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The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
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Facultative debarment based on elements that constitute a risk for the contracting authorities, such
as:
o
breach of legal obligations related to environment protection, labour conditions or
o
bankruptcy or insolvency of the economic operator
o
previous professional misconduct of the economic operator
o
grounded suspicions of breach of competition rules
o
a conflict of interest
o
a distortion of competition from the prior involvement of the economic operators in the
preparation of the procurement procedure
o
prior deficiencies to deliver in contracts
o
misrepresentation in supplying the information required
o
undue influence on the decision-making process of the contracting authority
Analysing its text, one can observe that Directive 2014/24/EU thus implies: “(1) An obligation to take
relevant self-cleaning measures into consideration, and (2) an obligation to establish rules governing the
implementation at the national level. In this respect, a considerable degree of flexibility is conferred upon
the Member States”
58
provided they:
respect the TFUE principles,
apply the mandatory exclusion criteria at any time during the procedure (article 57, paragraph 5 of
Directive 2014/24)
limit the time of exclusion to a maximum of 5 years as the situation generating the reason for
exclusion for mandatory criteria and 3 years for the facultative criteria, if the period of exclusion has
not been set by final ruling (article 57, paragraph 7 of Directive 2014/24).
5.2.
Rules for administrative exclusions from public procurement processes at
national level
In all of the four national cases analysed the legal provisions on public procurement were adopted in 2016
and in Romania and Lithuania the laws were subsequently modified in 2016 and 2017. As a large degree
of flexibility is conferred upon Member States, presenting the situation in each of the four cases for
comparison is worthwhile.
However, in general the four Member States are true to the Directive provisions, introducing all the
facultative grounds for exclusion in the law, with the following individual characteristics:
the Lithuanian law and to some extent the Romanian law introduce clear explanations on how the
grounds for exclusion can be applied. For example, the Lithuanian law gives concrete definitions of
concepts such as “professional misconduct” and the Romanian law provides example of clues for
agreements between economic operators distorting competition within or in connection to the
procedure of public procurement;
the Italian law provides for association to mafia as a specific ground for exclusion, as a specific
national risk, within the provision of the Directive 2014/24/EU stipulating the exclusion of bidders
involved in organized crime;
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E HJELMENG & T SØREIDE. 2014. “Debarment in public procurement: rationales and realization”’, in GM RACCA
& CR YUKINS (eds),
Integrity and Efficiency in Sustainable Public Contracts
. Brussels: Bruylant, p. 215.