Our Early Stage Researcher Ezgi Uysal (ESR 7, University of Turin) published an open access annotation on Case C-295/20 Sanresa of the Court of Justice of the European Union (CJEU). The commentary was featured in Vol. 17 Issue 2 of the European Procurement and Public Private Partnership Law Review (EPPPL). EPPPL is a peer-reviewed journal providing legal and policy developments in public procurement and public-private partnership (PPP) with articles, case notes and country reports.

Annotation on the Judgment of the Court of Justice of the European Union (Ninth Chamber) of 8 July 2021 in Case C-295/20 Sanresa UAB v Aplinkos apsaugos departamentas prie Aplinkos ministerijos

“In July 2021, the Court of Justice of the European Union delivered its judgment on Case C-295/20. The judgment established that the requirement to obtain authorisation for international shipment of waste under Regulation 1013/2006 is a contract performance condition therefore a contracting authority cannot exclude a tenderer due to the lack thereof at the time of tender submission.”

The commentary, with reference to tender for hazardous waste management by the Environmental Protection Department of the Lithuanian Ministry of Environment, scrutinized the CJEU case law on the relationship between selection criteria and contract performance conditions under the Public Sector Directive. The publication focused on how CJEU’s interpretation of the interplay has evolved compared with previous cases (Case C-234/14 Ostas celtnieks SIA v Talsu novada pašvaldība and Iepirkumu uzraudzības birojs [2016] ECLI:EU:C:2016:62, Case C-76/16 INGSTEEL spol. sro and Metrostav as v Úrad pre verejné obstarávanie [2017] ECLI:EU:C:2017:549, and Case C-6/20 Sotsiaalministeerium v Riigi Tugiteenuste Keskus) following the European Commissions’ arguments on the said judgements. While previously the CJEU had established the requirement concerning suitability and capability cannot be deemed to fall under contract performance conditions merely because it relates to the performance of the contract, in Sanresa the Court concluded that authorization requirement for hazardous waste management falls under Article 70 of the Public Sector Directive because it relates to the performance of the said contract.

In addition to the development in the interpretation of Article 58 of the Public Sector Directive (Articles 46, 47 and 48 of the 2004 Directive), with Sanresa the CJEU has given a questionable interpretation of Article 70. Article 70 reads “Contracting authorities may lay down special conditions relating to the performance of a contract, provided that they are linked to the subject-matter of the contract within the meaning of Article 67(3) and indicated in the call for competition or in the procurement documents.” However, in Sanresa, the CJEU provided that though in principle contract performance conditions should be indicated in the call for tenders or the procurement documents, the failure to do so does not prejudice the lawfulness of the procedure if such condition arises from the applicable Union legislation. Our ESR  Ezgi Uysal argues such an interpretation of Article 70 is “puzzling considering the aim of the provision”.