Clifford Chance
EU Procurement Update: Excluding Tenderers due to Competition Law Violations
12 April 2024
In Infraestruturas de Portugal, S. A, Futrifer Indústrias Ferroviárias, S. A v Toscca – Equipamentos em Madeira Lda, the Court of Justice of the European Union (CJEU) explored the extent to which national laws can limit the discretion of contracting authorities to exclude economic operators from public tenders on the grounds of unreliability due to failure to comply with competition laws.
At the heart of the matter was the possible exclusion of Portuguese manufacturer Futrifer from a rail tender due to its prior violation of competition rules. The CJEU concluded that contracting authorities should have the discretion in excluding tenderers and any attempt to curtail such discretion does not comply with the EU law.
