Precedent-setting ruling before the Public Procurement Court and a major success for SDZLEGAL Schindhelm

Precedent-setting ruling by the Public Procurement Court – led by Attorney Anna Specht-Schampera and Attorney Dr. Tomasz Dąbrowski

Our client, Chemeko-System, is bidding for a public contract for the collection and management of waste from the city of Wrocław, valued at over PLN 1 billion. Even before the contract was signed, we filed an appeal with the National Appeals Chamber (KIO), challenging, among other things, the obligation for the contractor to achieve specific recycling levels and the associated contractual penalties. The KIO upheld our appeal, but we went further and filed a complaint demanding the complete removal of the recycling-related obligations and penalties.

The Ruling:

  • Achieving a 55% recycling rate in 2025 (and higher in subsequent years) is impossible, as demonstrated by the evidence we presented in the case;
  • The contractor has no control over the type of waste generated by Wrocław residents or how they sort it;
  • It is the Municipality that influences selective waste collection, primarily through education and other tools provided by law;
  • It is unlawful to impose obligations that are impossible to fulfill – this is a fundamental principle of civil law (!);
  • Contractual penalties should not serve as a means for municipalities to be financially supported by contractors in relation to administrative fines imposed on the municipality – this is anti-competitive (!);
  • The Court criticized the general tendency of contracting authorities to seek every opportunity to impose penalties on contractors and suggested introducing bonuses or incentives for contractors who fulfill the expected obligations.

Precedent:

Such a ruling has never before been issued by the Public Procurement Court! It applies not only to waste-related cases but to all public procurement matters: a contracting authority cannot impose obligations that are impossible to fulfill, let alone penalize contractors for failing to meet them.

Success:

We are truly pleased with this success! We have been consistently challenging the penalties related to recycling levels for a long time, but KIO’s rulings have often been inconsistent. We are aware that in similar cases – even after our landmark victory in Wrocław – other contractors have lost in court.



Author: Anna Specht-Schampera
Author: Tomasz Dąbrowski