Abstract

The concept of abusive clauses was introduced into the Public Procurement Law by the 2019 amendment. Indicating certain clauses as abusive makes it possible to limit the practice by contracting authorities of transferring all the risks related to performing the contract on to the contractors. This practice acts as a barrier to accessing public procurement, which is reflected in the number of bids submitted. The article analyses the case law developed since the concept of abusive clauses was introduced and attempts to answer the question whether having a statutory closed catalogue of prohibited contractual provisions (abusive clauses) is a appropriate tool to restore the balance between the parties to a contractual relationship, namely between the contracting authority and the contractor. The role of the National Appeal Chamber (NAC) in shaping draft contractual provisions is also discussed.