been allowed to participate in the procedure.
The CJEU ruled that, in the absence of an FTA with the third country concerned, the EU Treaty provisions on freedom of establishment and freedom to provide services do not apply to economic operators from that country. Consequently, the EU’s public procurement directives do not confer a guaranteed right of access to public procurement markets in the Union on such economic operators.
However, the CJEU also noted that the principle of non-discrimination, as enshrined in the EU Treaty, must be respected. This means that economic operators from third countries must not be treated less favorably than EU economic operators in situations where they are both able to participate in a public procurement procedure.
The CJEU’s judgment provides important clarification on the scope of the EU’s public procurement rules. It confirms that economic operators from third countries without an FTA with the EU do not have a guaranteed right of access to public procurement markets within the Union. However, it also emphasizes that these economic operators must be treated on a non-discriminatory basis if they are able to participate in a public procurement procedure.
This judgment is likely to have a significant impact on the participation of economic operators from third countries in public procurement procedures in the EU. It is important for these operators to be aware of the limitations on their access to EU public procurement markets and to ensure that they are treated on a non-discriminatory basis if they are able to participate in a procedure.
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