EU tightens grip on public tendering guidelines
In a groundbreaking development for foreign companies seeking to participate in Spanish public procurement, two recent rulings by the Court of Justice of the European Union (CJEU) have set clear guidelines. The Kolin (C-652/22) and Qingdao (C-266/22) rulings have clarified the participation of non-EU companies, particularly those from third countries, in Spanish public tenders.
European Union exclusivity in regulation is a key takeaway from these rulings. Access of economic operators from third countries to public procurement is regulated exclusively at the EU level through Directives 2014/24 and 2014/25. This means that Member States, including Spain, cannot apply unilateral national rules that exclude or restrict participation solely based on the operator’s place of establishment if no international agreement provides for reciprocal market access.
The rulings also prohibit Member States from implementing general national measures that favor companies from certain third countries while excluding others, unless there is a specific reciprocal Government Procurement Agreement in place. While Member States cannot generally exclude foreign operators unilaterally, national rules may govern exclusions based on grounds provided by national law, and such exclusions do not inherently breach EU law as long as they comply with proper legal bases.
The Kolin ruling (Oct 2024) established the principle preventing Member States from unilateral exclusion of third-country operators in the absence of reciprocal agreements. The Qingdao ruling (Mar 2025) reaffirmed Kolin’s line of case law through a case involving a Chinese company’s exclusion from a Romanian tender due to national restrictions, thus reinforcing that competence to regulate access from third-country operators lies with the EU.
Regarding the recommendations of the Spanish Public Procurement Advisory Board (Junta Consultiva de Contratación Pública del Estado - JCCPE), while the search results do not explicitly describe detailed recommendations, it can be inferred that the JCCPE aligns its guidance with the CJEU rulings and EU directives. The focus is on ensuring transparency, non-discrimination, and compliance with EU public procurement directives, preventing the use of protectionist national measures which could be incompatible with EU law.
In synthesis, foreign companies from third countries can participate in Spanish public procurement under the same conditions as EU operators unless an EU-level international agreement limits their access; Spain cannot unilaterally restrict these companies by national rules alone. Any exclusion must be legally grounded, non-discriminatory, and consistent with EU directives. The JCCPE’s advice supports this legal framework in tender preparation and adjudication to promote fair competition.
It is also worth noting that non-EU companies must prove reciprocity by providing a report from the Spanish Economic or Commercial Office in their country of origin, unless there is a valid international agreement binding on Spain.
These rulings mark a significant shift towards equal opportunities for foreign companies in Spanish public procurement, fostering a more competitive and inclusive market. The European Commission published an explanatory document on the application of this new CJEU case law on public procurement on 15th May.
The Qingdao ruling, issued in March 2025, reinforces the European Union's exclusive regulatory competence over access of economic operators from third countries to public procurement, as established by Directives 2014/24 and 2014/25. The Spanish Public Procurement Advisory Board's recommendations align with this legal framework, focusing on ensuring transparency, non-discrimination, and compliance with EU public procurement directives, which can promote a more competitive and inclusive business environment in finance matters.
