Provisional text
JUDGMENT OF THE COURT (Seventh Chamber)
15 October 2026 (*)
( Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Award of contracts – Article 57(4), first subparagraph, point (h), and Article 57(6) and (7) – Facultative grounds for exclusion from participation in a procurement procedure – Submission by an economic operator of false information on meeting capacity conditions – Inclusion on a list of providers that have provided false information during a public procurement procedure – Article 18(1) – Principle of proportionality – Directive 89/665/EEC – Article 1 – Right to an effective remedy )
In Case C‑402/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos administracinių ginčų komisija (Administrative Disputes Commission, Lithuania), made by decision of 12 June 2025, received at the Court on 17 June 2025, in the proceedings
Plungės rajono savivaldybės administracija
v
Viešųjų pirkimų tarnyba,
intervening parties:
‘VA Statyba’ UAB,
THE COURT (Seventh Chamber),
composed of Z. Csehi, President of the Chamber, M. Gavalec (Rapporteur) and F. Schalin Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: V. Di Bucci,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– the Lithuanian Government, by K. Dieninis, U. Jakaitytė and V. Kazlauskaitė‑Švenčionienė, acting as Agents,
– the European Commission, by A. Biolan, J. Jokubauskaitė and G. Wils, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 18(1) and of point (h) of the first subparagraph of Article 57(4) 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 (OJ 2014 L 94, p. 65), as amended by Commission Delegated Regulation (EU) 2021/1952 of 10 November 2021 (OJ 2021 L 398, p. 23) (‘Directive 2014/24’); of the fourth subparagraph of Article 1(1) 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 (OJ 1989 L 395, p. 33), as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 (OJ 2014 L 94, p. 1) (‘Directive 89/665’); and of the principle of proportionality.
2 The request has been made in proceedings between the Plungės rajono savivaldybės administracija (Plungė District Municipality Administration, Lithuania) (‘the contracting authority’) and the Viešųjų pirkimų tarnyba (Public Procurement Authority, Lithuania) in relation to the inclusion of the company ‘VA Statyba’ UAB on the list of providers that have supplied false information, as provided for by Lithuanian law.
Legal context
European Union law
Directive 89/665
3 Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’, provides, in paragraphs 1 to 3:
‘1. This Directive applies to contracts referred to in Directive [2014/24] … unless such contracts are excluded in accordance with Articles 7, 8, 9, 10, 11, 12, 15, 16, 17 and 37 of that Directive.
…
Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive [2014/24], decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Union law in the field of public procurement or national rules transposing that law.
…
3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.’
Directive 2014/24
4 Recitals 14, 101 and 102 of Directive 2014/24 state:
‘(14) It should be clarified that the notion of “economic operators” should be interpreted in a broad manner so as to include any persons and/or entities which offer the execution of works, the supply of products or the provision of services on the market, irrespective of the legal form under which they have chosen to operate. Thus, firms, branches, subsidiaries, partnerships, cooperative societies, limited companies, universities, public or private, and other forms of entities than natural persons should all fall within the notion of economic operator, whether or not they are “legal persons” in all circumstances.
…
(101) Contracting authorities should further be given the possibility to exclude economic operators which have proven unreliable, for instance because of violations of environmental or social obligations, including rules on accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights. It should be clarified that grave professional misconduct can render an economic operator’s integrity questionable and thus render the economic operator unsuitable to receive the award of a public contract irrespective of whether the economic operator would otherwise have the technical and economical capacity to perform the contract.
… contracting authorities should also remain free to consider that there has been grave professional misconduct, where, before a final and binding decision on the presence of mandatory exclusion grounds has been rendered, they can demonstrate by any appropriate means that the economic operator has violated its obligations, including obligations relating to the payment of taxes or social security contributions, unless otherwise provided by national law. They should also be able to exclude candidates or tenderers whose performance in earlier public contracts has shown major deficiencies with regard to substantive requirements, for instance failure to deliver or perform, significant shortcomings of the product or service delivered, making it unusable for the intended purpose, or misbehaviour that casts serious doubts as to the reliability of the economic operator. National law should provide for a maximum duration for such exclusions.
In applying facultative grounds for exclusion, contracting authorities should pay particular attention to the principle of proportionality. Minor irregularities should only in exceptional circumstances lead to the exclusion of an economic operator. However repeated cases of minor irregularities can give rise to doubts about the reliability of an economic operator which might justify its exclusion.
(102) Allowance should, however, be made for the possibility that economic operators can adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour. Those measures might consist in particular of personnel and organisational measures such as the severance of all links with persons or organisations involved in the misbehaviour, appropriate staff reorganisation measures, the implementation of reporting and control systems, the creation of an internal audit structure to monitor compliance and the adoption of internal liability and compensation rules. Where such measures offer sufficient guarantees, the economic operator in question should no longer be excluded on those grounds alone. …’
5 Article 2 of that directive, entitled ‘Definitions’, provides, in paragraph 1:
‘For the purposes of this Directive, the following definitions apply:
…
10. “economic operator” means any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;
…’
6 Article 4(a) states that the directive is to apply to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than the threshold of EUR 5 382 000 for public works contracts.
7 Article 18 of that directive, entitled ‘Principles of procurement’, provides:
‘1. Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.
2. Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.’
8 Article 57 of that directive, entitled ‘Exclusion grounds’, provides, in paragraphs 4 to 7:
‘4. Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:
(a) where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2);
…
(h) where the economic operator has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria, has withheld such information or is not able to submit the supporting documents required pursuant to Article 59; or
…
5. Contracting authorities shall at any time during the procedure exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs 1 and 2.
At any time during the procedure, contracting authorities may exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph 4.
6. Any economic operator that is in one of the situations referred to in paragraphs 1 and 4 may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.
For this purpose, the economic operator shall prove that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities and taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.
The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons for that decision.
An economic operator which has been excluded by final judgment from participating in procurement or concession award procedures shall not be entitled to make use of the possibility provided for under this paragraph during the period of exclusion resulting from that judgment in the Member States where the judgment is effective.
7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. They shall, in particular, determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability. Where the period of exclusion has not been set by final judgment, that period shall not exceed five years from the date of the conviction by final judgment in the cases referred to in paragraph 1 and three years from the date of the relevant event in the cases referred to in paragraph 4.’
9 Article 58 of Directive 2014/24, entitled ‘Selection criteria’, states, in paragraph 1:
‘Selection criteria may relate to:
(a) suitability to pursue the professional activity;
(b) economic and financial standing;
(c) technical and professional ability.
Contracting authorities may only impose criteria referred to in paragraphs 2, 3 and 4 on economic operators as requirements for participation. They shall limit any requirements to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the technical and professional abilities to perform the contract to be awarded. All requirements shall be related and proportionate to the subject matter of the contract.’
Lithuanian law
The Law on Public Administration
10 Article 3(4) and (10) of the Lietuvos Respublikos viešojo administravimo įstatymas (Law of the Republic of Lithuania on Public Administration) states that public administration bodies are to perform their duties in compliance, inter alia, with the principles of legality and proportionality.
The Law on Public Procurement
11 The Lietuvos Respublikos viešųjų pirkimų įstatymas (Law of the Republic of Lithuania on Public Procurement), in the version applicable to the case in the main proceedings (‘the Law on Public Procurement’), provides, in Article 2(36):
‘The term “supplier” – economic operator – means a natural or legal person governed by private or public law, another organisation and its members or a group composed of such persons, including a temporary association of economic operators, which offers to supply goods or services on the market.’
12 Article 46 of that law, entitled ‘Grounds for the exclusion of a supplier’, provides, in paragraph 4 and in 10 to 12:
‘4. The contracting authority shall exclude a supplier from the procurement procedure where:
…
(4) that supplier, in the course of the procurement procedure, has withheld information or submitted false information concerning compliance with the requirements set out in this article and in Article 47 of this law and the contracting authority can demonstrate that circumstance by any legal means, or where the supplier is not able to submit the supporting documents required pursuant to Article 50 of this law owing to the submission of false information. The supplier shall also be excluded from the procurement procedure on that ground where it has, in a previous procurement procedure … withheld information or submitted false information as referred to in this paragraph, or it was not able to submit the supporting documents required pursuant to Article 50 of this law owing to the submission of false information, and was excluded for that reason in the preceding year from public procurement … procedures. …
…
10. Where a supplier is covered by one of the exclusion grounds set out in paragraphs 1, 4 and 6 of the present article, the contracting authority shall not exclude it from the procurement procedure where both of the following conditions are met:
(1) the supplier has provided the contracting authority with information demonstrating that it has adopted the following measures:
(a) it has voluntarily paid or has undertaken to pay compensation in respect of any damage caused by the offence or infringement referred to in paragraphs 1, 4 or 6 of this article, as appropriate;
(b) it has cooperated, actively assisted or taken other measures which help to shed light on or clarify the offence or infringement committed by it, as appropriate;
(c) it has taken technical, organisational or personnel management measures designed to prevent further offences or infringements;
(2) the contracting authority has evaluated the information submitted by the supplier under point 1 of the present paragraph and has adopted a reasoned decision finding that the measures taken by the supplier to demonstrate its reliability are sufficient. The sufficiency of those measures shall be assessed in the light of the gravity and circumstances of the offence or infringement. The contracting authority shall notify its reasoned decision to the supplier, in writing, within 10 days at the latest of receipt of the information referred to in point 1 of this paragraph.
11. When a supplier has been excluded, by a judicial decision which has become res judicata, from procurement and concession award procedures, it may not benefit from the possibility provided for in paragraph 10 of this article for the period set by that judicial decision.
12. Where an exclusion period has been established with respect to a supplier, by a judicial decision that has become res judicata, for one of the grounds of exclusion referred to in paragraphs 1, 2, 21, 4 and 6 of the present article, the contracting authority shall exclude the supplier from the procurement procedure for the period established by that judicial decision.’
13 Article 52 of the Law on Public Procurement, entitled ‘Withholding information, submission of false information or failure to produce documents’, provides, in paragraphs 1 and 4:
‘1. The contracting authority shall publish, in the Central Public Procurement Information System, in accordance with the rules laid down by the Public Procurement Authority, the following information relating to a supplier (or each member of a group of suppliers) which, in the course of the procurement procedure, has withheld information or has provided false information concerning compliance with the requirements set out in Articles 46 and 47 of this Law or which, due to the submission of false information, is unable to produce the supporting documents required under Article 50 of this Law:
(1) the name of the supplier (or the name and family name if the supplier is a physical person), the date of the decision of the contracting authority to exclude the supplier from the procurement procedure pursuant to Article 46(4)(4) of the present law, and the reasons for which that decision was taken;
(2) the date when the supplier brought judicial proceedings to contest the decision of the contracting authority to exclude it from the procurement procedure;
(3) the date the judicial decision finding that there were no grounds to uphold the supplier’s application contesting the decision of the contracting authority to exclude it from the procurement procedure became res judicata and a link to that decision.
…
4. The publication of the information foreseen in this article is intended to inform contracting authorities, awarding bodies and granting authorities of the reason for which a supplier was excluded from the procurement procedure or a tenderer from the procedure to grant a concession. In the framework of the functions entrusted to it in Article 95(1)(11) of the present law, the Public Procurement Authority shall ensure that the period of publication of the information referred to in this article shall not exceed one year, counting from the date of the decision of the contracting authority to exclude the supplier from the procurement procedure pursuant to Article 46(4)(4) of the present law.’
14 Article 95 of the Law on Public Procurement provides:
‘1. The Public Procurement Authority shall have the following tasks:
…
(11) it shall oversee the information published by contracting authorities, in accordance with Article 91(1) of this law, on suppliers which have not performed or which have failed properly to perform a contract and, in accordance with Article 52(1) of this law, on suppliers which, in public procurement procedures, have withheld information or have submitted false information concerning compliance with the rules set out in Articles 46 and 47 of this law, or concerning suppliers which, owing to the submission of false information, have not submitted the supporting documents required pursuant to Article 50 of this law;
…
2. The Public procurement Authority shall have the power:
…
(6) if it has found an infringement of this law or of an act implementing that law, to order, in compliance with the principles of fairness and reasonableness, the legal person to terminate the procurement procedure, to carry out procurement procedures in accordance with this law, to amend or to annul unlawful decisions or acts, including a decision to acquire goods, services or works without applying the requirements of this law and the acts implementing it and, if it has found that the contract or the framework contract has been entered into unlawfully, to bring judicial proceedings in order to have the contract or the framework contract declared as void and/or for the application of other penalties, in order to protect the public interest;
…’
The dispute in the main proceedings and the question referred for a preliminary ruling
15 By a notice of a public call for competition published in July 2023, the contracting authority launched an open international procurement procedure for the award of a contract for the construction of a mixed sport and health complex in Plungė (Lithuania).
16 In that notice, the contracting authority set out the participation conditions for economic operators, which included two capacity conditions, relating, in essence, to the amount of revenue obtained from construction activity over the preceding three financial years and to the successful completion of specific types of construction work over the preceding five years.
17 It is apparent from the information provided by the referring court that the estimated value of the contract was EUR 7 453 375 net of VAT, namely an amount that was greater than the threshold established in Article 4(a) of Directive 2014/24, as referred to in paragraph 6 above.
18 After informing the suppliers, on 5 September 2023, of the final ranking of the tenders and of the award of the contract to VA Statyba, the awarding authority concluded a construction contract with the latter on 10 0ctober 2023.
19 The second-ranked tenderer brought an action before the Klaipėdos apygardos teismas (Klaipėda Regional Court, Lithuania), claiming that VA Statyba had provided false information in relation to compliance with those two capacity conditions and seeking, inter alia, to have VA Statyba included on the list of suppliers that have provided false information, pursuant to the relevant provisions of the Law on Public Procurement.
20 By judgment of 29 December 2023, the regional court found that VA Statyba had provided false information to the contracting authority with respect to compliance with the capacity conditions in question, holding that those actions had misled the contracting authority by gross negligence. The court therefore found that the conditions for excluding that company from the procurement procedure, pursuant to Article 46(4)(4) of the Law on Public Procurement, were satisfied.
21 Consequently, the regional court decided to annul the decision of the contracting authority of 5 September 2023, while maintaining the contract that had been concluded unlawfully between that authority and VA Statyba; it also stayed the proceedings in relation to the obligation on the contracting authority to include the company on the list of suppliers which have provided false information. In addition, it imposed a financial penalty on the contracting authority that was at 1% of the value of the contract.
22 By judgment of 15 March 2024, the Lietuvos apeliacinis teismas (Court of Appeal of Lithuania) upheld the first-instance judgment.
23 Subsequent to the appeal judgment, the contracting authority did not place VA Statyba’s name on the list of suppliers that have provided false information since it was of the view that the conditions required in that regard under the Law on Public Procurement were not met.
24 Disagreeing with the contracting authority's position, the Public Procurement Authority ordered it, by decision of 27 February 2025, to include VA Statyba on the list of suppliers that have provided false information.
25 On 28 April 2025, the contracting authority brought an action for annulment of that decision before the Lietuvos administracinių ginčų komisija (Administrative Disputes Commission, Lithuania), which is the referring court.
26 In support of its action, the contracting authority argues that it is apparent from Article 52(1) of the Law on Public Procurement that suppliers are to be included on the list of suppliers that have provided false information only where, pursuant to Article 46(4)(4) of that law, they have been excluded from the procurement procedure by decision of the contracting authority. According to the latter, that law therefore does not provide that a contracting authority may include a supplier on the list in question when it is a court, rather than the contracting authority, that has found that a supplier provided false information.
27 By contrast, the Public Procurement Authority argues that Article 52(1) of the Law on Public Procurement leaves no discretion to the contracting authority in deciding on the inclusion of a supplier on the list of suppliers that have provided false information once that fact has been established by a judicial decision that has become res judicata.
28 In those circumstances, the Lietuvos administracinių ginčų komisija (Lithuanian Administrative Disputes Commission) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is the practice of the contracting authority being obliged to disclose the name of any supplier (economic operator) which has provided false information regarding its compliance with the qualification requirements, regardless of the fact that the contracting authority has not taken a decision to exclude such a supplier (economic operator) from participating in the procurement procedure before the end of the procurement procedure (conclusion of the contract) compatible with the objectives of [Directive 2014/24], and Article 18(1), Article 57(4)(h) thereof, as well as the objectives of Directive [89/665] and the fourth subparagraph of Article 1(1) thereof, whether taken together or separately, but not limited to those provisions, and with the principle of proportionality?’
Consideration of the question referred
Admissibility
29 The Lithuanian Government claims that the request for a preliminary ruling is inadmissible.
30 In that regard, it argues that there is no provision in Directives 89/665 and 2014/24 that requires a contracting authority, pursuant, where applicable, to a decision by the Public Procurement Authority, to include an economic operator on the list of suppliers that have provided false information, such that the outcome of the main proceedings depends solely on the interpretation of the relevant provisions of national law.
31 Furthermore, the Government argues that, even though the question referred concerns the interpretation of the provisions of Directives 89/665 and 2014/24, the referring court does not explain the manner in which those provisions are linked with the main proceedings or why it needs the interpretation it has requested in order to make a ruling.
32 In that regard, it should be observed that, in accordance with settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 19 December 2024, Tudmur, C‑185/24 and C‑189/24, EU:C:2024:1036, paragraph 26 and the case-law cited).
33 In order to allow the Court to provide an interpretation of EU law that may be of use to the national court, Article 94(c) of the Rules of Procedure of the Court of Justice requires that the request for a preliminary ruling is to contain a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings.
34 In the present case, it is apparent from the request for a preliminary ruling that the referring court is adjudicating in proceedings between the contracting authority and the Public Procurement Authority concerning the inclusion of an economic operator that has provided false information on compliance with capacity conditions – which is thus liable to be penalised by a decision to exclude it from the procurement procedure – on the list of suppliers that have provided false information.
35 By its question referred for a preliminary ruling, that court expressly seeks guidance from the Court on the interpretation of EU law and, more specifically, on the interpretation to be given to the fourth subparagraph of Article 1(1) of Directive 89/665 and to Article 18(1) and point (h) of the first subparagraph of Article 57(4) of Directive 2014/24.
36 The referring court enquires whether those provisions must be interpreted as precluding a national law or practice that enables such an authority to order a contracting authority to include the name of an economic operator on that list, even though that contracting authority did not exclude the operator from the procurement procedure before the latter’s completion and the finding that that operator was guilty of misrepresentation was made by a judicial decision that has become final.
37 It is thus not the case that it is obvious that the interpretation of Directives 89/665 and 2014/24 sought bears no relation to the actual facts of the main action or its purpose or that the problem raised is hypothetical.
38 The question referred for a preliminary ruling indeed concerns the interpretation of provisions of EU law and, since the Court’s answer will enable the referring court to rule whether the national law and practice complies with Directives 89/665 and 2014/24, that question is relevant for the outcome of the main proceedings.
39 In those circumstances, the plea based on the inapplicability of those directives to the main proceedings does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of that request (see, to that effect, judgment of 27 November 2025, Gryczara, C‑746/24, EU:C:2025:925, paragraph 38 and the case-law cited).
40 The request for a preliminary ruling is therefore admissible.
Substance
41 By its question, the referring court asks, in essence, whether Article 18(1) and point (h) of the first subparagraph of Article 57(4) of Directive 2014/24 and Article 1(1) and (3) of Directive 89/665 must be interpreted as precluding a national law or practice by which an authority responsible for public procurement is empowered to order a contracting authority to publish the name of an economic operator that has provided false information concerning compliance with capacity conditions, even though that contracting authority did not exclude the operator from the procurement procedure before the latter’s completion and the finding that the operator was guilty of serious misrepresentation was made by a judicial decision that has become final.
42 In that regard, it should be borne in mind that the first subparagraph of Article 57(4) of Directive 2014/24 requires Member States to transpose the facultative grounds for exclusion set out in that provision into their national law and that, in the context of that obligation to transpose, those States must provide for either the option or the obligation for contracting authorities to apply those grounds (see, to that effect, judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C‑66/22, EU:C:2023:1016, paragraph 58).
43 Those grounds include, in point (h) of the first subparagraph of Article 57(4) of that directive, a situation where an economic operator has been guilty of serious misrepresentation in supplying the information required for the verification, inter alia, of the fulfilment of the selection criteria.
44 As is apparent from that provision, read in conjunction with recital 101 of that directive, the object and purpose of that optional ground are to exclude economic operators whose reliability is seriously compromised on account of false statements that have been made either deliberately or negligently by those operators.
45 When laying down, in its national legislation, the conditions for the application of that optional ground for exclusion, each Member State must respect the essential characteristics thereof, as expressed in point (h) of the first subparagraph of Article 57(4) of Directive 2014/24 (see, to that effect, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraph 33).
46 Moreover, the application of that optional ground for exclusion must comply with the principle of proportionality, a general principle of EU law that is restated, as regards public procurement, in Article 18(1) of Directive 2014/24, and the observance of which, when applying that optional ground for exclusion, warrants particular attention (judgment of 30 January 2020, Tim, C‑395/18, EU:C:2020:58, paragraphs 45 and 48 and the case-law cited).
47 In that regard, that exclusion must, first, be temporary. It follows from recital 101 of Directive 2014/24 that any act of national law laying down, inter alia, the conditions for the application of point (h) of the first subparagraph of Article 57(4) of that directive must provide for a maximum exclusion duration. Article 57(7) of that directive states, as regards an optional ground for exclusion, that, where it has not been set by final judgment, that period is not to exceed three years (judgment of 26 January 2023, HSC Baltic and Others, C‑682/21, EU:C:2023:48, paragraph 39).
48 Second, during that exclusion period, the economic operator concerned must, unless it has been excluded from any participation in a procedure for the award of a public contract by a final judgment, be allowed to participate in such a procedure if, in accordance with Article 57(6) of Directive 2014/24, read in conjunction with recital 102 thereof, it provides evidence showing that the measures which it has taken are sufficient to demonstrate its reliability. Economic operators are accordingly encouraged to adopt corrective measures (see, to that effect, judgments of 3 June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph 35, and of 26 January 2023, HSC Baltic and Others, C‑682/21, EU:C:2023:48, paragraph 40 and the case-law cited).
49 Third, the principle of proportionality requires a specific assessment of the attitude and actions of the operator concerned, on the basis of all the relevant factors (see, to that effect, judgment of 3 June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph 40 and the case-law cited). In that regard, it is clear from the wording of point (h) of the first subparagraph of Article 57(4) of that directive that, as regards, in particular, serious misrepresentation in supplying the information required for the verification of the fulfilment of the selection criteria, the guilt of the economic operator concerned must be examined and established. Furthermore, in accordance with recital 101 of that directive, a minor irregularity should only in exceptional circumstances lead to the exclusion of an economic operator.
50 The referring court enquires whether it is only the contracting authority that may find, during the procurement procedure, that the conditions for applying the optional ground for exclusion set out in point (h) of the first subparagraph of Article 57(4) of Directive 2014/24 are met, or whether that power may also be exercised by a court after that procedure has ended. It also raises the question of whether an authority responsible for public procurement may be empowered to order a contracting authority, in the light of such a finding, to publish the name of the economic operator at issue on the list of suppliers found guilty of serious misrepresentation.
51 Article 57 of Directive 2014/24 does not preclude a finding being made by a court, after the procedure has ended, that an economic operator supplied false information concerning fulfilment of a procurement procedure’s selection criteria.
52 In that regard, it is irrelevant whether or not that economic operator has been excluded from the procurement procedure concerned.
53 First, in accordance with the second subparagraph of Article 57(5) of Directive 2014/24, contracting authorities may at any time during the procedure exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in point (h) of the first subparagraph of Article 57(4). The ground for exclusion set out in that provision may therefore be applied both in the public procurement procedure in which the economic operator was guilty of misrepresentation in providing the information required for verification of the fulfilment of the selection criteria and in subsequent public procurement procedures (see, to that effect, judgments of 3 October 2019, Delta Antrepriză de Construcţii şi Montaj 93, C‑267/18, EU:C:2019:826, paragraphs 34 and 35, and of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C‑66/22, EU:C:2023:1016, paragraphs 67 to 69).
54 Moreover, since a Member State may require contracting authorities to exclude an economic operator that is in such a situation from public procurement procedures, that Member State should also be able to empower the relevant responsible national authority to decide whether or not it is necessary to adopt a decision imposing such an obligation on those contracting authorities.
55 Second, given that a decision by which a contracting authority refuses, even implicitly, to exclude an economic operator from a procurement procedure on one of the optional grounds for exclusion laid down in the first subparagraph of Article 57(4) of Directive 2014/24 must be capable of being challenged, the national court before which the case is brought may review the assessment of that contracting authority as to whether the conditions required for the application of that ground for exclusion were satisfied with regard to the economic operator (see, to that effect, judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras, C‑927/19, EU:C:2021:700, paragraphs 143 and 144).
56 In the present case, the Klaipėdos apygardos teismas (Klaipėda Regional Court) found, by its judgment of 29 December 2023, which was upheld on appeal, that VA Statyba had, owing to gross negligence, provided false information concerning compliance with the two capacity conditions established by the contracting authority for allowing economic operators to take part in the public procurement procedure at issue in the main proceedings. On the basis of that finding, the regional court held in that judgment that all the conditions were met for applying the optional ground of exclusion referred to in point (h) of the first subparagraph of Article 57(4) of Directive 2014/24.
57 In order to provide a useful response to the referring court, it is appropriate to clarify whether and, if so, under what conditions, Directive 2014/24 allows an authority responsible for public procurement to be granted a power to issue orders by which it may oblige a contracting authority to include an economic operator on a list which targets economic operators that have been found guilty by a final judgment of serious misrepresentation in a public procurement procedure.
58 In that regard, it is apparent from the case-law of the Court that point (h) of the first subparagraph of Article 57(4) of Directive 2014/24 and the principle of proportionality set out in Article 18(1) thereof permits the temporary publication, on a list intended to facilitate the management of public procurement procedures, of the names of economic operators which have been found guilty of providing false information concerning compliance with capacity conditions in such procedures. First, that optional ground for exclusion seeks to restrict such operators’ access to public procurement procedures by a prohibition in principle on participation in those procedures and, second, that publication, which is accessible to contracting authorities and other bodies responsible for public procurement, is intended to facilitate the application of that restriction (see, by analogy, judgment of 26 January 2023, HSC Baltic and Others, C‑682/21, EU:C:2023:48, paragraphs 44 and 45).
59 It follows that those provisions of Directive 2014/24 do not preclude a national authority responsible for public procurement from being empowered to order a contracting authority to publish the name of an economic operator, where a final judgment has established that that operator was guilty of supplying, in a procurement procedure, false information concerning compliance with capacity conditions that were set to allow participation in that procedure, irrespective of whether that economic operator has been excluded from the procurement procedure in question.
60 That being said, if such a situation arises, having regard to the case-law referred to in paragraphs 47 and 49 above, the duration of that publication must be proportionate to the gravity of the conduct of the economic operator concerned and, under Article 57(7) of Directive 2014/24, it may not, in any event, exceed a period of three years from when the economic operator provided such false information.
61 In addition, having regard to the case-law referred to in paragraph 48 above, the economic operator concerned should in principle, even during the period of such publication, be permitted to participate in a public procurement procedure if it provides evidence, in accordance with Article 57(6) of Directive 2014/24, to the effect that the corrective measures it has taken are sufficient to prevent a repeat of the infringement consisting of the provision of false information concerning compliance with capacity conditions, and that, therefore, those measures are likely to demonstrate its reliability.
62 Indeed, the submission by an economic operator that is in the situation referred to in point (h) of the first subparagraph of Article 57(4) of that directive – and which has not been generally excluded from procurement procedures by a final judgment – of such corrective measures, on the assumption that they are considered sufficient by the contracting authority, enables the economic operator in question to avoid exclusion from the procurement procedure concerned. Consequently, that possibility should also be accorded to an economic operator which is the subject of such publication.
63 Furthermore, it should be borne in mind that the concept of ‘decisions taken by the contracting authorities’, within the meaning of the fourth subparagraph of Article 1(1) of Directive 89/665, must be interpreted broadly (judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, EU:C:2021:700, paragraph 105 and the case-law cited). A list of suppliers that have provided false information, which enables contracting authorities to become aware of the names of economic operators that are not considered to be reliable suppliers, entails, in principle, their temporary exclusion from all procurement procedures, unless the economic operator concerned shows that it has adopted adequate corrective measures. In those circumstances, Article 1(1) and (3) of Directive 89/665, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, requires that at least either the decision by which the national authority responsible for public procurement orders a contracting authority to publish the name of an economic operator on such a list, or the decision to publish adopted by that contracting authority to comply with that order, may be subject to the judicial review provided for by that directive.
64 Having regard to the foregoing considerations, the answer to the question referred is that Article 18(1) and point (h) of the first subparagraph of Article 57(4) of Directive 2014/24 and Article 1(1) and (3) of Directive 89/665 must be interpreted as not precluding a national law or practice by which an authority responsible for public procurement is empowered to order a contracting authority to publish the name of an economic operator that has provided false information concerning compliance with capacity conditions, even though that contracting authority did not exclude the operator from the procurement procedure before completion of the latter and the finding that the operator was guilty of misrepresentation was made by a judicial decision that has become final, provided that:
– the period of publication is proportional to the gravity of the conduct of the economic operator concerned and does not exceed the maximum period set out in Article 57(7) of Directive 2014/24;
– that economic operator may, during that period of publication, provide evidence of its reliability, in accordance with Article 57(6) of Directive 2014/24, with a view to being allowed to participate in a subsequent public procurement procedure;
– the economic operator has an effective remedy against at least one of the decisions related to such publication, adopted by that authority and the contracting authority concerned, respectively.
Costs
65 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Seventh Chamber) hereby rules:
Article 18(1) and point (h) of the first subparagraph of Article 57(4) 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, as amended by Commission Delegated Regulation (EU) 2021/1952 of 10 November 2021, and 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 not precluding a national law or practice by which an authority responsible for public procurement is empowered to order a contracting authority to publish the name of an economic operator that has provided false information concerning compliance with capacity conditions, even though that contracting authority did not exclude the operator from the procurement procedure before completion of the latter and the finding that the operator was guilty of misrepresentation was made by a judicial decision that has become final, provided that:
– the period of publication is proportional to the gravity of the conduct of the economic operator concerned and does not exceed the maximum period set out in Article 57(7) of Directive 2014/24, as amended;
– that economic operator may, during that period of publication, provide evidence of its reliability, in accordance with Article 57(6) of Directive 2014/24, as amended, with a view to being allowed to participate in a subsequent public procurement procedure;
– the economic operator has an effective remedy against at least one of the decisions related to such publication, adopted by that authority and the contracting authority concerned, respectively.
[Signatures]
* Language of the case: Lithuanian.