30.6.2014

EN

Official Journal of the European Union

C 202/10

(Case C-162/14)

2014/C 202/11

Language of the case: Polish

Parties

Applicant: European Commission (represented by: A. Tokár and K. Herrmann, Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

—Declare that, by maintaining in force grounds for exclusion of economic operators from participation in tendering procedures, as contained in Article 24(1).1 and 1a of the Law governing public contracts (Prawo zamówień publicznych), which go beyond the substantive legal criteria of the exhaustive list of exclusions contained in Article 45(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1), the Republic of Poland has failed to fulfil its obligations under Article 45(2) of that directive;

—Order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

The grounds for excluding an economic operator from a tendering procedure by reason of his professional characteristics as laid down in Article 24(1).1 and 1a of the Law governing public contracts, that is to say, because of (i) the fact that that operator occasioned damage, confirmed by a decision having the force of law, by reason of the non-performance or improper performance of a contract, and (ii) the fact that the economic operator was a party to a contract which the contracting authority cancelled, terminated or renounced by reason of circumstances for which that economic operator bears responsibility, go beyond the scope of the grounds for exclusion set out in Article 45(2), in particular Article 45(2)(d), of Directive 2004/18/EC.

The interpretation of the latter ground was the subject-matter of the judgment of the Court of Justice in Case C-465/11 Forposta and ABC Direct Contact. The Court held in that judgment that the term ‘grave professional misconduct’ in Article 45(2)(d) of Directive 2004/18/EC has to be construed as covering all wrongful conduct which has an impact on the professional credibility of the operator concerned. The Polish grounds for exclusion, however, are not limited solely to conduct on the part of economic operators which points to wrongful intent or negligence of a certain gravity on their part, but require the contracting authority automatically to exclude the operator concerned without carrying out a prior assessment of the wrongful conduct alleged against him.

(1) OJ 2004 L 134, p. 114.

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