Case C‑178/16

Impresa di Costruzioni Ing. E. Mantovani SpA
and
Guerrato SpA

v

Provincia autonoma di Bolzano and Others

(Request for a preliminary ruling from the Consiglio di Stato)

(Reference for a preliminary ruling — Public works contracts — Directive 2004/18/EC — Article 45(2) and (3) — Conditions for exclusion from participation in public procurement — Declaration regarding the absence of convictions of former directors of the tendering company — Criminal conduct of a former director — Criminal conviction — Actual and complete dissociation between the tendering company and that director — Evidence — Assessment by the contracting entity of the requirements relating to that obligation)

Summary — Judgment of the Court (Fourth Chamber), 20 December 2017

1. Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Award of contracts—Grounds for exclusion from participation in a tender procedure—Member States' discretion—Possibility for the Member States to ease the requirements governing the application of the optional grounds for exclusion

   (European Parliament and Council Directive 2004/18, Art. 45(2))

2. Approximation of laws—Procedures for the award of public works contracts, public supply contracts and public service contracts—Directive 2004/18—Award of contracts—Grounds for exclusion from participation in a tender procedure—Possibility under national law for the contracting authority to take into consideration the criminal conviction of the director of a tendering company—Exclusion of a tendering company which failed to declare a conviction which was not yet final and which did not dissociate itself from the conduct of the director concerned—Whether permissible

   (European Parliament and Council Directive 2004/18, Art. 45(2)(c), (d) and (g))

1.  See the text of the decision.

   (see paras 31, 32, 41)

2.  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, in particular Article 45(2)(c), (d) and (g) of that directive, and the principles of equal treatment and proportionality, must be interpreted as not precluding national legislation which allows the contracting authority:

   –

   to take into consideration, in accordance with the conditions it has laid down, a criminal conviction of the director of a tendering company, even if the conviction is not yet final, for an offence concerning the professional conduct of that company where the director ceased to perform his duties in the year preceding the publication of the tender notice, and

   –	to exclude that company from taking part in the tendering procedure at issue, on the ground that, by failing to declare the conviction which was not yet final, it had not fully and effectively dissociated itself from that director’s activities. (see para. 55, operative part)