Will Everyone Have Equal Opportunity in Tenders? Court Directives

Public procurement is traditionally considered an open competitive process where any qualified bidder can participate. However, in the current era of geopolitics and trade policy, this concept is evolving.

A significant example of this change is the ruling by the Court of Justice of the European Union (CJEU)—Case C-266/22 (Judgment: 13 March 2025)—which addresses fundamental questions regarding procurement access for third-country bidders.

This ruling has sparked a major debate within the procurement community.

Key Questions Addressed:

• Can companies from outside the EU participate in all public tenders?
• Or can contracting authorities exclude them?

Background of the Case

The case originated from a public procurement dispute where a non-EU (third-country) bidder sought to participate in a procurement procedure within an EU Member State. The relevant contracting authority questioned whether EU procurement law (specifically Directive 2014/24/EU) mandates the acceptance of such bidders.

While globalization has led more non-EU companies to seek entry into the EU market, this framework was primarily designed for the EU internal market.

Consequently, the matter was referred from a national court to the CJEU for a preliminary ruling.

Legal Issues

The central legal question was whether EU public procurement directives compel contracting authorities to admit third-country bidders, especially in the absence of the WTO Government Procurement Agreement (GPA) or other bilateral agreements.

It also questioned the extent of the contracting authority’s discretion and whether procurement is a fully open system or a regulated access system.

Arguments Presented

The Bidder’s Perspective: Argued for a liberal trade perspective, claiming that open competition is a core principle of procurement. They asserted that exclusion based on nationality constitutes discrimination and that EU internal market principles should be interpreted broadly to ensure global participation.

The Contracting Authority’s Perspective: Argued from a regulatory sovereignty perspective, stating that EU procurement rules are primarily for the EU market and only open to countries with specific procurement agreements. They maintained that authorities should have the discretion to decide whether to accept third-country bidders.

The Judgment

On March 13, 2025, the CJEU established a vital principle: EU procurement directives do not mandate contracting authorities to accept third-country bidders.

The court clarified that:

• Obligations only exist for entities from countries with international procurement agreements (like the GPA) with the EU.
• Open access is conditional, not a full global right.

Contracting authorities are granted significant discretion in these matters.

Critical Analysis

This ruling signifies a paradigm shift in procurement law.

Controlled Market Access: It establishes procurement as a controlled system rather than just open competition.

Geopolitical Procurement: Procurement is no longer just an economic decision; it is now a tool for trade policy and strategic autonomy.

Increased Authority Power: Contracting authorities now have more power to determine bidder eligibility and exclusions.

Impact on International Procurement

This ruling may lead to a more fragmented global procurement landscape.

Specifically:

• Access to the EU market may become more difficult for non-EU companies.
• The importance of bilateral agreements will increase.
• There may be a rise in protectionism within procurement.

Lessons for Procurement Professionals

• Bidder eligibility is now a strategic issue, not just a technical one.
• Market access policies must be considered before awarding contracts.
• Legal awareness regarding global supplier selection is essential.

Conclusion

Case C-266/22 is a major turning point, demonstrating that modern procurement involves more than just price and quality; it is now deeply intertwined with geopolitics, trade policy, and strategic interests.

The EU Court has made it clear: “An open market does not mean unrestricted access.”

References: CJEU Judgment, Case C-266/22 (13 March 2025)