Companies from third countries cannot invoke the relevant EU directive on equal treatment of bidders when awarding public contracts. This is only possible if the third country has concluded a corresponding international agreement with the EU that guarantees the respective companies reciprocal access to public contracts. This has now been decided by the European Court of Justice (ECJ) (Ref.: C-652/22 of 22.20.2024). In the absence of such an agreement with the EU, companies from the third country can neither invoke equal treatment with other bidders from EU member states when awarding public contracts nor challenge the decision to award the contract in accordance with EU rules.

The ECJ also clarifies that the member states themselves cannot issue national regulations in this regard, but that the responsibility lies exclusively with the EU. In individual cases, the contracting authority may authorise a bidder from a third country without an agreement with the EU. However, if the bidder then objects to the award procedure, this can only be reviewed in accordance with national regulations and not under EU law.

This case concerned a contract for railway infrastructure in Croatia. A company based in Turkey contested the award decision and sought clarification by invoking the relevant EU public procurement directives. However, as Turkey has not concluded an agreement with the EU in the area of public procurement, the company could not invoke the EU Directive.

Contact persons for all questions of public procurement and private construction law in our practice are Rechtsanwalt Janko Geßner, Attorney at law Dr Janett Wölkerling, M. mel. and Rechtsanwalt Philipp Buslowicz, LL.M..