Amended 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: 2016-01-29
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: award of contract, international market, invitation to tender, restriction on competition, service concession, services contract, single market, supplies contract, tendering, third country

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   EUROPEAN COMMISSION  Brussels, 29.1.2016  COM(2016) 34 final 2012/0060 (COD)   Amended 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  
 
EXPLANATORY MEMORANDUM 

1. 

 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal  

The  Commission  adopted  on  21  March  2012  a  proposal  for  a  “REGULATION  OF  THE 
EUROPEAN PARLIAMENT AND OF THE COUNCIL on the access of third-country goods 
and services to the Union” (COM (2012) 124 final).  

The proposal on an International Procurement Instrument (IPI) is the EU response to the lack 
of level playing field in world procurement markets. While our public procurement market is 
open  to  foreign  bidders,  the  procurement  markets  for  foreign  goods  and  services  in  third 
countries  remain  to  a  large  extent  closed  de  iure  or  de  facto.  The  IPI  aims  at  encouraging 
partners to engage in negotiations and opening participation for EU bidders and goods in third 
countries' tenders. 

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  EUR178  billion  and  EUR27 
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 
EUR10  billion  of  EU  exports  (0.08%  of  EU  GDP)  currently  find  their  way  in  global 
procurement  markets,  whereas  an  estimated  EUR12  billion  of  further  EU  exports  remains 
unrealised due to restrictions.  

In the negotiations on a revised Government Procurement Agreement (GPA) in the context of 
the  World  Trade  Organization  (WTO)  and  in  bilateral  negotiations  with  third  countries,  the 
EU has  advocated an  ambitious opening of international public procurement  markets. Some 
EUR352 billion of EU public procurement is open to bidders from member countries of the 
GPA.  However,  some  important  economic  players  like  China,  Brazil  or  India  are  not  yet 
parties  to  the  agreement  and  some  of  the  existing  parties  have  limited  coverage  of 
procurement in their schedules.  

Since the launch of the IPI proposal in 2012, important trade negotiations have started, with 
the US (TTIP), Japan (FTA) or continued, such as for China (to join the GPA). The adoption 
of  the  IPI  would  send  a  strong  signal  to  these  and  other  partners  and  would  encourage 
negotiators to accelerate and pursue a substantial opening of their procurement markets. The 
need for an instrument like the IPI has therefore become even more pressing. Ultimately the 
objective is to improve, in line with the EU's Europe 2020 strategy for smart, sustainable and 
inclusive  growth  (COM(2010)2020),  business  opportunities  for  EU  firms  on  a  global  scale, 
thereby creating new jobs and promoting innovation. 

The initial proposal covered two parts: (a) the so-called "covered procurement" (where the EU 
has  undertaken  international  commitments  on  market  access);  and  (b)  the  "non-covered 
procurement"  (where  the  EU  has  not  undertaken  any  market  access  commitments).  For  the 
latter  category  the  initial  proposal  included  two  different  procedures:  (a)  a  decentralised 
procedure, whereby a procuring entity would be allowed to exclude a tender after seeking the 
Commission's  approval;  and  (b)  a  centralised  procedure,  with  the  Commission  playing  a 
central  role  (investigation,  negotiation  with  the  third  country,  decision  to  adopt  restrictive 
measures - a market closure or a price penalty - if necessary, which would then be applied by 
the national authorities in their procurement procedures).  

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This  initial  proposal  has  been  discussed  in  the  European  Parliament  and  in  the  Council, 
without, however, concluding the first reading.  

While  a  large  majority  of  Member  States  recognised  the  current  imbalance  between  on  the 
one hand an open EU procurement market and on the other hand, the serious and persisting 
problems  relating  to  discriminatory  measures  and  practices  that  EU  operators  experience  in 
certain  third  countries,  the  Council  has  not  been  able  to  arrive  at  a  formal  position  on  the 
Commission  proposal.  During  the  examination  of  the  proposal  in  the  Trade  Questions 
Working  Party  a  number  of  Member  States  have  expressed  reservations  as  regards  the 
principle  of  closing  the  EU  market  for  goods  and  services  originating  in  certain  third 
countries, even if only temporarily and in a targeted way, while some Member States gave a 
strong support to the initiative. Several Member States also underlined concerns regarding the 
administrative burden imposed by the proposal on contracting authorities and on businesses.  

On 15 January 2014, the EP Plenary voted on the amendments to the Commission proposal 
and  endorsed  the  mandate  for  trilogue  with  a  large  majority  together  with  a  list  of 
amendments. The amendments included in particular the establishment of a link between the 
centralised  and  the  decentralised  pillar,  providing  that  the  latter  could  only  have  been  used 
when  a  Commission  investigation  had  been  launched,  expansion  of  the  scope  of  exceptions 
for developing countries as well as tightening time limits for the Commission investigations 
of alleged discriminatory practises and measures by third countries. On 20 October 2014 the 
current European Parliament confirmed the decision taken under previous legislative term and 
prepared for trilogue.  

In view of the fact that there appears to be broad agreement that an imbalance currently exists 
between the openness of the EU procurement market and third country procurement markets 
and that European companies should enjoy better access to procurement opportunities abroad 
the  Commission  decided  to  review  its  initial  proposal  in  order  to  respond  to  some  of  the 
concerns  both  legislative  organs  of  the  EU  have  expressed  while  ensuring  that  the  revised 
proposal  still  provides  the  EU  with  better  leverage  in  its  negotiations  to  open  foreign 
procurement markets.  

The  amendments  presented  in  this  proposal  aim  at  eliminating,  all  possible  negative 
consequences of the instrument in its original form, such as in particular the total closure of 
the EU procurement market, the administrative burden and the risk of an fragmentation of the 
internal  market.  At  the  same  time  the  proposal  put  focus  on  the  role  of  the  Commission  to 
investigate procurement barriers in third countries and provides the tools to engage with third 
countries  towards  its  removal.  More  concretely,  the  amended  proposal  eliminates  the 
'decentralized procedure', while keeping the option to impose under certain conditions a price 
penalty , it simplifies the procedures, expands the scope of the exemptions as well as provides 
the tools to further target any possible measures. Last but not least it provides for an increased 
level of transparency by stipulating that the Commission should make public the findings of 
the investigations relating to discriminatory measures and practices by third countries as well 
as any action taken by such countries to eliminate the discriminatory measures and practices.  

In  the  Commission  Work  Programme  (CWP)  for  2015,  the  Commission  announced  the 
intention  to  amend  the  IPI  proposal  "in  line  with  the  priorities  of  the  new  Commission  in 
order  to  simplify  the  procedures,  shortening  timelines  of  investigation  and  reducing  the 
number  of  actors  in  the implementation".  The  amended  proposal  includes  all  these  required 
elements  and  should  serve  as  a  basis  on  which  it  should  be  possible  to  find  a  balanced 
compromise,  between  the  European  Parliament  and  the  Council,  while  at  the  same  time 
ensuring that IPI remains an efficient tool for leverage in negotiations. 

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2. 

 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the amendments to the initial proposal 

The  amendments  presented  in  this  proposal  aim  at  increasing  the  effects  of  the  instrument 
upon third countries while eliminating the potentially negative consequences of the instrument 
in its original form, such as the possibility to close the EU procurement market completely to 
a trading partner, the administrative burden related to the application of the instrument and the 
risk  of  fragmentation  of  the  internal  market.  At  the  same  time,  the  proposal  focuses  on  the 
role of the Commission to investigate procurement barriers in third countries and provides the 
tools to engage with third countries towards their removal.  

The proposals can be summarized as follows:  

Firstly,  it  is  proposed  to  delete  the  possibility  to  close  the  market  and  to  limit  possible 
restrictive measures to price penalties – now called “price adjustment measures”. Following a 
Commission  investigation,  when  it  is  determined  that  a  country  applies  barriers  to  EU 
participation  in  procurement,  a  price  adjustment  would  be  applied to  bidders  or  products  or 
services from that country. Contrary to the initial proposal, foreign bidders and products and 
services subject to a price adjustment measure for evaluation purposes could still be awarded 
the  contract,  if  despite  the  price  adjustment  the  offer  remains  competitive  in  terms  of  price 
and quality.  

Secondly, the revised proposal eliminates the possibility for contracting authorities to decide 
autonomously  a  prohibition  on  foreign  bidders'  participation  in  their  tenders  by  deleting the 
decentralised pillar.  

Thirdly, the revised proposal establishes a presumption that tenders submitted by companies 
originating in the targeted third country will be targeted by the price penalty, unless they can 
demonstrate that less than 50% of the total value of their tender is made up of non-covered 
goods and services originating in this third country. While in the original proposal contracting 
authorities bore the burden of proof, it is now borne by the bidder.  

Fourthly,  it  is  proposed  to  reduce  the  administrative  burden  further  by  allowing  Member 
States  to  indicate  which  of  their  procuring  entities  will  be  required  to  implement  the  price 
adjustment  measure.  This  proposal  follows  the  model  of  the  Enforcement  Regulation1.  As 
fifth element, the price adjustment measure would not be applicable in relation to European 
small  and  medium-sized  enterprises  (SMEs)  and  bidders  and  products  originating  from 
developing countries subject to GSP+ treatment, in line with the EU trade and development 
policy  towards  these  countries.  The  same  applies  for  the  exclusion  from  the  instrument  of 
SMEs, which ensures coherence of the IPI also with the wider EU policy in this area.  

Sixth, a new provision would allow targeting territories at regional or local level, like states, 
regions  or  even  municipalities.  Seventh,  it  is  proposed  to  shorten  the  time  for  the 
Commission's  investigation  in  the  centralised  procedure  in  addition  to  eliminating  the 
decentralized  pillar,  completely.  Eighth,  in  line  with  the  Commission's  approach  to 
transparency  in  trade  policy,  it  is  proposed  to  make  public  the  findings  of  the  Commission 
investigations identifying barriers to tenders in third countries. Ninth, it has been clarified that 
the  instrument  will  apply  to  all  procurement  and  concessions  which  are  covered  by  the  EU 
procurement  and  concession  directives  adopted  in  February  2014  (which  excludes  for 
example concessions regarding water supply services).  

1 

Regulation  (EU)  No  654/2014  of  the  European  Parliament  and  of  the  Council  of  15  May  2014 
concerning the exercise of the Union's rights for the application and enforcement of international trade 
rules, OJ L 189, 27.6.2014, p. 50–58. 

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All abovementioned amendments are fully in line with the announcement in the CWP 2015 to 
simplify the procedures, shorten timelines of investigation and reduce the number of actors in 
implementation.  

 

Consistency with existing provisions in the area of the proposal 

The  IPI  initiative  is  a  new  proposal  in  the  area  of  the  European  Union's  international 
procurement  policy.  As  their  predecessors,  the  recently  adopted  new  public  procurement 
directives of the European Union 2 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  85  and  86  of  Directive  2014/25/EU.  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's amended proposal it is proposed that these two articles will be repealed upon 
the adoption of the IPI proposal.  

 

Consistency with other Union policies and objectives 

The  initial  initiative,  as  well  as  the  amended  proposal,  implement  the  Europe  2020  strategy 
and the Europe 2020 Flagship Initiative on Integrated Industrial Policy for the Globalisation 
Era [COM(2010) 614]. It also implements the Single Market Act [COM(2011) 206] and the 
Communication  on  Trade,  Growth  and  World  Affairs  [COM(2010)  612].  It  is  a  strategic 
initiative in 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 
(LDCs) from action under this instrument. In this regard the amended proposal goes one step 
further  in  eliminating  from  the  scope  of  the  IPI  not  only  LDCs  but  also  those  developing 
countries  considered  vulnerable  due  to  a  lack  of  diversification  and  insufficient  integration 
within  the  international  trading  system  and  in  the  world  economy.  This  adjustment  aims  at 
ensuring further alinement with overarching EU policies on development.  

3. 

 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY  

Legal basis 

Article 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: 

Already  the  initial  proposal  stroke  a  careful  balance  between  the  interests  of  all  relevant 
stakeholders and the interest in having an instrument like the IPI to support EU trade policy. 
The  amended  proposal  has  further  limited  possible  negative  consequences  of  the  initial 

2 

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award 
of  concession  contracts  (OJ  L  94,  28.3.2014,  p.1),  Directive  2014/24/EU  of  the  European  Parliament 
and  of  the  Council  of  26  February  2014  on  public  procurement  (OJ  L  94,  28.3.2014,  p.  65)  and 
Directive  2014/25/EU  of  the  European  Parliament  and  of  the  Council  of  26  February  2014  on 
procurement by entities operating in the water, energy, transport and postal services sectors ( OJ L 94, 
28.3.2014, p. 243. 

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proposal without deleting so much of the key aspects of the proposal as to make it loose its 
effect as a tool for leverage in international negotiations.  

 

Choice of the instrument 

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,  since 
this  instrument  entrusts  the  Commission  with  certain  tasks,  it  would  not  be  appropriate  to 
propose an instrument that requires transposition into the legal orders of the Member States. 

4. 

 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

To  gather  the  views  of  stakeholders,  the  Commission  organized  in  preparation  of  the  initial 
proposal, in addition to individual meetings, a series of consultations and outreach activities. 
Since  the  stakeholder  consultation  took  place,  extensive  contacts  have  taken  place  with 
different  Member  State  representatives  in  order  to  elaborate  a  revised  proposal  that  would 
stand a better chance of being adopted.  

The  main  reasons  put  forward  by  stakeholders  in  favour  or  against  one  or  the  other  policy 
option included the risk of retaliation by the EU's trading partners, the administrative burden 
that could be attached to such an initiative and the fact that the initiative could endanger the 
status of the EU as an adherent of open markets.3 In addition, a large majority of stakeholders 
took the view that should any market access restrictions be taken, this should be decided on 
the  level  of  the  EU  rather  than  by  Member  States  or  contracting  authorities/entities.4  The 
amended  proposal  now  clearly  confirms  this  principle  in  Article  1(5)  which  prohibits 
restrictive measures beyond those provided for in the Regulation. 

On administrative burden, stakeholders were in particular of the view that the delays caused 
by the notification process under the decentralised pillar would be very burdensome5, a risk 
which will be fully mitigated by the deletion of former Article 6.  

The amended proposal further accommodates all these concerns by creating a more targeted 
tool which should reduce administrative burden and the risk of retaliation to a minimum while 
putting  the  emphasis  even  more  on  the  principle  of  general  openness  of  EU  public 
procurement markets by eliminating the possibility for market closure.  

 

Impact assessment 

The  Commission's  Impact  Assessment  Board  (IAB)  has  issued  two  opinions  on  the  impact 
assessment report. The final impact assessment report has integrated to the extent possible the 
Board's recommendations. While its findings remain valid, the amendments now put forward 
aim  at  making  the  instrument  more  targeted  and  more  easily  applicable  in  practice  while 
further  limiting  the  potential  negative  effects  that  were  identified  in  the  impact  assessment 
report.  

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Impact Assessment Report, Annex 2 (Summary of the contributions to the public consultation), section 
3.3, p.9.  
Impact Assessment Report, Annex 2 (Summary of the contributions to the public consultation), section 
3.3, p.8 
Impact Assessment Report, Annex 2 (Summary of the contributions to the public consultation), section 
4.4, p.13.  

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The limitation of possible restrictive measures to price penalties accommodates 
concerns  that  the  total  closure  of  the  EU  procurement  market,  as  originally 
foreseen, would risk giving the wrong signals to third countries and would be 
incompatible  with  the  economic  interests  of  the  EU  at  large.  Since  the  price 
adjustment  would  only  apply  to  the  evaluation  process  and  it  would  not 
determine  the  final  price,  it  will  not  be  detrimental  to  the  interests  of  the 
contracting authorities.  

The  deletion  of  the  decentralised  pillar  will  completely  eliminate  the 
administrative  burden  on  procuring  entities  requesting  permission  to  exclude 
foreign  bids.  This  amendment  also  safeguards  the  integrity  of  the  internal 
market and avoids any fragmentation.  

The  presumption  that  tenders  submitted  by  companies  originating  in  the 
targeted  third  country  will  be  affected  by  the  restrictive  measure,  unless  the 
bidder provides evidence to the contrary, will further reduce the administrative 
burden  for  contracting  authorities  while  enhancing  the  effectiveness  of  the 
measure as the decision of the contracting authority is much less prone to legal 
review.  The  obligation  for  contracting  authorities  to  accept  self-declarations 
regarding  the  origin  of  goods  and  services  during  in  the  bidding,  should  also 
work in this direction.  

Giving  Member  States  a  role  in  selecting  the  contracting  authorities/entities 
having to apply the measure will ensure that implementation will not fall on the 
smallest  entities  with  limited  administrative  capacity  and  resources.  This 
amendment  does  not  risk  compromising  the  effectiveness  of  the  measure  as 
small contracting authorities are less likely to manage procurement on the scale 
targeted by the IPI. In the event no entity list is submitted, or the list submitted 
does not correspond to the price measure adopted, the Commission may on its 
own initiative establish such a list.  

The  exclusion  of  the  most  vulnerable  developing  countries from  the  scope  of 
the instrument is not supposed to have an impact on leverage as the instrument 
was  never  targeted  at  these  countries.  To  exempt  these  countries  from  the 
scope of application will further clarify that the purpose of the instrument is to 
put  pressure  on  major  trading  partners  to  further  open  up  there  procurement 
markets to EU operators.  The non-application to European SMEs will further 
reduce the administrative burden for those economic operators, in line with the 
general SME policy of the EU. 

The  possibility  to  target  territories  at  regional  or  local  level  aims  to 
differentiate  territories  and  enable  a  proportionate  response  in  case  the 
discriminatory measures are only at the sub-central level (i.e. state authorities, 
regional and municipal governments),  with the purpose of making them open 
their tenders to EU bidders.  

The  shortening  of  time  limits  for  Commission  investigations  responds  to  the 
concern  about  lengthy  procedures  raised  in  particular  relating  to  the 
decentralised  pillar  under  which  procedure  the  contracting  authorities  would, 
during an ongoing procurement procedure, have had to await the Commission's 
investigation  and  decision.  The  adjustment  of  the  timeline  for  the  remaining 
centralised  procedure  should  help  accelerate  the  investigation  phase  of  the 
procedure. 

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The  publication  of  Commission  findings  regarding  trade  barriers  in  third 
countries should help to create new dynamics towards the elimination of these 
barriers.  

As foreseen already in the initial proposal the IPI will cover also concessions to 
the  extent  these  are  covered  by  the  new  directive  on  concessions.  The 
Concession  rules  do  not  determine  whether  certain  activities  are  to  be 
conducted  by  public  or  private  entities,  but  focus  on  the  disciplines  which 
public entities have to apply when they procure goods and services. 

Effectiveness 

The proposed amendments will make the instrument more effective. 

Rules  clarification:  The  impact  assessment  report  highlighted  the  effectiveness  of  the 
initially proposed solutions regarding the objective to clarify the rules of access to the EU's 
public  procurement  market  for  non-EU  tenders.  However,  it  also  pointed  to  a  number  of 
weaknesses associated with the optional nature of the decentralised pillar, which might result 
in diverse patterns of use and a fragmentation of the internal market.6 The amended proposal 
will  still  meet  the  initial  objective  to  clarify  the  applicable  rules,  and  the  Commission  will 
continue having the final say on the use of restrictive measures. In addition, with the deletion 
of the decentralised pillar, the application of the rules will be simpler and further harmonised, 
and  the  margin  of  error  caused  by  contracting  authorities/entities  applying  the  restrictive 
measures  will  be  reduced.  The  reduction  of  time  limits  for  the  Commission's  investigation 
will ensure that there is earlier clarity on whether or not restrictive measures will be taken.  

Leverage: The deletion of the decentralised pillar and the limitation to price penalties entails 
a  certain  risk  of  decrease  in  leverage.  However,  the  main  leverage  of  the  initial  proposal 
derived  from  the  centralised  pillar,  which  is  maintained.  The  Commission  will  still  be  in  a 
position  to  use  its  capacity  to  limit  market  access  as  a  threat  and  to  start  an  enquiry  into 
discriminatory behaviour at any moment. What is more, the amended proposal will allow for 
more targeted measures inter alia by foreseeing the possibility to limit restrictive measures to 
the territories of certain sub-central levels of government. The limitation to price penalties as 
a less extreme form of market closure, which has already been assessed in the original impact 
assessment,  ensures  that  the  EU  markets  will  remain  open  in  principle  while  allowing  for 
targeted measures where necessary.  

Efficiency  

The proposed amendments will increase the instrument's efficiency.  

Administrative  burden:  The  proposed  amendments  reduce  the  administrative  burden.  The 
impact  assessment  estimated  the  costs  in  relation  to  the  notification  process  of  the 
decentralised  procedure  to  amount  to  EUR3.5  million.7  The  deletion  of  the  decentralised 
pillar, including its time limits, abolishes all potential risks linked to the notification process 
identified  in  the  impact  assessment.  The  authorisation  of  Member  States  to  pre-select  the 
contracting  authorities/entities  that  will  be  required  to  apply  the  measure  will  help  ensuring 
that entities with limited administrative capacities will not have to apply the measure. Insofar 
as the impact assessment report identified a potential risk of increased administrative burden 
for  contracting  authorities/entities  from  the  provisions  on  abnormally  low  tenders8,  the 
deletion  of  the  original  Article  7  will  eliminate  this  risk.  Because  of  their  size  and  limited 
capacity, SMEs often face particular problems because of burdensome procedures. Whereas 

6 
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8 

Impact Assessment Report, section 6.6.2(4), p. 33.  
Impact Assessment Report, section 6.6.2(6), p. 34. 
Impact Assessment Report, section 6.9, p. 36. 

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the high value threshold makes it already unlikely that smaller companies will be concerned 
by  the  instrument,  its  non-application  to  European  SMEs  will  further  reduce  the 
administrative burden for those economic operators, in  line with  the general SME policy of 
the EU.  

Risk of retaliation: The proposed amendments will allow to target those territories of a third 
country  which  are  actually  responsible  for  the  discriminatory  measures  without  the  need  to 
target the third country as a whole. This possibility for more targeted and justifiable measures 
will further reduce the risk for retaliation.  

Public finances: As stated in the impact assessment, the overall impact of the instrument on 
public finances is negligible.9 However, the further reduction in scope will further limit this 
impact. 

Coherence 

The  impact  assessment  report  stressed  that  the  consistency  of  EU  trade  policy  and  the  EU 
internal market is better preserved where decisions are taken at EU level i.e. in full knowledge 
of  all  the legal,  economic  and  political  consequences,  without  allowing varying  practices  in 
the treatment of foreign goods and services in the EU.10 With the deletion of the decentralised 
pillar,  the  Commission  increases  its control  over  the  application  of  restrictive  measures  and 
thus  reduces  the  risks  of  erroneous  application  of  the  rules.  The  amended  proposal  will 
therefore improve the consistency of EU trade policy and of the EU internal market and the 
respect of the EU's international commitments.  

The requirement regarding impact assessment is therefore fulfilled. 

5. 

BUDGETARY IMPLICATIONS 

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

6. 

 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The proposal includes a review clause. 

7. 

DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS OF THE PROPOSAL 

Article  1  defines  the  subject  matter  and  the  scope  of  application.  The  text  in  the  initial 
proposal has been adjusted to reflect the deletion of the decentralized pillar. The provision has 
also  gone  through  some  linguistic  adjustments  to  increase  its  readability.  Furthermore,  the 
provision includes a clarification, stipulating that the Member States may not further restrict 
access of foreign economic operators beyond what is provided on the basis of this Regulation. 
As  foreseen  already  in  the  initial  proposal  the  IPI  will  cover  also  concessions  to  the  extent 
these  are  covered  by  the  new  directive  on  concessions.  It  deserves  to  be  noted  that  the 
Concession rules do not determine whether certain activities are to be conducted by public or 
private entities but focus on the disciplines which public entities have to apply when they turn 
to the market to procure goods and services. 

Article  2  contains  relevant  definitions,  most  of  which  are  taken  over  from  the  EU  public 
procurement  Directives.  Some  expressions  that  are  no  longer  used  in  the  draft  Regulation 

9 
10 

Impact Assessment Report, section 6.6.2, p. 34.  
Impact Assessment Report, section 7.1.1.3, p. 40. 

EN 

9 

   EN 

                                                 
have  been  deleted.  The  amended  proposal  does  not  use  the  expression  “lack  of  substantive 
reciprocity” but refers to “restrictive and discriminatory procurement measures or practices”.  

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  and  services  are  in  line  with  the  non-
preferential rules of origin  as  defined in  the EU Customs Code11. 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  General  Agreement  on 
Trade  and  Services  (GATS)  provides  in  its  Article  XXVIII.  Some  adjustments  in  the  initial 
text have been done with the purpose of increasing its readability. 

Article 4 spells out the exemption from application of the instrument in relation to goods and 
services  originating  in  the  LDCs.  The  amended  proposal  expands  the  exemption  to  cover 
goods and services originating in those developing countries, which are considered vulnerable 
due  to  lack  of  diversification  and  insufficient  integration  within  the  international  trading 
system and in the world economy, as defined in Annex VII to the GSP Regulation12. 

Article  5  in  the  initial proposal is  redundant  in  the  context  of  the  amended  proposal,  and is 
therefore deleted. The amended proposal includes a new Article 5 on the exemption from the 
application  of 
the  Commission 
recommendation  2003/361/EC13.  In  order  to  avoid  circumvention  by  so  called  letter  box 
companies,  the  provision  makes  explicit  refers  to  the  level  of  business  activities  within  the 
internal market. 

to  European  SMEs  as  defined 

instrument 

the 

in 

The original Article 6 setting up a decentralised procedure is deleted. The new Article 6 lays 
down rules regarding the Commission's investigation and the time lines to be respected. The 
amended  proposal  has  shortened  the  first  part  of  the  investigation  period  and  instead 
prolonged the possible additional period, in order to make the main rule on time lines stricter. 
The  article  makes  it  clear  that  the  Commission's  findings  shall  be  made  publicly  available 
Article 7 in the initial proposal stipulated an obligation for contracting authorities to inform 
tenderers  and  the  Commission  in  the  cases  it would  accept  an  abnormally  low  tender.  With 
the deletion of the decentralised pillar this provision lost its relevance in the Regulation, and 
is  therefore  also  deleted.  The  new  Article  7  provides  for  rules  on  consultations  with  third 
countries,  and  possible  action  by  the  Commission,  after  having  concluded  on  the  basis  of  a 
procurement  investigation  that  the  third  country  in  question  has  adopted  or  maintains 
restrictive and discriminatory procurement measures or practices. 

Article 8 in the initial proposal provided for the rules governing the centralised pillar, which 
in  the  amended  proposal  have  been  moved  to  Article  9.  The  new  Article  8  introduces  the 
price  adjustment  measure  and  stipulates  in  relation  to  which  third  countries  such  a  measure 
may be applied.  

Article 9 in the initial proposal regulated the mechanism for consultation with third countries 
in  cases  of  proven  restrictive  procurement  practice,  a  provision  now  in  Article  7  of  the 
amended  proposal.  The  new  Article  9  stipulates  that  the  Member  States  shall  suggest  the 
contracting  authorities  which  are  to  implement  the  price  adjustment  measure.  In  order  to 
ensure that an  appropriate level  of action  is  taken  and that the  implementation  is  made  in  a 

11 

12 

13 

Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code 
(OJ L 302, 19.10.1992. p.1. 
Regulation  (EU)  No  978/2012  of  the  European  Parliament  and  of  the  Council  of  25  October  2012 
applying a scheme of generalised tariff preferences (OJ L 303, 31.10.2012.p.1) 
Commission  recommendation  of 6  May 2003  concerning  the  definition of  micro,  small  and  medium-
sized enterprises (OJ L 124, 20.05.2003.p.36) 

EN 

10 

   EN 

                                                 
between  Member  States  balanced  way,  the  Commission  shall  determine  the  entities 
concerned. In the event no entity list is submitted, or the list submitted does not correspond to 
the price measure adopted, the Commission may on its own initiative establish such a list.  

The  new  Article  10  regulates  the  withdrawal  and  suspension  of  measures.  The  Article  also 
stipulates that the Commission shall make publicly available its findings regarding remedial 
or corrective measures taken by the third country concerned.  

Article 11 in the initial proposal provided for rules governing the withdrawal or suspension of 
restrictive measures adopted. The new Article 11 describes the rules on the application of the 
price adjustment measure. The price penalty applies only to the evaluation procedure and not 
to the final price.  

Article  12  in  the  initial  proposal  laid  down  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.  The  new  Article  12  stipulates  the  possible 
exceptions from the application of the price adjustment measures, which in the initial proposal 
were mentioned in Article 13. Those exceptions remain unchanged. 

Article  13  in  the  initial  proposal  described  the  circumstances  under  which  the  contracting 
authorities/entities are  authorised  to  set  aside  measures  adopted  pursuant  to  this  Regulation. 
The new Articles 13 and 14 set out the rules regarding remedies in case of violation of the 
provisions in the Regulation and the Committee procedure for the decision making, which in 
the initial proposal were set out in Articles 16 and 17.  

Article 14 and 15 in the original  proposal conferred on the Commission the power to adopt 
delegated acts in order to update an Annex to the Regulation that was intended to reflect the 
conclusion of new international agreements by the Union in the field of public procurement. 
Given  that  the  decentralized  pillar  is  deleted  there  is  no  longer  a  need  for  any  Annex 
identifying the relevant trade agreements in force. The decisions adopted by the Commission 
applying  price  adjustment  measures  will  contain  the  necessary  information  regarding  the 
scope of EU commitments towards third countries.  

Article  18  and  19  in  the  initial  proposal  related  to  confidentiality  and  an  obligation  for  the 
Commission  to report to the European Parliament and the Council on the application of the 
Regulation. These provisions are now in Articles 15 and 16 of the amended proposal.  

The original Article 20 is now Article 17 of the amended proposal, It provides for the repeal 
of  Articles  85  (former  Article  58)  and  86  (former  Article  59)  of  the  Utilities  Directive 
2014/25/EU (former 2004/17/EC). Former Article 21 and new Article 18 determine the entry 
into force of the Regulation. 

EN 

11 

   EN 

2012/0060 (COD) 

Amended 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 

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 Committee14, 
Having regard to the opinion of the Committee of the Regions15, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

In  accordance  with  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  improve  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  Treaty  on  the  Functioning  of  the  European 
Union 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 World Trade Organization (WTO) disciplines. 

The revised plurilateral WTO Agreement on Government Procurement provides 
only  for  limited  market  access  for  Union  companies  to  the  public  procurement 
markets  of  third  countries  and  applies  only  to  a  limited  number  of  WTO 

14 
15 

OJ C  
OJ C  

EN 

12 

   EN 

                                                 
Members,  which  are  parties  to  that  Agreement.  The  revised  Agreement  on 
Government Procurement was concluded by the Union in December 2013. 

(56)  Within  the  context  of  the  World  Trade  Organisation  WTO  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. 

(7) 

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 should 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. 

(68)  Many  third  countries  are  reluctant  to  open  their  public  procurement  and  their 
concessions  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. 

(79)  Directive  s 2004/17/EC  of  the European Parliament and of  the Council of  31 March 
2004  2014/25/EU  of  the  European  Parliament  and  of  the  Council16  of  26  February 
2014  on  coordinating  the  procurement  procedures  of  entities  operating  in  the  water, 
energy,  transport  and  postal  services  sectors  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 
contracts  contains  only  a  few  provisions  concerning  the  external  dimension  of  the 
public  procurement  policy  of  the  Union,  in  particular  Articles  5885  and  5986  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  should  be 
replaced. 

(8) 

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

(110)  Regulation  (EU)  No  654/2014  of  the  European  Parliament  and  of  the  Council17 
lays  down  rules  and  procedures  in  order  to  ensure  the  exercise  of  the  Union's 
rights  under  international  trade  agreements  concluded  by  the  Union.  No  rules 
and procedures exist for the treatment of goods and services not covered by such 
international agreements.  

(911)  In the interest of legal certainty for Union and third-country economic operators, and 
contracting  authorities  and  contracting  /entities,  the  international  market  access 
commitments undertaken by the Union vis-à-vis towards third countries in the field of 
public procurement and concessions 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 

16

17

Directive  2014/25/EU  of  the  European  Parliament  and  of  the  Council,  of  February  2014  on  procurement  by  entities 
operating in the water, energy, transport and postal services sectors (OJ L 94, 28.3.2014, p. 243). 
Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of 
the Union's rights for the application and enforcement of international trade rules and amending Council Regulation (EC) 
No 3286/94 laying down Community procedures in the field of 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 Organization (OJ L 189, 27.6.2014, p. 50.) 

EN 

13 

   EN 

                                                 
 
 
European Union. This guidance should be updated on a regular basis and provide easy 
to use information. 

(102)  The objectives of improving the access of Union EU economic operators to the public 
procurement  and  concessions  markets  of  certain  third  countries  protected  by 
restrictive and discriminatory procurement measures or practices and of preserving 
equal conditions of competition within the European Single internal mMarket require 
to  refer  to  the  non-preferential  rules  of  origin  established  in  the  EU  customs 
legislation, so that contracting authorities and contracting entities know whether 
that  the  treatment  of  third-country  goods  and  services  are  not  covered  by  the 
international  commitments  of  the  Union.  be  harmonised  throughout  the  European 
Union.  

(113)  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 Council Regulation (EEC) No 2913/199218, of the 
European  Parliament  and  of  the  Council  of  12  October  1992  establishing  the 
Community Customs Code. 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 
manufacture of a new product or representing an important stage of manufacture.  

(14)  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. 

(15) 

In the light of the overall policy objective of the Union to support the economic 
growth of developing countries and their integration into the global value chain, 
which is the basis for the establishment by the Union of a generalised system of 
preferences  as  outlined  in  Regulation  (EU)  No  978/2012  of  the  European 
Parliament  and  of  the  Council19,  this  Regulation  should  not  apply  to  tenders 
where  more  than  50%  of  the  total  value  of  the  tender  is  made  up  of  goods  and 
services  originating,  in  accordance  with  the  Union’s  non-preferential  rules  of 
origin, in least-developed countries benefitting from the "Everything But Arms" 
arrangement or in developing countries considered to be vulnerable due to a lack 
of  diversification  and  insufficient  integration  within  the  international  trading 
system  as  defined  respectively  in  Annexes  IV  and  VII  to  Regulation  (EU)  No 
978/2012. 

(167)  In  the  light  of  the  overall  policy  objective  of  the  Union  to  support  small  and 
medium-sized  enterprises,  this  Regulation  should  also  not  apply  to  tenders 
submitted  by  SMEs  established  in  the  Union  and  in  engaged  in  substantive 
business  operations  entailing  a  direct  and  effective  link  with  the  economy  of  at 
least one Member State.  

(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 

18

19 

Council  Regulation  (EEC)  No  2913/1992  of  12  October  1992  establishing  the  Community  Customs  Code  (OJ  L  302, 
9.10.1992, p. 1) 
Regulation  (EU)  No  978/2012 of the European  Parliament and  of the  Council  of 25  October  2012  applying  a  scheme  of 
generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1). 

EN 

14 

   EN 

                                                 
 
European Parliament and the Council of [….]….on the award of concession contracts] 
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. 

(1617) When  assessing  whether  restrictive  and/or  discriminatory  procurement  measures 
or  practices  a  lack  of  substantial  reciprocity  exists  in  a  third  country,  the 
Commission  should  examine  to  what  degree  public  procurement  laws  on  public 
procurement  and  concessions  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 individual contracting public authorities or individual 
procuring  contracting  entities  maintain  or  adopt  discriminatory  practices  against 
Union goods, services and economic operators. 

(15)18)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  and  or  their  contracting  authorities  and  contracting  entities 
should  not  be  able  to  restrict  the  access  of  third  country  goods  or  services  to  their 
tendering  procedures  by  any  other  measure  than  theose  ones  provided  for  in  this 
Regulation. 

(19) 

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, 

EN 

15 

   EN 

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)19)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  measures  or  practices  allegedly  adopted  or  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  Regulation  (EUC)  No  3286/94  of  22  December  1994  654/2014  of  the 
European Parliament and of the Council 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 Organization. 

(21)20)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 
and/or  discriminatory  procurement  measure  or  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  Union 
economic  operators,  goods  and  services  in  respect  of  public  procurement  in  that 
country. 

(18)21)It  is  of  the  utmost  importance  that  the  investigation  is  carried  out  in  a 
transparent  manner.  A  report  on  the  main  findings  of  the  investigation  should 
therefore be publicly available. 

(19) 

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. 

(2222) If the consultations with the country concerned do not lead to sufficient improvements 
in  to  the  tendering  opportunities  for  EU  Union  economic  operators,  goods  and 
services within a reasonable timeframe, the Commission should be able to adopt, 
where  should  take  appropriate,  price  adjustment  restrictive  measures  applying  to 
tenders  submitted  by  economic  operators  originating  in  that  country  and/or 
including goods and services originating in that country. 

(23)  Such measures should be applied only for the purpose of may entail the mandatory 
exclusion  of  certain  third-country  goods  and  services  from  public  procurement 
procedures  in  the  European  Union,  or  may  subject  the  evaluation  of  tenders 
comprising  goods  or  services  originating  in  than  the  country  to  a  mandatory  price 
concerned.  penalty.  To  avoid  circumvention  of  theose  measures,  it  may  also  be 
necessary to target exclude certain foreign-controlled or owned juridical legal persons 
that, although established in the European Union, that are not engaged in substantive 
business operations such that it hasve a direct and effective link with the economy of 

EN 

16 

   EN 

at  least  one  Member  State  concerned.  Appropriate  measures  should  not  be 
disproportionate to the restrictive procurement practices to which they respond.  

(24)  The  Commission  should  be  able  to  prevent  the  possiblePrice  adjustment  measures 
should  not  have  a  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,  the  Commission  may  suspend  and  the 
measures  during  the  negotiations.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 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.  

(26) 

(25) 

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 simplify the application of a price adjustment measure by contracting 
authorities  or  contracting  entities,  there  should  be  a  presumption  that  all 
economic operators originating in a targeted third country with which there is no 
agreement  on  procurement  will  be  subject  to  the  measure,  unless  they  can 
demonstrate  that  less  than  50%  of  the  total  value  of  their  tender  is  made  up  of 
goods or services originating in the third country concerned. 

(26)  Member  States  are  best  placed  to  identify  the  contracting  authorities  or 
contracting  entities,  or  categories  of  contracting  authorities  or  contracting 
entities,  which  should  apply  the  price  adjustment  measure.  To  ensure  that  an 
appropriate  level  of  action  is  taken  and  that  a  fair  distribution  of  the  burden 
among Member States is achieved, the Commission should take the final decision, 
based  on  a  list  submitted  by  each  Member  State.  Where  necessary,  the 
Commission may establish a list on its own initiative. 

(27) 

It is imperative that contracting authorities and contracting entities have access to a 
range of high-quality products meeting their purchasing requirements at a competitive 
price. Therefore contracting authorities and contracting entities should be able not to 
apply set aside price adjustment 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 or contracting entity to safeguard 
essential public needs, for example in the fields of health and public safety, or where 
the application of the measure would lead to a disproportionate increase in the price or 
costs of the contract. 

(28) 

In  case  of  misapplication  by  contracting  authorities  or  contracting  entities  of 
exceptions  to  price  adjustment  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/EEC20 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  contracts  or  Article  8  of  Council  Directive 

20 

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 contracts (OJ L 395, 30.12.1989, p. 33). 

EN 

17 

   EN 

                                                 
92/13/EEC21 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 sectors. For the same 
purpose,  In addition, contracts concluded with an economic  operator  in violation of 
Commission’s decisions on intended exclusions notified by contracting authorities or 
contracting entities or in violation of price adjustment 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 Council. 

(2731) 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. 

(3029) In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Regulation, 
implementing powers should be conferred on the Commission. Those powers should 
be  exercised  in  accordance  with  Regulation  (EU)  No  182/2011  of  the  European 
Parliament  and  of  the  Council22  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. 

(30)  The examination procedure should be used for the adoption of implementing acts 
regarding the adoption, withdrawal, or suspension or reinstatement of a the price 
adjustment measure.  

(2931) The  advisory  procedure  should  be  used  for  the  adoption  of  implementing  acts 
adapting for the drawing up of the standard forms for the publication of contract or 
concession 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.  

(302)  Regular reporting by theThe Commission should make it possible to monitor report 
at  least  every  three  years  on  the  application  and  efficiency  of  the  procedures 
established byof this Regulation. 

(313)  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  common  rules  on  the  treatment  of  tenders 
includingwhich  include  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 

21 

22 

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 sectors (OJ L 76, 23.3.1992, p. 14). 
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 (OJ L 55, 28.2.2011, p. 13). 

EN 

18 

   EN 

                                                 
to  achieve  the  objectives  pursued,  in  accordance  with  the  third  fourth  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. 

2. 

3. 

4. 

23 

24 

This Regulation lays down rules on establishes measures intended to improve the 
access  of  Union  economic  operators,  goods  and  services  to  the  public 
procurement  and  concessions  markets  of  third  countries.  It  lays  down 
procedures  for  the  Commission  to  undertake  investigations  into  alleged 
restrictive  and  discriminatory  procurement  measures  or  practices  adopted  or 
maintained  by  third  countries  third-country  goods  and  services  to  the  award  of 
against  Union  economic  operators,  goods  and  services,  and  to  enter  into 
consultations with the third countries concerned.  

It provides for the possibility of applying price adjustment measures to certain 
tenders for contracts for the execution of works or a work, for the supply of goods 
and/or  the  provision  of  services  and  for  concessions,  by  Union  contracting 
authorities/entities,  and  establishes  procedures  supporting  negotiations  on  access  of 
Union on the basis of the origin of the economic operators, goods and or services 
concerned. to the public procurement markets of third countries. 

This Regulation shall apply to contracts covered by the following acts: 
(a)  Directive 2014/23/EU23 [2004/17/EC]; 
(b)  Directive 2014/24/EU [2004/18/EC]; 24 

(c)  Directive 2014/25/EU [201./… (on the award of concession contracts]. 

This Regulation shall apply to the award of contracts for the supply of goods and/or 
services and to the award of works and services concessions. It shall only apply 
where  the  goods  or  services  are  procured  for  governmental  purposes.  It  shall  not 
apply where the goods are purchased 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. It shall not apply where the services are purchased with a view 
to  commercial  resale  or  with  a  view  to  use  in  the  supply  of  services  for 
commercial sale. 

to  restrictive  and/or 
This  Regulation  shall  apply  only  with  regard 
discriminatory  procurement  measures  or  practices  implemented  by  a  third 
country  in  respect  of  purchases  of  non-covered  goods  and  services.  The 
application  of  this  Regulation  shall  be  without  prejudice  to  any  international 
obligations of the Union.  

Directive  2014/23/EU  of  the  European  Parliament  and  of  the  Council  of  26  February  2014  on  the  award  of  concession 
contracts (OJ L 94, 28.3.2014. p.1). 
Directive  2014/24/EU  of  the  European  Parliament  and  of  the  Council  of  26  February  2014  on  public  procurement  and 
repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). 

EN 

19 

   EN 

 
 
 
                                                 
5. 

Member  States  and  their  contracting  authorities  and  contracting  entities  shall 
not  apply  restrictive  measures  in  respect  of  third  country  economic  operators, 
goods and services beyond those provided for in this Regulation. 

Article 2 

Definitions 

1. 

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

(a) 

'economic  operator'  ‘supplier’  means  any  natural  or  legal  person  or  public 
entity  or  group  of  such  persons  and/or  entities,  including  any  temporary 
association  of  undertakings,  which  submits  a  tender  for  the  execution  of 
works  and/or a work, the  supply of  goods or the  provision of  services on 
the market;which offers on the market goods; 

(b) 

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

(bc)  ‘contracting  authority/entity’  means  ‘contracting  authority’  as  defined  in 
[Article 1 (9) of Directive 2004/18/EC, Article 2(1) of Directive 2014/24/EU; 

(c) 

(d) 

(e) 

(f) 

(g) 

2. 

(f) 

and‘contracting  entity’  means  'contracting  entity'  as  defined  in  Article  4(1) 
of Directive 2014/25/EU and Article 7 of Directive 2014/23/EU 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 goods or services originating in a country 
with which the Union has concluded an international agreement in the field of 
public procurement and/or concessions 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  goods  or  services  originating  in  a 
country with which the Union has not concluded an international agreement in 
the  field  of  public  procurement  or  concessions  including  market  access 
commitments, as well as goods or services originating in a country with which 
the  Union  has  concluded  such  an  agreement  but  and  in  respect  of  which  the 
relevant agreement does not applyapplies. 

‘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. 

For the purposes of this Regulation 

‘restrictive  and/or  discriminatory  procurement  measure  or  practice’ 
means any legislative, regulatory or administrative measure, procedure or 
practice,  or  combination  thereof,  adopted  or  maintained  by  public 
authorities or individual contracting authorities or contracting entities in a 
third country, that result in a serious and recurrent impairment of access 

EN 

20 

   EN 

 
 
of  Union  goods,  services  and/or  economic  operators  to  the  public 
procurement or concession market of that country.  

(ga)  the term "country" means may refer to any State or separate customs territory, 

without such nomenclature term having implications for sovereignty; 

(b) 

(c) 

(d) 

(e) 

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. 

(h)  SME  means  SME  as  defined 

2003/361/EC25.  

in  Commission  Recommendation 

For  the  purpose  of  this  Regulation,  the  execution  of  works  and/or  a work  within 
the  meaning  of  Directives  [2004/17/EC,  2004/18/EC  and  Directive  201./.. 
2014/25/EU,  2014/24/EU  and  Directive  2014/23/EU  on  the  award  of  concession 
contracts] shall for the purposes of this Regulation be considered as the provision of 
a service. 

Article 3 

Rules of origin 

The  origin  of  a  good  shall  be  determined  in  accordance  with  Article  22  to  26  of 
Council  Regulation  (EEC)  No  2913/1992  of  the  European  Parliament  and  of  the 
Council26. of 12 October 1992 establishing the Community Customs Code.  

The origin of a service shall be determined on the basis of the origin of the natural or 
legal person economic operator providing it.  

The origin of the service provider an economic operator 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 either any of the following: 

(i) 

if the service is not provided other than through a commercial presence 
within the Union, the country under the laws of which the legal where 
the  juridical  person  is  constituted  or  otherwise  organised  and  in  the 

Commission  Recommendation  2003/361/EC  of  6  May  2003  concerning  the  definition  of  micro,  small  and  medium-sized 
enterprises (OJ L 124, 20.5.2003, p. 36). 
Council  Regulation  (EEC)  No  2913/1992  of  12  October  1992  establishing  the  Community  Customs  Code  (OJ  L  302, 
19.10.1992, p. 1). 

2. 

1. 

2. 

3. 

25

26 

EN 

21 

   EN 

 
 
                                                 
 
territory  of  which  the  legal  person  is  engaged  in  substantive  business 
operations;  

(2ii)  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 entailing a direct and effective link with the economy 
of a the Member State concerned. 

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

AThe legal person shall be considered to be beproviding the service shall be 
considered  to  be:  "owned"  by  persons  of  a  given  country  whereif  more  than 
50 %  of  the  equity  interest  in  it  is  beneficially  owned  by  persons  of  that 
country.  

A  legal  person  shall  be  considered  to  beand  "controlled"  by  persons  of  a 
given country whereif such persons have the power to name appoint 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. 

Chapter II 
Treatment of covered and non-covered goods and services, abnormally low tenders 
Exemptions 

Article 4 

Treatment of covered goods and services Exemption for goods and services originating in 
least-developed and certain developing countries 

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. 

Tenders shall be exempted from this Regulation where more than 50% of the total value 
of  the  tender  is  made  up  of  gGoods  or  and/or  services  originating  in  least-developed 
countries listed in Annex IV to Regulation (EU) No 978/201227, and in developing countries 
considered to be vulnerable due to a lack of diversification and insufficient integration 
within the international trading system as defined in Annex VII to Regulation (EU) No 
978/2012. (EC) No 732/2008 shall be treated as covered goods and services. 

27 

Regulation  (EU)  No  978/2012  of  the  European  Parliament  and  of  the  Council  applying  a  scheme  of  generalised  tariff 
preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1). 

EN 

22 

   EN 

 
 
 
 
                                                 
Article 5 

Rules of access for non-covered goods and services Exemption for tenders submitted by 
SMEs 

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; 

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

(b) 
Tenders  submitted  by  SMEs28  established  in  the  Union  and  engaged  in  substantive 
business operations entailing a direct and effective link with the economy of at least one 
Member State, shall be exempted from this Regulation. 

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 
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 

28 

As defined in the Commission recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized 
entreprises (OJ L 124, 20.5.2003, p. 36). 

EN 

23 

   EN 

 
 
 
 
                                                 
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 
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. 

EN 

24 

   EN 

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 

Investigations, consultations and price adjustement measures 

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. 

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  

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Article 8 6 

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

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 
and/or discriminatory procurement measures or pratices. 

2. 

3.2. 

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. 

IfShould an investigation isbe initiated, the Commission shall publish a notice in the 
Official  Journal  of  the  European  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  the  alleged  restrictive  and/or 
discriminatory  procurement  measures  or  practices  have  been  adopted  or  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  of  facts 
collected by the Commission during its investigation,  or  both. The assessmentand 
shall  be  concluded  within  a  period  of  nine  eight  months  after  the  initiation  of  the 
investigation.  In  duly  justified  cases,  this  period  may  be  extended  by  three  four 
months. 

4.3.  WhereWhen  the  Commission  concludes  as  a result  of  the  external  procurement  its 
investigation  that  the  alleged  restrictive  and/or  discriminatory  procurement 
measures or practices are not maintained or that they do not result in restrictions 
to access by Union economic operators or Union goods and services to the public 
procurement  or  concession  markets  of  the  third  country  concerned,  by  the  third 
country concerned, the Commission shall terminate adopt a decision terminating the 
investigation.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 17. 

4. 

When  the  Commission  has  concluded  its  investigation,  it  shall  make  publicly 
available a report recording its main findings. 

Article 97 

Consultations of with a third countriesy and Commission action 

1. 

WhereWhen  it  is  found  as  a  result  of  an  investigation  that  restrictive  and/or 
discriminatory  procurement  measures  or  practices  have  been  adopted  or  are 
maintained by a third country and the Commission considers it to be justified by in 
the  Union  EU  interest,  the  Commission  shall  invite  itthe  country  in  question  to 
enter  into  consultations.  Those  consultations  shall  aim  at  a  view  to  ensuring  that 
Union  economic  operators,  goods  and  services  can  participate  in  tendering 
procedures  for  the  award  of  public  procurement  or  concession  contracts  in  that 

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2. 

2. 

3. 

4. 

country  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  thatIf  the  third  country  concerned  declines  the  invitation to  enter  into 
consultations,  the  Commission  shall  take  appropriate  action,  on  the  basis  of  the 
facts  available,  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  should  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 consultations, the country concerned takes satisfactory 
remedial/  or  corrective  measures,  but  without  undertaking  new  market  access 
commitments, the Commission may suspend or terminate the consultations. 

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

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

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

(ii) act under Article 10 to adoptdecide, by implementing acts to limit the access of 
goods and services originating in a third country act, to impose a price adjustment 
measure pursuant to Article 8. 

The implementing acts referred to in point (ii) of the first subthis paragraph shall be 
adopted in accordance with the examination procedure referred to in Article 174(2). 

Where,  after  the  initiation  of  a  consultations,  it  appears  that  the  most  appropriate 
means to end a restrictive and/or discriminatory procurement measure or 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..  While  such  negotiations  are  ongoing,  the 
investigation shall may be suspended. 

5. 

The  Commission  may  terminate  the  consultations  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 and/or concessions; or 

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

The  consultations  may  also  be  terminated  in  cases  where  the  restrictive  and/or 
discriminatory  procurement  measures  or  practices  are  still  in  place  at  the  time 
these  commitments  are  undertaken,  as  long  as  they  include  detailed  provisions 
relating  to  the  phasing-out  of  such  those  measures  or  practices  within  a 
reasonable period of time. 

In  the  event  that  a  consultations  with  a  third  country  does  not  lead  to  satisfactory 
results within 15 months from the day thosethe consultations with the third country 
started, the Commission shall terminate the consultations and consider acting under 
Article  10  to  adopt  implementing  acts  to  limit  the  access  of  goods  and  services 
originating in a shall take appropriate action. In particular, the Commission may 
decide, by means of an implementing act, to impose a price adjustment measure, 
pursuant  to  Article  8.  That  implementing  act  shall  be  adopted  in  accordance 
with the examination procedure referred to in Article 14(2). 

6. 

Article 108 

Price adjustment 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).Tenders  more  than  50  %  of  the  total  value  of  which  is  made  of  goods 
and/or  services  originating  in  a  third  country,  may  be  subject  to  a  price 
adjustment  measure  where  the  third  country  concerned  adopts  or  maintains 
restrictive and/or discriminatory procurement measures or practices. 

Price adjustment measures shall only apply to contracts with an estimated value 
equal to or above EUR 5.000.000 exclusive of value-added tax. 

2. 

The measures adopted pursuant to paragraph 1 may take any of the following forms: 
The  price  adjustment  measure  shall  specify  the  penalty  of  up  to  20%  to  be 
calculated  on  the  price  of  the  tenders  concerned.  It  shall  also  specify  any 
restrictions to the scope of application of the measure, such as those related to: 

(a) 

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)  public  procurement  ofby  specificcertain  defined  categories  of  contracting 

authorities or contracting entities; 

(b)  public  procurement  of  specificcertain  defined  categories  of  goods  or  services 

or tenders submitted by specific categories of economic operators; 

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

(d) 

tenders submitted for specific categories of concessions; 

(e) 

(b) 

the territories of certain subcentral levels of government. 

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: 
Contracting authorities and contracting entities on the list adopted pursuant to 
Article 9 shall apply the price adjustment measure to the following: 

(a) 

(b) 

to  tenders  submitted  by  economic  operators  originating  in  the  third 
country concerned, unless these economic operators can demonstrate that 
less  than  50  %  of  the  total  value  of  their  tender  is  made  up  of  goods  or 
services originating in the third country concerned,; and 

to  any  tenders  offering  goods  and  services  originating  in  the  country 
concerned, where the value of these goods and services accounts for more 
than 50 % of the total value of the tender. 

Article 9 

Authorities or entities concerned 

1. 

The  Commission  shall  determine  the  contracting  authorities  or  entities  or 
categories of contracting authorities or entities, listed by Member State, whose 
procurement  is  concerned  by  the  measure.  To  provide  the  basis  for  this 
determination, each Member State shall submit a list of appropriate contracting 
authorities  or  entities  or  categories  of  contracting  authorities  or  entities.  The 
Commission shall ensure that an appropriate level of action is taken and that a 
fair distribution of the burden among Member States is achieved.  

Article 1110 

Withdrawal or suspension of price adjustment 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 decide, by 
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. 

For the purposes of point (b), the application of the measures may, at any moment in time, be 
reinstated by the Commission, to withdraw the price adjustment measure or suspend its 
application for a period of time if the country concerned takes satisfactory remedial or 
corrective actions.  

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

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reinstate the application of the price adjustment measure, at any time, by means 
of an implementing act.  

2. 

23. 

The Commission shall make publicly available its findings regarding the 
remedial or corrective actions taken by the third country concerned. 

The implementing acts referred to in this Article shall be adopted in accordance with 
the examination procedure referred to in Article 174(2). 

Article 11 

Application of price adjustment measuresInformation to tenderers 

1. 

Contracting authorities and contracting entities on the list adopted pursuant to 
Article 9 shall apply price adjustment measures to the following: 

(a) 

(b) 

tenders submitted by economic operators originating in the third country 
concerned, or 

tenders  offering  goods  and  services  originating  in  the  third  country 
concerned, where the value of those goods and services accounts for more 
than 50 % of the total value of the tender. 

Contracting  authorities  and  contracting  entities  shall  not  apply  price 
adjustment measures to tenders referred to in point (a) where the tenderers can 
demonstrate  that  less  than  50  %  of  the  total  value  of  their  tender  is  made  of 
goods and services originating in the third country concerned. 

The price adjustment measure shall apply only for the purpose of the evaluation 
and ranking of the price component of the tenders. It shall not affect the price 
due  to  be  paid  under  the  contract  which  will  be  concluded  with  the  successful 
tenderer. 

When  contracting  authorities  and  contracting  entities  conduct  a  procurement  or  a 
concession  procedure  that  is  subject  to  restrictive  measuresa  price  adjustment 
measure  adopted  pursuant  to  Article  10  or  reinstated  pursuant  to  Article  11,  they 
shall  include  that  informationindicate  this  in  the  contract  notice  they  publish 
pursuant  to  Article  3549  of  Directive  2004/18/ECDirective  2014/24/EU  or  Article 
42  of  Directive  2004/17/ECArticle  69  of  Directive  2014/25/EU  or  in  the 
concession  notice  they  publish  pursuant  to  Article  31  of  Directive  2014/23/EU. 
The  Commission  shallmay  adopt  implementing  acts  in  accordance  with  the 
advisory procedure referred to in Article 14(3) adapting establishing the standard 
forms  for  contract  or  concession  notices  adopted  under  Directives  2014/23/EU, 
2014/24/EU, and 2014/25/EU. in accordance with the advisory procedure referred to 
in Article 174 (3). 

Where  the  exclusion  of  a  tender  is  based  on  the  application  of  measures  adopted 
pursuant  10  or  reinstated  pursuant  to  Article  11,  cContracting  authorities  and 
contracting entities shall inform unsuccessful tenderers. of the award of a contract 
or a concession based on the application of a price adjustment measure adopted 
or reinstated pursuant to this Regulation. 

Where  a  price  adjustment  measure  is  applied,  contracting  authorities  and 
contracting entities shall require tenderers to provide information on the origin 
of  the  goods  and/or  services  contained  in  the  tender,  and  on  the  value  of  the 

2. 

3.2 

4. 

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goods and services originating in the third country concerned as a percentage of 
the total value of the tender. They shall accept self-declarations from tenderers.  

A  contracting  authority  may  ask  a  tenderer  at  any  moment  during  the 
procedure  to  submit  additional  documentation  where  necessary,  in  order  to 
ensure  the  proper  conduct  of  the  procedure.  The  successful  tenderer  shall 
always be asked to submit more detailed information on the origin of the goods 
and services to be provided. 

Article 12 

Exceptions 

1. 

2. 

Contracting  authorities  and  contracting  entities  may  decide  not  to  apply  the  price 
adjustment  measures  pursuant  to  Article  10  with  respect  to  a  procurement  or  a 
concession procedure if: 

(a) 

(b) 

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

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

Where  a  contracting  authority  or  contracting  entity  intends  not  to  apply  a  price 
adjustment 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 
publishes  pursuant  to  Article  3549  of  Directive  2004/18/EC  or  Article  42  of 
Directive 2004/17/EC. 2014/24/EU or Article 69 of Directive 2014/25/EU or in the 
concession notice pursuant to Article 31 of Directive 2014/23/EU.  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). 

3. 

The notification shall contain the following information: 

(a) 

(b) 

(c) 

(d) 

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

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

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

authority and/or contracting entity. 

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

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43. 

1. 

2. 

29 

30 

In the event that a contracting authority or contracting entity conducts a negotiated 
procedure without prior publication, under Article 312 of Directive 2004/18/EC or 
under  Article  40  (3)  2  of  Directive  2004/17/EC  Directive  2014/24/EU  or  under 
Article  50  of  Directive  2014/25/EU  and  decides  not  to  apply  a  price  adjustment 
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  3550  of  Directive  2044/18/EC2014/24/EU  or  Article  4370  of  Directive 
2004/17/EC2014/25/EU or in the concession award notice it publishes pursuant 
to Article 32 of Directive 2014/23/EU 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 or contracting entity; 

a description of the object of the contract or the concession; 

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 

authority or contracting entity. 

Article 163 

Implementation 

In  case  of  misapplication  by  contracting  authorities  or  contracting  entities  of 
exceptions  laid  down  in  Article  132,  the  Commission  may  apply  the  corrective 
mechanism  of  Article  3  of  Directive  89/665/EEC29or  Article  8  of  Directive 
92/13/EEC30. 

Contracts  concluded  with  an  economic  operator  in  violation  of  price  adjustment 
measures  Commission 
implementing  acts  adopted  or  reinstated  by  the 
Commission pursuant to Article 6 this Regulation 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. 

Chapter IV 
Delegated and IMPLEMENTING POWERS, REPORTING AND FINAL PROVISIONS 

Council  Directive  89/665/EEC  of  21  December  1989  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 contracts (OJ L 
395, 30.12.1989, p. 33). 
Council  Directive  92/13/EEC  of  25  February  1992  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 sectors (OJ L 76, 23.3.1992, p. 14). 

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Article 143 

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 

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

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 174 

Committee procedure 

The Commission shall be assisted by the Advisory Committee for Public Contracts 
established  by  Council  Decision  71/306/EEC31  and  by  the  Committee  set  up  by 
Article 7 of the Council Regulation (EU) 2015/1843 (Trade Barriers Regulation)32. 

Council Decision (71/306/EEC) of 26 July 1971 setting up an Advisory Committee for Public Works Contracts (OJ L 185, 
16.8.1971, p. 15). 
Regulation  (EU)  2015/1843  of  the  European  Parliament  and  of  the  Council  of  6  October  2015  laying  down  Union 
procedures  in  the  field  of  the  common  commercial  policy  in  order  to  ensure  the  exercise  of  the  Union’s  rights  under 
international  trade  rules,  in  particular  those  established  under  the  auspices  of  the  World  Trade  Organization  (Trade 
Barriers Regulation), (OJ L 349, 31.12.1994 272, 16.10.2015, p. 1). 

1. 

2. 

3. 

4. 

5. 

1. 

31 

32 

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2. 

3. 

1. 

2. 

3. 

4. 

5. 

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. 

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 185 

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.  The  request  for  confidentiality  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  45  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 196 

Reporting 

By 31 December1 January 20178 and at least every three years thereafter 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  EUUnion  economic  operators  to  public  contract  or 
concession  award  procedures  in  third  countries  undertaken  under  this  Regulation.  To  this 
effect,  Member  States  shall  upon  request  provide  the  Commission  with  appropriate 
information. 

Article 2017 

Amendment of Directive 2014/25/EURepeals 

Articles  58  and  59  of  Directive  2004/17/EC85  and  86  of  Directive  2014/25/EU  shall  be 
repealed deleted with effect from the entry into force of this Regulation. 

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Article 2118 

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, 

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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