Current state of play
- EU firms are guaranteed access to the EU’s public procurement market without discrimination under the EU Treaty and procurement directives.
- The general EU procurement directive dealing with contracts awarded by state entities neither specifically allows member states to exclude bidders from third countries from public procurements in EU member states nor prevents authorities from imposing such measures themselves.
- But, under certain circumstances specific EU procurement directives explicitly allow the market to be closed to foreign bidders from third countries, namely in the utilities (telecoms, post, water, energy) and defence sectors.
- What will happen in future is unclear. The Commission put forward a Procurement Initiative in 2012 that aims to restrict access to the EU public procurement market for third countries that are reluctant to offer reciprocal access to their markets. But a new directive is unlikely to restrict access to the EU procurement market for countries (including the UK) that are parties to the Agreement on Government Procurement.
- EU companies can access procurement markets in countries across the world through numerous international treaties.
What should I be thinking about now?
- Is there an existing treaty between the EU and a third country that allows me full access to procurement procedures? If so, would I have equivalent rights after a Brexit?
- As a UK business that tenders for significant contracts in the utilities (or defence) sector in Europe, would I still have access to the EU’s public procurement market without discrimination following a Brexit? Or would I stand to lose important opportunities for EU business?
The answers to many of these questions will depend upon the nature of a post-Brexit UK/EU relationship.