14.12.2013   

EN

Official Journal of the European Union

C 367/21

1.

May the Member States exclude an economic operator from participating in a procedure for the award of a public contract on grounds other than those listed in Article 45 of Directive 2004/18/EC (1) 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, on grounds that are considered to be justified from the point of view of protecting the public interest, the legitimate interests of the contracting authority or fair competition and the maintenance of lawfulness in competition) and, if so, is the provision of such exclusion in relation to an economic operator that has committed an infringement related to his economic or professional activity and established by court judgment which has the authority of res judicata given not more than five years ago compatible with the second recital in the preamble to that directive and with Articles 18 TFEU, 34 TFEU, 49 TFEU and 56 TFEU?

2.

If the Court of Justice should answer the first question in the negative, must the first subparagraph of Article 45(2) of Directive 2004/18, in particular points (c) and (d) of that provision, be interpreted as meaning that it is possible to exclude from the procedure for the award of a public contract any economic operator who has committed an infringement established by an administrative or judicial authority in competition proceedings initiated on account of his economic or professional activity, legal consequences in matters of competition having been applied to the economic operator, as a result of that infringement?