EU Opinion Shines Some Light On Intersection Between Cartel Leniency And Public Procurement

On 16 May 2018, Advocate General Sañchez-Bordona of the Court of Justice of the European Union opined on the ability of Member States to take a harsh stance on the exclusion from Government tenders of companies with a record of past illegality, such as cartel behaviour or bid-rigging.  While this is just an opinion and the Court of Justice has still to issue a final judgment, the issues raised are interesting.

Under the spotlight was a German rule requiring a bidder involved in past illegality to cooperate with the contracting authority, as well as with the investigating authority, to show that it has “fully clarified the facts and circumstances” and thus proven rehabilitation.  It is important to note that the equivalent EU and Irish law rules require cooperation with the investigating authority only.