55 / 69
The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
53
6.
Subcontractors should be excluded if they are in one of the mandatory exclusion grounds,
namely if they have been convicted for organized crime, corruption, fraud, money laundering,
terrorism, child labour and other forms of trafficking in human beings,
even if Directive
2014/24/UE doesn’t stipulate an obligation for Member States to regulate this issue (
see above
recommendation D)
.
7.
Clear rules have to be developed at national level, in each of theMember States’ legal framework,
to support judges in applying proportionate sanctions to each legal person.
8.
The “due diligence defence” should be offered to legal persons
, considering its preventive effect
(
see above recommendation A.7).
9.
Public online registers/databases of debarred economic operators should be available at
national level at least for the contracting authorities
(see above recommendation B)
, in order to
allow for the exclusion of bidders from public procurement for a certain period once the grounds
for exclusion are established and to ensure the appropriate means are in place for monitoring
the applicability of grounds for exclusion. Such a database should include:
o
legal persons convicted for criminal offences, including the crime and the sanction
specified in the ruling;
o
economic operators debarred from public procurement, including the period of
debarment;
o
economic operators found guilty of providing false documents or information to
contracting authorities
, subsequent to the regulation of the database in the national
legislation and in cases wherein a judicial ruling on the publication of the economic
operator’s debarment was issued
;
o
economic operators found guilty of a serious breach of their public procurement
contracts,
subsequent to the regulation of the database in the national legislation and in
cases wherein a judicial ruling on the publication of the economic operator’s debarment
was issued
.
10. Moreover,
Member States should analyse the introduction of the obligation to develop a
compliance programme and/or an anti-corruption policy within the legal person,
as:
o
a sanction, or
o
a security measure.
11.
The dialogue between national authorities and the private sector should be strengthened
in
order to eliminate all the interpretative issues regarding legal standards and to ensure simplicity
and transparency in the participation to public procurement.