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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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the Romanian law provides only for mandatory grounds for exclusion, as the state decided to impose
on contracting authorities the facultative grounds provided by the Directive 2014/24/EU, as it
stipulates that “contracting authorities may exclude or may be required by Member States to exclude
from participation in a procurement procedure any economic operator in any of the” mentioned
grounds in article 57 paragraph 4.
5.2.1.
The Greek case
Greek Law 4412/2016 on Public Procurement of Works, Supplies and Services (Government Gazette A’
147/08.08.2016), which transposed into the national legal framework Directive 2014/24/EU on Public
Procurement and Directive 2014/25/EU on Procurement by Entities Operating in the Water, Energy,
Transport and Postal Services Sectors, also provides for the exclusion of economic operators from
procurement procedures, if they are involved in corrupt practices. In particular, article 73 of Greek Law
4412/2016 stipulates the various grounds for exclusion from public procurement and distinguishes
between mandatory and optional grounds for exclusion.
More specifically, according to paragraph 1, article 73, of Greek Law 4412/2016, contracting authorities
exclude economic operators from public procurement procedures, once they prove, with the relevant
verification process provided in the law, or once they become aware that the economic operator has
been the subject of a conviction by final ruling for one of the criminal offences listed in the European
Directive: organized crime, corruption, fraud, money laundering, terrorism, child labour and other forms
of trafficking in human beings. It should be noted that when the economic operator is a natural person,
the contracting authority shall examine whether the aforementioned grounds for exclusion are met
regarding the given natural person. If the economic operator is a legal person, the contracting authority
shall examine whether the aforementioned grounds for exclusion are met in the natural person against
whom the final judgment was rendered, when this person is a member of the administrative,
management or supervisory body of the economic operator or has powers of representation, decision or
control therein, given that the Greek law does not provide for the criminal liability of legal persons.
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Also, concerning the exclusion of economic operators on grounds of breach of obligations to pay taxes
and social security and the optional grounds of exclusion, the Greek regulations are also true to the
Directive provisions.
For the optional grounds, in case the contracting authority wishes to include any of the non-mandatory
grounds for exclusion in its declaration, then this ground becomes mandatory in the sense that the
contracting authority must examine whether such ground is present or not.
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According to article 305 of Greek Law 4412/2016, which transposes article 80 of Directive 2014/25/EU,
the pre-selection and qualitative selection of economic operators may include the grounds for exclusion
listed in article 73. Finally, it should be noted that Greek Law 4413/2016 (Government Gazette A’
148/08.08.2016) on the Award of Concession Contracts, which transposes Directive 2014/23/EU on the
award of concession contracts, provides in article 39 paragraph 4, similar grounds for exclusion.
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Hellenic Single Public Procurement Authority,
Guideline 20 - Grounds for Exclusion from Participation in Public
Procurement Procedures
, Athens, 14.06.2017, page 5.
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Hellenic Single Public Procurement Authority,
Guideline 20 - Grounds for Exclusion from Participation in Public
Procurement Procedures
, Athens, 14.06.2017, page 8.