Introduction
On 15 September 2022, the Court of Justice of the European Union
(CJEU) ruled that contracting authorities must
have "sufficiently plausible
indications" (Art. 57(4)(d) Public Contracts
Directive) of violation of EU antitrust rules before they may
exclude a company from a public tender on this ground under the EU
public procurement rules. Arguably, "sufficient plausible
indications", a term which is neither defined nor clarified in
the EU public procurement legislation, would not only include
direct evidence but also indicia, provided these are objective and
consistent and the related tenderers are given the opportunity to
rebut the contracting authority's presumption as to their
conduct, by analogy to the CJEU's judgment in
Specializuotas transportas (Case C-531/16).
