The European Commission has today decided to refer Poland to the Court of Justice of the EU for incorrect implementation of the provisions of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.
The Commission believes that the provisions of the Polish Public Procurement Act may substantially hinder access to procurement markets. According to these provisions, economic operators are excluded from tendering procedures if they have caused damage by failing to perform a previous contract properly or if a contracting authority has terminated a previous contract due to circumstances for which that operator was responsible. This automatic exclusion also applies in cases where the economic operator has not acted in an intentional or even negligent manner. These grounds for exclusion related to the professional qualities of the economic operator do not figure in the exhaustive list of such grounds contained in Directive 2004/18/EC and may result in discriminatory treatment. For these reasons, the Commission considers that Poland has failed to comply with the requirements of EU public procurement law.
The Commission addressed a reasoned opinion (the second stage of the infringement proceeding) to the Polish authorities in September 2012 (see MEMO/12/708). In December 2012, the Court of Justice of the EU handed down a judgment in a similar case (C-465/11) which confirmed the aforementioned position of the Commission. However, up to now, the Polish authorities have not taken the necessary legislative measures.
Source : European Commission