Plungės rajono savivaldybės administracija v. Viešųjų pirkimų tarnyba

Tudmur, C-185/24 and C-189/24 on presumption of relevance applied: Questions ‘enjoy a presumption of relevance.’ [32] Lithuanian Government’s plea directives inapplicable ‘concerns the substance of that request’ [39]. Gryczara, C-746/24.

Operator not excluded: Whether national practice can order publication of operator’s name ‘even though that contracting authority did not exclude the operator from the procurement procedure before the latter’s completion and the finding that the operator was guilty of serious misrepresentation was made by a judicial decision that has become final’ [41] under Article 18(1) and Article 57(4)(1)(h) of Directive 2014/24/EU and Article 1(1) and (3) of Council Directive 89/665/EEC.

Article 57(4)(1)(h) of Directive 2014/24/EU (Public Procurement Directive) on serious misrepresentation interpreted: Purpose ‘to exclude economic operators whose reliability is seriously compromised on account of false statements that have been made either deliberately or negligently by those operators.’ [44] Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C-66/22 and Meca, C-41/18.

Tim, C-395/18 on proportionality of exclusion applied: Principle in Article 18(1) of Public Procurement Directive ‘warrants particular attention’ [46].

1. 4.1

   Temporary: ‘that exclusion must, first, be temporary.’ No more than three years under Article 57(7) [47]. HSC Baltic & Ors, C-682/21.

2. 4.2

   Reversible: Operator to be allowed to participate if ‘it provides evidence showing that the measures which it has taken are sufficient to demonstrate its reliability.’ [48] Rad Service & Ors, C-210/20.

3. 4.3

   Guilt to be established: ‘the guilt of the economic operator concerned must be examined and established.’ [49]

Finding after procedure: ‘Article 57 of Directive 2014/24 does not preclude a finding being made by a court, after the procedure has ended, that an economic operator supplied false information concerning fulfilment of a procurement procedure’s selection criteria.’ [51]

1. 5.1

   Delta Antrepriză de Construcţii şi Montaj 93, C-267/18 on exclusion in later procedures applied: Ground ‘may therefore be applied both in the public procurement procedure in which the economic operator was guilty of misrepresentation … and in subsequent public procurement procedures’ [53]. Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C-66/22.

Finding by procurement authority: Member State ‘should also be able to empower the relevant responsible national authority to decide whether or not it is necessary to adopt a decision imposing such an obligation on those contracting authorities.’ [54]

1. 6.1

   Klaipėdos regiono atliekų tvarkymo centras, C-927/19 on review of refusal to exclude applied: Court ‘may review the assessment of that contracting authority as to whether the conditions required for the application of that ground for exclusion were satisfied’ [55].

HSC Baltic & Ors, C-682/21 on publication of list applied by analogy: Publication ‘is intended to facilitate the application of that restriction’ [58]. Its duration ‘must be proportionate to the gravity of the conduct of the economic operator concerned’ and not exceed three years [60].

1. 7.1

   Corrective measures during publication: ‘that possibility should also be accorded to an economic operator which is the subject of such publication.’ [62]

Article 1(1) and (3) of Council Directive 89/665/EEC (Remedies Directive) on ex post judicial remedies applied: List ‘entails, in principle, their temporary exclusion from all procurement procedures’. At least one of the decisions ‘may be subject to the judicial review provided for by that directive.’ [63] Klaipėdos regiono atliekų tvarkymo centras, C-927/19.