Foreign Bidders Face Resistance in EU Public Procurement

In the EU Court of Justice judgement of March 13, 2025, case C-226/22, CRRC Qingdao Sifang, the EU Court of Justice has now established that National law cannot regulate access to tenders for economic operators in third countries that are not parties to the GPA agreement or a similar agreement with the Union on its own, as it falls within the exclusive competence of the Union to regulate this access.

In recent years, EU Member States have shown increasing concern regarding the origin of successful bidders in public procurement procedures. This scrutiny has been particularly prominent in the IT infrastructure sector and in relation to the growing number of high-value public contracts. As a consequence, two cases (C-266/22 and C-252/22) were brought before the Court of Justice of the European Union (CJEU) to clarify whether contractors from third countries are entitled to invoke rights under the EU public procurement directives – specifically, whether they are entitled to equal treatment when participating in EU public tenders. The cases were decided on 22 October 2024 and 13 March 2025.

C-226/22, CRRC Qingdao Sifang (Qingdao) contains various statements of general scope, but on the other hand; there is actually nothing new compared to the EU Court of Justice's judgement of October 22, 2024, in case C-652/22, Kolin (Kolin).

The two judgements, Kolin and Qingdao, mark a significant discussion regarding the rights of third-country operators. The Court unequivocally states that economic operators from third countries that have not concluded reciprocal market access agreements with the EU on public procurement (such as the GPA) cannot invoke EU procurement law principles, including the principle of equal treatment. At the same time, the Court emphasised that the EU has exclusive competence to regulate access to EU procurement markets as part of the common commercial policy and that Member States therefore cannot unilaterally adopt legislation that excludes third country companies. 

Thus, the EU Court of Justice has recently, in the Qingdao case, taken a firm stance and stated that the Romanian legislation excluding non-GPA third-country bidders constituted an illegal encroachment on the EU's external competence. Therefore, the case should not be decided based on the mentioned Romanian legislation, as it was invalid, but rather according to EU law. It is solely the Union that has the competence to adopt a general legal act regarding access to EU tenders for economic operators from a third country that have not entered into an international agreement with the Union. 

The Union has not yet adopted such legal acts, which member states can implement. In the absence of such legal acts, it is up to the specific contracting authority to assess whether economic operators, non-GPA third countries, should have access to participate in a specific EU tender, and if so, whether there should be an adjustment in comparing the bids of such operators with the bids of other operators.

This legal clarification creates a complex situation: third country companies can participate in EU tenders, but without the legal safeguards provided by the EU procurement directives. At the same time, Member States cannot impose restrictions on their own.

Thus, it’s the contracting authority in an EU tender that can establish detailed provisions regarding the difference in legal status between economic operators from a third country, non-GPA third-country bidders, and the economic operators within the Union, in its tender documents. It is conceivable that these provisions must comply with the administrative law principles of transparency and proportionality, but ultimately it’s only national law and not EU law that can address the breach of such provisions; and how will national law handle this?

The rulings may reignite a debate over whether the EU should adopt a more inclusive stance toward third-country bidders in public procurement or close the boarders. While the Court confirmed that only countries with reciprocal agreements like the GPA may claim rights under EU law, this strict interpretation raises questions about fairness and global competitiveness. On one hand, maintaining legal asymmetry protects the internal market and ensures reciprocity. On the other, excluding capable suppliers solely based on origin—without regard to value or performance—may limit innovation and increase procurement costs. The rulings leave Member States with little discretion yet offers no common mechanism to assess strategic or economic benefits of third-country participation. Whether the EU should treat all bidders equally remains a normative and geopolitical question, not just a legal one.

It will be interesting to see if the rulings will lead to a more coordinated EU approach to protecting critical infrastructure and strategic sectors, especially in light of the increasing geopolitical situation and security of supply concerns.

Already now we have seen that in Poland there has been a first tender announced by one of the largest contracting authorities (responsible for railway lines) where the terms neither allow the participation of contractors from non-EU countries that do not have trade agreements with the EU, nor allow to use the experience of contractors from such countries - even by EU contractors submitting the bid.

It will be exciting to follow the developments - especially in the IT sector where the debate on data transfers to third countries is already raging. We have yet to see specific cases from Denmark or requests from our clients regarding specific regulation in their tender documents.

If you or your company have specific experiences or insights in the field, or need specific advice, feel free to contact us or one of our colleagues.