Access of economic operators of third countries to the European public procurement market – approving commentary on the judgment of the CJEU in case C-652/22 (Kolin)

Abstract

The subject of this study is an approving gloss on the judgment of the CJEU in case C-652/22 (Kolin). The Court, having refused to answer the question posed by the referring court, stated that economic operators from states that are not members of the European Union or have not entered into an agreement with the Union guaranteeing mutual and equal access to markets do not possess the right to equal treatment in the public procurement procedure. The Court confirmed that contracting authorities (but not EU Member States) have the right to: fully open the procedure to economic cooperators from third countries, limit access to the procedure through special conditions for the treatment of economic operators from third countries, or completely deny such access to them. The decision should manifest as a condition of the contract disclosed in the procurement documents. The proposals for a legislative response to this judgment raise concerns because they assume a specific solution applicable in the event of silence from the contracting authority. Such a general act may be viewed as an infringement on the exclusive competence of the Union (common commercial policy).