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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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affecting the businesses beyond the conviction sentence received, taking into account also that
publishing the sentence is an accessory penalty by itself.
However,
the database should allow contracting authorities to check in a simple way if the exclusion
grounds stipulated by the Directive 2014/24/UE and to some extent by the national legislation are
applicable to economic operators participating to tenders
(bidders, associated bidders, subcontractors,
third parties supporting the bidder to meet the selection criteria). Therefore,
the
database should
include:
Legal persons convicted for organized crime, corruption, fraud, money laundering, terrorism,
child labour and other forms of trafficking in human beings
(grounds for exclusions stipulated
by Article 57 paragraph 1 of Directive 2014/24/UE) and the exact moment of the final court
decision.
Legal persons convicted
for a criminal offence in their country and punished
with debarring (a
ban from participation to public procurement procedures) and the exact period of the ban.
The ‘unreliable’ economic operators
,
on the model of the Lithuanian “List of Unreliable
Suppliers”
, including economic operators proposed by the contracting authorities after a
substantial breach of a contract causing the untimely termination of a contract or the legitimate
refusal of the contracting authority to pay the prices, if:
o
the economic operator does not dispute in court the contract termination or the refusal
of payment; or
o
the court upholds that the contracting authority decision has been lawful and due to a
substantive breach of contract on the part of the economic operator;
and always
o
the court agrees the breach of contractual obligations is serious enough to result in the
blacklisting of the economic operator.
The ‘untrustworthy’ economic operators
,
on the model of the Lithuanian “List of Suppliers that
have Submitted Fraudulent Information”,
including economic operators proposed by the
contracting authorities when they have concealed information or have given fraudulent
information about compliance with the qualification requirements or grounds for exclusion
during the tender procedures, the contracting authority can prove it by any legal measures and
(a) the economic operator does not dispute this in court; or (b) the court upholds the decision of
the contracting authority and (c)
the court agrees the breach of legal requirements is serious
enough to result in the blacklisting of the economic operator.
The recommended blacklist(s) should be based on the registration of economic operators convicted for
crimes and only after their conviction on a system of criminal liability, quasi-criminal liability or
administrative punitive liability for criminal offences. Therefore the recommendation is putting much
more weight on the role played by the judiciary.
C.
Alternatively, and temporarily (until the creation of the abovementioned database),
the European
Commission should analyse the possibility to: