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PPRC Researcher Gerrieke Bouwman wrote an article about the Connexion Taxi Services Case in the May 2017 issue of the Dutch Journal of European Law. In sum, the Court of Justice of the EU ruled that if a public authority lays down in its procurement documents that a tender to which a Ground for Exclusion applies shall be set aside and shall not be eligible for further (substantive) assessment, there is no room for a proportionality test of the situationin concreto. This would otherwise adversely affect the principle of equal treatment and compliance with the obligation of transparency with the result that the ‘level playing field’ is not safeguarded.

Important conclusion of the author: the current Directive 2014/24/EU will lead to another conclusion, since Article 57 para. 6 of this Directive prescribes that any economic operator must be given the opportunity to provide evidence that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion (self-cleaning measure).

In the Connexxion Taxi Services Case (C-171/15) the CJEU had to balance the equality and transparency principle against the proportionality principle in the context of the exclusion grounds of public procurement law. The issue was about a public contract from a Dutch Ministry for certain Taxi Services,  where a tendering company, who had seriously violated Competition Law, was not excluded by the Ministry (and won the contract) because, according to Ministry, it had taken enough measures to repair its misbehaviour.  According to the Court, the company had to be excluded.