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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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contracts, or a member holding a voting majority in the members meeting of the legal person, is
convicted for a fraudulent bankruptcy as it is defined in the Lithuanian Enterprise Bankruptcy Law
or similar legal acts of other countries where there has been less than 3 years since the judgment
became effective.”
5.2.4.
The Romanian case
Romania transposed the new EU Directives in the field of public procurement in 2016, four laws being
adopted by the Parliament in May 2016: Law no. 98/2016 on public procurement, Law no. 99/2016 on
sectorial procurement, Law no. 100/2016 on works and services concessions contracts and Law no.
101/2016 on remedies. The motives for exclusion from public procurement are set by Law 98/2016 and
recalled by Law 99/2016 on sectorial procurement and Law 100/2016 on constructions concessions and
concessions of services, according to the provisions of the given Directives.
Law no. 98/2016 on public procurement provides reasons for excluding the candidate/bidder from a
public procurement procedure. Thus, according to the art. 164, the contracting authority excludes from
the award procedure any economic operator that has been convicted by a final Court ruling for one of
the criminal offences mentioned under article 57 of the Directive 2014/24: the establishment of an
organized criminal group, corruption offences, crimes against the financial interests of the EU, terrorism,
money laundering, human traffic or fraud.
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The contracting authority will determine the reason for
exclusion based on the information and documents submitted by the bidder or if the contracting
authority becomes “otherwise aware”. As provided by Directive 2014/24/EU the contracting authority
shall exclude an economic operator if “the person convicted by final judgment is a member of the
administrative, management or supervisory body of that economic operator or has powers of
representation, decision or control therein.”
Article 165 of Law no. 98
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provides for the exclusion grounds based on the breach of the obligation
regarding the payment of taxes, debts or contributions to the consolidated general budget. The exclusion
ground operates in two situations: when there is a judicial or an administration decision that established
the breach of obligations or when the contracting authority can prove by any appropriate means the
breach of obligations. However, the economic operator is not excluded if, prior to the exclusion decision,
it pays the taxes, debts or contributions or these are extinguished in any other legal way (e.g. by
compensation with other payments to the state budget) or if the economic operator benefits from
financial rescheduling or other facilities from the tax authorities. According to the Directive, the
contracting authority can make an exception from this exclusion criteria on grounds of national interest,
public health or environment protection and it has to make exceptions if debts to the consolidated
general budget are under 4.000 lei (about €870) and under 5% of the total due taxes and contributions
of the economic operator.
Following the provisions of article 57, paragraph 4 of the Directive 2014/24, article 167 of Law no. 98
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provides that the contracting authority excludes any economic operator which:
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See also the art. 177 of Law 99/2016 on sectorial procurement; art. 79 Law no. 100/2016 on works concessions
and service concessions.
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See also art. 178 of Law 99/2016 on sectorial procurement; art.80 of Law 100/2016 on works concessions and
service concessions
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See also the art. 180 of Law 99/2016 on sectorial procurement; art.81 of Law 100/2016 on works concessions
and service concessions.