On December 21, 2023, the Grand Chamber of the CJEU delivered a judgment on the interplay between public procurement rules and competition law.[1] The judgment replies to questions raised on a preliminary reference by the Portuguese Supreme Administrative Court on the interpretation of Article 57(4) of the Public Procurement Directive (“PPD”),[2] which states that tendering authorities may exclude from participation in a procurement procedure any economic operator involved in anticompetitive behaviour. The judgment provides the following clarifications:
- The tendering authorities must be able to exclude a tenderer if there are indications of anticompetitive behavior.[3]
- The assessment of the integrity and reliability of the tenderers, and ensuing ability to exclude a tenderer, cannot be reserved to competition authorities alone.[4]
- Competitors interested in obtaining a public contract must be able to challenge a decision of the contracting authority to refuse to exclude another economic operator from the tender where there are indications of anticompetitive behavior.[5]
- Tendering authorities must give reasons for their decision to exclude a tenderer or include a tenderer who could have been excluded under Article 57(4) PPD, given that this “affects the legal situation of all of the other economic operators participating in the public procurement procedure.”[6]
[1] Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias (Case C-66/22) EU:C:2023:1016, para 26 (“Infraestruturas de Portugal and Futrifer”).
[2] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, OJ 2014 L 94/65.
[3] Infraestruturas de Portugal and Futrifer, para 72.
[4] Ibid., para 82.
[5] Ibid., para 62.
[6] Ibid., para 90.