33 / 69
The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
31
5.
ADMINISTRATIVE EXCLUSIONS FROM PUBLIC PROCUREMENT PROCEDURES
5.1.
General framework under Directive 2014/24/UE
Economic operators that are not trustworthy and reliable to receive public funds or to enter in contractual
relations with the public institutions are excluded from public procurement procedures
55
, based on a
strictly regulated set of criteria. The public institutions and budgets are to be protected in this way from
corruption and professional misconduct of contractors.
56
Directive 2014/24/EU introduced new exclusion rules regarding public procurement at EU and Member
State level, “both in their substantive aspects (creating new mandatory and discretionary grounds for
exclusion, and requiring rules creating a possibility for self-cleaning), and through the imposition of
minimum procedural requirements (notably, requiring Member States to adopt explicit procedures and
regulating maximum durations for situations of exclusion beyond the specific procurement tender).”
57
Directive 2014/24/EU imposes both mandatory and facultative exclusion criteria, the use of the
facultative exclusion criteria being directly related to compliance with the principle of equal treatment,
principle of proportionality and the free movement of goods, freedom of establishment and the freedom
to provide services of the TFUE. Article 57 of the Directive regulates both the mandatory and facultative
exclusion criteria, as presented in
Annex 2
and stipulates that the exclusion can be imposed at any
moment during the procedure, when the contracting authority becomes aware of the situation engaging
exclusion.
As regards the debarment criteria imposed by the Directive 2014/24, these can be organised as follows:
Mandatory debarment based on the conviction by final ruling of the legal person or its administrator,
manager or supervisor for a criminal offence from a limited list including:
o
organized crime
o
corruption
o
fraud
o
money laundering
o
terrorism
o
child labour and other forms of trafficking in human beings
Mandatory debarment based on the breach of the obligation to pay taxes and social security
contributions
55
See S ARROWSMITH, J LINARELLI & D WALLACE Jr (eds). 2010. Regulating Public Procurement. National and
International Perspectives. The Hague, Kluwer Law International, pp. 41-49. See also DI GORDON & GM RACCA.
2014. “Integrity challenges in the EU and U.S. procurement systems”, in GM RACCA & CR YUKINS (eds),
Integrity
and Efficiency in Sustainable Public Contracts
. Brussels, Bruylant, pp.117, 124-133.
56
S WILLIAMS-ELEGBE. 2012.
Fighting Corruption in Public Procurement. A Comparative Analysis of Disqualification
or Debarment Measures
. Oxford, Hart-Bloomsbury. See also T Medina ARNAIZ. 2006. “Grounds for exclusion in
Public Procurement: Measures in the fight against corruption in the European Union”, in KV THAI (ed)
Advancing
Public Procurement: Experiences, Innovation and Knowledge Sharing
. Boca Raton, FL, Pracademics Press, pp. 329-
352. See also EUROPEAN COMMISSION. 2011. Green Paper on the modernisation of EU public procurement policy
Towards a more efficient European Procurement Market, COM(2011), pp. 51-53.
57
Albert SANCHEZ-GRAELLS. 2016. “Exclusion of Economic Operators from Public Procurement Procedures. A
Comparative View on Selected Jurisdictions”. In M BURGI & M TRYBUS (eds),
Qualification, Exclusion and Selection
in EU Procurements
, Copenhagen: European Procurement Law Series, vol. 7.