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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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III.
CONCLUSIONS AND
RECOMMENDATIONS
8.
CONCLUSIONS
Legal frameworks on the criminal liability of legal persons are not unified at European level. There systems
are not even similar, and there are great differences regarding sanctions in general, the bans from public
procurement procedures as a sanction in particular, the length of such sanctions when existing or the
existence of publicly available information on these sanctions.
On the other hand, in the European Member States, the new legal frameworks on public procurement,
transposing Directive 2014/24/EU, have clarified, detailed and unified to a great extent the approach with
regards to the grounds of exclusion and most experts and practitioners agree that unless major loopholes
are brought out during implementation, the regulation on grounds for exclusion seems sufficient in all
the four cases analysed.
Differences in the framework of exclusion from public procurement among countries may cause
difficulties for contracting authorities when evaluating bidders from different countries. The difficulties
in the contracting authorities’ understanding whether a foreign bidder is in an exclusion situation or not
can appear due to:
the lack of available public online databases of debarred economic operators;
the lack of linguistic accessibility to data (e.g. in order to check whether an Italian bidder has been
convicted for a crime representing an exclusion ground, a Greek, Lithuanian or Romanian
contracting authority should address the Italian Prosecution office in Italian);
differences in the grounds for criminal convictions of legal persons in different countries,
resulting in a difference in the treatment of bidders;
different provisions concerning the length of bans from public procurement procedures in
different countries can raise problems to contracting authorities when deciding if a bidder has
to be excluded or not.
The adoption of Directive 2017/1371/EU
78
is an important step ahead
in ensuring punitive corporate
liability for frauds affecting the Union's financial interests. The Directive stipulates that „Member States
shall take the necessary measures to ensure that legal persons can be held liable for any of the criminal
offences referred to in Articles 3, 4 and 5 [frauds affecting the Union's financial interests, incitement,
aiding and abetting, and attempt to such frauds] committed for their benefit by any person, acting either
individually or as part of an organ of the legal person, and having a leading position within the legal
person” (Art. 6, Paragraph 1). The Directive also provides that “Member States shall also take the
necessary measures to ensure that legal persons can be held liable where the lack of supervision or
control by a person” with power of representation, authority to take decisions on behalf of the legal
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Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud
to the Union's financial interests by means of criminal law. Official document available online at
: http://eur- lex.europa.eu/eli/dir/2017/1371/oj(last accessed 15/11/2017).