Impact of competition infringements on European public procurement according to the General Court of the EU
On 2 October 2024, the General Court of the European Union (‘GC’) delivered its judgment in case T-126/23, VC/EU-OSHA.
In this important judgment, the GC has ruled on the significant effects that any sanction adopted by a national competition authority may have on any undertaking seeking to operate in the field of public procurement at European level, in application of the provisions of the Financial Regulation.
Although the GC's judgment is not final - it may be subject to appeal to the CJEU - the conclusions contained therein have major practical implications.
In the case before the GC, the Comisión Nacional de los Mercados y de la Competencia (‘CNMC’) sanctioned a certain entity (‘VC’) for an infringement of Spanish and European antitrust law. The aforementioned entity appealed the CNMC's Resolution before the Audiencia Nacional, filing a request for a precautionary suspension of the enforcement of the Resolution (which was granted by the Audiencia Nacional).
At the same time, that entity submitted a financial bid for one of the lots in a call for tenders issued by the EU-OSHA (European Agency for Safety and Health at Work) for the provision of web services and information and communication technologies. However, EU-OSHA considered that the infringement of antitrust rules sanctioned by the CNMC in Spain was to be considered as ‘grave professional misconduct’ under the Financial Regulation. On that basis, it decided to exclude the company from the tendering procedure in question, as well as to exclude it from any tendering procedure involving EU funds for a period of two years, and to record that fact in the database of the early detection and exclusion system.
The entity affected by that decision challenged it, alleging infringement of its right to effective judicial protection, inasmuch as a sanctioning decision which was not final and which had been judicially suspended at Spanish level could not entail such serious consequences in the field of European public procurement. Furthermore, the appellant argued that it had adopted a proven competition compliance programme which should have been taken into account by the European authorities when imposing the exclusion.
The GC's conclusions have important repercussions on the application of exclusions from tenders (i.e. prohibition from contracting) at European level on the basis of national sanctioning procedures, as well as on the configuration and application in companies of compliance programmes in the field of competition that can serve to avoid the exclusion of companies in public procurement.
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