On 15 September, 2023, a judgment was issued by the District Court in Warsaw – Public Procurement Court (case no. XXIII Zs 60/23), which is of significant importance for foreign contractors applying for public procurement contracts in Poland.
In the judgment, the court found are as follows:
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- Article 108(1)(1) of the Polish Public Procurement Law provides for a range of grounds for exclusion due to conviction for a criminal offense that is broader than under Article 57(1) of Directive 2014/24/EU (the classical directive);
- If in the foreign entity’s home country or residence, including that of the person concerned, there are no documents issued equivalent to those in the Polish National Criminal Register, or the documents do not cover all the cases described in Article 108(1)(1) of the Public Procurement Law, a declaration can be submitted instead;
- The declaration can be made for instance before a notary, including a Polish notary;
- A declaration made before a Polish notary does not have to take the form of a notarial deed.
The decision is significant because:
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- The Public Procurement Office did not take a clear stance on whether Article 57(1) of the classical directive was implemented to a minimal extent, or if the Polish legislator went further and provided for a broader range of crimes for which an entity can be excluded;
- The court held that a member state can introduce additional exclusion criteria and expand the list of offenses that can result in exclusion. Furthermore, the court affirmed that the Polish legislator has done so;
- There were discrepancies in the decisions of the National Appeals Chamber regarding whether a declaration made before a notary should take the form of a notarial deed. The court resolved these doubts by stating that a notarial deed is not necessary.
On 22 September, 2023, changes were made to the Regulation of 23 December, 2020, on Personal Evidence and other Documents or Declarations that a Contracting Authority can request from a Contractor (Journal of Laws of 2020, item 2415). The regulation specifies the documents that the contracting authority can request from the contractor, including those certifying no prior criminal convictions.
The changes in the regulation might have been influenced by the court’s assessment, but certainly, the recent changes in the regulation did not address all the uncertainties raised by the court.
Author: Piotr Nepelski