Third Country Tenders and the Public Contract Market: The Court of Justice's Good Intentions Lead Buyers to Hell

In Kolin and in Qingdao, the Court of Justice reasserted the exclusive competence of EU institutions to conclude trade agreements, including in the area of public procurement. Consequently, a Member State may neither allow nor exclude participation from non-covered third country economic operators to their award procedures. The choice is left to contract-ing authorities and entities, who are, however, left with no real guidance for dealing with those economic operators. The uncertainty further extends to the possible judicial review of award decisions.