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The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
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k) the economic operator is connected to another participant in the same custody procedure, in a
control situation referred to in art. 2359 of the c.c. or in any relationship, where the bids from
two organisations can be referred to as a unique decision centre.
5.2.3. The Lithuanian case
In Lithuania, article 46 of the Law on Public Procurement was changed transposing the new EU Public
Procurement Directive, the new amendments coming into force on 1 July 2017. The grounds for exclusion
from tender procedure have been clarified and the list has been supplemented.
These grounds are listed in Art. 46 of the Law on Public Procurement (amended on 2 May 2017 to
transpose the new EU Public Procurement Directive; came into force on 1 July 2017). These grounds in
principle are not applicable for small-scale tenders and tenders by purchasing subjects within the sectors
of water management, energy, transport and postal services.62
The exclusion grounds mainly focus on corruption crimes, crimes threatening Lithuanian and/or EU
financial interests, failure to fulfil tax obligations, certain specific crimes (terrorist or terrorist activity –
related crimes, trafficking in human beings, etc.), laundering of crime-related property, competition
crimes, failure to fulfil tender contracts in the past, professional misconduct etc. There is a separate list
for optional grounds of exclusion that may also be applied by the purchasing organization.
Law on Public Procurement provides details on exclusion as follows. The grounds follow closely the ones
in Directive 2014/24, but with clear explanation on how these apply. For example, the Lithuanian law
provides the definition of professional misconduct as an exclusion ground (article 46, paragraph 4, point
(7)):
a. “professional ethics breach, when less than a year has passed since the decision that the bidder
does not follow the professional ethics norms;
b. a breach of competition, occupational safety and health, information protection, intellectual
property protection, where an administrative punishment or economical sanction provided in
Lithuanian or foreign laws has been applied for the bidder or its head and less than a year has
passed since the decision or the day when the person has fulfilled the administrative obligation;
c. a breach of a prohibition to collude provided in the Lithuanian competition law or similar legal act
of another country, where less than 3 years have passed since the decision to apply an economical
sanction set in the Competition Law or a legal act of another country came into force;
d. a bidder (natural person) or the head of a bidder (legal person, another organization or its
organizational unit) or another member of its management or supervisory body or another person
having the right to represent or control the bidder, undertake decisions in its name, enter
62Art 25 para 2 of the Law on Public Procurement provides a list of articles that are applicable for small-scale
tenders and Art 46 is not among them. The purchasing authorities may apply the grounds for exclusion and the
procedure therein is provided by a Public Procurement Office Director’s Decree “On the Procedure for Small-Scale
Tenders”. Available online (in Lithuanian):
) (last accessed: 30/06/2017).
Art 59 of the Law on Procurements by Purchasing Subjects within the Sectors of Water Management, Energy,
Transport and Postal Services provides the following: “The requirements for the absence of grounds for exclusion
and verification of qualification are set and confirmation measures therein are applicable mutatis mutandis as
provided for in Art 46, 47, 50, 51 of the Law on Public Procurement, however Art 46 Paras 1, 3 and 4 are not
obligatory for purchasing subjects that are not purchasing authorities”. The Law on Procurements by Purchasing
Subjects within the Sectors of Water Management, Energy, Transport and Postal Services, No. XIII-328. Available
online (in Lithuanian)
(last accessed: 30/06/2017).