infracciones alt

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On October 24, the Court of Justice of the European Union (“CJEU”) issued a judgment in which, as a result of a request for a preliminary ruling by the Chamber of Public Procurement of Southern Bavaria, it interprets Directive 2014/24/EU on public procurement, clarifying the possibility of excluding an operator from a tender due to infringements of competition law.

Specifically, the CJEU interprets the possibility of requiring companies that are sanctioned due to infringements of competition law to collaborate actively in the re-establishing of their reliability, both with the investigating and awarding authorities to thus avoid being excluded from a tender.

In the framework of this active collaboration, the judgment indicates that, when examining whether there are reasons that prevent the exclusion of an operator from a tender, the contracting authority is competent to request from the operator the resolution through which it was found guilty of a competition infringement. This is carried out independently of whether access to this resolution could facilitate the filing of a damages claim, as precisely, in line with the directive, one of the pieces of evidence that must be provided by an economic operator to show its reliability is that relating to the commitment to pay the corresponding compensation.

Also, the CJEU indicates that when a company has requested clemency before the competition authority, it would only need to provide the disciplinary resolution to show to the contracting authority that the infringing company has clarified the facts comprehensively and has actively cooperated in the investigation (two of the requirements in the directive to apply the exemption to the prohibition to contract).

In addition, the CJEU clarifies that the maximum period of three years, during which a company sanctioned due to a competition infringement can be excluded from participation in public tenders, starts on the date on which the decision of the competition authority is adopted, and not on the date on which, in line with the resolution, the infringement ended.

Although the case has specificities relating to German procurement legislation and, in Spain, the exclusions established in article 57 of the Directive on public procurement have been regulated through the regime of prohibitions to contract in articles 71 et seq. of Spanish Act 9/2017, on Public Sector Contracts (“Spanish Public Sector Contracts Act”), the interpretation of some of the CJEU’s points could also influence the action of contracting authorities in Spain and, specifically, in the interpretation of article 72 of the current Spanish Public Sector Contracts Act, referring to the assessment of the prohibition to contract, which in section 5 establishes the procedure to determine the scope and duration of the prohibition in a prior declaration.

 

Access the CJEU judgment here.

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maria.lopezridruejo@cuatrecasas.com

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