Reciprocity as Security: Reconsidering Third Country Access to European Critical Infrastructure Procurement

Abstract

EU public procurement law provides different options for preventing geopolitically undesirable dependency on third country suppliers in critical infrastructure. Their effectiveness solely depends, however, on the willingness of national authorities to use those. Recently, the EU therefore adopted the International Procurement Instrument (IPI) Regulation, within the sphere of the Common Commercial Policy (CCP), to condition the access to public contracts for third country entities on reciprocity. This article explores the security dimension of this issue. After generally considering the role of sovereignty as a limit to international trade, the article specifies the security risks which may arise in a public procurement context and sets out the legal options for Member States to address those. The article then discusses how security intrinsically shapes CCP instruments and how the new regulation could indicate a shift in the EU’s role, from facilitating legal options for Member States, towards the Commission itself restricting the market access for certain third countries. Although such bans ought to be based on a lack of reciprocity rather than security, in times of weaponized dependencies the security dimension is undeniable. When considering interdependence as a stabilizing force in international relations, reciprocity itself has in fact become a security objective. EU law, Public Procurement, National Security, Critical Infrastructure, Common Commercial Policy, International Procurement Instrument, Economic Interdependence, Sovereignty, World Trade Organization, Government Procurement Agreement