The Constitutional Cort will examine the compatibility with the Constitution of the provision providing for criminal liability for collusive bidding. The main issue is its lack of precision.
The complaint is based on Article 305.1 of the Penal Code. According to the article, anyone who, for pecuniary gain, thwarts or obstructs a public tender or enters into an agreement with another person to the detriment of the owner of property or a person or institution for which the tender is held, is liable for up to three years’ imprisonment.
THE PROBLEM COMES DOWN TO DEFINING WHAT EXACTLY IT MEANS TO “ENTER INTO AN AGREEMENT WITH ANOTHER PERSON”.
In the constitutional complaint – filed by a person convicted of the above-mentioned crime – it was argued that this formulation is imprecise, and thus does not meet the standards of defining the offence.
The legislator did not specify the purpose of such an agreement, nor what the actions of the persons who entered into it would consist of. This in turn makes it possible to criminalize even mere cooperation between potential contractors.