Many companies rely wholly or partly on revenue from public bodies. A recent case emphasises that participation in public tenders can be put at risk by a competition law infringement. This is the case even where the EU public procurement directives do not apply.

This was the finding of the ECJ on 18 December 2014 in a case concerning whether a tenderer could be validly excluded from a public tender process in Hungary on the basis that it had breached national competition law. The breach, concerning vertical restrictions, had been identified by the Hungarian competition authority and upheld by a Hungarian court.

The ECJ took the view that it is permissible for national legislation to exclude the participation in a tendering procedure of an entity in this scenario, even where the general EU public procurement rules do not apply. This is fully in line with general EU law principles.