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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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5.2.2. The Italian case
In Italy, the grounds for exclusion from public procurement are regulated by art. 80 of Legislative Decree
no. 50/2016. With this legislative act, Italy has transposed the European Directive on public
procurement61 .
The new public procurement code leaves less discretion to the contracting public administration than the
former provision. The evaluation of the requirements for the participation to tenders gives a wide margin
of discretion as to whether or not a certain economic operator may be excluded. The legislator has
provided for a strict model of crimes specifically listed in the law, in contrast with the previous “open”
discipline (Article 38 (1) (c)); principles of equality (Article 3 Constitution) and of freedom of enterprise
(Article 41 of the Constitution) are granted. The new exclusion system aims to expand the requirements
that companies must comply with in order to participate in a procurement or concession procedure.
There are additions to the previous code: among the causes of exclusion is the conflict of interests when
the company is linked to the competition office of the contracting authority. The new law here seems to
enforce the stability and transparency of the conditions to participate in tendering procedures.
Art. 80 of Legislative Decree no. 50/2016 has four groups of grounds for exclusion from participation in
public procurement and concession procedures concerning criminal convictions, included in the Italian
Criminal Code (hereafter “C.P.”). In particular:
(A) crimes, committed or attempted, related to the participation in a criminal organization (416 C.P.,
criminal association and 416-bis C.P., Mafia-like, also foreign, associations) or crimes committed by using
the conditions provided for by the aforementioned art. 416-bis or in order to facilitate the activities of
the associations provided for in the same article. Moreover, the following are included: crimes,
committed or attempted, of illicit traffic of narcotics or psychotropic substances (art. 74 of the
Presidential Decree 9 October 1990, n. 309); crimes of criminal association for the smuggling of foreign
manufactured tobacco (art. 291-quater of the Presidential Decree 23 January 1973, n. 43); crimes related
to organized activities for the illicit traffic of waste (and art. 260 of Legislative Decree no. 152/2006);
(B) crimes, committed or attempted under Title II "Crimes against the Public Administration" of Book II of
the Criminal Code, and specifically those referred to in Articles 1 and 2; Art. 317 (bribery), Art. 318 (bribery
for an act of office), Art. 319 (bribery for an act contrary to office duties), Art. 319-ter (bribery in legal
proceedings), Art. 319-quater (undue induction to give or promise utility), Art. 322 (embezzlement for
corruption purposes), Art. 322-bis (embezzlement, bribery, corruption and instigation to corruption in
European Communities bodies and of officials of the European Communities and of foreign countries),
Art. 320 (bribery of a person in charge of a public service), Art. 346-bis (traffic of illicit influences), Art.
353 (concerning the liberty of auctions), Art. 353-bis (disturbed liberty in the choice of contractors), Art.
354 (abstention from auctions), Art. 355 (non-fulfilment of public contracts), Art. 356 (fraud in public
supplies) and Art. 2635 c.c. (Private bribery);
(C) fraud pursuant to art. 1 of the Convention on the protection of the European Communities' financial
interests (Council Act of 26 July 1995);
61 GUCCIONE C. 2016. Il nuovo codice dei contratti pubblici – I requisiti degli operatori economici, in Giornale Dir.
Amm., 4, p. 436. Avalable online at
(last accessed 30/06/2017).