DIRECTORATE-GENERAL INTERNAL MARKET, INDUSTRY, ENTREPRENEURSHIP AND
DIRECTORATE-GENERAL DEFENCE INDUSTRY AND SPACE
Brussels, 25 January 2021
REV1 – replaces the notice dated
18 January 2018
NOTICE TO STAKEHOLDERS
WITHDRAWAL OF THE UNITED KINGDOM AND EU RULES IN THE FIELD OF PUBLIC
Since 1 February 2020, the United Kingdom has withdrawn from the European Union
and has become a “third country”.1 The Withdrawal Agreement2
provided for a transition
period which ended on 31 December 2020. The Withdrawal Agreement provided also, in
some cases, for separation provisions at the end of the transition period.
During the transition period, the European Union and the United Kingdom negotiated a
Trade and Cooperation Agreement, which was signed on 30 December 20203
provisionally since 1 January 2021.4
All interested parties, and especially economic operators, are reminded of the legal
situation applicable since the end of the transition period, taking account of the Trade and
Cooperation Agreement (Part A below). This notice also explains certain relevant
separation provisions of the Withdrawal Agreement (Part B below).
This notice does not address EU rules on:
– procurement by EU institutions and bodies;
– VAT on goods and services.
For these aspects, other notices are in preparation or have been published.
1 A third country is a country not member of the European Union.
2 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the
European Union and the European Atomic Energy Community, OJ L 29, 31.1.2020, p. 7 (“Withdrawal
3 Trade and Cooperation Agreement between the European Union and the European Atomic Energy
Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the
other part, OJ L 444, 31.12.2020, p.14.
4 OJ L 1, 1.1.2021, p.1.
A. LEGAL SITUATION SINCE THE END OF THE TRANSITION PERIOD
Since 1 January 2021, EU rules in the field of public procurement5 no longer apply to and
in the United Kingdom, without prejudice to section B of this notice.
Economic operators from the United Kingdom interested or participating in public
procurement procedures in the European Union will have the status of economic
operators based in a third country regarding their access to the EU’s public procurement
However, the United Kingdom has joined the WTO Agreement on Government
Procurement on 1 January 2021. Under this agreement, the European Union and the
United Kingdom have taken mutual commitments to give access to each other’s
operators, goods and services to certain public procurement opportunities. Moreover,
Title VI of Heading One of Part Two of the Trade and Cooperation Agreement provides
for additional mutual commitments on access to public procurement opportunities.
1. PROCUREMENT COVERED BY THE EU’S COMMITMENTS UNDER THE WTO
AGREEMENT ON GOVERNMENT PROCUREMENT AND UNDER THE TRADE AND
Economic operators, goods and services of the United Kingdom will enjoy fair and
non-discriminatory access to the market opportunities covered by the European
Union’s commitments under the WTO Agreement on Government Procurement and
under the Trade and Cooperation Agreement.6
These EU commitments cover the procurement of goods and of certain services,
including construction services, for an economic value equal to or above thresholds7
set by the European Union, by the following entities:
all central and sub-central entities;
bodies government by public law; and
public entities, public undertakings and private undertakings with exclusive or
special rights operating in the following utilities sectors: water, electricity, gas
and heat, ports, airports, urban transport and rail sectors.
Such access is based on the rules of the WTO Agreement on Government
Procurement and the Trade and Cooperation Agreement, which provides for UK
goods, services and suppliers covered under the Agreement treatment no less
5 Please see https://ec.europa.eu/growth/single-market/public-procurement/rules-implementation_en for
more information on public procurement rules in the European Union.
6 EU economic operators, goods and services will have fair and non-discriminatory access to public
procurement opportunities in the United Kingdom in accordance with the United Kingdom’s
commitments under the WTO Agreement on Government Procurement and under the Trade and
7 These thresholds are the same as those applied under the EU Directives in the field of public
favourable than the European Union accords to its own goods, services and
2. PROCUREMENT NOT COVERED BY THE EU’S COMMITMENTS UNDER THE WTO
AGREEMENT ON GOVERNMENT PROCUREMENT AND UNDER THE TRADE AND
2.1. General rules
In respect of procurement not covered by the European Union’s commitments
under the WTO Agreement on Government Procurement and under the Trade
and Cooperation Agreement8 , economic operators from the United Kingdom
will have the same status as all other economic operators based in a third
country with which the European Union does not have any agreement
providing for the opening of the EU procurement market. They are therefore
to be subject to the same rules as any third country tenderer. In particular, as
stated in the “Guidance on the participation of third-country bidders and
goods in the EU procurement market” 9
, “economic operators from third countries, which do not have any agreement providing for the opening of the
EU procurement market or whose goods, services and works are not covered
by such an agreement, do not have secured access to procurement procedures
in the EU and may be excluded”.
Additionally, pursuant to Article 85 of Directive 2014/25/EU regulating
procurement procedures for the purchase of supplies by entities operating in
the water, energy, transport and postal services sectors10 tenders submitted in
the European Union for such procurements may be rejected if the proportion
of the products originating in third countries with which the European Union
has not concluded an agreement ensuring comparable and effective access for
EU undertakings to the markets of those third countries, exceeds 50% of the
total value of the products constituting the tender. Even where such offers are
not rejected, they shall not lead to the award of a contract if there are
equivalent offers with less than 50% of the products originating in third
countries. Therefore, tenders in this type of EU procurements, i.e.
procurements not covered by the European Union’s commitments under the
WTO Agreement on Government Procurement and under the Trade and
Cooperation Agreement, offering more than 50% of products originating from
the United Kingdom and from other third countries with which the European
Union has not concluded an agreement may be rejected or may not be
awarded a contract.
8 The commitments of the European Union under the WTO Agreement on Government Procurement
and the Trade and Cooperation Agreement do not cover inter alia the following: procurement below
the thresholds; procurement of all services which are not included in the commitments under those
agreements (such as research and development services), service concessions, procurement by public
entities, public undertakings and private undertakings with special and exclusive rights in certain
utilities sectors (postal services, extraction of oil and gas and exploration for, or extraction of, coal or
other solid fuels), defence procurement and procurement by most EU institutions and bodies (except
the European Commission, the Council and the European External Action Service).
10 OJ L 94, 28.3.2014, p. 243.
2.2. Specific rules in the field of defence and security
As clarified by Recital 18 of Directive 2009/81/EC regulating procurement
procedures by contracting authorities or entities in the field of defence and
security11, EU Member States will retain the power to decide whether or not
their contracting authorities/entities may allow economic operators from third
countries to participate in their defence and security procurement procedures.
Economic operators from the United Kingdom may therefore be excluded
from bidding for defence and security contracts in the European Union.
Furthermore, Article 22 of Directive 2009/81/EC provides that EU Member
States shall recognise the security clearances which they consider equivalent
to those issued in accordance with their national law. As of the end of the
transition period, EU Member States will no longer be under the obligation to
recognise security clearances obtained by an economic operator in the United
Kingdom, even where they could consider them as equivalent to their national
security clearances. This may lead to the exclusion of operators relying on a
United Kingdom security clearance in EU defence and security public
B. RELEVANT SEPARATION PROVISIONS OF THE WITHDRAWAL AGREEMENT
Title VIII of Part Three of the Withdrawal Agreement regulates public procurement
procedures ongoing on 31 December 2020. Articles 76 of the Withdrawal Agreement sets
out that public procurement procedures launched by contracting authorities or contracting
entities in the United Kingdom or in the European Union, and which are not yet finalised
on 31 December 2020, continue to be carried out, until their finalisation, in accordance
with EU law governing public procurement procedures. As a result, economic operators
from the United Kingdom continue to benefit from the principle of non-discrimination in
respect of those ongoing procedures in the European Union – and vice versa.
Additionally, United Kingdom contracting authorities or contracting entities from the
United Kingdom have to continue to request the publication of notices, in respect of
those procedures ongoing on 31 December 2020, by the Publication Office of the
European Union on TED (Tenders Electronic Daily), the online version of the
“Supplement to the Official Journal” of the European Union, dedicated to European
Article 77 of the Withdrawal Agreement sets out that the review procedures provided for
by EU rules in the field of public procurement continue to apply to those public
procurement procedures ongoing on 31 December 2020.
Directorate-General Internal Market, Industry, Entrepreneurship and SMEs
Directorate-General Defence industry and Space
11 OJ L 216, 20.8.2009, p. 76.