On October 22, the Court of Justice of the European Union (CJEU) issued a landmark ruling in the case of Kolin Inşaat Turizm Sanayi ve Ticaret (C-652/22 – the “Kolin judgment”). This ruling is of crucial importance for contractors participating or intending to participate in the European Union public procurement market who come from non-EU countries that are not parties to international agreements with the EU. The Court held that contractors from third countries that have not concluded an international procurement agreement with the Union cannot invoke the principle of equal treatment in this area.
A Croatian contracting authority initiated a public procurement process for the construction of rail infrastructure connecting two locations within Croatia. Kolin Inşaat Turizm Sanayi ve Ticaret (Kolin), a company based in Turkey, challenged the legality of the decision to award the contract to another bidder. During the legal proceedings, the national court referred to the Court of Justice for clarification regarding the circumstances under which, after the submission deadline, contracting authorities may request bidders to correct or clarify elements of their initial offers in accordance with the relevant procurement directive.
The CJEU ruled that, in line with the directive applicable to this public procurement case, contracting authorities from EU member states should grant contractors from third countries, which are parties to such agreements, treatment no less favorable than that granted to contractors from the Union. Contractors from these third countries may rely on the provisions of this directive.
However, contractors from third countries that, like Turkey, have not concluded such an international agreement with the Union, cannot participate in public procurement procedures in the Union by invoking equal treatment compared to bidders from EU member states or from third countries bound by such agreements. They also cannot invoke the provisions of the relevant procurement directive to challenge the award decision. Consequently, if such a contractor challenges the proceedings, their appeal can only be examined under national law, not under EU law.
Source: CJEU Press Release No. 183/24 of October 22, 2024.
