Public procurement markets are often described as “open” or “closed” and legally, the position is more granular, whether a company can submit a tender is one question. Whether it has an enforceable right to be treated equally once it does, is clearly another. The answer depends on three principal things: the origin of the supplier, the agreements binding the buyer’s jurisdiction, and the sector and value of the contract.
Rights come from agreements
Under recent EU case law, access rights depend on international commitments, in Kolin (C-652/22, October 2024) and Qingdao (C-266/22, 13 March 2025), the Court of Justice held that third-country operators not covered by EU international procurement agreements cannot claim the same rights under EU procurement law as EU or covered third-country operators, and that regulating their access is a matter of exclusive EU competence. Industry bodies have drawn the same conclusion, in its January 2026 response to the Commission’s consultation on revising the procurement rules, France Industrie argued that firms without a trade agreement or WTO commitments do not enjoy legally secured access to EU public procurement. It is clearly an advocacy position, but it is consistent with the case law above.
The WTO Government Procurement Agreement
The GPA is a plurilateral agreement, so it binds only some WTO members and the EU counts as one party covering its 27 member states, and the UK became a party in its own right on 1 January 2021. Ireland and France therefore participate through the EU. Examples of other parties whose suppliers would generally qualify include the United States, Australia, New Zealand and Hong Kong. Membership does not mean blanket access, and the GPA’s disciplines apply only to the entities, sectors and contract values specified in each party’s own schedule, China is not a party, it appears among the WTO members negotiating accession.
The EU–UK Trade and Cooperation Agreement
After Brexit, EU public procurement law ceased to apply to the UK once the transition period ended, and access between the EU and the UK now rests on treaty provisions. The relevant rules sit in Part Two, Heading One, Title VI of the Trade and Cooperation Agreement (TCA), which incorporates certain GPA provisions and defines “covered procurement” as GPA-covered procurement plus the additional categories listed in its annex. Those extra categories include hospitality, telecommunications, real estate and educational services. The TCA also contains a protection that works differently, as for any procurement, covered or not, the UK must not treat EU suppliers established in the UK less favourably than UK suppliers, and the same applies in reverse. An Irish or French company with a UK presence is better protected than one bidding from abroad on a contract outside the agreement’s coverage.
On the UK side, the Procurement Act 2023 took effect on 24 February 2025 and it defines “treaty state suppliers” as those entitled to the benefits of an international agreement listed in Schedule 9, and prohibits contracting authorities from discriminating against them. The duty is limited in scope, commentators note that public bodies owe duties only to UK and treaty-state suppliers, and may disregard or exclude suppliers from non-treaty states. For above-threshold contracts, suppliers from GPA signatories, including the EU, must be treated the same as domestic suppliers, excluding defence and clinical healthcare procurement. And in practice, Irish and French suppliers bidding in the UK should check three things. Is the contract within the GPA or TCA coverage? Is it above the relevant threshold? Does the supplier have a UK establishment?
The EU’s proposed Public Procurement Act
The most significant change is under discussion as on 9 September 2026 the Commission proposed a Public Procurement Act. It would replace Directives 2014/23/EU, 2014/24/EU and 2014/25/EU with a single, directly applicable Regulation. At its centre is a “European preference” framework. “Covered” operators and goods are those from countries bound by the GPA, by EU trade agreements or by a customs union, for the relevant category of procurement. Buyers could then, among other options:
- restrict participation to EU and covered operators;
- require a minimum degree of EU or covered origin;
- give evaluation advantages to EU or covered tenders;
- reject tenders where EU or covered content falls below 50% of the estimated value.
Three features matter for the access question:
It is voluntary in principle: Applying European preference would be optional for buyers, but the Commission could make it mandatory through delegated acts where this is in the Union’s interest.
Covered status could be withdrawn: The Commission could remove it where a third country has not delivered on its national treatment commitments, or to avoid strategic dependencies or security-of-supply threats.
UK suppliers would generally be covered: The EU’s agreements with the UK contain public procurement disciplines, though coverage is determined by procurement category.
Safeguards are included: Buyers could disapply mandatory preference where no suitable EU or covered suppliers exist, where no suitable tenders are received, or where the cost would be disproportionate. As for timing, the proposal must still pass through the Council and Parliament, may change materially, and the stated aim is agreement by the end of 2027.
The International Procurement Instrument and reciprocity
The International Procurement Instrument (IPI), Regulation (EU) 2022/1031, entered into force on 29 August 2022. It addresses a different problem: what happens when a country keeps its own procurement market closed to EU firms. It applies to non-covered procurement, where the EU has made no market access commitments. If the Commission finds serious and recurrent restrictions and consultations fail, it may impose a score adjustment or exclusion of tenders. Measures can only apply to contracts of at least €15 million for works and concessions, and €5 million for goods and services.
The first use concerned Chinese medical devices: The Commission opened an investigation on 24 April 2024 and adopted the measure on 19 June 2025, after its January 2025 report confirmed discriminatory practices and it rejected China’s proposal to negotiate a bilateral procurement agreement. Commission launches consultation on the first review of the International Procurement Instrument. Chinese suppliers are excluded from EU contracts worth more than €5 million for five years, from 30 June 2025, and Chinese-origin devices may make up no more than 50% of an otherwise eligible tender. The Commission estimated that about 96% of medical device procedures fall outside the measure, representing roughly 41% of total procurement value. China has reciprocated with restrictions on EU medical devices.
It is also very important to note that the IPI is under review, a 12-week consultation, running to 27 November 2026, covers its scope, origin rules, thresholds, the form of measures and exceptions. The two instruments connect: under the proposed Act, the origin of operators would be determined using IPI rules.
Practical implications
For Irish and French suppliers, EU origin places them inside any European preference. In the UK, access depends on coverage, thresholds and establishment. For suppliers from countries with no agreement, access increasingly depends on buyer discretion, not on enforceable rights. Contracting authorities and bidders alike should track the legislative process and check coverage contract by contract.
Background Reading and Additional Sources:
Kolin (C-652/22, 22 Oct 2024): CJEU press release https://curia.europa.eu/site/upload/docs/application/pdf/2024-10/cp240183en.pdf
WTO parties and observers https://www.wto.org/english/tratop_e/gproc_e/memobs_e.htm
UK government Procurement Policy Note, which covers the extra services and the non-covered treatment of EU-owned UK-based suppliers https://assets.publishing.service.gov.uk/media/602fcbcc8fa8f5432bc23d9e/PPN-0221-Requirements-for-contracts-covered-by-the-WTO-Government-Procurement-Agreement-and-the-UK-EU-Trade-and-Co-operation-Agreement.pdf
European Commission procurement page https://single-market-economy.ec.europa.eu/single-market/public-procurement_en
IPI Regulation summary (EUR-Lex) https://eur-lex.europa.eu/EN/legal-content/summary/the-eu-s-international-procurement-instrument-ipi.html
