No hidden risks in public construction contracts! – Transparency as a shield for bidders in procurement proceedings

The Court of Justice of the European Union (EuGH) judgment of 5 June 2025 (Rs. C‑82/24) sharpened the fundamental principles of equal treatment and transparency in public procurement law once again.

The background was a dispute over defects and warranty periods in the context of an EU-wide construction contract in Poland. The core question was whether public contracting authorities may apply national rules by analogy through mere references in the contract if these were not previously expressly included in the tender documents.

What was the dispute about? Warranty in construction contract – surprise clause to the detriment of foreign bidders

The City of Warsaw awarded a contract in 2008 to an international consortium of enterprises for the modernisation of its sewage treatment plant. Part of the contract included a so-called "warranty card" which provided for a 36-month warranty from acceptance. After this period had expired, defects reoccurred – the contracting authority demanded remedial work. Its justification: under Polish civil law, the warranty period begins anew for replacement deliveries – this rule (Art. 581 Abs. 1 ZGB) was to be applied by analogy.

The consortium refused, pointing out that this rule was tailored to sales contracts and had not been mentioned in the procurement procedure. Furthermore, an analogy was unclear and could hardly be foreseen by foreign bidders. A legal dispute followed, which was brought before the EuGH.

EuGH strengthens transparency and equal treatment

The EuGH took the opportunity to clarify:

1. Art. 10 of RL 2004/17/EG (or Art. 2 of RL 2004/18/EG) requires transparent and non-discriminatory contract award. These principles apply not only in the procurement procedure but also in the subsequent performance of the contract.
2. Central requirement for contracting authorities: All relevant contract conditions – in particular those with substantial financial implications, such as warranty periods – must be clearly, precisely and in advance stated in the procurement procedure. References to national provisions which only acquire validity through interpretation or analogy are not sufficient.
3. The EuGH emphasises that analogue application of provisions whose validity is not clearly discernible disadvantages foreign bidders. Their knowledge of national law cannot be presumed to be equivalent to that of domestic competitors.
4. Therefore, such a hidden recourse to national law violates the principle of foreseeability – a core element of the transparency requirement.

Hence: Create clarity – avoid risks

For public contracting authorities and bidders, this judgment means:

• Contracting entities must ensure that all material contract conditions – in particular provisions on remedial work, liability and warranty – are transparently included in the tender documents.
• Bidders, in particular from abroad, should have unclear references to national law legally reviewed before submitting their bid to determine whether hidden risks might be involved. In case of doubt, a procurement law challenge is initially advisable.
• Contract clauses which are based on indeterminate or only analogously applicable national provisions are impermissible under procurement law if their scope is not clear and foreseeable.

Our recommendation:

Are you a bidder for a public contract abroad in the EU? Have every warranty or liability clause reviewed at an early stage. And: With unclear references to national law – caution rather than leniency!

The experts at AVANTCORE Rechtsanwälte in Stuttgart will be happy to assist you in reviewing your bid and represent your interests in procurement review proceedings and warranty disputes.