ÚOHS vysvětluje pravidla pro dodavatele ze třetích zemí

ÚOHS clarifies rules for suppliers from third countries

The opinion, which addresses the interpretation of the judgment of the Court of Justice of the European Union dated October 22, 2024, in case C-652/22 Kolin Inşaat Turizm Sanayi ve Ticaret, should not escape the attention of Czech contracting authorities, as it brings new perspectives on setting participation conditions for suppliers from third countries (i.e., non-EU states) that do not have an international agreement with the European Union (hereinafter referred to as "third countries") in procurement procedures.

According to Act No. 134/2016 Coll., on Public Procurement, the contracting authority is obliged to adhere to the principle of equal treatment and non-discrimination towards suppliers. However, this principle does not apply to suppliers from third countries. The EU Court of Justice ruling in Kolin Inşaat Turizm Sanayi ve Ticaret concluded that suppliers from third countries cannot claim the right to equal treatment in public procurement within EU member states. This decision opens up space for Czech contracting authorities to more flexibly define participation conditions for suppliers from these countries.

The opinion of the Office for the Protection of Competition (ÚOHS) clarifies in seven relatively concise points that suppliers from third countries do not have guaranteed access to the EU market and cannot invoke the principle of non-discrimination. This means that contracting authorities have the option to restrict the participation of these suppliers in procurement procedures, which could significantly impact competition and the availability of suppliers. However, suppliers from third countries still have the option to, for example, file objections within the national review process, ensuring a certain level of protection for their rights.

ÚOHS further states that the question of whether a specific supplier is covered by an international agreement guaranteeing equal access must be addressed individually. Each agreement may have a different scope and include various exceptions, requiring careful assessment (not only) by contracting authorities.

The authority to adopt generally binding regulations (typically directives and regulations) concerning the participation of suppliers from third countries rests solely with the European Union. This means that the Czech Republic, as a member state, cannot independently regulate the participation conditions for suppliers from third countries. However, this does not preclude individual contracting authorities from setting restrictive measures concerning the participation of these suppliers in specific procurement procedures.

In the mentioned opinion, ÚOHS also states that contracting authorities can completely prohibit the participation of suppliers from third countries in procurement conditions, prohibit only the participation of suppliers from certain third countries or allow their participation freely. It is also possible to stipulate that they will be treated equally as other participants from EU countries, or conversely, they can be disadvantaged (with stricter qualification requirements, contractual penalties, insurance obligations, etc.).

When excluding suppliers from third countries or setting restrictive measures on these suppliers, it is possible to base the restrictions on the origin of the supplier (both natural and legal persons) as well as the origin of the supplied goods. According to ÚOHS's interpretation, such restrictions can also apply to subcontractors.

The judgment in the case of Kolin Inşaat Turizm Sanayi ve Ticaret and the related ÚOHS opinion thus establish the possibility for contracting authorities to relatively freely and transparently restrict or exclude the participation of entities from third countries. Contracting authorities need not fear the risk of sanctions for discriminatory settings of procurement conditions concerning certain participants.

If you have any questions about how the above may affect you as a contracting authority or supplier, please contact the authors of the article or other members of the EY Law firm or the EY team with whom you collaborate.

Authors:

Matěj Korger

Jan Turek

Matěj Plšek