Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries
Date: 2012-03-21
Institutions: European Commission
Subjects: award of contract, foreign enterprise, freedom to provide services, market access, originating product, provision of services, public service, restriction on competition, service concession, services contract, single market, supplies contract, third country

EUROPEAN COMMISSION 

Brussels, 21.3.2012  
COM(2012) 124 final 

2012/0060 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the access of third-country goods and services to the Union’s internal market in 
public procurement and procedures supporting negotiations on access of Union goods 
and services to the public procurement markets of third countries 

(Text with EEA relevance) 

{SWD(2012) 57 final} 
{SWD(2012) 58 final} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This is a new proposal in the area of the European Union’s international procurement policy. 
The key objective  of  this initiative is to improve the conditions under which EU businesses 
can  compete  for  public  contracts  in  third  countries.  Currently,  EU  suppliers  face  manifold 
restrictive  procurement  practices  in  many  of  the  countries  that  are  the  EU’s  main  trading 
partners. Moreover, the initiative confirms the legal status of bidders, goods and services from 
countries that have an international agreement with the EU in the area of public procurement 
and  clarifies  the  rules  applicable  to  bidders,  goods  and  services  not  covered  by  these 
agreements. 

General context 

In the negotiations on a revised Government Procurement Agreement (GPA) in the context of 
the  World  Trade  Organisation  (WTO)  and  in  bilateral  negotiations  with  third  countries,  the 
EU has advocated an  ambitious  opening of international  public  procurement  markets.  Some 
€352 billion of EU public procurement is open to  bidders from member countries of the WTO 
agreement on government procurement. 

However,  many  third  countries  are  reluctant  to  open  their  procurement  markets  to 
international competition or to open those markets further than what they have already done. 
The value of US procurement offered to foreign bidders is currently just €178 billion and €27 
billion for Japan, whereas only a fraction of the Chinese public procurement market is open to 
foreign  business.  Many  countries  have  also  adopted  protectionist  measures,  especially  in  the 
wake  of  the  economic  crisis.  All in  all,  more  than  half  of  the  world’s  procurement  market  is 
currently closed due to protectionist measures and this share is only growing. As a result, only 
€10 billion of EU exports (0.08%  of EU GDP) currently find their way in global procurement 
markets,  whereas  an  estimated  €12  billion  of  further  EU  exports  remains  unrealised  due  to 
restrictions.  

In  contrast,  the  EU  has  kept  its  public  procurement  market  largely  open  to  international 
competition,  despite  growing  pressure  on  its  domestic  market,  in  particular  from  emerging 
economies on certain key sectors (railways, construction, IT services). With the exception of 
some provisions limited in scope to supply and service contracts in the utilities sector1, the EU 
has not exercised its power to regulate the access of foreign goods, services and companies to 
the EU’s public procurement market. 

Given  the  rising  importance  of  emerging  economies,  the  absence  of  a  level  playing  field 
causes many problems. The EU’s principal problem is a lack of leverage in its international 
negotiations  with  trading  partners  to  redress  the  imbalance  and  to  gain  substantial  market 
access commitments for the benefit of EU business. Also, contracting authorities lack a clear 
framework to be able to apply the international commitments of the EU. 

This  initiative  aims  at  solving  these  problems  by  firstly  strengthening  the  position  of  the 
European  Union  when  negotiating  access  for  EU  companies  to  the  public  procurement 
markets  of  third  countries,  in  order  to  open  up  our  trading  partners’  markets.  Secondly,  for 
this purpose it seeks to clarify the rules governing access by third-country companies, goods 
and services to the EU’s public procurement market. Ultimately the objective is to improve, in 

1 

Articles 58 and 59 of Directive 2004/17 on utilities public procurement procedures. 

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line  with  the  EU’s  2020  strategy,  business  opportunities  for  EU  firms  on  a  global  scale, 
thereby creating new jobs and promoting innovation. 

Existing provisions in the area of the proposal 
The two basic public procurement directives of the European Union2 do not provide a general 
framework  for  dealing  with  bids  containing  foreign  goods  and  services  on  the  EU’s  public 
procurement  market.  The  only  specific  rules  are  set  out  in  Articles  58  and  59  of  Directive 
2004/17/EC.  However,  these  provisions  are  limited  to  procurement  by  utilities  and  are  too 
narrow in their scope to make a substantial impact on negotiations on market access. Indeed 
the  EU  public  procurement  for  Utilities  only  stands  for  around  20%  of  the  total  EU  public 
procurement market. 

In the Commission proposal on the modernization of the EU rules on public procurement, the 
Commission decided not to take over Article 58 and 59 of the Utilities-directive, in view of 
the present initiative3. 

Consistency with the other policies and objectives of the Union 

This  initiative  implements  the  Europe  2020  strategy  for  smart,  sustainable  and  inclusive 
growth  [COM(2010)  2020]  and  the  Europe  2020  Flagship Initiative on Integrated  Industrial 
Policy for the Globalisation Era [COM(2010) 614]. It also implements the Single Market Act 
the  Communication  on  Trade,  Growth  and  World  Affairs 
[COM(2011)  206]  and 
[COM(2010) 612]. It is a CWP 2011 strategic initiative (COM(2010) 623 final). 

This proposal is also consistent with the developmental policies and objectives of the Union, 
in particular by generally sheltering goods and services from least-developed countries from 
action under this instrument. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties 

To  gather  the  views  of  stakeholders,  the  Commission  organised,  in  addition  to  individual 
meetings, a series of consultations and outreach activities. 

An open internet consultation was carried out between 7 June and 2 August 2011. It consisted 
of three detailed questionnaires aimed at (i) contracting authorities and Member States (MS), 
(ii)  businesses  and/or  their  representatives,  and  (iii)  other  potentially  interested  parties 
(citizens,  NGOs,  trade  unions).  The  Commission  received  a  total  of  215  contributions4.  A 
summary report of the contributions is given in Annex I to the Impact Assessment report. As 
part of this process the Commission organised a  public  hearing on 8 July 2011  in Brussels. 
Social partners also had the opportunity to express their views in the Liaison Forum organised 
by DG Employment on 7 February 2011. Specific consultations were also conducted with EU 
Delegations  in  third  countries  and  the  MS  in  the  Advisory  Committee  for  Public  Contracts. 
Specific topics (i.e. Article 58 of the Utilities-Directive and the treatment of abnormally low 
tenders)  have  also  been  addressed  in  the  consultation  on  the  Modernisation  of  Public 
Procurement Policy. The Commission’s minimum standards for consultations were fully met. 

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Directive 2004/18/EC for entities in the so-called classic sectors, and Directive 17/2004/EC for entities 
operating in the water, energy, transport and postal services sectors (OJ L 134, 30.4.2004, p. 1 and p. 
114, respectively). 
COM(2011) 895 final and COM(2011) 896 final. 
Written submissions were received in addition to the online responses. 

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Summary of responses and how they have been taken into account 

The Commission initiative was generally welcomed. A large majority of the respondents were 
in  agreement  with  the  Commission's  description  of  the  current  level  of  access  to  the  EU’s 
public procurement market for goods, services and companies from outside the EU and they 
also supported the identified objectives of the initiative. 

As regards the outlined policy options it is important to note that the views expressed were 
divergent:  overall,  a  significant  majority  of  stakeholders  appear  to  support  a  legislative 
initiative  (around  65 %),  while  a  sizeable  minority  of  around  35 %  prefer  the  ‘nothing 
happens’ option. However, views within the different groups of stakeholders also diverge as 
to  the  preferred  option.  Among  contracting  entities  and  government  authorities  (including 
from third countries), for example, two thirds are in favour of the ‘nothing happens’ or non-
legislative option, while for businesses and other stakeholders some 75 % are in favour of a 
legislative  initiative.  There  are  also  divergent  opinions  as  to  what  that  legislative  option 
should  be.  Although  almost  half  of  respondents  support  legislative  option  ‘approach  A’5,  a 
significant number of respondents also favour alternative approaches. It is worth noting that, 
despite being the least preferred legislative option, ‘approach B’6 also received support from a 
considerable number of respondents. 

The main reasons put forward by stakeholders in favour of or against one or the other policy 
option included the importance of best value for money, the competitiveness and productivity 
that could be undermined by some of the policy options, the risk of retaliation by our trading 
partners, the administrative burden that could be attached to such an initiative and the fact that 
the  initiative  would  endanger  the  status  of  the  EU  as  an  advocate  of  open  markets.  Trade 
unions and non-governmental organisations (NGOs) have been fairly neutral on the choice of 
options and have tended to focus their contributions on the need for third countries to respect 
ILO Conventions when tendering in the EU or for the EU to open its borders to maintain fair 
trade vis-à-vis least-developed countries. 

Collection and use of expertise 

The  use  of  external  expertise  was  not  considered  necessary  in  addition  to  the  consultations 
mentioned above. In the area of public procurement the Commission traditionally commands 
significant expertise. 

Impact assessment 

Several  options  have  been  considered  by  the  Commission  in  order  to  identify  the  most 
appropriate one. 

The  first  option  is  not  to  take  any  additional  action  in  this  field  at  all,  and  continue  with 
business as usual with the international market access negotiations (possibly in a reinforced 
manner) with the European Union’s trading partners. However, judging from past experience, 
it  is  unlikely  that  such  an  option  would  lead  to  substantial  improvements  in  entitling  EU 

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Approach A: EU contracting authorities/entities would be required in principle to exclude third-country 
goods, services and companies not covered by international commitments of the EU. 
Approach B: Subject to notification to the Commission, EU contracting authorities/entities would have 
the  option  to  decide  to  exclude  third-country  goods,  services  and  companies  not  covered  by 
international commitments of the EU. In addition, the Commission would be entrusted with a specific 
tool to conduct enquiries about the market access situation for EU goods, services and companies and to 
impose  restrictive  measures  on  goods  and  services  originating  in  third  countries  when  EU  goods, 
services  and  companies  do  not  have  sufficient  access  to  the  public  procurement  markets  of  those 
countries. 

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goods, services and suppliers to participate in procurement processes in third countries. The 
inevitable result would be a continued loss of tendering opportunities on a significant scale. 

A  second  type  of  option  would  consist  in  upgrading  the  implementation  of  existing  tools 
under Directive 2004/17/EC (Articles 58 and 59), based on better guidance or an extension of 
the scope of these tools to cover the entire scope of Directives 2004/17/EC and 2004/18/EC. 
Based only on optional use by individual contracting authorities/entities, this scenario would 
clearly not improve significantly the leverage of the EU in international negotiations. 

A third option could be to close generally or by sector the EU public procurement market to 
goods,  services  and  suppliers  from  third  countries,  subject  to  the  EU’s  international 
obligations  in  this  field.  However,  such  an  option  gives  rise  to  serious  concerns  as  to  its 
impact 
individual  contracting 
the  costs 
terms  of  retaliation  and 
authorities/entities and the competitiveness of the EU. 

involved  for 

in 

Therefore,  the  Commission  favours  a  fourth  option,  namely  to  create  an  autonomous 
instrument that would strike the right balance between, on the one hand, the need to enhance 
the Union position in negotiations on market access, and on the other hand, the preservation 
of a competitive procurement regime in the European Union. 

To  this  effect,  the  proposal  establishes  a  double  mechanism.  Individual  contracting 
authorities/entities would be entitled to exclude tenders of which more than 50% of the value 
is  made  up  of  goods  and/or  services  not  benefiting  from  international  market  access 
commitments, under supervision by the Commission. In addition the Commission would be 
allowed  to  respond  by  limiting  temporarily  market  access  for  those  countries  which 
demonstrably  exclude  or  discriminate  against  Union  suppliers,  goods  and  services  in  their 
national procurement practices, and refuse to grant better market access in negotiations. Any 
restrictions on access to the EU public procurement market which the Commission may one 
day adopt under this Regulation would be measured and finely targeted. 

This  Commission's  Impact  Assessment  Board  (IAB)  has  issued  two  opinions  on  the  Impact 
assessment report. In the light of the first opinion impact assessment-report has been revised 
as follows: the problem definition has been reshuffled in order to focus on the central issue 
identified  across  the  impact  assessment,  the  need  for  further  opening  of  third  countries' 
procurement markets and the problems of compliance of EU international commitments. The 
scale of options to be considered has been broadened. In addition to a more active negotiating 
policy the impact assessment takes into account the extension of the current regime of articles 
58 and 59 of directive 2004/17/EC to all procurements covered by the EU directives and the 
possibility  for  selective  acceptance  of  non-covered  procurement.  Finally,  the  analysis  of 
impacts  has  been  refined  to  upgrade  the  measurement  of  retaliation  and  the  employment 
figures. Annex 10 of the Impact assessment report provides a more detailed review of how the 
IAB's  first  opinion  has  been  incorporated  in  the  revised  report,  resubmitted  on  8  February 
2012. 

In its opinion on the resubmitted report, the IAB acknowledges the improvements made to the 
report and the incorporation of the recommendations it made in its first opinion, but stated it 
could not give a positive opinion. The IAB believes there are still a number of areas where the 
assessment  could  be  strengthened  and  identifies  a  number  of  actions  to  further  improve  the 
report (i.e. refine presentation of the options, improve the presentation of the model used to 
estimate the impacts, better justify the proportionality of the preferred option, etc). The final 
impact assessment report has integrated to the extent possible these recommendations. 

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3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

The  main  objectives  of  this  proposal  are  to  strengthen  the  position  of  the  European  Union 
when  negotiating  the  terms  of  access  of  EU  goods,  services  and  suppliers  to  the  public 
procurement markets of third countries and to clarify the legal situation for foreign bidders, 
goods  and  services  participating  in  the  EU  public  procurement  market.  Accordingly,  this 
proposal establishes a comprehensive EU external public procurement policy that governs the 
access  of  foreign  goods  and  services  to  the  EU  public  procurement  market  and  includes 
mechanisms to encourage the EU’s trading partners to start market access discussions. 

In the first place, the proposal reflects in EU legislation the principle that, on the EU's internal 
market  in  procurement,  goods  and  services  benefiting  from  market  access  commitments  are 
treated equally to EU goods and services and it extends this treatment to goods and services 
originating in least-developed countries. 

As  regards  the  treatment  of  goods  and  services  not  benefiting  from  market  access 
commitments, a three-stage approach is envisaged. 

The Commission may approve that Contracting authorities/entities exclude tenders where the 
value of non-covered goods and services exceeds 50% of the total value of goods and services 
included  in  the  tender.  After  informing  potential  tenderers,  in  the  contract  notice,  of  its 
intention to exclude such tenders, a contracting authority/entity has to notify the Commission 
when it receives tenders that fall into this category. The Commission would give its approval 
to the exclusion if there is a lack of substantial reciprocity in market opening between the EU 
and  the  country  from  which  the  goods  and/or  services  originate.  The  Commission  will 
approve  the  exclusion  where  the  goods  and  services  concerned  fall  within  the  scope  of  a 
market reservation by the EU in an international agreement. 

In addition, this proposal establishes an EU mechanism to further increase the leverage of the 
EU  in  international  negotiations  on  market  access,  based  on  Commission  investigations, 
consultation with third countries and, where appropriate, imposition of temporary restrictive 
measures by the Commission. 

Upon request by interested stakeholders or on its own initiative, the Commission may conduct 
investigations to verify the existence of restrictive procurement practices. Where the existence 
of such practices is confirmed, the Commission would invite the country concerned to enter 
into  consultation  in  order  to  address  such  restrictive  practices  and  thereby  create  a  better 
market access situation for EU companies. 

If  the  country  concerned  is  unwilling  to  engage  into  consultations  or  provide  satisfactory 
solutions to the restrictive procurement measures, the European Union could take a decision 
to temporarily restrict the access of goods and/or services from that country to the EU public 
procurement market. 

Finally, as a complement to the provisions on abnormally low tenders in the proposed reform 
of the public procurement directives, contracting authorities/entities will be required to inform 
the  other  tenderers  when  they  intend  to  accept  abnormally  low  tenders  where  the  value  of 
non-covered  goods  and  services  exceeds  50%  of  the  total  value  of  goods  and  services 
included in the tender. As the need for third countries to respect core ILO labour standards is 
addressed in the proposed reform of the public procurement directives, it is not necessary to 
treat it in the present text. 

Designed as a policy tool to stimulate negotiations, it should be underlined that the thrust of 
this initiative is not to close the procurement market in the European Union, but to gain better 

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access  to  the  public  procurement  markets  of  the  European  Union’s  trading  partners.  It  is 
imperative  to  preserve  competitive  tendering  conditions  on  the  internal  market  which  give 
tangible benefits to contracting authorities/entities and society at large. 

Legal basis 

Articles 207 of the Treaty on the Functioning of the European Union. 

Subsidiarity principle 

The proposal falls under the exclusive competence  of the  European Union. The subsidiarity 
principle therefore does not apply. 

Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

This proposal strikes a careful balance between the interests of all relevant stakeholders and 
the  form  and  substance  of  the  EU  action  does  not  exceed  what  is  necessary  to  achieve  the 
objectives of the Treaty. 

First, the contracting authorities/entities will have the right to exclude tenders consisting, for 
more  than  50 %,  of  non-covered  goods  and  services,  under  the  supervision  by  the 
Commission.  This  ensures  that  contracting  authorities/entities  are  left  the  choice  to  accept 
goods and services irrespective of their origin or restrict the access of goods and services not 
covered  by  the  EU's  international  agreements,  to  the  extent  such  restrictions  are  consistent 
with the EU's common commercial policy, which is exclusively an area of EU competence. 
The  supervision  by  the  Commission  is  carefully  designed  to  ensure  uniformity  and 
proportionality. Secondly, the Commission tool established by this regulation will ensure that 
the EU has a mechanism available to investigate restrictive procurement practices and consult 
with the third country concerned on these. Only where no other solution can be found will the 
Commission adopt temporary restrictive measures. 

Administrative costs are kept as low as possible, but measures have to be taken to preserve the 
consistency  of  the  common  commercial  policy.  The  setting  up  of  supervision  and 
investigation mechanisms are to be carried out by Commission services currently working on 
the  external  public  procurement  policy  and  on  market  access  monitoring,  thus  limiting  the 
impact on human resources within the Commission. The administrative burden for contracting 
authorities/entities  will  be  reduced  to  situations  where  restrictive  measures  are  taken  by  the 
Commission or when contracting authorities/entities choose to use the mechanism, and would 
be  based  on  standard  forms  or  self-declarations,  limiting  the  investigations  that  individual 
entities would perform to verify the origin of goods or services. 

Choice of instruments 

The proposed instrument is a regulation. 

Other means would not be adequate, since only a regulation can sufficiently ensure uniform 
action  by  the  European  Union  in  the  field  of  common  commercial  policy.  Moreover,  this 
instrument gives powers to the European Commission, meaning that transposition would not 
be useful. 

4. 

BUDGETARY IMPLICATION 

The  proposal  in  itself  does  not  have  budgetary  implications.  The  additional  tasks  for  the 
Commission can be met with existing resources. 

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5. 

OPTIONAL ELEMENTS 

Review/revision/sunset clause 

The proposal includes a review clause. 

European Economic Area 

The  proposed  act  concerns  an  EEA  matter  and  should  therefore  extend  to  the  European 
Economic Area. 

Detailed explanation of the proposal 

Article 1 defines the subject matter and the scope of application of this Regulation, based on 
the EU public procurement Directives 2004/17/EC and 2004/18/EC and the Directive on the 
award of concessions contracts, as proposed by the Commission7. 

Article  2  contains  relevant  definitions,  most  of  which  are  taken  over  from  the  EU  public 
procurement  Directives.  The  text  also  defines  the  "covered  goods  and  services"  and  non- 
covered goods and services, which are central to the application of this Regulation. 

Article 3 sets out, for the purpose of this Regulation, the applicable rules of origin, for goods 
and  services  procured  by  contracting  authorities/entities.  In  compliance  with  the  EU 
international commitments, rules of origin for goods are in line with the non-preferential rules 
of origin as defined in the EU Customs Code (Regulation 2913/92). The origin of a service is 
defined on the basis of the relevant rules under the Treaty on the Functioning of the European 
Union  on  the  right  of  establishment  and  on  the  definitions  that  the  GATS  provides  (Article 
XXVIII). 

Article  4  spells  out  the  rules  on  access  to  the  EU  public  procurement  market  applicable  to 
foreign goods and services benefiting from the EU market access commitments (referred to as 
‘covered  goods  and  services’)  and  to  goods  and  services  originating  in  the  least-developed 
countries. Both categories have to be treated equally to EU goods and services. 

Article 5 outlines the rules of access for goods and services originating in third countries not 
benefiting  from  market  access  commitments  of  the  EU  (referred  to  as  ‘non-  covered  goods 
and services’). The access of these goods and services may be subject to restrictive measures 
taken by contracting authorities/entities or the Commission under the mechanisms established 
by this Regulation. 

Article  6  sets  out  the  conditions  under  which  the  Commission  may  approve  that  individual 
contracting authorities/entities exclude tenders from tendering procedures, where the value of 
non-covered goods and services exceeds 50% of the total value of goods or services included 
in the tender for contracts with an estimated value equal or above EUR 5.000.000.  

When a contracting authority/entity has indicated in the contract notice its intention to exclude 
non-covered goods and services and receives tenders that fall into this category, it must notify 
the  Commission  and  indicate  the  characteristics  of  the  tenders  concerned.  According  to  the 
publication of notices in the Official Journal (TED, Tenders European Daily) only 7% of all 
contracts published in the Official Journal have a value above EUR 5 million. However, those 
contracts  represent  61%  of  the  whole  EU  public  procurement  market.  The  Commission 
estimates that it would receive each year a maximum of 35-45 notices. 

For contracts with an estimated value equal or above EUR 5.000.000 the Commission should 
take  a  decision  on  the  exclusion.  The  Commission  should,  for  all  contracts,  approve  the 

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intended  exclusion  when  the  goods  and  services  concerned  are  subject  to  a  market  access 
reservation  under  the  EU  international  agreements  on  public  procurement.  Where  such  an 
agreement does not exist, the Commission shall approve the exclusion where the third country 
maintains  restrictive  procurement  measures  leading  to  a  lack  of  substantial  reciprocity  in 
market opening between the Union and the third country concerned. When assessing whether 
a lack of substantial reciprocity exists, the Commission shall examine, to what degree public 
procurement  laws  of  the  country  concerned  ensure  transparency  in  line  with  international 
standards  in  the  field  of  public  procurement  and  preclude  any  discrimination  against  Union 
goods,  services  and  economic  operators.  Moreover  it  shall  examine  to  what  degree  public 
authorities  and/or  individual  procuring  entities  maintain  or  adopt  discriminatory  practices 
Union goods, services and economic operators. 

Article 7 imposes on contracting authorities/entities the specific obligation to inform the other 
tenderers in an award procedure of their decision to accept an abnormally low tender where 
the  value  of  non-covered  goods  and  services  exceeds  50%  of  the  total  value  of  goods  or 
services included in the tender. 

Article 8 sets out the conditions under which the Commission, on its own initiative or at the 
request  of  Member  States  or  interested  parties,  may  launch  an  external  procurement 
investigation  into  restrictive  procurement  measures  by  third  countries,  and  how  to  conduct 
such an investigation. 

Article  9  establishes  a  mechanism  for  consultation  with  third  countries  in  cases  where  the 
Commission  concludes,  after  conducting  an  external  procurement  investigation,  that  the 
country  concerned  has  adopted  or  maintains  a  restrictive  procurement  practice.  Under  this 
mechanism, the Commission will invite the country concerned to enter into discussions with a 
view  to  removing  the  restrictive  procurement  practice  and  ensuring  transparency  and  equal 
treatment for EU suppliers,  goods  and services. The  consultation  scheme takes into  account 
the  different  situations  to  be  considered,  such  as  the  existence  of  a  dispute  settlement 
mechanism  for  restrictive  procurement  practices  affecting  covered  procurement,  unilateral 
remedial  measures  or  the  conclusion  of  an  international  agreement  providing  for  equal 
treatment for EU suppliers, goods and services previously affected by restrictive procurement 
practices. The Commission is empowered to adopt an implementing act prohibiting exclusion 
of  tenders  comprising  non-covered  goods  and  services  originating  in  countries  with  which 
substantive  market  access  negotiations  take  place  and  there  is  a  reasonable  prospect  of 
removing restrictive procurement practices in the near future. 

Article 10 empowers the Commission to adopt an implementing Act concerning ‘restrictive 
measures’,  provided  that  its  investigation  has  confirmed  the  existence  of  restrictive 
procurement measures in a third country, and that the Commission has attempted to conduct 
discussions  on  market  access  under  the  consultation  mechanism.  Such  measures  may  in 
principle consist of (i) the disqualification of certain tenders made up for more than 50% of 
goods or services originating in the country concerned; and/or (ii) a mandatory price penalty 
on those goods or services tendered which originate in the country concerned. 

Article  11  provides  rules  for  withdrawal  or  suspension  of  restrictive  measures  adopted,  as 
well  as  a  Commission  decision  to  prohibit  the  use  of  Article  6  by  contracting 
authorities/entities. 

Article  12  sets  the  rules  for  the  provision  of  information  of  tenderers  on  the  application  of 
restrictive  measures  adopted  by  the  Commission  in  the  context  of  individual  public 
procurement procedures. 

EN 

9 

   EN 

 
Article  13  sets  out  the  circumstances  when  contracting  authorities/entities  are  authorised  to 
set aside measures adopted pursuant to this Regulation. The objective of this provision is to 
give contracting authorities/entities a requisite degree of flexibility to satisfy their purchasing 
needs and, at the same time, to ensure proper monitoring by the Commission by means of the 
notification obligation. 

Article 14 and 15 sets  out the delegation  of powers conferred on the Commission to adopt 
delegated acts in accordance with Article 14 concerning amendments to the Annex to reflect 
the  conclusion  of  new  international  agreements  by  the  Union  in  the  field  of  public 
procurement.  

Article 16 provides legal remedies in case of violation of the provisions of this Regulation. 

Article  17  designates  the  relevant  committee  procedure  for  the  adoption  of  implementing 
acts.  Moreover,  it  empowers  the  Commission  to  adopt  implementing  measures  for  the 
adoption of standard forms. 

Article  18  requires  the  Commission  to  report  on  implementation  of  this  Regulation  at  least 
every three years after its entry into force. 

Article  18  contains  rules  on  confidentiality  of  information  received  pursuant  to  this 
Regulation. 

Article 20 provides for the repeal of Articles 58 and 59 of Directive 2004/17/EC. 

Article 21 determines the entry into force of this Regulation. 

EN 

10 

   EN 

 
2012/0060 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the access of third-country goods and services to the Union’s internal market in 
public procurement and procedures supporting negotiations on access of Union goods 
and services to the public procurement markets of third countries 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 
Having regard to the opinion of the European Economic and Social Committee8, 
Having regard to the opinion of the Committee of the Regions9, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Article 21 of the Treaty on European Union provides that the Union is to define and 
pursue common policies and actions, and work for a high degree of cooperation in all 
fields in international relations in order, inter alia, to encourage the integration of all 
countries  into  the  world  economy,  including  through  the  progressive  abolition  of 
restrictions on international trade. 

Pursuant  to  Article  206  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU) the Union, by establishing a customs union, is to contribute, in the common 
interest,  to  the  harmonious  development  of  world  trade,  the  progressive  abolition  of 
restrictions on international trade and on foreign direct investment, and the lowering of 
customs and other barriers. 

In  accordance  with  Article  26  of  the  TFEU  the  Union  is  to  adopt  measures  with  the 
aim of establishing or ensuring the functioning of the internal market, comprising an 
area without internal frontiers in which the free movement of goods, persons, services 
and capital is ensured in accordance with the provisions of the Treaties. 

Article III:8 of the General Agreement on Tariffs and Trade 1994 and Article XIII of 
the  General  Agreement  on  Trade  in  Services  exclude  government  procurement  from 
the main multilateral WTO disciplines. 

8 
9 

OJ C , , p. . 
OJ C , , p. . 

EN 

11 

   EN 

 
                                                 
(5)  Within the context of the World Trade Organisation and through its bilateral relations 
the  Union  advocates  an  ambitious  opening  of  international  public  procurement 
markets  of  the  Union  and  its  trading  partners,  in  a  spirit  of  reciprocity  and  mutual 
benefit. 

(6)  Many  third  countries  are  reluctant  to  open  their  public  procurement  markets  to 
international competition, or to open those markets further than what they have already 
done. As a result, Union economic operators face restrictive procurement practices in 
many  of  the  trading  partner  of  the  Union.  Those  restrictive  procurement  practices 
result in the loss of substantial trading opportunities. 

(7) 

(8) 

(9) 

Directives  2004/17/EC  of  the  European  Parliament  and  of  the  Council  of  31  March 
2004  coordinating  the  procurement  procedures  of  entities  operating  in  the  water, 
energy,  transport  and  postal  services  sectors10  and  2004/18/EC  of  the  European 
Parliament and of the Council of 31 March 2004 on the coordination of procedures for 
the  award  of  public  works  contracts,  public  supply  contracts  and  public  service 
contracts11  contain  only  a  few  provisions  concerning  the  external  dimension  of  the 
public procurement policy of the Union, in particular Articles 58 and 59 of Directive 
2004/17/EC. These provisions however only have a limited scope and due to a lack of 
guidance they are not much applied by contracting entities. 

In accordance with Article 207 TFEU the common commercial policy in the field of 
public procurement is to be based on uniform principles. 

In the interest of legal certainty for Union and third-country economic operators and 
international  market  access  commitments 
contracting  authorities/entities, 
undertaken  by  the  Union  vis-à-vis  third  countries  in  the  field  of  public  procurement 
should be reflected in the legal order of the EU, thereby ensuring effective application 
thereof.  The  Commission  should  issue  guidance  on  the  application  of  the  existing 
international  market  access  commitments  of  the  European  Union.  This  guidance 
should be updated on a regular basis and provide easy to use information. 

the 

(10)  The  objectives  of  improving  the  access  of  EU  economic  operators  to  the  public 
procurement  markets  of  certain  third  countries  protected  by  restrictive  procurement 
measures and preserving equal conditions of competition within the European Single 
Market require that the treatment of third-country goods and services not covered by 
the  international  commitments  of  the  Union  be  harmonised  throughout  the  European 
Union.  

(11)  For  this  purpose  rules  of  origin  should  be  established  so  that  contracting 
authorities/entities know whether goods and services are covered by the international 
commitments  of  the  European  Union.  The  origin  of  a  good  should  be  determined  in 
accordance with Article 22 to 26 of Regulation (EC) No 2913/1992 of the European 
Parliament  and  of  the  Council  of  12  October  1992  establishing  the  Community 
Customs  Code12.  According  to  this  Regulation  goods  should  be  considered  to  be 
Union goods when they are wholly obtained or produced in the Union. Goods whose 
production involved one or more third countries should be deemed to originate in the 
country where they underwent their last, substantial, economically justified processing 
or  working  in  an  undertaking  equipped  for  that  purpose  and  resulting  in  the 

10 
11 
12 

OJ L 134, 30.4.2004, p. 1 
OJ L 134, 30.4.2004, p. 114. 
OJ L 302, 19.10.1992, p. 1 

EN 

12 

   EN 

 
                                                 
manufacture of a new product or representing an important stage of manufacture. The 
origin  of  a  service  should  be  determined  on  the  basis  of  the  origin  of  the  natural  or 
legal  person  providing  it.  The  guidance  referred  to  in  recital  9  should  cover  the 
application in practice of the rules of origin. 

(12)  The Commission should assess whether to approve that contracting authorities/entities 
within the meaning of Directives [2004/17/EC, 2004/18/EC and Directive [….] of the 
European  Parliament  and  the  Council  of  [….]….on  the  award  of  concession 
contracts13]  exclude,  for  contracts  with  an  estimated  value  equal  or  above  EUR 
5.000.000 from procedures for the award of contracts goods and services not covered 
by the international commitments undertaken by the European Union.  

(13)  For the sake of transparency, contracting authorities/entities intending to make use of 
their  power  in  accordance  with  this  Regulation  to  exclude  tenders  comprising  goods 
and/or services originating outside the European Union, in which the value of the non-
covered goods or services exceeds 50 % of the total value of these goods or services 
from procedures for the award of contracts should inform economic operators thereof 
in the contract notice published in the Official Journal of the European Union. 

(14) 

In order to enable the Commission to decide on any exclusion of third-country goods 
and services not covered by the international commitments of the Union, contracting 
authorities/entities  should  notify  the  Commission  of  their  intention  to  exclude  such 
goods  and  services,  using  a  standard  form  that  contains  sufficient  information  to 
enable the Commission to decide. 

(15)  For contracts with an estimated value equal or above EUR 5.000.000 the Commission 
should  approve  the  intended  exclusion  if  the  international  agreement  concerning 
market access in the field of public procurement between the Union and the country 
where the goods and/or services originate contains, for the goods and/or services for 
which  the  exclusion  is  proposed,  explicit  market  access  reservations  taken  by  the 
Union. Where such an agreement does not exist, the Commission should approve the 
exclusion where the third country maintains restrictive procurement measures leading 
to a lack of substantial reciprocity in market opening between the Union and the third 
country  concerned.  A  lack  of  substantial  reciprocity  should  be  presumed  where 
restrictive procurement measures result in serious and recurring discriminations of EU 
economic operators, goods and services. 

(16)  When  assessing  whether  a  lack  of  substantial  reciprocity  exists,  the  Commission 
should  examine  to  what  degree  public  procurement  laws  of  the  country  concerned 
ensure  transparency  in  line  with  international  standards  in  the  field  of  public 
procurement  and  preclude  any  discrimination  against  Union  goods,  services  and 
economic  operators.  In  addition,  it  should  examine  to  what  degree  public  authorities 
and/or individual procuring entities maintain or adopt discriminatory practices against 
Union goods, services and economic operators. 

(17)  The Commission should be able to prevent the possible negative impact of an intended 
exclusion  on  on-going  trade  negotiations  with  the  country  concerned.  Therefore,  the 
Commission  may,  where  a  country  is  engaging  in  substantive  negotiations  with  the 
Union  concerning  market  access  in  the  field  of  public  procurement  and  the 
Commission considers that there is a reasonable prospect of removing the restrictive 
procurement practices in the near future, it should be able to adopt a implementing act 

13 

OJ L…. 

EN 

13 

   EN 

 
                                                 
(18) 

(19) 

providing  that  goods  and  services  from  that  country  should  not  be  excluded  from 
procedures for the award of contracts for a period of one year. 

In  view  of  the  fact  that  the  access  of  third  country  goods  and  services  to  the  public 
procurement  market  of  the  Union  falls  within  the  scope  of  the  common  commercial 
policy,  Member  States  or  their  contracting  authorities/entities  should  not  be  able  to 
restrict the access of third country goods or services to their tendering procedures by 
any other measure than the ones provided for in this Regulation. 

In  view  of  the  greater  difficulty  for  contracting  authorities/entities  to  assess,  in  the 
context of tenders comprising goods and/or services originating outside the European 
Union, in which the value of the non-covered goods or services exceeds 50 % of the 
total value of these goods or services, the explanations of tenderers it is appropriate to 
provide for an increased transparency in the treatment of abnormally low tenders. In 
addition to the rules provided by Article 69 of the Directive on public procurement and 
Article 79 of the Directive on procurement by entities operating in the water, energy, 
transport  and  postal  services  sectors  the  contracting  authority/entity  that  intends  to 
accept  such  an  abnormally  low  tender,  should  inform  the  other  tenderers  of  this  in 
writing  including  the  reasons  for  the  abnormally  low  character  of  the  price  or  costs 
charged. This allows these tenderers to contribute to a more accurate assessment as to 
whether  the  successful  tenderer  will  be  able  to  fully  perform  the  contract  under  the 
conditions  spelled  out  in  the  tender  documentation.  Therefore,  this  additional 
information would achieve  a more level playing field on the EU public procurement 
market. 

(20)  The Commission should be able, on its own initiative or at the application of interested 
parties or a Member State, to initiate at any time an external procurement investigation 
into  restrictive  procurement  practices  allegedly  maintained  by  a  third  country.  In 
particular  it  shall  take  into  account  the  fact  that  the  Commission  has  approved  a 
number of intended exclusions concerning a third country pursuant to Article 6(2) of 
this Regulation. Such investigative procedures should be without prejudice to Council 
Regulation  (EC)  No  3286/94  of  22  December  1994  laying  down  Community 
procedures  in  the  field  of  the  common  commercial  policy  in  order  to  ensure  the 
exercise of the Community’s rights under international trade rules, in particular those 
established under the auspices of the World Trade Organization14. 

(21)  Where  the  Commission  has,  on  the  basis  of  information  available  to  it,  reason  to 
believe  that  a  third  country  has  adopted  or  maintains  a  restrictive  procurement 
practice,  it  should  be  able  to  start  an  investigation.  If  the  existence  of  a  restrictive 
procurement practice in a third country is confirmed the Commission should invite the 
country concerned to enter into consultations with a view to improving the tendering 
opportunities for economic operators, goods and services in public procurement in that 
country. 

(22) 

If the consultations with the country concerned do not lead to sufficient improvement 
in  the  tendering  opportunities  for  EU  economic  operators,  goods  and  services,  the 
Commission should take appropriate restrictive measures. 

(23)  Such measures may entail the mandatory exclusion of certain third-country goods and 
services from public procurement procedures in the European Union, or may subject 
tenders made up of goods or services originating in that country to a mandatory price 

14 

OJ L 349, 31.12.1994 

EN 

14 

   EN 

 
                                                 
(24) 

(25) 

(26) 

(27) 

penalty.  To  avoid  circumvention  of  these  measures,  it  may  also  be  necessary  to 
exclude  certain  foreign-controlled  or  owned  juridical  persons  established  in  the 
European  Union,  that are  not engaged in substantive business  operations such that it 
has  a  direct  and  effective  link  with  the  economy  of  a  Member  State  concerned. 
Appropriate  measures  should  not  be  disproportionate  to  the  restrictive  procurement 
practices to which they respond. 

It  is  imperative  that  contracting  authorities/entities  have  access  to  a  range  of  high-
quality  products  meeting  their  purchasing  requirements  at  a  competitive  price. 
Therefore contracting authorities/entities should be able to set aside measures limiting 
access of non-covered goods and services in case there are no Union and/or covered 
goods  or  services  available  which  meet  the  requirements  of  the  contracting 
authority/entity  to  safeguard  essential  public  needs  for  example  health  and  public 
safety, or application of the measure would lead to a disproportionate increase in the 
price or costs of the contract. 

In case of misapplication by contracting authorities/entities of exceptions to measures 
limiting access of non-covered goods and services, the Commission should be able to 
apply the corrective mechanism of Article 3 of Council Directive 89/665/EEC on the 
coordination  of  the  laws,  regulations  and  administrative  provisions  relating  to  the 
application  of  review  procedures  to  the  award  of  public  supply  and  public  works 
contracts15  or  Article  8  of  Council  Directive  92/13/EEC  coordinating  the  laws, 
regulations  and  administrative  provisions  relating  to  the  application  of  Community 
rules  on  the  procurement  procedures  of  entities  operating  in  the  water,  energy, 
transport and telecommunications sectors16. For the same purpose, contracts concluded 
with  an  economic  operator  in  violation  of  Commission’s  decisions  on  intended 
exclusions  notified  by  contracting  authorities/entities  or  in  violation  of  measures 
limiting  access  of  non-covered  goods  and  services  should  be  declared  ineffective 
within  the  meaning  of  Directive  2007/66/EC  of  the  European  Parliament  and 
Council17. 

In the light of the overall policy of the Union with regard to least-developed countries 
as provided for, inter alia, in Council Regulation (EC) No 732/2008 of 22 July 2008 
applying  a  scheme  of  generalised  tariff  preferences  from  1  January  2009,  it  is 
appropriate to assimilate goods and services from these countries to Union goods and 
services. 

In  order  to  reflect  in  the  legal  order  of  the  European  Union  the  international  market 
access commitments undertaken in the field of public procurement after the adoption 
of this Regulation, the Commission should be empowered to adopt acts in accordance 
with Article 290 of the Treaty on the Functioning of the European Union amendments 
to  the  list  of  international  agreements  annexed  to  this  Regulation.  It  is  of  particular 
importance that the Commission should carry out appropriate consultations during its 
preparatory  work,  including  at  expert  level.  The  Commission,  when  preparing  and 
drawing  up  delegated  acts,  should  ensure  simultaneous,  timely  and  appropriate 
transmission of relevant documents to the European Parliament and the Council. 

(28) 

In  order  to  ensure  uniform  conditions  for  implementation  of  this  Regulation, 
implementing powers should be conferred on the Commission. Those powers should 

15 
16 
17 

OJ L 395, 30.12.1989, p. 33 
OJ L 76, 23.3.1992, p. 14 
OJ L 335, 20.12.2007, p. 31 

EN 

15 

   EN 

 
                                                 
be  exercised  in  accordance  with  Regulation  (EU)  No  182/2011  of  the  European 
Parliament and of the Council of 16 February 2011 laying down the rules and general 
principles  concerning  mechanisms  for  the  control  by  the  Member  States  of  the 
Commission’s exercise of implementing powers. 

(29)  The advisory procedure should be used for the adoption of implementing acts for the 
drawing  up  of  the  standard  forms  for  the  publication  of  notices,  the  submission  of 
notifications to the Commission and the origin of goods or services. These decisions 
do not have any impact either from the financial point of views or on the nature and 
scope  of  obligations  stemming  from  this  Regulation.  On  the  contrary,  these  acts  are 
characterised by a mere administrative purpose and serve to facilitate the application 
of the rules set by this Regulation.  

(30)  The  Commission  should  report  at  least  every  three  years  on  the  application  of  this 

Regulation. 

(31) 

In accordance with the principle of proportionality, it is necessary and appropriate for 
achievement  of  the  basic  objective  of  establishing  a  common  external  policy  in  the 
field of public procurement to lay down rules on the treatment of goods and services 
not covered by the international commitments of the European Union. This Regulation 
on  the  access  of  third-country  economic  operators,  goods  and  services  does  not  go 
beyond  what  is  necessary  in  order  to  achieve  the  objectives  pursued,  in  accordance 
with  the  third  paragraph  of  Article  5  of  the  Treaty  on  European  Union, 

HAVE ADOPTED THIS REGULATION: 

Chapter I 
GENERAL PROVISIONS 

Article 1 

Subject matter and scope of application 

1. 

This Regulation lays down rules on the access of third-country goods and services to 
the award of contracts for the execution of works or a work, the supply of goods and 
the  provision  of  services  by  Union  contracting  authorities/entities,  and  establishes 
procedures  supporting  negotiations  on  access  of  Union  goods  and  services  to  the 
public procurement markets of third countries. 

2. 

This Regulation shall apply to contracts covered by the following acts: 

(a)  Directive [2004/17/EC]; 

(b)  Directive [2004/18/EC];  

(c)  Directive [201./… (on the award of concession contracts]. 

This Regulation shall apply to the award of contracts where the goods or services are 
procured  for  governmental  purposes  and  not  with  a  view  to  commercial  resale  or 
with  a  view  to  use  in  the  production  of  goods  or  in  the  provision  of  services  for 
commercial sale. 

EN 

16 

   EN 

 
 
 
 
 
Article 2 

Definitions 

1. 

For the purposes of this Regulation, the following definitions shall apply. 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

‘supplier’ means any natural or legal person which offers on the market goods; 

‘service provider’ means any natural or legal person which offers on the market 
the execution of works or a work, or services; 

‘contracting  authority/entity’  means  ‘contracting  authority’  as  defined  in 
[Article  1  (9)  of  Directive  2004/18/EC,  and  ‘contracting  entity’  as  defined  in 
Article 2 of Directive 2004/17/EC and Articles 3 and 4 of Directive 20.. on the 
award of concession contracts]; 

‘covered  goods  or  services’  means  a  good  or  service  originating  in  a  country 
with which the Union has concluded an international agreement in the field of 
public  procurement  including  market  access  commitments  and  in  respect  of 
which the relevant agreement applies. Annex I to this Regulation contains a list 
of relevant agreements; 

‘non-covered  goods  or  services’  means  a  good  or  service  originating  in  a 
country with which the Union has not concluded an international agreement in 
the  field  of  public  procurement  including  market  access  commitments  or  a 
goods or service originating in a country with which the Union has concluded 
such  an  agreement,  but  in  respect  of  which  the  relevant  agreement  does  not 
apply; 

‘measure’ means any law, regulation, or practice, or combination thereof; 

"interested  parties"  means  a  company  or  firm  formed  in  accordance  with  the 
law of a Member State and having its registered office, central administration 
or  principal  place  of  business  within  the  Union,  directly  concerned  by  the 
production  of  goods  or  the  provision  of  services  which  are  the  subject  of 
restrictive procurement measures of third countries. 

2. 

For the purposes of this Regulation 

(a) 

(b) 

(c) 

(d) 

(e) 

the term "country" may refer to any State or separate customs territory, without 
such nomenclature having implications for sovereignty; 

the term ‘economic operator’ shall cover equally the concepts of supplier and 
service provider; 

an  economic  operator  who  has  submitted  a  tender  shall  be  designated  a 
‘tenderer’; 

the  execution  of  works  and/or  a  work  within  the  meaning  of  Directives 
[2004/17/EC,  2004/18/EC  and  Directive  201./..  on  the  award  of  concession 
contracts]  shall  for  the  purposes  of  this  Regulation  be  considered  as  the 
provision of a service; 

a ‘mandatory price penalty’ shall refer to an obligation for contracting entities 
to  increase,  subject  to  certain  exceptions,  the  price  of  services  and/or  goods 
originating in certain third countries that  have been offered in contract award 
procedures. 

EN 

17 

   EN 

 
 
 
Article 3 

Rules of origin 

1. 

2. 

The  origin  of  a  good  shall  be  determined  in  accordance  with  Article  22  to  26  of 
Regulation (EC) No 2913/1992 of the European Parliament and of the Council of 12 
October 1992 establishing the Community Customs Code18.  

The origin of a service shall be determined on the basis of the origin of the natural or 
legal person providing it. The origin of the service provider shall be deemed to be: 

(a) 

in the case of a natural person, the country of which the person is a national or 
where he has a right of permanent residence; 

(b) 

in the case of a legal person any of the following: 

(1) 

(2) 

if  the  service  is  provided  other  than  through  a  commercial  presence 
within the Union, the country where the juridical person is constituted or 
otherwise organised under the laws of that country and in the territory of 
which the legal person is engaged in substantive business operations; 

if  the  service  is  provided  through  a  commercial  presence  within  the 
Union,  the  Member  State  where  the  legal  person  is  established  and  in 
which territory it is engaged in substantive business operations such that 
it  has  a  direct  and  effective  link  with  the  economy  of  a  Member  State 
concerned. 

For the purposes of point (2) if the legal person is not engaged in substantive 
business  operations  such  that  it  has  a  direct  and  effective  link  with  the 
economy  of  a  Member  State  concerned,  the  origin  of  the  natural  or  legal 
persons which own, or control the juridical person providing the service. 

The legal person providing the service shall be considered to be: 

"owned"  by  persons  of  a  given  country  if  more  than  50 %  of  the 
equity interest in it is beneficially owned by persons of that country 
and "controlled" by persons of a given country if such persons have 
the power to name a majority of its directors or otherwise to legally 
direct its actions. 

3. 

For the purpose of this Regulation, goods or services originating in the countries of 
the European Economic Area other than the Member States shall be treated like those 
originating in the Member States. 

18 

OJ L 302, 19.10.1992, p. 1 

EN 

18 

   EN 

 
 
 
                                                 
Chapter II 
TREATMENT OF COVERED AND NON-COVERED GOODS AND SERVICES, ABNORMALLY LOW 
TENDERS 

Article 4 

Treatment of covered goods and services 

When awarding contracts for the execution of works and/or a work, the supply of goods or the 
provision  of  services,  contracting  authorities/entities  shall  treat  covered  goods  and  services 
equally to goods and services originating in the European Union. 

Goods  or  services  originating  in  least-developed  countries  listed  in  Annex  I  to  Regulation 
(EC) No 732/2008 shall be treated as covered goods and services. 

Article 5 

Rules of access for non-covered goods and services 

Non-covered  goods  and  services  may  be  subject  to  restrictive  measures  taken  by  the 

Commission: 

(a) 

upon request of individual contracting entities according to the rules set out in Article 
6; 

(b) 

according to the rules set out in Articles 10 and 11. 

Article 6 

Empowerment of contracting authorities/entities to exclude tenders comprising non-
covered goods and services 

1. 

2. 

Upon request of contracting authorities/entities the Commission shall assess whether 
to  approve,  for  contracts  with  an  estimated  value  equal  or  above  EUR  5.000.000 
exclusive of value-added tax (VAT) the exclusion from procedures for the award of 
contracts tenders comprising goods or services originating outside the Union, if the 
value  of  the  non-covered  goods  or  services  exceeds  50 %  of  the  total  value  of  the 
goods or services constituting the tender, under the following conditions. 

Where  contracting  authorities/entities 
the  exclusion  from 
procedures for the award of contracts on the basis of paragraph 1 they shall indicate 
this  in  the  contract  notice  they  publish  pursuant  to  Article  35  of  Directive 
2004/18/EC or  pursuant to Article 42 of Directive 2004/17/EC or Article 26 of  the 
Directive on the award of concession contracts. 

to  request 

intend 

Contracting authorities/entities shall require tenderers to provide information on the 
origin  of  the  goods  and/or  services  contained  in  the  tender,  and  their  value.  They 
shall accept self-declarations as preliminary evidence that tenders cannot be excluded 
pursuant to paragraph 1. A contracting authority may ask a tenderer at any moment 
during the procedure to submit all or parts of the required documentation where this 

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appears  necessary  to  ensure  the  proper  conduct  of  the  procedure.  The  Commission 
may adopt implementing acts establishing standard forms for declarations concerning 
the  origin  of  goods  and  services.  Those  implementing  acts  shall  be  adopted  in 
accordance with the advisory procedure referred to in Article 17 (3). 

Where  contracting  authorities/entities  receive  tenders  that  meet  the  conditions  of 
paragraph 1 for which they intend to request the exclusion for that reason, they shall 
notify 
the  contracting 
authority/entity may continue its analysis of the tenders. 

the  notification  procedure 

the  Commission.  During 

The  notification  shall  be  sent  by  electronic  means  using  a  standard  form.  The 
Commission  shall  adopt  implementing  acts  establishing  the  standard  forms.  Those 
implementing  acts  shall  be  adopted  in  accordance  with  the  advisory  procedure 
referred  to  in  Article  17  (3).  That  standard  form  shall  contain  the  following 
information: 

(a) 

(b) 

(c) 

(d) 

the name and contact details of the contracting authority/entity; 

a description of the object of the contract; 

the name and contact details of the economic operator whose tender would be 
excluded; 

information on the origin of the economic operator, the goods and/or services 
and their value. 

The Commission may ask the contracting authority/entity for additional information. 

That  information  shall  be  provided  within  eight  working  days,  commencing  on  the 
first working day following the date on which it receives the request for additional 
information. If the Commission receives no information within this period the period 
established  in  paragraph  3  shall  be  suspended,  until  the  Commission  receives  the 
requested information. 

For  contracts  referred  to  in  paragraph  1,  the  Commission  shall  adopt  an 
implementing act concerning the approval of the intended exclusion within a period 
of two months commencing on the first working day following the date on which it 
receives  the  notification.  Those  implementing  acts  shall  be  adopted  in  accordance 
with  the  examination  procedure  referred  to  in  Article  17  (2).  This  period  may  be 
extended once by a maximum of two months in duly justified cases, in particular if 
the information contained in the notification or in the documents annexed thereto is 
incomplete or inexact or if the facts as reported undergo any substantive changes. If, 
at the end of this two-month period, or the extended period the Commission has not 
adopted  a  decision  approving  or  disapproving  the  exclusion,  the  exclusion  shall  be 
deemed to have been disapproved by the Commission. 

3. 

4. 

When  adopting  implementing  acts  pursuant  to  paragraph  3,  the  Commission  shall 
approve the intended exclusion in the following cases: 

(a) 

if  the  international  agreement  concerning  market  access  in  the  field  of  public 
procurement  between  the  Union  and  the  country  where  the  goods  and/or 
services  originate  contains,  for  the  goods  and/or  services  for  which  the 
exclusion is proposed, explicit market access reservations taken by the Union; 

(b)  where an agreement referred to in point (a) does not exist and the third country 
maintains  restrictive  procurement  measures  leading  to  a  lack  of  substantial 

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reciprocity  in  market  opening  between  the  Union  and  the  third  country 
concerned. 

For  the  purposes  of  point  (b),  a  lack  of  substantial  reciprocity  is  presumed  where 
restrictive  procurement  measures  result  in  serious  and  recurring  discriminations  of 
Union economic operators, goods and services. 

When adopting implementing acts pursuant to paragraph 3, the Commission shall not 
approve  an  intended  exclusion  where  it  would  violate  market  access  commitments 
entered into by the Union in its international agreements. 

5. 

When  assessing  whether  a  lack  of  substantial  reciprocity  exists,  the  Commission 
shall examine the following: 

(a) 

(b) 

to  what  degree  public  procurement  laws  of  the  country  concerned  ensure 
transparency  in  line  with  international  standards  in  the  field  of  public 
procurement  and  preclude  any  discrimination  against  Union  goods,  services 
and economic operators; 

to what degree public authorities and/or individual procuring entities maintain 
or adopt discriminatory practices against Union goods, services and economic 
operators. 

Before  the  Commission  takes  a  decision  pursuant  to  paragraph  3  it  shall  hear  the 
tenderer or tenderers concerned.  

Contracting authorities/entities which have excluded tenders pursuant to paragraph 1 
shall indicate this in the contract award notice they publish pursuant to Article 35 of 
Directive  2004/18/EC,  Article  42  of  Directive  2004/17/EC,  or  Article  27  of  the 
Directive  on  the  award  of  concession  contracts.  The  Commission  shall  adopt 
implementing acts establishing the standard forms for contract award notices. Those 
implementing  acts  shall  be  adopted  in  accordance  with  the  advisory  procedure 
referred to in Article 17 (3). 

Paragraph 1 shall not apply where the Commission has adopted the implementing act 
on temporary access of the goods and services from a country engaged in substantive 
negotiations with the Union as set out in Article 9(4). 

6. 

7. 

8. 

Chapter III 
RULES ON ABNORMALLY LOW TENDERS 

Article 7 

Abnormally low tenders 

Where  the  contracting  authority/entity  intends,  under  Article  69  of  the  Directive  on  public 
procurement or under Article 79 of the Directive on procurement by entities operating in the 
water,  energy,  transport  and  postal  services  sectors,  after  verifying  the  explanations  of  the 
tenderer,  to  accept  an  abnormally  low  tender  comprising  goods  and/or  services  originating 
outside the Union, in which the value of the non-covered goods or services exceeds 50 % of 
the  total  value  of  the  goods  or  services  constituting  the  tender,  it  shall  inform  the  other 
tenderers of this in writing, including the reasons for the abnormally low character of the price 
or costs charged. 

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A contracting authority/entity may withhold any information release of it would impede law 
enforcement,  would  otherwise  be  contrary  to  the  public  interest,  would  prejudice  the 
legitimate  commercial  interests  of  economic  operators,  whether  public  or  private,  or  might 
prejudice fair competition between them. 

Chapter IV 
COMMISSION INVESTIGATION, CONSULTATION AND MEASURES TEMPORARILY LIMITING 
ACCESS OF NON-COVERED GOODS AND SERVICES TO THE EU PUBLIC PROCUREMENT 
MARKET  

Article 8 

Investigation relating to the access of EU economic operators, goods and services to the 
public procurement markets of third countries 

1. 

2. 

3. 

4. 

1. 

Where the Commission considers it to be in the interest of the Union, it may at any 
time,  on  its  own  initiative  or  upon  application  of  interested  parties  or  a  Member 
State,  may  initiate  an  external  procurement  investigation  into  alleged  restrictive 
procurement measures.  

In particular, the Commission shall take into account whether a number of intended 
exclusions have been approved pursuant to Article 6(3) of this Regulation. 

Should  an  investigation  be  initiated,  the  Commission  shall  publish  a  notice  in  the 
Official  Journal  of  the  Union,  inviting  interested  parties  and  Member  States  to 
provide all relevant information to the Commission within a specified period of time. 

The investigation referred to in paragraph 1 is conducted on the basis of the criteria 
laid down in Article 6.  

The assessment by the Commission of whether restrictive procurement measures are 
maintained  by  the  third  country  concerned  shall  be  made  on  the  basis  of  the 
information supplied by interested parties and Member States and/or facts collected 
by the Commission during its investigation, and shall be concluded within a period 
of  nine  months  after  the  initiation  of  the  investigation.  In  duly  justified  cases  this 
period may be extended by three months. 

When  the  Commission  concludes  as  a  result  of  the  external  procurement 
investigation that the alleged restrictive procurement measures are not maintained by 
the third country concerned, the Commission shall adopt a decision terminating the 
investigation.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 17 (2). 

Article 9 

Consultation of a third country 

When it is found as a result of an investigation that restrictive procurement measures 
are maintained by a third country and the Commission considers it to be justified by 
the EU interest, the Commission shall invite it to enter into consultations with a view 
to  ensuring  that  Union  economic  operators,  goods  and  services  can  participate  in 
tendering  procedures  for  the  award  of  public  procurement  contracts  in  that  country 

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2. 

3. 

4. 

5. 

on  the  conditions  no  less  favourable  than  those  accorded  to  national  economic 
operators, goods and services of that country and also with a view also to ensuring 
the application of the principles of transparency and equal treatment. 

In  the  event  that  the  country  concerned  declines  the  invitation  to  enter  into 
consultation, the Commission shall, when adopting implementing acts under Article 
10 to limit the access of goods and services originating in that third country, decide 
on the basis of the facts available. 

If  the  country  concerned  is  a  Party  to  the  WTO  Agreement  on  Government 
Procurement  or  has  concluded  a  trade  agreement  with  the  EU  that  includes 
provisions  on  public  procurement,  the  Commission  shall  follow  the  consultation 
mechanisms and/or dispute settlement procedures set out in that agreement when the 
restrictive  practices  relate  to  procurement  covered  by  market  access  commitments 
undertaken by the country concerned towards the Union. 

When, after the initiation of a consultation, the country concerned takes satisfactory 
remedial/corrective  measures,  but  without  undertaking  new  market  access 
commitments, the Commission may suspend or terminate the consultation: 

The  Commission  shall  monitor  the  application  of  those  remedial/corrective 
measures, where appropriate on the basis of information supplied at intervals, which 
it may request from the third country concerned. 

Where  the  remedial/corrective  measures  taken  by  the  third  country  concerned  are 
rescinded, suspended or improperly implemented, the Commission may: 

(i) resume or restart the consultation with the third country concerned, and/or 

(ii) act under Article 10 to adopt implementing acts to limit the access of goods and 
services originating in a third country  

The implementing acts referred to in this paragraph shall be adopted in accordance 
with the examination procedure referred to in Article 17(2). 

Where,  after  the  initiation  of  a  consultation,  it  appears  that  the  most  appropriate 
means to end a restrictive procurement practice is the conclusion of an international 
agreement,  negotiations  shall  be  carried  out  in  accordance  with  the  provisions  of 
Articles 207 and 218 of the Treaty on the Functioning of the European Union. If a 
country has engaged in substantive negotiations with the European Union concerning 
market  access  in  the  field  of  public  procurement,  the  Commission  may  adopt  an 
implementing  act  providing  that  goods  and  services  from  that  country  cannot  be 
excluded from procedures for the award of contracts pursuant to Article 6. 

The Commission may terminate the consultation if the country concerned undertakes 
international  commitments  agreed  with  the  Union  in  any  of  the  following 
frameworks: 

(a)  Accession to the WTO Agreement on Government Procurement, 

(b)  Conclusion  of  a  bilateral  agreement  with  the  Union  which  includes  market 

access commitments in the field of public procurement, or 

(c)  Expansion  of  its  market  access  commitments  undertaken  under  the  WTO 
Agreement on Government or under a bilateral agreement concluded with the 
Union in that framework, 

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The consultation may also be terminated in cases where the restrictive procurement 
measures are still in place at the time these commitments are undertaken, as long as 
they include detailed provisions relating to the phasing-out of those practices. 

6. 

In  the  event  that  a  consultation  with  a  third  country  does  not  lead  to  satisfactory 
results within 15 months from the day the consultation with the third country started, 
the Commission shall terminate the consultation and consider acting under Article 10 
to adopt implementing acts to limit the access of goods and services originating in a 
third country . 

Article 10 

Adoption of measures limiting access of non-covered goods and services to the EU public 
procurement market 

1. 

Where  it  is  found  in  an  investigation  pursuant  to  Article  8,  and  after  following  the 
procedure  foreseen  in  Article  9,  that  restrictive  procurement  measures  adopted  or 
maintained by that third country leads to an lack of substantial reciprocity in market 
opening  between  the  Union  and  the  third  country  as  referred  to  in  Article  6,  the 
Commission  may  adopt  implementing  acts  to  temporarily  limit  the  access  of  non-
covered goods and services originating in a third country. Those implementing acts 
shall be adopted in accordance with the examination procedure referred to in Article 
17(2). 

2. 

The measures adopted pursuant to paragraph 1 may take any of the following forms: 

(a) 

(b) 

the exclusion of tenders of which more than 50 % of the total value is made up 
of  non-covered  goods  or  services  originating  in  the  country  adopting  or 
maintaining a restrictive procurement practice; and/or 

a mandatory price penalty on that part of the tender consisting of non-covered 
goods  or  services  which  originate  in  the  country  adopting  or  maintaining  a 
restrictive procurement practice. 

3. 

Measures adopted pursuant to paragraph 1 may in particular be limited to: 

(a)  public  procurement  by 
authorities/entities; 

certain  defined 

categories  of 

contracting 

(b)  public procurement of certain defined categories of goods or services; 

(c)  public procurement above or within certain defined thresholds. 

Article 11 

Withdrawal or suspension of measures 

1. 

Where the Commission considers that the reasons justifying the measures adopted 
pursuant to Articles 9 (4) and 10 no longer apply, the Commission may adopt an 
implementing act to: 

(a) 

(b) 

repeal the measures; or 

suspend the application of the measures for a period of up to one year. 

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For the purposes of point (b), the application of the measures may, at any moment in 
time, be reinstated by the Commission by means of an implementing act. 

2. 

The implementing acts referred to in this Article shall be adopted in accordance with 
the examination procedure referred to in Article 17(2). 

Article 12 

Information to tenderers 

1. 

When  contracting  authorities/entities  conduct  a  procurement  procedure  subject  to 
restrictive measures, adopted pursuant to Article 10 or reinstated pursuant to Article 
11, they shall indicate this in the contract notice they publish pursuant to Article 35 
of  Directive  2004/18/EC  or  Article  42  of  Directive  2004/17/EC.  The  Commission 
shall adopt implementing acts establishing the standard forms in accordance with the 
advisory procedure referred to in Article 17 (3).2  Where the exclusion of a tender is 
based  on  the  application  of measures adopted  pursuant 10  or  reinstated pursuant to 
Article 11, contracting authorities/entities shall inform unsuccessful tenderers. 

Article 13 

Exceptions 

1. 

Contracting  authorities/entities  may  decide  not  to  apply  the  measures  pursuant  to 
Article 10 with respect to a procurement procedure if: 

2. 

(a) 

(b) 

there are no Union and/or covered goods or services available which meet the 
requirements of the contracting entity; or 

application  of  the  measure  would  lead  to  a  disproportionate  increase  in  the 
price or costs of the contract. 

Where a contracting authority/entity intends not to apply measures adopted pursuant 
to Article 10 of this Regulation, or reinstated pursuant to Article 11, it shall indicate 
its  intention  in  the  contract  notice  that  it  shall  publish  pursuant  to  Article  35  of 
Directive  2004/18/EC  or  Article  42  of  Directive  2004/17/EC.  It  shall  notify  the 
Commission  no  later  than  ten  calendar  days  after  the  publication  of  the  contract 
notice. 

This notification shall be sent by electronic using a standard form. The Commission 
shall  adopt  implementing  acts  establishing  the  standard  forms  for  contract  notices 
and notification in accordance with the advisory procedure referred to in Article 17 
(3). 

The notification shall contain the following information: 

(a) 

(b) 

(c) 

the name and contact details of the contracting authority/entity; 

a description of the object of the contract; 

information on the origin of the economic operators, the goods and/or services 
to be admitted; 

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3. 

(d) 

the ground on which the decision not to apply the restrictive measures is based, 
and a detailed justification for the use of the exception; 

(e)  where  appropriate,  any  other  information  deemed  useful  by  the  contracting 

authority/entity. 

The  Commission  may  ask  the  contracting  authority/entity  concerned  for  additional 
information. 

In the event that a contracting authority/entity conducts, under Article 31 of Directive 
2004/18/EC  or  under  Article  40  (3)  2  of  Directive  2004/17/EC  and  decides  not  to 
apply  a  measure  adopted  pursuant  to  Article  10  of  this  Regulation,  or  reinstated 
pursuant  to  Article  11,  it  shall  indicate  this  use  in  the  contract  award  notice  it 
publishes pursuant to Article 35 of Directive 2044/18/EC or Article 43 of Directive 
2004/17/EC  and  notify  the  Commission  no  later  than  ten  calendar  days  after  the 
publication of the contract award notice. 

This  notification  shall  be  sent  by  electronic  means  using  a  standard  form.  The 
Commission  shall  adopt  implementing  acts  establishing  the  standard  forms  for 
contract notices and notifications in accordance with the advisory procedure referred 
to in Article 17 (2). The notification shall contain the following information: 

(a) 

(b) 

(c) 

(d) 

the name and contact details of the contracting authority/entity; 

a description of the object of the contract; 

information on the origin of the economic operators, the goods and/or services 
admitted; 

the ground on which the decision not to apply the restrictive measures is based, 
and a detailed justification for the use of the exception; 

(e)  where  appropriate,  any  other  information  deemed  useful  by  the  contracting 

entity. 

Chapter V 
DELEGATED AND IMPLEMENTING POWERS, REPORTING AND FINAL PROVISIONS 

Article 14 

Amendments to the Annex 

The Commission shall be empowered to adopt delegated acts in accordance with Article 14 
concerning  amendments  to  the  Annex  to  reflect  the  conclusion  of  new  international 
agreements by the Union in the field of public procurement. 

Article 15 

Exercise of the delegation of powers 

1. 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article. 

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2. 

3. 

4. 

5. 

1. 

2. 

1. 

2. 

19 
20 

The  delegation  of  power  referred  to  in  Article  14  shall  be  conferred  on  the 
Commission for an indeterminate period of time from the [date of entry into force of 
this Regulation]. 

The delegation of power referred to in Article 14may be revoked at any time by the 
European Parliament or by the Council. A revocation decision shall put an end to the 
delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  on  the  day 
following  the  publication  of  the  decision  in  the  Official  Journal  of  the  European 
Union  or  at  a  later  date  specified  therein.  It  shall  not  affect  the  validity  of  any 
delegated acts already in force. 

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council. 

A delegated act adopted pursuant to this Article shall enter into force only where no 
objection  has  been  expressed  either  by  the  European  Parliament  or  by  the  Council 
within a period of two months of notification of the act to the European Parliament 
and the Council or if, before the expiry of that period, the European Parliament and 
the  Council  have  both  informed  the  Commission  that  they  will  not  object.  That 
period shall be extended by two months at the initiative of the European Parliament 
or the Council. 

Article 16 

Implementation 

In case of misapplication by contracting authorities/entities of exceptions laid down 
in Article 13, the Commission may apply  the corrective mechanism of Article 3 of 
Directive 89/665/EEC or Article 8 of Directive 92/13/EEC. 

Contracts  concluded  with  an  economic  operator  in  violation  of  Commission 
implementing acts adopted pursuant to Article 6 upon intended exclusion notified by 
contracting  authorities/  entities  or  measures  adopted  pursuant  to  Article  10  or 
reinstated pursuant to Article 11 shall be declared ineffective within the meaning of 
Directive 2007/66/EC. 

Article 17 

Committee procedure 

The Commission shall be assisted by the Advisory Committee for Public .Contracts 
established  by  Council  Decision  71/306/EEC19  and  by  the  Committee  set  up  by 
Article 7 of the Trade Barriers Regulation20. These committees shall be committees 
within the meaning of Article 3 of Regulation (EU) No 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply and the competent committee shall be the Committee set up by 
the Trade Barriers regulation. 

OJ L 185, 16.8.1971, p. 15. 
OJ L 349, 31.12.1994, p. 71 

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3. 

1. 

2. 

3. 

4. 

5. 

Where  reference  is  made  to  this  paragraph,  Article  4  of  Regulation  (EU)  No 
182/2011  shall  apply  and  the  competent  committee  shall  be  the  Committee 
established by Council Decision 71/306/EEC. 

Article 18 

Confidentiality 

Information received pursuant to this Regulation shall be used only for the purpose 
for which it was requested. 

Neither the Commission nor the Council, nor the European Parliament nor Member 
States,  nor  their  officials  shall  reveal  any  information  of  a  confidential  nature 
received pursuant to this Regulation, without specific permission from the supplier of 
such information. 

The  supplier  of  information  may  request  to  treat  information  submitted  as 
confidential  and  shall  be  accompanied  by  a  non-confidential  summary  of  the 
information or a statement of the reasons why the information cannot be summarised. 

If  it  appears  that  a  request  for  confidentiality  is  not  justified  and  if  the  supplier  is 
unwilling  either  to  make  the  information  public  or  to  authorise  its  disclosure  in 
generalised or summary form, the information in question may be disregarded. 

Paragraphs  1  to  5  shall  not  preclude  the  disclosure  of  general  information  by  the 
Union  authorities.  Such  disclosure  must  take  into  account  the  legitimate  interest  of 
the parties concerned in not having their business secrets divulged. 

Article 19 

Reporting 

By 1 January 2017 and at least every three years after the entry into force of this Regulation, 
the  Commission  shall  submit  a  report  to  the  European  Parliament  and  the  Council  on  the 
application  of  this  Regulation  and  on  progress  made  in  international  negotiations  regarding 
access  for  EU  economic  operators  to  public  contract  award  procedures  in  third  countries 
undertaken  under  this  Regulation.  To  this  effect,  Member  States  shall  upon  request  provide 
the Commission with appropriate information. 

Article 20 

Repeals 

Articles 58 and 59 of Directive 2004/17/EC shall be repealed with effect from the entry into 
force of this Regulation. 

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Article 21 

Entry into force 

This Regulation shall enter into force on the 60th day following that of its publication in the 
Official Journal of the European Union. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 21.3.2012 

For the European Parliament 
The President 

For the Council 
The President 

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List of international agreements that the Union has concluded in the field of public 
procurement including market access commitments 

ANNEX 

Plurilateral agreement: 

- Agreement on Government procurement (OJ L, 336, 23.12.1994) 

Bilateral agreements: 

-  Free  Trade  Agreement  between  the  European  Community  and  Mexico  (OJ  L  276, 
28.10.2000, L 157/30.6.2000) 
-  Agreement  between  the  European  Community  and  the  Swiss  Confederation  on  certain 
aspects of government procurement (OJ L. 114, 30.04.2002) 
- Free Trade Agreement between the European Community and Chile (OJ L352, 30.12.2002) 
- Stabilisation and Association Agreement between the European Community and its Member 
States and Former Yugoslav Republic of Macedonia (OJ L 87, 20.03.2004) 
- Stabilisation and Association Agreement concluded between the European Community and 
Croatia (OJ L 26, 28.1.2005) 
- Stabilisation and Association Agreement concluded between the European Community and 
its Member States and Montenegro (OJ L 345 of 28.12.2007) 
- Stabilisation and Association Agreement concluded between the European Community and 
Albania (OJ L 107, 28.4.2009) 
- Free Trade Agreement by the European Union and South Korea - (OJ L 127/14.5.2011) 

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