Abstract

The author critically reviews the position of the Supreme Court (laid down in its Resolution of 30 June 2020) and the views of the legal doctrine, according to which Art. 437(1)(7)(a) of the Public Procurement Law (and its predecessor set forth in the Public Procurement Law of 2004) is a lex specialis to Art. 483 § 1 of the Civil Code. In the author’s view, the requirement stipulate in public procurement contracts (which are at the same time construction works contracts) contractual penalties in favour of the client “on account” of non-payment or overdue payment of remuneration by the contractor to subcontractors refers to non-pecuniary obligations of the contractor. Therefore, there is no conflict between the above provision and Art. 483 § 1 of the Civil Code (which prohibits the stipulation of contractual penalties for non-performance/improper performance of pecuniary obligations) that would need to be eliminated - as the Supreme Court proposes - by considering the regulation of the Public Procurement Law to constitute a lex specialis to the regulation of the Civil Code.