ECJ backs post-award listing of suppliers giving false data

The Court of Justice has confirmed that a procurement oversight body may order a contracting authority to list a supplier that gave false information on capacity conditionsEuropa — even where the authority never excluded the supplierEuropa and a court established the misrepresentation only after the contract was signedEuropa. In its judgment of 15 October 2026Europa in Case C-402/25Europa, the Seventh Chamber ruled that Article 18(1) and Article 57(4)(h) of Directive 2014/24/EU and Article 1(1) and (3) of Directive 89/665/EEC do not preclude such an orderEuropa, subject to three conditionsEuropa.

The reference came from the Lietuvos administracinių ginčų komisija (Administrative Disputes Commission, Lithuania)Europa in a dispute between the Plungės rajono savivaldybės administracija (Plungė District Municipality Administration) and the Viešųjų pirkimų tarnyba (Public Procurement Authority). The municipality had ranked VA Statyba first for a EUR 7,453,375 sports-and-health-complex construction contract on 5 September 2023 and signed with it on 10 October 2023; the runner-up then persuaded the Klaipėda Regional Court that VA Statyba had misled the authority by gross negligenceEuropa about two capacity conditions — turnover from construction over three years and completed works over five years — and the Court of Appeal upheld that finding. The contract stood, but the authority declined to list the company; the oversight body ordered it to do so in February 2025, and the municipality sued, arguing Lithuanian law permits listing only after an exclusion decision of its own.

The Court held that Article 57 does not reserve the misrepresentation finding to the contracting authority during the procedureEuropa. Exclusion under Article 57(4)(h) may be applied both in the tainted procedure and in later onesEuropa, and a Member State that may require exclusion may also empower its oversight authority to order itEuropa. Since a refusal to exclude is itself reviewable, a court's post-completion finding — here a final judgment establishing grossly negligent misstatementsEuropa — can ground the listing just as wellEuropa; whether the operator was excluded from that procedure is irrelevant. A contracting authority consulting such a list learns which operators are considered unreliable, which gives practical effect to the exclusion ground, as the HSC Baltic case law recognises.

Permission comes with three conditionsEuropa. First, proportionality: the listing must last no longer than the conduct's gravity warrantsEuropa and never beyond the Article 57(7) maximum of three years from the misrepresentationEuropa. Second, self-cleaning: even while listed, the operator must be able to show under Article 57(6) that corrective measures — compensation, clarification through cooperation, and technical, organisational and personnel safeguards — demonstrate its reliability and allow participation in later proceduresEuropa. Third, review: the operator must have an effective remedy under Directive 89/665 against at least one of the two linked decisions, the oversight body's order or the authority's publication actEuropa. Lithuania caps publication at one year from the exclusion decision, which sits within the EU maximum.

Legal basis: Directive 2014/24/EU, Articles 18(1), 57(4)(h), 57(5)-(7) and recitals 101-102; Directive 89/665/EEC, Article 1(1) and (3); judgment of the Court (Seventh Chamber) of 15 October 2026 in Case C-402/25.