00:14:59 Albert Sanchez-Graells: Link to today's slides: https://publicprocurementinternational.com/wp-content/uploads/2025/02/PANEL-SLIDES-Webinar-New-EU-US-Protectionism-21-Feb-2025.pdf 00:15:42 Christina Blair: <3 00:16:18 Ewa Kostrzyńska: Good aftrenoon form Poland. Thnx for slides) 00:17:17 Robert Anderson: Great to have you with us! 00:17:31 Etel Bereslawski: Good afternoon from Spain 00:18:20 Dana Coleova: Good afternoon from Slovakia. Thank you very much for the slides 00:19:56 Silvio Battista: Good afternoon from Italy. Silvio Battista 00:20:18 Kraig Conrad: Hello from Washington, DC 00:20:53 yassine mrabt: Good Afternoon from Rabat Morocco 00:20:57 Julia Meszaros: Good afternoon from Austria! Thank you for sharing the slides! :) 00:20:59 Soala Warmate: Good morning/afternoon/evening, everyone from Nigeria. Soala Warmate 00:21:08 Nataly Sonk-Bahharev: Good afternoon from Estonia :) and thank you for the link :) 00:21:13 Iuliana Negoita: Good afternoon from Romania as well! 00:21:26 Robert Anderson: Warm welcome to everyone present! 00:21:28 Amela Mešić: Hello everyone from Croatia! 00:22:20 Dominic Dagbanja: Greetings from Perth, Australia. 00:22:23 Çiğdem Çınar: Greetings from Türkiye 00:22:45 Robert Molden: Hello from Gothenburg - Sweden! 00:22:51 Anar Aliyev: Greetings from Azerbaijan! 00:23:20 Magdalena Nikolova: Greetings from Bulgaria! 00:23:22 Tadija Kristić: Greetings to everyone from Croatia! 00:23:31 Thomas Holm: Good afternoon from Denmark😌 00:24:09 Amalia Shikongo: Hi there, from Namibia 00:25:10 Danijela Pažur Ivančić: Greetings from Croatia 00:26:26 Jasmin Mehmedovic: Hello everyone form Bosnia and Herzegovina. 00:26:49 Panagiotis Blanos: Hello everyone from Belgium! 00:27:20 Martin Trybus: Hello from Birmingham, UK 00:27:33 Chryssoula MOUKIOU: Hello from Athens.Greece. Chryssoula Moukiou 00:27:40 Steven Imme: Hello everyone from a U.S. law student 00:28:37 Wojciech Hartung: Hello from Warsaw! 00:33:02 Christopher Yukins / GW Law: The "muscle" of the EU is analogous to the Trade Agreements Act of the US, which bars vendors from non-agreement nations from participating in the US federal procurement market in above-threshold procurements. 00:35:20 laurence Folliot Lalliot: The Kolin case enabled the Court of Justice to raise the question of Kolin's admissibility ex officio, it shows the importance of this issue for the application of European law. 00:35:47 Martin Trybus: Uncertainty indeed. In practice the only safe approach might be to completely exclude bidders from "non-open" countries. 00:37:47 Wolfgang Weiß: Yes , MArtin, But I think the contracting authorities may decide, in a given case, to allow the non-open Country bidder´s bid. As Long as they are not treated more favourably, a domestic bidder may not have a Chance to challenge this. 00:38:30 Christopher Yukins / GW Law: Thanks for these very useful comments. The chat from this session will be published with the recording and the other program materials on publicprocurementinternational.com later today (when the video has processed). 00:39:46 man ki kim: Greeting from Seoul, Prof. Kim at KAIST Global Procurement Program. 00:40:16 Robert Anderson: Important point, Peter Trepte. 00:40:39 Martin Trybus: I agree, Wolfgang, but in practice many CA might find that difficult to frame and apply without expensive lawyers. Safer to just exclude these bidders. 00:40:50 Albert Sanchez-Graells: https://www.howtocrackanut.com/blog/court-of-justice-eu-procurement-protectionism-after-kolin 00:41:09 Cláudia Tavares: Greetings from Portugal Cláudia Tavares 00:42:16 Jean Heilman Grier: My blog post on the EU’s investigation of China’s procurement of medical devices can be found at https://trade.djaghe.com. 00:43:51 Marko Turudic: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5021008 00:43:57 Martin Trybus: I recommend Albert's blog, deep and thought-provoking. 00:43:59 aris christidis: It would be interesting to examine how frequently third-country suppliers bid in the EU market and, secondly, how often they secure contracts. This analysis would help assess the relevance of the issue in Kolin and the potential impact of regulatory measures such as the Foreign Subsidies Regulation. 00:45:29 Ariel Zelada: So Kolin didn't have a fighting chance of winning the award. So in my opinion the Croatian public contracting entity was trying to use Kolin as "pseudo competition". 00:45:47 Chryssoula MOUKIOU: To my perception, it is not a "hard" case, it is a "special" case. The principles of equal treatment and non discrimination cannot be not respected in Eu public procurement. 00:46:07 Wojciech Hartung: And how should the CA treat the contractor from EU that rely on capacities of a company from non-EU country (art. 63 of 2014/24)? 00:47:07 Piotr Bogdanowicz: @Aris - in Poland these entities often bid (with success too). So the judgment is very relevant here. 00:47:12 Martin Trybus: Thanks, Albert. too many things. 00:47:55 Martin Trybus: Wojciech, or a mixed consortium. 00:47:58 laurence Folliot Lalliot: Good reading on this topic: The Participation of Foreign Bidders in EU Public Procurement: Too Much or Too Little? Published February 2025 By: Lucian Cernat (Head of Global Regulatory Cooperation and International Procurement Negotiation at the European Commission) https://ecipe.org/publications/participation-foreign-bidders-eu-public-procurement/ 00:48:37 Christopher Yukins / GW Law: Another piece of the puzzle here: the U.S. approach to the WTO Government Procurement Agreement. There was a serious initiative to pull the U.S. out of the GPA at the end of the first Trump administration. That effort stalled, perhaps because the GPA is the only ready means of access for the U.S. to the Canadian public procurement market -- since Canada refused to join the procurement chapter of the US-Mexico-Canada regional trade agreement (USMCA). As Jean will explain, the Trump administration is again assessing the GPA, with a report due on or before April 1. 00:49:13 Martin Trybus: Europe first, Chris 00:49:24 Martin Trybus: Sorry, too harsh 00:49:31 Piotr Bogdanowicz: @Wolfgang and @Martin, I can't agree. In my view, GPA contractors have the right to appeal against admitting non-GPA contractors and objective criteria for differentiation 00:49:55 Michael Fruhmann: Re Aris: not that often but it depends on the MS. For ex Croatia regularly has participants from Turkiye, in AT for ex we had some requests for participation from Belarus (not any more after the sanctions), CHN, India and other countries. Again, not that many 00:50:12 Kris Wauters: I am agreeing with Pjotr. 00:50:40 Michael Fruhmann: Me too 00:50:52 Martin Trybus: Did Wolfgang and I say that, Piotr? 00:51:20 Christopher Yukins / GW Law: Spot on. "America First" -- the audience should know -- was originally a political movement in the U.S. in the 1930s to keep the U.S. out of WWII. It explains, in part, why Britain fought alone during the summer of 1940. Because of domestic U.S. "America First" opposition, the U.S. did not enter the war until December 1941, after the Japanese attack on Pearl Harbor. 00:51:27 Albert Sanchez-Graells: @Piotr, @Kris, @Michael that is a very interesting view. What legal basis for the enforceability of the GPA in that context? 00:51:38 Wolfgang Weiß: Yes Pjotr, they can challenge, but I do not see a Chance for doing so successfully, as Long as the foreign bidder is not treated beneficially. The CJEU demanded discirmination, but that can be done on a small base in assessing the bid 00:51:46 Chryssoula MOUKIOU: EU has incorporated GPA Αgreement in its firts edition:: Yet; this incorporation cannot justify a disrespect of the equal treatment principle 00:51:53 Piotr Bogdanowicz: @Martin - yes :) 00:52:26 laurence Folliot Lalliot: Thanks Roberto. I agree with the whole picture! 00:52:50 Kris Wauters: I already told Roberto that I share his vision 00:53:13 Kadri Matteus: Hello from Estonia :) I understand and can agree that third country economic operators can be discriminated, however if this has not been implemented in the procurement notice, then what about local constitutional rights such as rule of law and fair treatment? There are always two sets of rules - EU and local ones that implement and add to EU law. 00:57:47 Piotr Bogdanowicz: @Wolfgang - why discrimination? Contractors outside the GPA can actively participate in the procedure - submit documents, ask questions or provide clarifications. However, they cannot rely on the domestic rules that form the basis for these activities (para 65). In the event of a possible dispute, this would lead to a situation in which national authorities would have to subject non-GPA contractors to the application of these rules, which in light of the Kolin they cannot do. 01:00:10 Christopher Yukins / GW Law: Question from a participant: Has Switzerland a proper procurement agreement with EU or does the GPA count as "eu procurement"? 01:00:30 Michael Fruhmann: there is a sectoral PP Agreement btw EU and CH 01:00:34 laurence Folliot Lalliot: Marko. Very interesting but at the end of your analysis, I would argue that it is more a conflict of public policies than a conflict of interests 01:01:00 Albert Sanchez-Graells: This is the EU-Swiss agreement, which builds on the GPA https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:22002A0430(06) 01:01:15 Albert Sanchez-Graells: (Note the agreement pre-dates the current GPA version) 01:01:51 Piotr Bogdanowicz: @Albert - why GPA? The Court held that Article 43 of Directive 2014/25 reflects international commitments of the EU (such as GPA). So it would enforceability of EU law and we do not need to go into discussion on the enforceability of GPA, its direct effect, etc. 01:03:33 Albert Sanchez-Graells: @Piotr, but the interpretation of 43 cannot be uncoupled from GPA interpretation (eg annexes ...) and is the CJEU competent to do that? 01:04:02 Albert Sanchez-Graells: So I think it depends 'how far out' the GPA coverage an operator is? 01:04:59 Christopher Yukins / GW Law: For those researching foreign goods sold through EU-based resellers -- the European Commission periodically republishes updated studies on "Cross-Border Procurement" trade, which analyzes that question using EU procurement data, very well. 01:06:16 Piotr Bogdanowicz: @Albert - hmm, what would you need the interpretation of GPA for? 01:06:33 Albert Sanchez-Graells: @Piotr to determine if something is covered 01:08:22 Michael Fruhmann: true Chris :-) 01:09:14 Alex Osei-Bonsu: Good afternoon from Ghana. Please, do you have Africa, for that matter Ghana, in the picture? 01:10:21 Piotr Bogdanowicz: @Albert - why? It does not contain procedural rules. And in any case, its role is to say that EO from third countries which are parties to GPA must enjoy no less favourable than that accorded to EU EOs. 01:10:49 Wolfgang Weiß: @ Piotr: Exaclty, they cannot apply, but the CJEU in Kolin actually demanded no less favourable Treatment to be granted to contractors aoutsied GPA and bilaterals - so discrimination in other words 01:10:55 Piotr Bogdanowicz: *no less favourable treatment 01:11:41 Piotr Bogdanowicz: @Wolfgang - which para. of the judgment you have in mind? 01:11:55 Albert Sanchez-Graells: There was a question on whether there is a list of EU procurement arrangements. In that connection, there is now a portal to check this: https://trade.ec.europa.eu/access-to-markets/en/content/public-procurement 01:12:14 Albert Sanchez-Graells: The 'app' to check is available here: https://trade.ec.europa.eu/access-to-markets/en/home#my-trade-assistant 01:12:35 laurence Folliot Lalliot: @ Chris Yukins. Anticipated or the Trump Administration read S. Evenett report ? 01:13:22 Christopher Bovis: An important issue is third-country operators ownership in EU economic operators. Kolin is silent on this. 01:13:49 Wolfgang Weiß: QPiots CJUE Para 46 and 47 01:15:22 Wolfgang Weiß: @ Piotr CJEU para 46, 47, 63, 64 01:18:31 Xavier Codina: Agree with Christopher Bovis. In our day to day the third-country operator ownership is key. Let's see if the amendments to the directives go towards a detailed "determination of origin" rule as the one of art. 3 of International Procurement Instrument 01:18:51 Christopher Yukins / GW Law: @Laurence Folliot Lalliot -- it's very possible that the US trade officials (including Peter Navarro, Trump's senior trade advisor) read both Simon Evenett's report. Simon's report through the Global Trade Alert set priorities, boundaries and expectations -- which can be very important in the relative chaos of a new administration. 01:20:28 Piotr Bogdanowicz: @Wolfgang - I have different reading of these provisions. In my view, the Court does not demand equal treatment to non-GPA contractors. Take para 46. The ECJ says "the inclusion of the economic operators of the third countries within the scope of the rules on public procurement established by the EU legislature [...] would have the effect". So it does not have this effect. 01:20:33 laurence Folliot Lalliot: @Xavier Or the requirement to disclose the ultimate benificiary 01:20:56 Robert Anderson: Thanks, Desiree and all participants. Great to have you with us! 01:22:27 laurence Folliot Lalliot: Size of the US market dépends, question of States markets open or not 01:22:38 Wolfgang Weiß: @ Piotr: I said: it demands non equal treamtent, i.e. discrimination 01:22:49 laurence Folliot Lalliot: wonderful 01:22:50 Ioannis (Yannis) Petrou: Have a nice weekend everybody! Yannis Petrou (writing from Luxembourg) 01:22:50 Soala Warmate: Thank you