EU Commission guidance on EU procurement participation for bidders from non-covered third countries

In two recent judgments, Kolin and Qingdao, the Court of Justice of the European Union (CJEU) sent a strong signal regarding the participation and treatment of bidders from non-covered third countries in public procurement procedures. A recent non-paper from the EU Commission aims to clarify questions received from different stakeholders arising from these judgments. 

Since our November 2024 newsflash regarding the Kolin judgement (22 October 2025, C-652/22), the discussion around this judgement and the access and treatment of economic operators of non-covered third county bidders has only gained in strength. In March 2025, the CJEU confirmed the Kolin ruling in its Qingdao judgment (13 March 2025, C-266/22). The CJEU ruled that national laws on procurement access for non-covered third country entities should be ignored and that contracting authorities are to decide whether to accept or exclude such economic operators. 

The EC non-paper, an informal document used to present ideas and stimulate discussion among stakeholders, aims to address several questions arising from the Kolin and Qingdao judgments. The main take-aways of this non-paper are explained below.

Coverage

Contracting authorities in the EU only have an obligation to admit operators from third countries with which the EU has international procurement commitments, such as the WTO General Procurement Agreement (GPA) or bilateral agreements. 

While the Commission's IT tool ‘Procurement4Buyers’ can help verify if a bidder is from a country that has concluded such agreements, the responsibility for the accuracy of the subsequent assessment remains solely with the contracting authority. 

The Kolin and Qingdao principles, i.e. the exclusion from EU law protection for non-covered third country economic operators, can apply to any public procurement procedure regardless of EU thresholds and tender value. This derives from the fact that these principles are rooted in the EU’s exclusive competence on its common commercial policy. This specific clarification by the Commission, which had not yet fully emerged from the judgments, may prove to be significant in practice.

Consortia, sub-contractors and companies providing capacity

The Kolin judgement does not address tenders involving consortia, subcontractors, or capacity providers from non-covered countries. 

Contracting authorities must decide on a case-by-case basis whether to admit these tenders and potentially adjust evaluation results when comparing with other tenderers. 

Legislating on access/treatment

National legislation granting access or barring bidders from non-covered countries to EU public procurement, adopted in disregard of the EU’s exclusive competence, must be amended. Member States, including any national authorities, cannot legislate or adopt legally binding acts of general application on access (or lack thereof) to the EU public procurement market for operators from non-covered countries. Any remedies available to these operators are solely within the remit of national law. 

(National) guidance on decisions for contracting authorities

Decision criteria guiding the participation and terms of participation of non-covered third country economic operators to procurement procedures should be determined by contracting authorities on a case-by-case basis. Member states cannot legislate on the criteria for admitting operators from non-covered countries. 

Individual contracting authorities may follow a non-binding uniform approach or decide on a case-by-case basis, but internal guidelines cannot include any rule of general application.

Treatment of bidders from non-covered countries

The Commission states that while this is generally allowed only under national law rather than Union law or its transposition, contracting authorities/entities may still apply identical tender conditions to suppliers from both covered and non-covered countries. Economic operators from non-covered countries do not have a right of redress under the national legislation transposing the EU legislation. 

EU public procurement law does not prevent less favorable treatment of tenderers from non-covered countries, even if such treatment was not provided for in the tender documents. The contracting authorities retain the right to accept or reject a non-covered economic operator at any moment during the procurement process, regardless of any indication of this possibility in the tender documents. This interpretation from the Commission raises some concerns regarding the principle of legal certainty, since a participating third-country entity can now be unilaterally barred at any moment during the procurement process.

Contracting authorities/entities may adjust procurement results when admitting economic operators from non-covered countries, taking inspiration from the International Procurement Instrument (IPI) rules. They may specify the chosen adjustment mechanism in the tender documents but do not seem obliged to do so. 

Rights of operators from non-covered countries

Operators from non-covered countries cannot invoke EU public procurement law in legal procedures and can only rely on national law. The Commission seems to imply that protections deriving from national law do not necessarily include EU law enshrined transparency and proportionality principles. 

National contract law may provide access to legal remedies but cannot grant participation in procurement procedures, and compliance with the rule of law is based on national legislation that does not constitute transposition of EU law. Considering the European Convention on Human Rights (ECHR), the Commission interprets the right of access to courts to concern national law only. It reiterates that operators from non-covered countries do not enjoy rights or remedies derived from EU public procurement law.

Critical reflection

The Commission has tried to provide guidance on third-country participation in EU public procurement procedures after the Kolin and Qingdao judgments of the CJEU. This non-paper clarifies that the Kolin and Qingdao principles also apply to procurement procedures below EU thresholds. For now, broad discretion is given to contracting authorities regarding the treatment of operators from non-covered countries. However, due to the current lack of clear guidelines and rules, this might lead to practical challenges and legal uncertainty. A legislative clarification is, in any case, considered necessary. It remains to be determined whether this legislative intervention will occur with the revision of the Procurement Directives or if more immediate measures will be undertaken. Further developments are anticipated.