Abstract

The judgment in question concerns the exclusion of a consortium member from a public procurement procedure in a situation where a contracting authority had terminated a previous public contract due to the non-performance of the contract, and the consortium members were jointly and severally liable for the improper performance of the contract. The court distinguished the construction of joint and several liability from the nature of the contractor’s unreliability by correctly highlighting that joint and several liability does not, by itself, prejudge the contractor’s unreliability in the event of the non-performance of a contract. Contracting authorities are obliged to examine in detail the performance by the consortium member, in particular whether the consortium member has done everything that could ‘reasonably be required’ to prevent the non-performance of the contract. The CJEU’s interpretation is warranted, but the issue may raise further questions, such as whether the economic impossibility or economic unreasonableness of the performance may set the limit of what is ‘reasonably required’ of the consortium member. Finding answers to this may be complicated by the non-uniform regulation of the above issues in national legal orders. The CJEU judgment will be important for the interpretation and application of Article 109(1)(7) of PrZamPbl by the contracting authorities, broadening and deepening their obligations in this respect.