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​Fair competition

While the EU has largely opened up its public procurement markets to companies from third countries, many of these countries do not grant European companies comparable access or all too often exclude them from these foreign markets. The so-called principle of reciprocity (reciprocity), which states that trade advantages should be equivalent, is not implemented here. The European Commission has created a legal framework to enable network operators in the water, energy and transport sectors to implement this basic principle of fair trade when awarding public contracts.

Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC is designed to regulate procurement in these sectors, thereby strengthening supply chains and promoting fair competition.

The European Commission views public procurement as an important tool for

• promote smart growth by developing knowledge and innovation
• sustainable growth based on a resource-efficient, greener and more competitive economy, and
• inclusive growth to ensure employment and social and territorial cohesion, while optimising the use of public funds (see Europe 2020: the European Union’s strategy for growth and jobs).

DIRECTIVE 2014/25/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014 applies to the award of contracts by contracting entities in the water, energy and transport sectors. While regulations are directly applicable in all member states and do not require national implementation, directives serve as targets for member states to be implemented into national law within a certain period of time. Directive 2014/25/EU has been transposed into national laws or regulations in all European states.

To enable fair competition and to provide the contracting authorities with the tools to ensure this, article 85 of the Directive 2014/25/EU is a decisive one:

Mutual market access (reciprocity)

• Article 85 – Tenders comprising products from third countries, transposed into § 55 – Tenders comprising products from third countries of the SektVO.

Article 85 deals with mutual market access, known as reciprocity, as a criterion for refusing orders for products from third countries with which there is no trade agreement.

The EADIPS brochure ‘Products from third countries’ (2025) provides an informative overview of the topic of reciprocity.