Abstract

The introduction in Art. 433 of the Public Procurement Law of a catalogue of impermissible provisions in a public contract constitutes a significant event in the development of the concept of abusive clauses in regard to legislation. The new solution has been in principle approved by the doctrine. The concept of abusive clauses in the Public Procurement Law is closely connected with contractual penalties, which is one of the most important issues in drafting public contracts.

A reference for Art. 433 of the Public Procurement Law is the construction of impermissible contractual clauses in consumer transactions (Art. 385¹-385³ of the Civil Code). The Civil Code provides for a much more abundant catalogue of abusive clauses, and there are no doubts that this catalogue is only an example, since a general definition of an abusive clause has been statutorily regulated. As regards public procurement, the legislator has given up a general approach restricting itself to the catalogue laid down in Art. 433 of the Public Procurement Law. Nonetheless, it opens up the option of following the general criteria of the contracting freedom (and restrictions) under Art. 353¹ of the Civil Code.

Art. 433 of the Public Procurement Law starts to be used in juridical practice, which makes it possible to analyse the first cases this construction has been used in. This gloss is based on two decisions of the National Appeal Board that refer to inter alia the interpretation of Art. 433(2) of the Public Procurement Law, according to which the drafted contractual clauses cannot provide for charging contractual penalties for the conduct of a contractor not directly associated with the object of the contract or its adequate performance. The decisions of the National Appeal Board analyses in the gloss allow for formulating some general conclusions, namely that despite certain reservations as to overly casuistic approach, the introduction of Art. 433 of the Public Procurement Law should be considered an important step aimed at respecting good practices in the area of drafting contractual clauses in public procurement contracts. This refers in particular introduction of contractual penalties by aiming at eliminating the situations whereby the awarding entity would abuse its position in the proceedings by reserving contractual penalties not associated with the object of the contract. However, adequate proportions have to be preserved here between the interests of contracts and public interest , since actually the awarding entity most frequently implements specific public tasks it is statutorily obliged to perform. In this context, Art. 433 of the Public Procurement Law cannot become an excuse for too “easily” avoiding the contractual clauses which require greater diligence or greater effort on the part of the contractor.