November 28
2021
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Trajan Shipley
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27th October 2021
Competition & State Aid

Request for a preliminary ruling on exclusion powers under Public Procurement Directive

Official publication has been made of a request for a preliminary ruling in Landkreis A.-F. v J. Sch. Omnibusunternehmen and K. Reisen GmbH (C-416/21) in a case concerning the appeal against the exclusion of two related tenderers from a public procurement procedure for breach of the requirement of confidentiality of tenders and for distortion of competition.

The referring court, the Bavarian Supreme Court (Bayerisches Oberstes Landesgericht) has referred three questions for a preliminary ruling on the interpretation of Public Procurement Directive 2014/24

First, it seeks interpretation of Article 57(4)(d) of the Directive, according to which the contracting authority may exclude economic operators in a public procurement procedure when it has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition. It specifically asks whether the contracting authority must have sufficiently plausible indications in order to conclude that the economic operator has infringed Article 101 TFEU.

If that question is answered in the positive, it further enquires whether:

  • Article 57(4) exhaustively regulates the optional grounds for exclusion in the sense that the principle of equal treatment cannot preclude the award of a contract where tenders are submitted that are neither independent nor autonomous;
  • Article 18(1) (principle of equal treatment) precludes the award of a contract to undertakings that constitute an economic unit and have each submitted a tender

The officially published request is available here.

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