Can a Italian company, producing its goods in China, partecipate as a tenderer in a procedure for the award of a public contract in Italy?

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The recent Court of Naples n. 4965 of 9 Semptembre 2014  answered to this question in a negative way for the following reasons.

The European Directives 2004/17/EC e 2004/18/EC, coordinating the procurement procedures, do not allow to partecipate to such procedures all those companies that can be qualified as belonging to  “third countries”.

The question is: can China be deemed as  a “third country”?

It is known that China joined the World Trade Organistion in 2001, but this is not adequate to guarantee a reciprocal opening in the public procurement
markets.

For this purpose, it’s necessary to negotiate and subscribe plurilateral Government Procurement Agreement (GPA) (in force since 1996).

The GPA is a plurilateral agreement within the framework of the WTO.

Nowadays, the Agreement has 15 parties, comprising 43 WTO members. Other 28 WTO members participate to the GPA Committee as observers.

The fundamental aim of the GPA is to mutually open government procurement markets among its parties.

Currently, China is not a part of GPA: consequently goods produced in China cannot be sold through pubblic contracts, even tough the manufacturing company is Italian.