Suppliers from China may be excluded. But not those from the USA or Israel.

Date: 13 April 2025

Case:  C-266/22 – CRRC Qingdao Sifang & Astra Vagoane Călători v. ARF & Alstom Ferroviaria

What Happened?

On 13 March 2025, the European Court of Justice (ECJ) made an important decision.It said that EU countries cannot create national laws to block companies from other countries (like China) from participating in public tenders.Only the EU can decide such rules, and only if there is a trade agreement between the EU and the supplier’s country.

This ruling affects how all public buyers in the EU must deal with suppliers from outside the EU.

Background: The CRRC Case

A Chinese-led group, CRRC Qingdao Sifang and Astra Vagoane, was blocked from a train tender in Romania.The exclusion was based on a new Romanian law limiting access for companies from countries with no procurement agreement with the EU.

The Court said this national law was not valid under EU law. Only the EU can make such rules.

What Did the Court Decide?

1. The EU alone can make rules on whether third-country suppliers (non-EU) may take part in tenders.

2. EU Member States cannot pass national laws to exclude these suppliers.

3. Public buyers can exclude suppliers from third countries only on a case-by-case basis, and only when allowed under EU law.

4. Suppliers from countries that have a trade or procurement agreement with the EU must be treated the same as EU suppliers.

   
   

Can a Contracting Authority Write in the Tender That Chinese Companies Are Not Allowed?

No. You may not include a general rule that says “suppliers from China are excluded” unless that rule is based on EU law.You cannot use national law as a reason to block them. This is not allowed.

Can You Exclude Them Case-by-Case?

Yes – but only if:

• The country (like China) has no agreement with the EU (no GPA membership, no bilateral deal), and

• You make a specific decision in this procurement based on clear and objective reasons (e.g., national security, critical infrastructure, legal risks), and

• You explain this clearly in the tender documents or contract notice.

  
  

This is called an ad hoc exclusion. It must be based on the individual situation and must be transparent.

What If the Tender Says Nothing About Third Countries?

If the tender documents are silent and say nothing about third-country access:

• A supplier from a country without an agreement (such as China) can submit a tender.

• You may still decide to exclude them, but only with a valid, reasoned justification in line with EU principles (transparency, equal treatment).

• If you accept their offer and award them the contract, it becomes a valid contract under national contract law.

• The supplier may not have rights under EU law, but they may still have contractual rights once the contract is awarded.

  
  

Summary Table

Supplier Type	Can Be Excluded?	Right to Equal Treatment?	Right to File Complaint?
EU / EEA Supplier	No	Yes	Yes
GPA Country or EU Trade Partner	No	Yes	Yes
Country with No Agreement	Yes (case-by-case only)	No	No

Best Practices for Public Buyers

• Check whether the supplier’s country has a trade or procurement agreement with the EU.

• Do not rely on national law to exclude third-country suppliers.

• If you want to limit access for countries without agreements, do it case-by-case, and explain it clearly in your documents.

• If you remain silent and award the contract, the supplier may gain protection under general contract law.