# C_2022084EN.01002502.xml

| 21.2.2022 | EN | Official Journal of the European Union | C 84/25 |
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21.2.2022

EN

Official Journal of the European Union

C 84/25

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 11 November 2021 — ‘HSC Baltic’ UAB, ‘Mitnija’ UAB, ‘Montuotojas’ UAB v Vilniaus miesto savivaldybės administracija

(Case C-682/21)

(2022/C 84/33)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellants in cassation:‘HSC Baltic’ UAB

‘Mitnija’ UAB

‘Montuotojas’ UAB

Other parties to the proceedings in cassation: Vilniaus miesto savivaldybės administracija

Bankrutuojanti UAB ‘Active Construction Management’

‘Vilniaus vystymo kompanija’ UAB

Questions referred

| 1. | Are Article 18(1) and Article 57(4)(g) and (6) of Directive 2014/24 (1) and the fourth subparagraph of Article 1(1) and Article 1(3) of Directive 89/665 (2) (together or separately, but without limitation to those provisions) to be interpreted as meaning that a decision of a contracting authority to enter the economic operator concerned on the list of unreliable suppliers and thus restrict for a certain period its ability to participate in procurement procedures announced subsequently on the ground that that economic operator has substantially breached a contract concluded with that contracting authority is a measure which may be challenged before a court? |
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1.

Are Article 18(1) and Article 57(4)(g) and (6) of Directive 2014/24 (1) and the fourth subparagraph of Article 1(1) and Article 1(3) of Directive 89/665 (2) (together or separately, but without limitation to those provisions) to be interpreted as meaning that a decision of a contracting authority to enter the economic operator concerned on the list of unreliable suppliers and thus restrict for a certain period its ability to participate in procurement procedures announced subsequently on the ground that that economic operator has substantially breached a contract concluded with that contracting authority is a measure which may be challenged before a court?

| 2. | If the answer to the first question is in the affirmative, are the provisions of EU law cited above (together or separately, but without limitation to those provisions) to be interpreted as precluding national rules and the practice for applying them under which: (a) the contracting authority, when terminating a public procurement contract on the ground of a substantial breach thereof, does not take any formal (separate) decision concerning the entry of economic operators on the list of unreliable suppliers; (b) an economic operator is not informed in advance about forthcoming entry on the list of unreliable suppliers and is therefore unable to submit relevant explanations and subsequently to contest entry effectively; (c) the contracting authority does not carry out any individual examination of the circumstances of improper performance of a contract, and therefore, if the public procurement contract has been lawfully terminated on the ground of a substantial breach thereof, the economic operator de jure responsible for that breach is automatically entered on the list of unreliable suppliers? |
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2.

If the answer to the first question is in the affirmative, are the provisions of EU law cited above (together or separately, but without limitation to those provisions) to be interpreted as precluding national rules and the practice for applying them under which: (a) the contracting authority, when terminating a public procurement contract on the ground of a substantial breach thereof, does not take any formal (separate) decision concerning the entry of economic operators on the list of unreliable suppliers; (b) an economic operator is not informed in advance about forthcoming entry on the list of unreliable suppliers and is therefore unable to submit relevant explanations and subsequently to contest entry effectively; (c) the contracting authority does not carry out any individual examination of the circumstances of improper performance of a contract, and therefore, if the public procurement contract has been lawfully terminated on the ground of a substantial breach thereof, the economic operator de jure responsible for that breach is automatically entered on the list of unreliable suppliers?

| 3. | If the answers to the first two questions are in the affirmative, are the provisions of EU law cited above (together or separately, but without limitation to those provisions) to be interpreted as meaning that joint-activity partners (entities forming a joint supplier) which performed the public procurement contract lawfully terminated on the ground of a substantial breach may demonstrate their reliability and thus be excluded from the list of unreliable suppliers, inter alia, on the basis of the amount of the share (value) of the contract performed, the insolvency of the lead partner, actions on the part of that partner and the contracting authority’s contribution to non-performance of the contract? |
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3.

If the answers to the first two questions are in the affirmative, are the provisions of EU law cited above (together or separately, but without limitation to those provisions) to be interpreted as meaning that joint-activity partners (entities forming a joint supplier) which performed the public procurement contract lawfully terminated on the ground of a substantial breach may demonstrate their reliability and thus be excluded from the list of unreliable suppliers, inter alia, on the basis of the amount of the share (value) of the contract performed, the insolvency of the lead partner, actions on the part of that partner and the contracting authority’s contribution to non-performance of the contract?

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(1)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

(2)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

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