EN Official Journal of the European Union C 38/8

Judgment of the Court (Third Chamber) of 13 December 2012 (request for a preliminary ruling from the Krajowa Izba Odwoławcza — Poland) — Forposta SA, ABC Direct Contact sp. z o.o. v Poczta Polska SA

(Case C-465/11) (1)

(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)

2013/C 38/09

Language of the case: Polish

Referring court

Krajowa Izba Odwoławcza

Parties to the main proceedings

Applicants: Forposta SA, ABC Direct Contact sp. z o.o.

Defendant: Poczta Polska SA

Re:

Request for a preliminary ruling — Krajowa Izba Odwoławcza — Interpretation of point (d) of the first subparagraph of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) and of Articles 53(3) and 54(4) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) — Grounds justifying the exclusion of an economic operator from participation in the tendering procedure — Concept of ‘grave professional misconduct’ — National legislation which obliges the contracting authority to exclude a tenderer with which that authority concluded a contract which it terminated in the three-year period prior to the award procedure on the ground of non-performance relating to at least 5 % of the value of the contract.

Operative part of the judgment

1. Point (d) of the first subparagraph of Article 45(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 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 the economic operator at issue 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.

2. The principles or rules of European Union public procurement law does 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, such as that at issue in the main proceedings, requiring the contracting authorities to automatically exclude an economic operator from a procedure for the award of a public contract in a situation such as that referred to in the reply to the first question referred for a preliminary ruling.

(1) OJ C 13, 14.1.2012.