The Court of Justice of the European Union (CJEU) rulings and access of third-country contractors to the Polish public procurement market

The Court of Justice of the European Union (CJEU) has recently issued two important rulings – in the cases of Kolin Inşaat Turizm Sanayi ve Ticaret AŞ (C-652/22) and Qingdao Sifang Co. Ltd (C-266/22), which affect the approach of Member States to the participation of contractors from third countries (outside the EU) in public procurement procedures.

Main points of the judgments

In both cases, the CJEU confirmed that:

• Member States are obliged to comply with the rules arising from international agreements, including the Government Procurement Agreement (GPA) concluded within the framework of the World Trade Organisation (WTO);
• contractors from third countries may invoke EU or international provisions on access to the procurement market if the third country in question is a party to the GPA or another agreement concluded with the EU;
• contracting authorities must respect the rights of such contractors to non-discriminatory treatment, provided that they meet the conditions laid down in the relevant international agreements.

However, the CJEU has clearly indicated that the European Union retains the right to restrict access for contractors from third countries where there are no relevant international agreements or where third countries apply practices that restrict access to their procurement markets.

Impact of the judgments on Polish law

In connection with the CJEU judgments, a draft amendment to the Public Procurement Law and the Act on Concession Contracts for Construction Works or Services has been prepared in Poland with the aim of implementing the effects of the CJEU judgments into the Polish legal system. The draft assumes a presumption of non-consent to the participation of contractors from third countries – silence on this subject by the contracting authority in the Terms of Reference and contract documents will be considered as non-consent. The changes are primarily aimed at:

• adapting the provisions to the current interpretation of the CJEU by precisely defining the rules for the participation of contractors from third countries;
• introduce mechanisms for verifying the origin of the contractor and the source of the goods or services provided;
• enable the exclusion of contractors from third countries not covered by relevant international agreements or in the absence of reciprocity;
• taking into account protective instruments that provide for sanctions against contractors from countries applying protectionist measures.

What does this mean for contracting authorities and contractors?

For contracting authorities, this primarily involves the need for a more thorough analysis of the legal status of contractors from outside the EU and the possibility of applying new grounds for exclusion. For contractors, on the other hand, it means the need to demonstrate their right of access to the procurement market on the basis of relevant international agreements and the risk of restrictions on access to the Polish market in the absence of relevant agreements or reciprocity rules.

The CJEU judgments in the Kolin and Qingdao Sifang cases significantly shape the new rules for access to the European, including Polish, public procurement market. The proposed amendments to the Polish Public Procurement Law will have a significant impact on both the organisation of public procurement procedures and the strategies for foreign contractors to participate in these procedures.