On 28 March 2014 three new EU directives on public procurement were published in the Official Journal of the European Union L series: 1) Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, 2) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC and 3) Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC.

The new Directives shall enter into force on 17 April 2014. The EU Member States have to implement them into their legal systems by 18 April 2016. They provide a number of new solutions, the implementation of which will result in – as is to be expected – far-reaching changes in the national regulations governing public procurement. To some extent, the new rules should also help to clarify issues which are contentious in practice so far.

One of the most interesting examples is Article 63 Directive 2014/24/UE, which provides inter alia that with regard to the criterion of relevant professional experience contractors may rely on the capacities of other entities only when the latter will carry out works or services for which such abilities are necessary. The current provisions of the Public Procurement Law Act of 29 January 2014 (consolidated text: Journal of Laws of 2013, item 907, as amended) do not indicate that the reliance by the contractor on the knowledge and experience of the third person pursuant to Article 26 paragraph 2b of the Act is only possible when the latter will be a subcontractor. However, the judicature of the National Appeal Chamber in this regard is not uniform. The literal wording of Article 63 paragraph 1 of the new Directive on public procurement seems to indicate the requirement for subcontracting. However, we all have to wait for the final dispel of doubts – as usual – until the introduction of appropriate changes in national legislation, and the first results of their application in practice. Hopefully, as uniform as possible.