Abstract

In the judgment for case C-424/23, the Court of Justice of the European Union stated that the material to be used to make products for the performance of public contracts constitutes a reference to a “type” or a “specific production”. Consequently, such references should be accompanied by the words “or equivalent”, unless the use of a specific material is required due to the subject matter of the contract, because no alternative based on a different technical solution can be considered. In this way, the Court indicated that, in exceptional circumstances, it is possible to use a reference to a trademark, origin, etc., without permitting equivalent solutions. Article 99 of the Public Procurement Law does not fully reflect the content of the EU norm; as a result, it is not obvious that specifying the material from which a given product is to be made is covered by the prohibition in Article 99 section 4 and the exception in Article 99 section 5 of the PPL. Furthermore, the Polish legislator did not provide for the possibility of using a trademark or other reference without the requirement to add the words “or equivalent”. These deficiencies in the Polish regulations require legislative correction.