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This case has it all: big money, multinationals, but above all: a significant substantive thread. It concerns a 2020 tender launched in Romania for the purchase of 20 electric multiple units. As a result of changes to Romanian legislation introduced in April 2020, a consortium led by a Chinese company was eliminated from the fight for the contract. The reason for this was that, as a Chinese entrepreneur, this entity was not included in the definition of the term "contractor" under the Romanian Public Procurement Law. As a result of the fact that the consortium disagreed with this exclusion, the case first wandered to the Bucharest Court of Appeals and then (as a result of its activity) found itself on the agenda of the Court of Justice of the European Union.


European Commission has published (though for now only in the language of Shakespeare) the tool for the online submission of the complaint regarding the access to the third-country procurement market. We visited the website – our review below.


The discussion on the International Procurement Instrument (IPI), a legal mechanism aimed at providing the EU with arguments in negotiations with third countries on opening up their public procurement and concession markets more widely to EU entrepreneurs, has been ongoing for more than a decade. The EU finally succeeded (in June 2022) in adopting Regulation 2022/1031 on IPI. In February 2023, even guidelines for the application of the provisions of the said Regulation were adopted. However, it is still an open question whether the cited actions of a legislative nature will find their practical dimension.  


In July 2019 the European Commission published "Guidelines for the participation of third-country tenderers in the EU public procurement market and for the marketing of goods from third countries", in which it stated that "third-country economic operators that have not concluded any agreement providing for the opening of the EU public procurement market or whose goods, services and works are not covered by such an agreement are not guaranteed participation in EU procurement procedures and may be excluded from them".


The overhaul of the Polish Public Procurement Law earlier this year brought important changes to the possibility of relying on the capacity of third parties in procedures for award of public contracts. However, it also generated a number of concerns related to the use of the potential of third parties in the framework of a limited tender or other two-stage proceedings—in particular, whether a contractor can rely on the capacities of other entities to obtain a better ranking on the selection criteria and help qualify for the shortlist. From 14 December 2016, this doubt has been eliminated due to entry into force of the Concessions Act of 21 October 2016.

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About the blog

We discuss judgments from the European Court of Justice and their influence on the interpretation of public procurement law in Poland. We follow and comment on legislation in the European Union. We address current issues in Polish case law.

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