Keywords
Summary

Keywords

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 contract — Member States’ discretion — Non-performance of obligations relating to payment of social security — Lawfulness — Conditions

(Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Art. 45(2))

Summary

Articles 49 TFEU and 56 TFEU and the principle of proportionality must be interpreted as not precluding national legislation which, with regard to public works contracts the value of which is below the threshold laid down in Article 7(c) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1177/2009, requires the contracting authorities to exclude from the award procedure for such a contract a tenderer who has committed an infringement relating to social security contributions where the difference between the sums owed and those paid exceeds EUR 100 and is greater than 5% of the sums owed.

Although such a national provision which is capable of excluding tenderers from participating in a procurement procedure with a certain cross-border interest amounts to a restriction within the meaning of Articles 49 TFEU and 56 TFEU, it may be justified in so far as it pursues a legitimate objective in the public interest and to the extent that it complies with the principle of proportionality. The pursuance of such a legitimate objective includes the indication of the lack of reliability, diligence and responsibility by an economic operator in complying with its legal and social obligations. Such an indication is, moreover, in keeping with the principles of proportionality as the establishment of a precise threshold for the exclusion from procurement procedures, such as that defined by the national legislation at issue, is based on objective, non-discriminatory criteria known in advance. Those criteria ensure not only equal treatment of tenderers but also legal certainty, a principle which must be complied with for a restrictive measure to be proportionate.

Lastly, as regards the level of that threshold for exclusion, Article 45(2) of Directive 2004/18 does not provide for uniform application at EU level of the grounds of exclusion it mentions and allows the Member States to make the criteria laid down therein less onerous or more flexible. Article 45(2)(e) of Directive 2004/18 allows Member States to exclude from participation in a public contract any economic operator which has failed to fulfil its obligations relating to the payment of social security contributions without any minimum amount of outstanding contributions being set.

(see paras 30-37, 39, 41, operative part)