The Kolin and Qingdao Judgments: Differentiated Treatment of Foreign Bidders by the CJEU

Kolin: Member States Cannot Adopt General Measures Applying Procurement Directives in Favour of Operators from Non-GPA Third Countries

The judgment in the Kolin case arose as a result of a preliminary ruling referred in the context of a tender by a Croatian contracting authority for the construction of railway infrastructure. The winning entity—a consortium comprising the Austrian company Strabag AG, the Croatian company Strabag d.o.o., and the Czech company Strabag Rail a.s.—was allowed to demonstrate its technical and professional capacity through certifications for works not initially included in its bid.

In response, the Turkish bidder Kolin İnşaat Turizm Sanayi ve Ticaret AȘ ("Kolin") challenged the award, alleging a breach of the principle of equal treatment guaranteed under Article 36 of Directive 2014/25 of 26 February 2014 on procurement in the so-called "excluded sectors". In Croatia, this Directive was interpreted as applying equally to bidders established within the EU and those from third countries. As part of the proceedings, the referring court sought clarification from the CJEU on whether the awarding entity had adhered to the principle of equal treatment.

The CJEU ruled that while EU law does not prevent Member States from allowing operators from non-GPA (World Trade Organization Government Procurement Agreement) third countries to participate in their tenders where no EU exclusion measures apply, such operators cannot invoke Directive 2014/25 to demand equal treatment alongside EU operators and those from GPA signatory states.

This stems from the EU’s exclusive competence in the area of common commercial policy, which precludes Member States from adopting unilateral measures that directly impact trade between third countries and the EU—such as extending the application of procurement directives to operators from non-signatory third countries. Article 43 of Directive 2014/25 only requires contracting entities to grant no less favourable treatment to bidders from EU Member States or GPA signatory countries.

Consequently, the CJEU found that Kolin could not rely on Article 36 of Directive 2014/25, including its principle of equal treatment, to challenge the contract award.

As a result, the Court dismissed the preliminary question, as the claimant could not base its claims on Directive 2014/25, rendering its interpretation irrelevant to resolving the case. However, the reasoning established in this ruling was subsequently adopted by the CJEU in the Qingdao case.

Qingdao: Member States Also Cannot Impose a General Ban on Access for Such Operators

The case leading to the Qingdao judgment involved the exclusion of the Chinese bidder CRRC Qingdao Sifang Co. Ltd by a Romanian contracting authority in a tender for the procurement and maintenance of interregional trains. The exclusion was based on Romanian procurement law, which mandated the exclusion of bidders from third countries that had not signed the GPA or a similar agreement, such as China.

In the course of Qingdao's appeal against its exclusion, arguing a violation of the principle of equal treatment, the national court referred a question to the CJEU concerning whether the decision was compatible with the principles of procurement guaranteed under Article 18 of Directive 2014/24 of 26 February 2014 on public procurement, including equal treatment.

Following similar reasoning as in Kolin, the CJEU clarified that the applicable law was Directive 2014/25 rather than Directive 2014/24. It ruled that a procurement law, such as the Romanian legislation, which prohibits participation by operators from non-GPA third countries, also infringes upon the EU's exclusive competence in common commercial policy. This is because such legislation constitutes a unilateral measure with a direct impact on trade between these third countries and the EU.

As affirmed by the CJEU, the conclusions drawn in relation to Directive 2014/25 apply equally to Directive 2014/24. Thus, these principles are relevant both to tenders conducted by contracting entities under Directive 2014/25 and contracting authorities under Directive 2014/24.

Unlike in Kolin, the CJEU did not dismiss the preliminary question in Qingdao because it also concerned the interpretation of EU legal provisions or principles such as legal certainty or legitimate expectations, beyond just Directive 2014/24.

Conclusion: It Is for Contracting Entities to Decide Case-by-Case on the Admission and Treatment of Third-Country Bidders

In light of both rulings, Member States cannot adopt general measures guaranteeing non-GPA third-country operators equal treatment under procurement directives, nor can they generally prohibit such operators from participating in their award procedures.

In the absence of agreements such as the GPA with the operator's country, the CJEU declared in Kolin and Qingdao that contracting entities must decide, on a case-by-case basis, whether to allow such operators to participate in tenders and under what conditions.

Accordingly, the CJEU found it compliant with EU law for Member State contracting entities to afford less favourable treatment to operators from such states, for instance, by adjusting their scores compared to other bidders. The only requirement imposed by the Court is that contracting entities justify, in the procurement documents, the existence of objective differences between the legal status of operators from these third countries and that of operators from the EU or GPA signatory states.

Provided this requirement is met, the compliance of the contracting entity's decision to exclude such operators or treat them less favourably must be assessed under national law.