Case C-465/11

Forposta SA

and

ABC Direct Contact sp. z o.o.

v

Poczta Polska SA

(Reference for a preliminary ruling from the Krajowa Izba Odwoławcza)

‛Directive 2004/18/EC — Article 45(2), first subparagraph, point (d) — Directive 2004/17/EC — Articles 53(3) and 54(4) — Public procurement — Postal services sector — Exclusion criteria in relation to the procedure for the award of a contract — Grave professional misconduct — Protection of the public interest — Maintenance of fair competition’

Summary — Judgment of the Court (Third Chamber), 13 December 2012

Questions referred for a preliminary ruling — Interpretation — Temporal effects of judgments by way of interpretation — Retroactive effect — Limitation by the Court — Conditions — Importance for the Member State concerned of the financial consequences of the judgment — Criterion not conclusive

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a contract — Exhaustive nature of the list of grounds listed in Article 45(2) of the directive — Option of Member States to provide for further exclusionary measures — Conditions

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a contract — Grave professional misconduct — Concept — Interpretation — National legislation laying down a definition based on the existence of circumstances for which that operator is responsible — Excluded — Need for a case-by-case assessment by the contracting authority of the conduct complained of

In order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. The Krajowa Izba Odwoławcza, a body established by the Polish law on public procurement, has been granted exclusive jurisdiction to hear and determine at first instance disputes between economic operators and competent authorities, constitute a court or tribunal, within the meaning of Article 267 TFEU, in the exercise of its jurisdiction in relation to the provisions of that law. The fact that that body may be invested, by virtue of other provisions, with an advisory role is devoid of consequence in that regard. (see paras 17, 18)

Point (d) of the first subparagraph of Article 45(2) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as precluding national legislation which provides that a situation of grave professional misconduct, which leads to the automatic exclusion of an economic operator from a procedure for the award of a public contract in progress, arises where the contracting authority concerned has annulled, terminated or renounced a public contract with that same economic operator owing to circumstances for which that operator is responsible, where the annulment, termination or renouncement occurred in the three-year period before the procedure was initiated and the value of the non-performed part of the contract amounted to at least 5% of the contract’s value. The concept of ‘grave misconduct’ must be understood as normally referring to conduct by the economic operator at issue which denotes a wrongful intent or negligence of a certain gravity on its part. Accordingly, any incorrect, imprecise or defective performance of a contract or a part thereof could potentially demonstrate the limited professional competence of the economic operator at issue, but does not automatically amount to grave misconduct. In addition, in order to find whether grave misconduct exists, a specific and individual assessment of the conduct of the economic operator concerned must, in principle, be carried out. In this regard, the concept of ‘grave misconduct’ cannot be replaced by the concept of ‘circumstances for which the economic operator concerned is responsible’. Consequently, national rules which do not merely follow the general framework for applying point (d) of the first subparagraph of Article 45(2) of Directive 2004/18, but impose on the contracting authorities mandatory requirements and conclusions to be automatically drawn in certain circumstances, without allowing the contracting authority the power to assess, on a case-by-case basis, the gravity of the allegedly wrongful conduct of that operator in the performance of the previous contract, exceed, therefore, the discretion enjoyed by the Member States, pursuant to the second subparagraph of Article 45(2) of that directive, in specifying the implementing conditions for the ground for exclusion set out in point (d) of the first subparagraph of Article 45(2) with regard for EU law. (see paras 30, 31, 33 - 36, operative part 1)

The principles or rules of European Union public procurement law do not allow, on the grounds of the protection of the public interest, the legitimate interests of the contracting authorities or the maintenance of fair competition between economic operators, national legislation, requiring the contracting authorities to automatically exclude an economic operator for grave professional misconduct without carrying out a specific and individual assessment of the conduct of the economic operator concerned. Article 45(2) of Directive 2004/18 on the coordination of procedures for the award of public works contracts exhaustively lists the grounds capable of justifying the exclusion of a contractor from participation in a contract for reasons, based on objective factors, that relate to his professional qualities and therefore precludes Member States from adding to the list contained in that provision other grounds for exclusion based on criteria relating to professional qualities. It is only when the grounds for exclusion concerned do not relate to the professional qualities of economic operators, and, therefore, do not fall within that exhaustive list that it is possible to consider whether those grounds may be permissible under the principles or other rules of European Union public procurement law (see paras 38, 39, 41, operative part 2)

In the exercise of the jurisdiction conferred on it by Article 267 TFEU, it is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the European Union legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. More specifically, the Court takes that step only in quite specific circumstances, where there is a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appears that individuals and national authorities were led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of provisions of EU law, to which the conduct of other Member States or the European Commission may even have contributed. (see paras 44, 45)