The Financial Times ran a piece yesterday arguing a Commission internal memo contains instructions for: "[w]here legally possible, the commission and its agencies will be expected in all activities to “take account” of the fact that Britain may be “a third country” within two years, including in appointing staff and in awarding billions of euros of direct contracts for research projects or services." I had not problem calling out some wrongheaded and/or illegal suggestions on this side of the Brexit divide. In the interests of fairness (and equal treatment) I have no problem doing the same for the EU-side as this is another example of what I call the unravelling of EU law compliance on the run up to Brexit.
While it is true the UK triggered Art. 50, triggering the process does not affect any rights or obligations for the UK until its departure from the Union occurs and vice-versa. That is, for all intents and purposes the UK is as much a Member State today as it was on March 28th and entitled to not be discriminated against. Furthermore, the jury is still out if the Art. 50 process itself is reversible.
And yet, yesterday's news makes for uncomfortable reading. Albert pointed out on his commentary to this memo that both the Member State and the EU Institutions are subject to Art. 2 TEU and the rule of law. The fact that such a basic feature of the system needs to be pointed out (correctly) is a very worrying sign.
In this sense the (EU) law is simple: until the UK effectively departs the EU, nothing changes and UK-based economic operators cannot be discriminated against (either at tenders conducted by EU Institutions or in other Member States). If they are, they would have clear grounds to call for judicial review of the award decision.
On a related note, I recall a leading (British) academic privately arguing non-compliance with rules that are subsequently changed should go unpunished (in the context of the UK non-compliance with some EU procurement rules that were changed afterwards). Coming from a civil law background such cavalier interpretation to legal obligations/rule of law has always puzzled me. I shall keep an eye to see if said colleague's opinion has evolved now that it directly affects UK economic operators.