AEGIS Europe welcomes judgement of the ECJ (Case-652/22) Kolin Case - Public Procurement
/Brussels, 27 January 2025 - On October 22nd, 2024, the Court of Justice of the European Union (CJEU) issued a ruling in the Kolin Inşaat Turizm Sanayi ve Ticaret case (C-652/22 – the “Kolin case”).
The case concerns a request for a preliminary ruling directed to the CJEU by a Croatian Court, during the proceedings to assess the legality of a decision to award a contract for the construction of a railway infrastructure to a competing bidder of the Turkish company Kolin. The competing bidder was allowed to amend its bid after the deadline for submission and Kolin argued that there was a violation of the principle of equal treatment. The CJEU upheld that bidders originating from a third country, which has not signed an international agreement on public procurement with the EU, cannot claim equal treatment with other bidders in this area and cannot effectively invoke the provisions of the EU public procurement directives.
AEGIS Europe welcomes this ruling as a major and positive development, having argued for years that these foreign bidders – especially from China – should not be treated in the same way as European bidders, considering the lack of reciprocity and the numerous market entry barriers (localisation requirements, discrimination in public procurement procedures to name a few). This was the outcome of many years of legal uncertainty, despite the positive interpretation of a Guidance on the participation of third country bidders in the EU procurement market published by the European Commission in 2019.
Nevertheless, AEGIS Europe has identified critical points that still need to be addressed in order to guarantee the positive and durable effects of this ruling:
a) At present, there are no legal acts governing the access of third-country contractors to public procurement procedures in member States, despite it being an exclusive EU competence. Therefore, the CJEU stated that it is up to a particular contracting entity to assess whether it should allow such a contractor to participate in a procedure. This poses significant challenges and creates legal uncertainty for contracting authorities but also for bidders themselves (which third countries are affected by the decision, how to assess what can legally be done etc.). It is crucial that this decision and the principle of non-equal treatment are formally enshrined in legal acts to guarantee legal certainty.
b) The risk of circumvention linked to EU based entities being ultimately controlled by foreign entities originating from countries with which the EU has no international agreement on public procurement, or to consortia involving both a European entity and a foreign one. AEGIS Europe strongly believes that the announced revision of the EU public procurement directives in 2026 constitutes a unique and crucial opportunity to implement the outcome of the Kolin case. It is even more important now that the European Commission confirmed, in the newly released Competitiveness Compass, the introduction of a European preference in public procurement for critical sectors and technologies, recognizing the importance of safeguarding European capacities against unfair competition, global overcapacities and market access restrictions.
Media contact: email: info@aegiseurope.eu | www.aegiseurope.eu
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About AEGIS Europe: AEGIS Europe is an industry alliance that brings together more than 30 European manufacturing associations and companies representing the whole value chain from metals and ceramics to transportation industries committed to manufacturing in the EU on a truly level playing field ensured by a rules-based free and fair international trade. Our members account for more than €500 billion in annual turnover, as well as for millions of jobs across the EU.