Section 134a of the Danish Public Procurement Act Expected to Be Repealed

Impact of the Rulings on Section 134a of the Danish Public Procurement Act

The CJEU’s rulings in Kolin Inşaat Turizm (C-652/22) from 22 October 2024 and CRRC Qingdao Sifang Co. Ltd (C-266/22) from 13 March 2025 mean that Denmark cannot introduce national rules on the participation of third-country businesses in national tenders. Only the EU has the authority to establish whether, and under which conditions, economic operators from third countries may take part in public procurement procedures within the EU. As a result, Denmark cannot maintain Section 134a, and the government proposes its repeal in the parliamentary year 2025/26.

The Court also clarifies that businesses from third countries without agreements with the EU may participate in tenders, but they cannot invoke EU procurement rules, including the prohibition against discrimination. In the absence of EU rules, it is up to each contracting authority to assess whether and how such businesses may participate. Contracting authorities may still require the exclusion of businesses from tax haven jurisdictions—provided this complies with general administrative law rules and principles.

Section 134a of the Public Procurement Act, introduced in 2022, currently requires public contracting authorities to exclude companies from countries listed by the EU as non-cooperative tax jurisdictions, provided those countries have not acceded to the WTO’s GPA or other relevant trade agreements with the EU. Following the CJEU rulings, legal reliance on Section 134a is no longer possible.

The European Commission has published a series of Q&As to assist Member States in interpreting the scope of the rulings.

Go to: Questions and answers (Q&A) on participation of third countries bidders in the EU tenders