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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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3. Member States may provide for a derogation from the mandatory exclusion
provided for in paragraphs 1 and 2, on an exceptional basis, for overriding reasons
relating to the public interest such as public health or protection of the environment.
Member States may also provide for a derogation from the mandatory exclusion
provided in paragraph 2, where an exclusion would be clearly disproportionate, in
particular where only minor amounts of taxes or social security contributions are
unpaid or where the economic operator was informed of the exact amount due
following its breach of its obligations relating to the payment of taxes or social security
contributions at such time that it did not have the possibility of taking measures as
provided for in the third subparagraph of paragraph 2 before expiration of the
deadline for requesting participation or, in open procedures, the deadline for
submitting its tender.
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4. Contracting authorities may exclude or may be required by Member States to
exclude from participation in a procurement procedure any economic operator in any
of the following situations:
a)
where the contracting authority can demonstrate by any appropriate means a
violation of applicable obligations referred to in Article 18(2);
b)
where the economic operator is bankrupt or is the subject of insolvency or
winding-up proceedings, where its assets are being administered by a liquidator
or by the court, where it is in an arrangement with creditors, where its business
activities are suspended or it is in any analogous situation arising from a similar
procedure under national laws and regulations;
c)
where the contracting authority can demonstrate by appropriate means that the
economic operator is guilty of grave professional misconduct, which renders its
integrity questionable;
d)
where the contracting authority has sufficiently plausible indications to conclude
that the economic operator has entered into agreements with other economic
operators aimed at distorting competition;
e)
where a conflict of interest within the meaning of Article 24 cannot be effectively
remedied by other less intrusive measures;
f)
where a distortion of competition from the prior involvement of the economic
operators in the preparation of the procurement procedure, as referred to in
Article 41, cannot be remedied by other, less intrusive measures;
g)
where the economic operator has shown significant or persistent deficiencies in
the performance of a substantive requirement under a prior public contract, a
prior contract with a contracting entity or a prior concession contract which led
to early termination of that prior contract, damages or other comparable
sanctions;
h)
where the economic operator has been guilty of serious misrepresentation in
supplying the information required for the verification of the absence of grounds
for exclusion or the fulfilment of the selection criteria, has withheld such
information or is not able to submit the supporting documents required
pursuant to Article 59; or
i)
where the economic operator has undertaken to unduly influence the decision-
making process of the contracting authority, to obtain confidential information
that may confer upon it undue advantages in the procurement procedure or to
negligently provide misleading information that may have a material influence
on decisions concerning exclusion, selection or award.
Notwithstanding point (b) of the first subparagraph, Member States may require or
may provide for the possibility that the contracting authority does not exclude an
economic operator which is in one of the situations referred to in that point, where
the contracting authority has established that the economic operator in question will
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