CJEU Advocate General: Chinese company without right to invoke EU procurement directives in tender to buy trains for Romanian railroads

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.

In particular, the Romanian court asked the CJEU whether the foundations of EU public procurement law (i.e. the principles of equal treatment, transparency and proportionality) prevented the Romanian government from amending the tender rules resulting in the exclusion of entities not subject to EU directives (e.g. Chinese contractors). The fact that the regulations came into effect during the pending tender was also not insignificant.

On May 11, 2023 the CJEU Advocate General - ATHANASIOS RANTOS - presented a position in which he considered that economic entities from third countries that are not parties to EU binding agreements on public procurement (e.g. a Chinese company) cannot successfully invoke a violation against them of the above-mentioned principles of EU procurement law.

Although the case in question (C-266/22) is still awaiting a judgment of the CJEU (the above-mentioned statement by the Advocate General is only an opinion), it may already be an important signal for the EU public procurement market. On the one hand, the case is of a "point" nature (it concerns the legislation of one particular member state), but on the other hand - also taking into account the activities of the EU Legislature in the field of the implementation of the International Procurement Instrument (which we wrote about here), it may find wider practical application. In any case, we will be watching this issue closely. 

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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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