EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

original contract. In the Article 15(r)(6), the legislature introduced a mechanism of measuring contractual penalties for improper performance of a contract by the contractor, consisting in the legitimacy of their investigation and the size in connection with the severity of the pandemic. The regulation in both anti-crisis shields concerned the exclusion of the application of the public procurement law regime with regard to supplies and services. The deliveries were to include medical equipment, personal protective equipment (gloves, masks, aprons), and disinfectants. It can be assumed that the act also applied to the supply of IT equipment, including computers or devices which save health or life, such as respirators. Both – in the case of deliveries and services, the parties should prepare appropriate statements and documents indicating the impact of the pandemic on the performance of a contract and the exclusion of the application of the public procurement law regime. In addition, the issue introduced in the second anti-crisis shield regarding the possibility of changing the terms of a contract due to the increase in the COVID-19 infection curve requires clarification. Such a solution is included in the article 144, paragraph 1, point 3 of the Public Procurement Law. Therefore, repeating this solution in the second anti-crisis shield is a kind of superfluum or a reminder of this possibility. A positive solution adopted in the second anti-crisis shield concerns the suspension of deadlines provided for by law for public procurement. From this perspective, the tender procedure could be conducted. Although the legislature decided that it was still possible to appeal against the actions or omissions of the awarding entity under the existing rules, but such action did not stop the implementation of the tender procedure (Szymańska, Kowalczyk, 2020). 4. The limitation of the use of public procurement in Italy due to the COVID-19 pandemic Italy, and in particular the Lombardy region, was one of the first European countries or regions to be affected by the COVID-19 pandemic. The first cases of COVID-19 were recorded at the end of January 2020. The infection curve in Italy was growing quite rapidly, as already on 19 March 2020, about 2,400,000 cases were recorded, including over 100,000 of them ended with the death of patients (www.ilsole24ore.com). The first legal act issued in Italy after the outbreak of the pandemic was the ordinance of the Council of Ministers of 31 January 2020. On the basis of this executive act, a state of emergency was introduced throughout the country for a period of 6 months (GU Series Generale n.26 del 1 February 2020). Subsequently, decrees with the force of law of the president of the republic were

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