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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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Greece
Italy
Lithuania
Romania
Grounds
for
exclusion from a
tender according to
the
procurement
regulations
Max. 5 years in the
case of mandatory
exclusion grounds
(convictions
for
crimes)
Max. 5 years in the
case of mandatory
exclusion grounds
(convictions
for
crimes)
Max. 5 years in the
case of mandatory
exclusion grounds
(convictions
for
crimes)
Max. 5 years in the
case of exclusion
grounds
including
conviction
for
crimes
Length of the ban
from
public
procurement as a
criminal sanction
NA
A maximum of 2
years
(for
legal
persons)
NA
From 1 year to 3
years
Administrative bans
form
public
procurement
Maximum
of
6
month
NA
3 year for economic
operators on the
“List of Unreliable
Suppliers”
1 year for economic
operators on the
“List of Suppliers
that have Submitted
Fraudulent
Information”
NA
Most of the experts and practitioners interviewed for the present research haven’t identified major risks
in the differences between the periods of exclusions stipulated by different regulations at national and
European level; a more focused analysis is needed. The differences in length and regulation can raise
problems on applying rules on exclusions and banns in international contexts, when economic operators
convicted in one county participate to a tender in another state, within the EU or not.
7.3.
Compliance with the presumption of innocence
While the exclusion form public procurement cannot happen on grounds of unfinished judicial
proceedings in respect of criminal acts, in none of the cases analysed, can such proceedings provide
information to the contracting authorities regarding a serious breach of professional conduct or another
reason for exclusion not requiring a criminal conviction. Therefore, although the blamed deed is not
proved to be a criminal offence and it will not generate a conviction, it can determine an exclusion from
a tender. This is not considered discriminatory, as it is a protectionmeasure for the contracting authorities
and public funds. The problem lies in the lack of a clear definition of a “serious breach of professional
conduct”.
Experts recognise this is a challenging situation from the point of view of the presumption of innocence
principle. However, they underlined that in these situations, until a final conviction, bidders have the
possibility to prove they took remedial measures within their organisations and be allowed to participate
in the tender. On the other hand, self-cleaning regulations and defences available are also vague and
open to interpretation and subjectivity, and, therefore, the contracting authorities can be unfair, failing
to observe the principle of transparency and equal treatment, and clear provisions are needed.