68 / 69
The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
66
be able to perform the contract, taking into account the applicable national rules and
measures on the continuation of business in the case of the situations referred to in
point (b).
5. Contracting authorities shall at any time during the procedure exclude an economic
operator where it turns out that the economic operator is, in view of acts committed
or omitted either before or during the procedure, in one of the situations referred to
in paragraphs 1 and 2.
Mandatory
and
substantive
At any time during the procedure, contracting authorities may exclude or may be
required by Member States to exclude an economic operator where it turns out that
the economic operator is, in view of acts committed or omitted either before or during
the procedure, in one of the situations referred to in paragraph 4.
Facultative
and
substantive
6. Any economic operator that is in one of the situations referred to in paragraphs 1
and 4 may provide evidence to the effect that measures taken by the economic
operator are sufficient to demonstrate its reliability despite the existence of a relevant
ground for exclusion. If such evidence is considered as sufficient, the economic
operator concerned shall not be excluded from the procurement procedure.
For this purpose, the economic operator shall prove that it has paid or undertaken to
pay compensation in respect of any damage caused by the criminal offence or
misconduct, clarified the facts and circumstances in a comprehensive manner by
actively collaborating with the investigating authorities and taken concrete technical,
organisational and personnel measures that are appropriate to prevent further
criminal offences or misconduct.
The measures taken by the economic operators shall be evaluated taking into account
the gravity and particular circumstances of the criminal offence or misconduct. Where
the measures are considered to be insufficient, the economic operator shall receive a
statement of the reasons for that decision.
An economic operator which has been excluded by final judgment from participating
in procurement or concession award procedures shall not be entitled to make use of
the possibility provided for under this paragraph during the period of exclusion
resulting from that judgment in the Member States where the judgment is effective.
Self-cleaning
condition
7. By law, regulation or administrative provision and having regard to Union law,
Member States shall specify the implementing conditions for this Article. They shall,
in particular, determine the maximum period of exclusion if no measures as specified
in paragraph 6 are taken by the economic operator to demonstrate its reliability.
Where the period of exclusion has not been set by final judgment, that period shall
not exceed five years from the date of the conviction by final judgment in the cases
referred to in paragraph 1 and three years from the date of the relevant event in the
cases referred to in paragraph 4.
Mandatory
and
procedural