Current legal situation
The issue of awarding contracts to entities from third countries has not been comprehensively regulated by EU legislators. This issue is only partially covered by the provisions of two Directives of the European Parliament and of the Council of 26 February 2014 on procurement, i.e. Directive 2014/24/EU (the so-called classic directive) and Directive 2014/25/EU (the so-called sectoral directive). As indicated in Article 25 of Directive 2014/24/EU and Article 43 of Directive 2014/25/EU, contracting authorities shall grant construction works, supplies, services and contractors from countries that are parties to the GPA Agreement and other international agreements to which the European Union is bound treatment no less favourable than that granted to construction works, supplies, services and contractors from the Union. The above provisions therefore only impose an obligation to treat certain contractors from outside the European Union no less favourably than contractors from the Union. This applies in particular to entities from countries that are parties to the GPA, i.e. the World Trade Organisation (WTO) Agreement on Government Procurement, one of the objectives of which was to open up public procurement markets to international competition. In addition to the European Union, 21 other countries are parties to this international agreement, including Australia, Canada, Japan, Norway, Ukraine, the United Kingdom and the United States.
Under the classic and sectoral directives, contractors from these countries should be guaranteed treatment no less favourable than that accorded to contractors from the European Union, from which it can be inferred that the EU public procurement market remains open to them on the same terms, and contracting authorities have no grounds to differentiate between these entities, including imposing additional requirements, creating barriers or excluding them from participation in the procedure.
However, the directives do not explicitly regulate the situation of contractors from third countries that are not members of the European Union or parties to the GPA or bilateral agreements concluded by the European Union. This applies in particular to countries such as India, Turkey and China (People’s Republic of China). It should be noted, however, that the Republic of China (Taiwan) and Hong Kong (Special Administrative Region of the People’s Republic of China) are parties to the GPA. The EU legislator has not decided whether contractors from these countries may participate in EU procedures or whether they are or may be subject to exclusion. Article 86 of Directive 2014/25/EU provides that the Commission may, at any time, propose that the Council adopt an implementing act to temporarily suspend or restrict the award of contracts for services to undertakings governed by the law of a given third country or offering services originating in a given third country. This competence applies, inter alia, where the third country concerned does not treat Union undertakings on an equal footing with domestic undertakings or does not offer them the same competitive opportunities as domestic undertakings. It can be inferred from the above provision, which provides for the possibility of restricting access to the European procurement market for contractors from certain third countries, that, in principle, in the absence of a specific implementing act, such contractors may participate in EU procedures.
However, in the Commission Communication entitled “Guidelines on the participation of third-country tenderers in EU public procurement and the entry of third-country goods into the EU market” (2019/C 271/02), with regard to Article Furthermore, in the context of Article 43 of the Sectoral Directive, it is pointed out that this provision “does not grant all contractors from third countries guaranteed access to the EU market”. Furthermore, in the context of Article 43 of the Sectoral Directive, it was pointed out that this provision ‘does not grant all contractors from third countries guaranteed access to the EU public procurement market’. The Commission also emphasised that, under Article 85 of Directive 2014/25/EU, a tender for supplies may be rejected if the proportion of products originating in third countries exceeds 50% of the total value of the products covered by the tender. However, if the contracting authority accepts the tender, it is obliged to give preference to the tender that could not be rejected in the event of equivalent tenders. This means that although contractors from third countries may be allowed to participate in procedures, contracting authorities are not obliged to ensure such access, may decide to exclude such contractors, and, in addition, tenders involving products originating in those countries may be rejected. Such entities may therefore be treated less favourably than EU contractors. However, the directives and the above-mentioned Commission communication do not contain a general prohibition on the following, by decision of the legislator or the contracting authority contractors from third countries not covered by the obligation under Article 25 of Directive 2014/24/EU and Article 43 of Directive 2014/25/EU could participate in EU procedures on terms providing for no less favourable treatment.
The Polish legislator has not limited the group of contractors eligible to participate in procedures. In particular, the definition of a contractor contained in Article 7(30) of the Public Procurement Law does not introduce a criterion of the contractor’s origin. An exception relating to the contractor’s origin is provided for in Article 404 of the Public Procurement Law, which concerns a specific category of contracts in the fields of defence and security. According to its content, contractors having their registered office or place of residence in one of the Member States of the European Union, the European Economic Area or a country with which the European Union or the Republic of Poland has concluded an international agreement concerning this type of contracts may apply for such contracts. However, the legislator has allowed for the possibility of the contracting authority extending the above list of countries. The provisions of the Public Procurement Law do not grant the contracting authority a general right to exclude contractors from third countries, nor do they introduce – as in Article 7(1a) of the Public Procurement Law of 2004 – an obligation to treat contractors referred to in the directives in a manner no less favourable.
On the basis of the current legal situation, it could be concluded that contractors from outside the European Union may, in principle, participate in EU procedures, but only some of them (those from countries that are parties to the GPA Agreement and other international agreements to which the European Union is bound) are guaranteed treatment no less favourable than that accorded to EU contractors under the directives. With regard to other contractors, the contracting authority may decide not to allow them to participate in the procedure. In practice, however, the Polish public procurement market remained open to contractors from third countries, who were treated on the same terms as EU contractors.
Meanwhile, European public procurement law left unresolved the question of whether contractors from third countries not bound by the GPA and other agreements could be treated on an equal footing with other contractors, especially when national provisions implementing the directives do not explicitly prohibit such equal treatment or differentiate between contractors on the basis of their origin.
Recently, however, the CJEU issued two judgments in cases C-652/22 and C-266/22, which address this issue. The position presented in these judgments is of significant importance for the admissibility of third-country contractors participating in EU procurement procedures.
CJEU judgment in case C-652/22 (Kolin Inşaat Turizm Sanayi ve Ticaret AS)
On 22 October 2024, the CJEU delivered its judgment in case C-652/22. The request for a preliminary ruling was submitted by a Croatian court in a dispute between the Turkish contractor Kolin Inşaat Turizm Sanayi ve Ticaret AȘ (hereinafter: “Kolin”) and the Croatian State Commission for the Control of Public Procurement. The dispute concerned the award of a public contract for the construction of railway infrastructure in Croatia.
In the facts of the case, the Croatian contracting authority initiated a procedure, following which it awarded the contract to a consortium of three companies from Austria, Croatia and the Czech Republic. Kolin, which was one of the bidders, challenged the contracting authority’s decision twice – first the original decision and then the decision taken after re-evaluating the bids ( ) to award the contract to the same contractor. The dispute concerned the issue of demonstrating technical and professional capacity, in particular the procedure for requesting a supplemented list of completed construction works.
After the second appeal was dismissed, the case was referred to the Croatian court, which made a request for a preliminary ruling. The essence of the questions was whether, in the light of Articles 36 and 76 of Directive 2014/25/EU, the contracting authority may, after revoking the first decision to award the contract, additional documents concerning the contractor’s technical and professional capacity which were not included in the original tender and which were submitted by the contractor at the contracting authority’s request.
However, in light of the Advocate General’s opinion, the key issue in the case was the admissibility of the request for a preliminary ruling. Consequently, the CJEU ruled only on this issue, finding that the request for a preliminary ruling was inadmissible.
In justifying this position, the CJEU first stated that it was necessary to examine whether the provisions of EU law to which the preliminary questions relate are applicable to the dispute in the main proceedings, i.e. whether an action brought before a court of a Member State by a contractor from a third country (Turkey) challenging a public procurement decision taken in a Member State could be examined in the light of Directive 2014/25/EU. The Court found that the treatment no less favourable referred to in Article 43 of the sectoral directive means that contractors from third countries covered by that provision may rely on the provisions of the directive. However, in the case of contractors from other third countries, EU law does not preclude those contractors from being admitted to participate in a procurement procedure in the absence of measures adopted by the EU depriving them of that right, but it does prevent those contractors from relying on Directive 2014/25/EU in connection with their participation in such a procedure. Including those contractors within the scope of the above directive would result in granting them the right to no less favourable treatment, in breach of Article 43 of the sectoral directive. The CJEU ruled that the right to submit a tender in an EU procedure does not extend to contractors from third countries that have not concluded an international agreement with the EU, and if such contractors are allowed to participate in the procedure, they do not have the right to invoke the directive, e.g. to challenge the decision to award the contract.
Next, when considering the admissibility of the questions referred for a preliminary ruling, the CJEU noted that the provisions of Croatian legislation transposing Directive 2014/25/EU are interpreted as applying without distinction to all tenderers from the EU and third countries. The Court emphasised that general acts laying down the conditions under which contractors from third countries may participate in EU procurement procedures fall within the scope of the common commercial policy and are the exclusive competence of the Union. Consequently, the CJEU pointed out that “only the Union is competent to adopt a general measure concerning access to public procurement procedures in the Union for contractors from a third country which has not concluded an international agreement with the Union guaranteeing equal and reciprocal access to public procurement, by establishing either a system of guaranteed access to those procedures for those contractors or a system which deprives them of such access or which provides for a correction of the result of the comparison of their tenders with those submitted by other contractors”. However, Member States may only enact laws or adopt legally binding acts in this area on the basis of an authorisation from the Union or for the purpose of implementing Union acts, and the Union has not granted such authorisation nor has it adopted any acts that Member States could implement. In the opinion of the CJEU, in this situation, it is up to the contracting authority to assess whether to allow contractors from a third country that does not have an agreement with the Union guaranteeing equal and reciprocal access to public procurement to participate in the procedure. In the absence of Article 43 of Directive 2014/25/EU on non-less favourable treatment, the contracting authority may apply treatment conditions that reflect the objective difference between the legal situation of those contractors and that of contractors from the Union and from third countries that have concluded an appropriate agreement with the Union. The Court concluded by stating that “national authorities are not entitled to apply the national provisions transposing Directive 2014/25/EU to contractors from third countries which have not concluded an international agreement with the Union guaranteeing equal and reciprocal access to public procurement”.
CJEU judgment in Case C-266/22 (CRRC Qingdao Sifang Co. Ltd and others)
On 13 March 2025, the CJEU issued another ruling in case C-266/22. A request for a preliminary ruling was submitted by a Romanian court in a dispute between a consortium led by the Chinese contractor CRRC Qingdao Sifang Co. Ltd (hereinafter: “Qingdao”) and the Romanian railway reform authority. The dispute concerned the exclusion of the consortium from the tender procedure for the supply of electric multiple units and the provision of maintenance and repair services on the grounds that Qingdao is based in China.
In the facts of the case, the Romanian contracting authority initiated a procedure in which one of the bidders was a consortium led by Qingdao. The contracting authority excluded the consortium and awarded the contract to another contractor. The contracting authority justified its rejection of the bid on the grounds that Qingdao did not meet the definition of a “contractor” under Romanian public procurement law because Qingdao is based in China.
It should be noted here that shortly before the contractor submitted its bid, an amendment to the regulations came into force in Romania, including the definition of “contractor”. The amendment added a condition to the definition that the contractor must have its registered office in: an EU Member State, an EEA Member State, third countries acceding to the EU, or third countries that have ratified the GPA Agreement or are signatories to other international agreements on ensuring free access to the public procurement market. In addition, under the amended regulations, contracting authorities are required to exclude from the procedure tenderers who do not meet the above definition. However, according to the intertemporal rule, only in procedures where contractors submitted tenders before the date of entry into force of the amendment did the previous provisions apply.
The Qingdao consortium challenged its exclusion from the proceedings. After the appeal was dismissed, the case was referred to the Romanian court, which made a request for a preliminary ruling. The essence of the questions was whether the principles of protection of legitimate expectations and legal certainty, and Article 18(1) in conjunction with Article 2(1)(13) and Article 49 of Directive 2014/24/EU should be interpreted as precluding a contractor from a third country which has not concluded an international agreement with the Union as referred to in Article 25 of that directive, from being excluded from a public procurement procedure organised in a Member State on the basis of national statutory provisions amending the definition of the concept of ‘contractor’, which entered into force after the publication of the contract notice but before that contractor submitted its tender.
Even before examining the case, the CJEU recognised the connection between the questions referred and the issues at stake in Case C-652/22 and stayed the proceedings until the first case had been decided.
Unlike in Case C-652/22, the Court considered the questions referred for a preliminary ruling to be admissible, arguing that the dispute concerned how a contractor from a third country that had not concluded an international agreement with the EU guaranteeing equal and reciprocal access to public procurement could be excluded from public procurement procedures in the EU, and therefore the interpretation of EU law may be relevant to the case.
The main part of the CJEU’s reasoning repeats the position expressed in Case C-652/22. The Court once again stated that the right of any interested party to submit a tender in a procedure does not extend to contractors from third countries that have not concluded a relevant international agreement with the EU. A different interpretation would lead to an extension of the scope of the obligation to ensure no less favourable treatment and to grant it, contrary to Article 25 of Directive 2014/24/EU, to contractors from all third countries. Access to procedures for contractors from third countries is not guaranteed, and those contractors may be excluded or admitted, but they cannot rely on the directive. The Court reiterated that the adoption of an act on access to EU procurement procedures for contractors from third countries that have not concluded agreements with the EU on equal and reciprocal access to procurement is the exclusive competence of the EU. In the absence of such an act, it is up to the contracting authority to decide whether to admit a contractor.
The CJEU pointed out that “there was no provision of EU law requiring the admission to or exclusion from public procurement procedures of contractors from a third country which had not concluded an international agreement with the EU guaranteeing equal and reciprocal access to public procurement. In the light of the principles […] according to which, in the absence of authorisation from the Union or a Union act that could be implemented, Member States are not permitted to legislate in the field of common commercial policy, the national provisions at issue in the main proceedings, which impose an obligation on the contracting authority to exclude those contractors, could not be applied. It was for the contracting authority to decide […] whether to admit or exclude the consortium.
Consequently, the Court held that the provisions of the TFEU conferring exclusive competence on the Union in the field of common commercial policy preclude, in the absence of a Union act requiring or prohibiting the granting of access to procurement procedures to contractors from a third country which has not concluded an international agreement with the Union, referred to in Article 25 of Directive 2014/24/EU, the contracting authority of a Member State may exclude a contractor from such a third country on the basis of a legislative act adopted without authorisation from the Union. However, in the Court’s view, the circumstances surrounding the date of entry into force of such an act are irrelevant.
Conclusions from CJEU rulings
The main conclusion is that since the regulation of access to public procurement procedures in the European Union for contractors from third countries that have not concluded an international agreement with the Union guaranteeing equal and reciprocal access to public procurement is the exclusive competence of the Union, the legislators of the Member States cannot independently either extend access to contractors (by granting equal treatment to all contractors from outside the Union) or restrict access (by excluding contractors not covered by the obligation of no less favourable treatment).
This has practical implications for how contractors are defined and the scope of entities covered by national acts implementing the directives. The definition contained in Polish regulations does not refer to the origin of the contractor and can therefore be interpreted as covering all contractors from third countries, which would lead to a violation of Article 25 of Directive 2014/24/EU and Article 43 of Directive 2014/25/EU by granting equal access to the procurement market to contractors who are not entitled to such access under the directives. On the other hand, the definition of a contractor in Romanian law constitutes an encroachment by the Romanian legislator on the exclusive competence of the European Union by closing access to procedures in particular to contractors who are not granted the right to no less favourable treatment by the Directives.
The decision to allow contractors from third countries not covered by Article 25 of the classic directive or Article 43 of the sectoral directive to participate in a specific procedure is up to the contracting authority. European public procurement law does not preclude granting access to such contractors, but does not guarantee it in general. Contracting authorities may apply less favourable conditions to these contractors in the tender documentation, taking into account their different legal situation, and contractors will not be able to invoke the directives to challenge the contracting authority’s decisions. Contracting authorities may also decide to exclude this category of contractors.
Draft amendment to the Public Procurement Law
In response to the CJEU’s position in its judgments in cases C-652/22 and C-266/22, a draft bill amending the Public Procurement Law and the Act on Concession Contracts for Construction Works or Services was submitted on 23 April 2025.
The draft provides for the addition of new general provisions concerning the origin of contractors in the chapter on the rules for awarding contracts.
The first of these, Article 16a, confirms the principle resulting from Article 25 of Directive 2014/24/EU and Article 43 of Directive 2014/25/EU, i.e. that within the scope of the GPA Agreement and other international agreements guaranteeing reciprocal and equal access to the public procurement market to which the European Union is a party, the contracting authority shall grant contractors (and construction works, supplies and services) from third countries that are parties to the agreement or agreements the same treatment as that granted to contractors from Member States of the European Union.
However, the proposed Article 16b(1) grants the contracting authority the right to allow contractors who conduct business and have their registered office or place of residence in third countries (outside the Union, which are not parties to the GPA Agreement and other international agreements) to also apply for the contract. In addition, the contracting authority may decide that it is possible to: apply for the contract jointly with such contractors, rely on their potential, or entrust the performance of part of the contract to subcontractors and further subcontractors from third countries. At the same time, pursuant to Article 16b(2), the contracting authority will be able to specify less favourable contract conditions for these contractors from third countries than for contractors from the countries referred to in Article 16a.
Further changes are a consequence of the adoption of the principle that contractors from third countries not covered by the GPA and other relevant international agreements are not guaranteed access to contracts in the European Union.
In particular, Article 146(1) of the Public Procurement Law provides for the addition of a new ground for rejecting an application for admission to participate in a procedure submitted by such a contractor, while Article 226(1) of the Public Procurement Law provides for a similarly constructed new ground for rejecting a tender. In both cases, the obligation is updated on the part of the contracting authority, except where the contracting authority has admitted contractors from third countries in the procurement documents or contract notice, or has made it possible to apply for the contract jointly with such contractors. According to the draft, the rule is therefore to reject a tender submitted by a contractor from a third country that does not have guaranteed access to EU contracts on no less favourable terms, unless the contracting authority expressly allows such contractors to participate in the procedure. The proposed rules do not therefore generally exclude contractors from third countries, but leave the decision in this regard to the contracting authority, in line with the position expressed by the CJEU.
The draft does not provide for any changes to the scope of mandatory elements of the tender documentation. This means that the contracting authority does not have to explicitly decide on the group of contractors, e.g. in the tender specifications (SWZ). Failure to do so will result in the exclusion of contractors from third countries and the obligation to reject their bids.
The rules introduced in the proposed Articles 16a and 16b will not apply to contracts in the fields of defence and security. In the case of such contracts, the list of contractors is specified in Article 404 of the Public Procurement Law. However, if the contracting authority allows contractors from outside the European Union, the EEA or countries with which the EU or Poland has concluded an international agreement concerning such contracts to participate in the procedure, it will be able to specify terms and conditions of the contract that are less favourable than those applicable to contractors from the aforementioned countries.
Furthermore, the above changes result in a modification of the list of entities entitled to legal protection measures. The draft provides for the addition of Article 505(1a), which stipulates that these remedies are not available to contractors, participants in the competition and other entities referred to in paragraph 1 from third countries that are not parties to the GPA Agreement and other relevant international agreements. As a result, contractors from third countries will not be able to challenge the contracting authority’s decision, in particular by appealing to the National Appeal Chamber (KIO).
Similar amendments to Articles 16a, 16b and 505(1a) are proposed in the Act of 21 October 2016 on concession contracts for construction works or services.
After consultation and review, the draft was submitted to the Sejm on 27 May 2025 and on 2 June 2025 it was referred for first reading to the Sejm Committee on Deregulation.
Summary
The CJEU judgments in cases C-652/22 and C-266/22 have significantly changed the existing understanding of the provisions of Directives 2014/24/EU and 2014/25/EU. Until now, the Polish public procurement market in particular has remained open in principle to contractors from third countries, who were treated on the same terms as EU contractors. However, the Court has clearly stated that Member States may not extend the scope of the directives to third countries that are not parties to the GPA and other international agreements on public procurement, nor may they generally exclude such contractors. The decision in this regard rests with the contracting authority, which may treat such contractors less favourably. The response to the CJEU’s rulings is a draft amendment to the regulations, which is intended to implement the conclusions of the above judgments in practice.
