# C_2023094EN.01000802.xml

| 13.3.2023 | EN | Official Journal of the European Union | C 94/8 |
| --- | --- | --- | --- |

13.3.2023

EN

Official Journal of the European Union

C 94/8

---

Judgment of the Court (Fourth Chamber) of 26 January 2023 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — ‘HSC Baltic’ UAB, ‘Mitnija’ UAB, ‘Montuotojas’ UAB v Vilniaus miesto savivaldybės administracija

(Case C-682/21, (1) HSC Baltic and Others)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Article 57(4)(g) - Optional ground for exclusion linked to deficiencies in the context of a prior contract - Contract awarded to a group of economic operators - Early termination of that contract - Automatic inclusion of all members of the group on a list of unreliable suppliers - Principle of proportionality - Directive 89/665/EEC - Article 1(1) and (3) - Right to an effective remedy)

(2023/C 94/08)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Applicants:‘HSC Baltic’ UAB, ‘Mitnija’ UAB, ‘Montuotojas’ UAB

Defendant: Vilniaus miesto savivaldybės administracija

Intervening parties:‘Active Construction Management’ UAB, in liquidation, ‘Vilniaus vystymo kompanija’ UAB

Operative part of the judgment

| 1. | Article 18(1) and Article 57(4)(g) of 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
  must be interpreted as precluding national rules or practice under which, when the contracting authority terminates early a public contract awarded to a group of economic operators on account of significant or persistent deficiencies which have resulted in the non-performance of a substantive requirement in relation to that contract, each member of that group is automatically entered on a list of unreliable suppliers and thereby temporarily prevented, in principle, from participating in new public procurement procedures. |
| --- | --- |

1.

Article 18(1) and Article 57(4)(g) of 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

must be interpreted as precluding national rules or practice under which, when the contracting authority terminates early a public contract awarded to a group of economic operators on account of significant or persistent deficiencies which have resulted in the non-performance of a substantive requirement in relation to that contract, each member of that group is automatically entered on a list of unreliable suppliers and thereby temporarily prevented, in principle, from participating in new public procurement procedures.

| 2. | Article 18(1) and Article 57(4)(g) of Directive 2014/24
  must be interpreted as meaning that an economic operator which is a member of a group which submitted the successful tender for a public contract may, in the event that contract is terminated early for failure to comply with a substantive requirement, rely, for the purpose of demonstrating that its entry on a list of unreliable suppliers is unjustified, on any factor, including any factor concerning third parties, such as the lead partner of that group, which is capable of showing that it was not the cause of the deficiencies which resulted in the early termination of that contract and that it could not reasonably be required to do more than it did in order to remedy those deficiencies. |
| --- | --- |

2.

Article 18(1) and Article 57(4)(g) of Directive 2014/24

must be interpreted as meaning that an economic operator which is a member of a group which submitted the successful tender for a public contract may, in the event that contract is terminated early for failure to comply with a substantive requirement, rely, for the purpose of demonstrating that its entry on a list of unreliable suppliers is unjustified, on any factor, including any factor concerning third parties, such as the lead partner of that group, which is capable of showing that it was not the cause of the deficiencies which resulted in the early termination of that contract and that it could not reasonably be required to do more than it did in order to remedy those deficiencies.

| 3. | Article 1(1) and (3) of 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, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014,
  must be interpreted as meaning that a Member State which provides, when laying down conditions for the application of the optional ground for exclusion provided for in Article 57(4)(g) of Directive 2014/24, that the members of a group of economic operators which submitted a successful tender for a public contract are, in the event of early termination of that contract for failure to comply with a substantive requirement, entered on a list of unreliable suppliers and accordingly temporarily excluded, in principle, from participating in new public procurement procedures, must ensure the right of those operators to bring an effective action against their entry on that list. |
| --- | --- |

3.

Article 1(1) and (3) of 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, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014,

must be interpreted as meaning that a Member State which provides, when laying down conditions for the application of the optional ground for exclusion provided for in Article 57(4)(g) of Directive 2014/24, that the members of a group of economic operators which submitted a successful tender for a public contract are, in the event of early termination of that contract for failure to comply with a substantive requirement, entered on a list of unreliable suppliers and accordingly temporarily excluded, in principle, from participating in new public procurement procedures, must ensure the right of those operators to bring an effective action against their entry on that list.

---

(1)  OJ C 84, 21.2.2022.

---