Until now, this issue has been raised rather on an individual basis by some of the Member States (see, e.g. the so-called Romanian case C-266/22 being considered by the CJEU). The CJEU eventually recognized the need to adopt a uniform interpretation in this area. The CJEU judgment, although it was made on the background of the participation of an entity from Turkey, contains universal conclusions regarding the participation of economic operators of a third country in EU public procurement.
According to the Kolin judgment, the issue of access to EU public procurement by economic operators of a third country is an exclusive EU competence. Member States are therefore not authorized to adopt legislation of a general nature in this regard. The CJEU held that in the absence of a legal act issued by the EU - and it is worth emphasizing that there are currently no such acts - it is up to the contracting entity to assess whether it should allow such an economic operator to participate in the public procurement.
Thus, it seems that the issue of the participation of economic operators of a third country, at least until the EU takes legal action, has been resolved. However, just looking at the reaction of Polish practitioners to this judgment, it should be seen that its many elements still raise doubts.
First of all, it is worth mentioning the discussion sparked by the judgement issued by the National Appeals Chamber (Krajowa Izba Odwoławcza) on January 17, 2025 in case no. KIO 4763/24. It addressed the matter of how the contracting entity should express its decision regarding the possibility for economic operators of a third country to participate in the proceedings. The subject of the dispute can be boiled down to the question of whether the silence of the contracting entity is sufficient, or whether it is necessary to clearly express this in the terms of reference. National Appeals Chamber, following the CJEU judgment in the Kolin case, ruled that transparency in the proceedings is necessary in this regard. In the absence of a provision explicitly prohibiting the participation of such economic operators, the silence of the contracting entity will mean that all economic operators will be admitted to the proceedings. Similar position was taken by the Public Procurement Office (Urząd Zamówień Publicznych) in its announcements.
This discussion has also found expression in proposals to amend the Polish Public Procurement Law. Interestingly, the authors of the two of them presented completely different approaches. The first proposal assumed, in line with the Kolin judgment, that the contracting entity's silence implies the contracting entity's consent to the participation of economic operators of a third country in the public procurement. The second concept stipulated that silence should be treated as the absence of such consent. However, the processing for both proposals has been put on hold and a new draft in this regard is expected. Regardless of the further fate of the amendment to the Polish Public Procurement Law, it should be pointed out that introducing an implicit ban on the participation of economic operators of a third country in the law may be considered a violation of the EU's exclusive competence in this regard.
Moreover, both proposals dealt in a very superficial way with the question of who should be considered an economic operator of a third country. The proposed understanding of this concept seems to be inconsistent with today's market realities, as it refers exclusively to the location of the registered office or place of residence of such an economic operator in a third country. Meanwhile, the issue needs to be clarified much further. The question is in which direction this definition should go, whether in the direction in which various types of sanction laws go (see, for example, Article 5k of Council Regulation (EU) No. 833/2014 of July 31, 2014), or rather in the direction of Article 86(5) of Directive No. 2014/25/EU of the European Parliament and of the Council of February 26, 2014. Regardless of the final approach, however, the need for legislation in this regard should be unequivocally emphasized, as the conditions introduced by the contracting entity in the procurement documents will only be theoretical without a clear indication of who they actually apply to.
Still returning to the issue of the Kolin ruling, it is worth noting that the judgment does not answer the question of what about other entities that appear during public procurement procedure, such as consortium members, resource-sharing entities, or subcontractors. It is not clear whether the contracting entity can decide on the participation of third country entities also in such a role. Admittedly, Public Procurement Office in its announcement has taken a position explicitly granting contracting entities such a right, but this may raise some doubts. In particular, the question is whether this does not go too far in infringing on the rights of EU economic operators to freely shape their business relationships. Perhaps in this respect, contracting entities should only be allowed to specify less favourable conditions in relation to the offer insofar as it is linked to the resources of a third-country entity, rather than completely preventing participation in such a configuration in the procedure?
Further questions are also raised by the CJEU's indication that an economic operator of a third country's remedy can only be considered in light of national law, not EU law. However, the judgment does not answer the question of how to distinguish the two types of law from each other, since the former largely implements the latter. Nor is it clear whether national law should provide the answer, or whether the EU sees its exclusive competence in this area as well.
The judgment in the Romanian case C-266/22, cited at the outset, is scheduled for March 13, 2025, a date very much awaited by public procurement law practitioners in Poland, but also in other EU countries. The question is whether the CJEU will decide to dispel some of the questions that arise, or whether it will prudently limit itself to repeating what we already know.
1 EU public procurement law distinguishes between the legal situation of economic operators of a third country, which has concluded an international agreement with the EU that guarantees access to public procurement in a reciprocal and equal manner and the legal situation of economic operators of a third country where no such guarantees exist. Whenever this article further refers to an economic operator of a third country this should be understood to mean an economic operator of a third country which has not concluded an international agreement with the EU which guarantees access to public procurement in a reciprocal and equal manner.
Authors: Weronika Jędrzejewska, Szymon Siuda