Tales from the National Appeal Chamber: Proper self-cleaning by contractors
The “self-cleaning” procedure set forth in Art. 24(8) of the Public Procurement Law allows a bidder to seek the award of a public contract despite the existence of grounds for exclusion. But what evidence of self-cleaning should a contractor present for the effort to be effective? In the recent ruling of 31 July 2020 (case no. KIO 1248/20), the National Appeal Chamber held that contractors are not only required to show the personnel, organisational and technical measures they have taken to remedy past irregularities, but must also show that these measures will prevent similar violations in the future.
A few words on setoff
The Supreme Court of Poland has recently issued several rulings on setoff (Civil Code Art. 498), confirming the existing line of case law and the established legal and commercial practice. The regulations on asserting the defence of setoff in civil proceedings have also been amended.
Combining contractual penalties for repudiation and delay?
Many contracts provide for a contractual penalty for reputation of the contract due to the other party’s fault and a contractual penalty for delay in performing the contract. But in such cases can both of these penalties be pursued simultaneously?
Tales from the National Appeal Chamber: The contracting authority must not abuse a summons seeking clarification of an abnormally low price
Can a summons for clarification of an abnormally low price be used with the aim of obtaining information from the contractor to verify whether the tender complies with the terms of reference for the procurement? What duties must the contracting authority observe, and when can it summon a contractor to provide an explanation? These issues were addressed in a ruling by Poland’s National Appeal Chamber of 16 June 2020 (case nos. KIO 709/20 and 715/20). The chamber considered the specific purpose of the summons for clarification.
Contractual penalty for late payment or non-payment to subcontractors permissible
It is permissible to agree on a contractual penalty for non-payment or late payment of fees due to subcontractors, the Supreme Court of Poland held in its resolution of 30 June 2020 (case no. III CZP 67/19).
End of the road for the secondary market in e-books and video games?
In recent months, perhaps more than ever, life has moved online. Some people spend their time reading e-books or playing video games. Can they later resell or exchange such “used” works? A recent ruling by the Court of Justice throws into doubt the secondary trading in digital goods.
Must car-rental companies pay royalties to collective management organisations?
If a rental car is equipped with a radio, should the rental company pay royalties to a collective rights management organisation? The Court of Justice recently addressed this issue.
Tales from the National Appeal Chamber: Does the contractor suffer the consequences of an error in the documentation by the contracting authority?
In procurements, minor errors often creep into the terms of reference or the forms for bids. Can these errors exert negative consequences on contractors? An important statement on this issue was made by the National Appeal Chamber (KIO) in its ruling of 13 March 2020 (KIO 423/20). The chamber stressed that if there are differences between the description of the subject of the contract and the offer form, the description of the subject matter will control, and contractors cannot be penalised for errors committed by the contracting authority in its own documentation.
Tales from the National Appeal Chamber: A contractor does not have to submit documents issued by the contracting authority
The number of declarations and documents submitted by contractors during the contract award procedure forced the Parliament to introduce mechanisms to cut red tape. One of the key provisions in this aspect is Art. 26(6) of the Public Procurement Law, the purpose and practical application of which was explained by the National Appeal Chamber in its ruling of 13 March 2020 (KIO 439/20).
Simplistic criticism of German ruling in ECB case only helps anti-EU populists
Last week a judgment by the German Federal Constitutional Court (BVerfG) made headlines around the world after the country’s highest court refused to follow a preliminary ruling of the Court of Justice of the European Union. The decision attracted strong criticism. Critics accused the BVerfG of going rogue, undermining the EU system and providing support for the anti-EU populist agenda. The BVerfG judgment, although indeed controversial and issued at a difficult time, does not deserve this condemnation. Some of the critics’ unjustified opinions can do more for anti-EU populists than the judgment itself.
EU constitutional order forged before our very eyes
On 5 May 2020 the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) issued a much-noted ruling in a case involving the Public Sector Asset Purchase Programme of the European Central Bank. The judgment has caused a great stir, as the BVerfG expressly refused to comply with a ruling by the Court of Justice of the European Union. It was the first such instance in history, but its significance is the opposite of what is attributed to it by opponents of European integration.
Is a warehouse operator responsible for storing counterfeits?
The CJEU held that a company that only stores goods without knowing they are counterfeits does not infringe trademarks. So can logistics operators sleep easy? Not really.
