The European Commission has decided today to refer Poland to the Court of Justice considering that the Polish legislation transposing the Public Procurement Directives (2014/24/EU and 2014/25/EU and Directive 2014/23/EU) is not fully compliant with the EU legislation.
Polish legislation exempts two categories of contracts from the application of the public procurement rules:
- contracts for the production and distribution of certain public documents such as identity cards, passports, enforcement orders issued by courts, notary documents, medical doctor certificates, driving licences, excise stamps, voting cards, as well as the software for managing such documents;
- contracts for the provision of bank resolution services, such as disbursements by the bank guarantee fund and the restructuring of failing banks;
While the EU public procurement directives allow for certain exemptions for contracts to be awarded without a competitive call for tenders, the Commission considers that these do not apply to the broad categories of contracts exempted by the Polish law. In particular, the Commission considers that the Polish exemptions for the production and distribution of public documents and bank resolution services infringe EU law.
The Commission initially sent Poland a Letter of Formal Notice on 25 January 2019. After assessing the Polish reply, the Commission took further action and sent a Reasoned Opinion on 28 November 2019. As the Commission continues to consider that the non-conformities mentioned above persist, it has decided to refer Poland to the Court of Justice.
Background
EU public procurement legislation requires public contracts above a certain threshold to be put out to tender respecting the principles of transparency, equal treatment and non-discrimination.
In this case, the Commission acts to protect fair competition, promote better value for tax payers’ money and ensure that potentially interested economic operators have access to two categories of contracts that in Poland are not awarded via the competitive calls for tenders required by EU legislation.
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