(AGENPARL) – mar 22 ottobre 2024 PRESS RELEASE No 183/24
Luxembourg, 22 October 2024
Judgment of the Court in Case C-652/22 | Kolin In?aat Turizm Sanayi ve Ticaret
Economic operators from a third country which has not concluded an
international agreement on public procurement with the European Union
cannot claim equal treatment in this area
In the absence of an international agreement on public procurement concluded between the European Union and a
third country, economic operators in that third country cannot rely on the provisions of the relevant directive on
that matter 1 in order to claim participation in a procedure for the award of a public contract in the European Union
on the same footing as tenderers from Member States or third countries bound by such an agreement.
Furthermore, having regard to the exclusive competence of the European Union in the area of the common
commercial policy, national authorities are not entitled to apply, to economic operators in third countries which
have not concluded such an international agreement with the European Union, national provisions transposing the
rules contained in that directive.
A contracting entity opened a procedure for the award of a public contract for the construction of railway
infrastructure connecting two towns in Croatia. Kolin In?aat Turizm Sanayi ve Ticaret (Kolin), a company established
in Turkey, challenged the legality of the decision awarding the contract to another tenderer. In the context of that
action, the competent national court asks the Court of Justice to clarify the circumstances in which, after the expiry
of the deadline for the submission of tenders, contracting authorities are entitled, under the relevant directive on
public procurement, to ask tenderers to make corrections or to clarify their initial tender.
The Court of Justice rules on the admissibility of the request submitted to it.
It notes that the European Union is linked to certain third countries by international agreements, in particular the
World Trade Organization Agreement on Government Procurement (GPA), which guarantee reciprocal and equal
access for economic operators to public procurement. Thus, according to the directive applicable to public
procurement at issue in the present case, contracting entities of the Member States must accord economic
operators from third countries which are parties to such an agreement treatment no less favourable than that
accorded to economic operators in the European Union. Economic operators in those third countries may rely on
the provisions of that directive.
By contrast, economic operators in third countries which, like Türkiye, have not concluded such an
international agreement with the European Union cannot participate in a procedure for the award of a public
contract in the European Union while claiming equal treatment with tenderers of Member States or third countries
bound by such an agreement. Similarly, they cannot rely on the provisions of the relevant directive on public
procurement in order to challenge the decision awarding the contract in question.
Finally, the Court considers that the question of access of economic operators of third countries to public
procurement procedures in the Member States falls within an area in which the European Union has exclusive
competence. Accordingly, as regards that access, the Member States are not empowered to legislate or adopt
legally binding acts of general application, including where the European Union has not adopted applicable acts in
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that area.
Where no such act exists, it is for the contracting entity to assess, on a case-by-case basis, whether economic
operators from third countries which have not concluded an international agreement on public procurement with
the European Union should be admitted to a procedure for the award of a public contract. If such an economic
operator challenges the conduct of the procedure, its action can be examined only in the light of national law and
not EU law.
On this point, the Court holds that national authorities cannot require contracting authorities to apply
national provisions transposing the rules contained in the directive on public procurement to economic
operators of third countries which have not concluded an international agreement with the European
Union.
Consequently, it declares that the request for a preliminary ruling is inadmissible.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which
have been brought before them, to refer questions to the Court of Justice about the interpretation of EU law or the
validity of an EU act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to
dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or
tribunals before which a similar issue is raised.
Unofficial document for media use, not binding on the Court of Justice.
The full text and, as the case may be, an abstract of the judgment is published on the CURIA website on the day of
delivery.
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Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy,
transport and postal services sectors and repealing Directive 2004/17/EC.
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