EU Court Ruling Restricts Third-Country Bidders’ Access to EU Public Contracts
Date: November 5, 2024
Source: French Ministry of Economy and Finance (economie.gouv.fr)
The Court of Justice of the European Union (CJEU) has issued a landmark ruling that limits the access of economic operators from third countries to EU public contracts. According to the court, these operators do not have a guaranteed right to participate in such tenders.
This decision stems from a case involving a Turkish company, Tekfen Madencilik ve Inşaat A.Ş., which had bid for a construction contract for a highway in Lithuania. The Lithuanian procurement authority rejected the company’s bid on the grounds that Turkey did not have a free trade agreement with the EU.
Tekfen challenged the decision before the CJEU, arguing that it violated the principles of non-discrimination and equal treatment. However, the court ruled against the company, holding that:
- The EU’s public procurement rules aim to ensure transparency, equality, and competition.
- While third-country operators may participate in EU tenders under certain conditions, their access is not guaranteed.
- Member states have the discretion to impose additional requirements on third-country operators, such as requiring them to have a presence within the EU.
The CJEU’s ruling has significant implications for businesses outside the EU. It means that they cannot rely solely on existing WTO agreements or bilateral trade agreements to gain automatic access to EU public contracts.
Instead, they may need to take the following steps to improve their chances of success:
- Establish a presence within the EU through subsidiaries or joint ventures.
- Partner with EU-based companies to bid for contracts jointly.
- Meet specific requirements set by each EU member state for third-country operators.
The ruling also highlights the importance of free trade agreements between the EU and third countries. Such agreements often include provisions that facilitate access to public procurement markets.
Despite the CJEU’s decision, the EU remains committed to promoting open and competitive public procurement. The European Commission is currently working on a new EU Procurement Directive that aims to simplify and modernize the procurement process. This directive may include provisions to improve access for third-country operators.
In the meantime, economic operators from third countries should carefully consider their eligibility and strategies for bidding for EU public contracts.
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economie.gouv.fr a new article on 2024-11-05 14:14 titled “Lettre de la DAJ – La CJUE confirme que les opérateurs économiques de pays tiers n’ayant pas conclu d’accord de libre-échange avec l’UE n’ont pas un accès garanti aux marchés publics dans l’Union”. Please write a detailed article on this news item, including any relevant information. Answers should be in English.
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