Decision n. 488524, 16th February 2024, Council of State, Département des Bouches-du-Rhône, B, France
Article(s) in Directive 2014/24/EU: Art. 57 (7)
Topic: Sufficient demonstration of reliability; Period of exclusion (starting)
Member State: FR
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Article 57 (4) and (7) of the Directive 2014/24/EU was implemented by the Code de la commande publique (CCP), with the article L. 2141-8 et L. 2141-11. The wording of French law does not set any specific time limits for these optional grounds for exclusion.
2. FACTS
A bidder was excluded from a public procurement procedure because of a non-final conviction for acts of corruption in the context of several public procurement procedures for undue influence. These acts took place between 2012 and 2016, but the conviction dated to 2022. The question was therefore to determine the duration of the exclusion and its starting point, i.e. from the acts of corruption or from the conviction.
3. JUDGMENT
The Département des Bouches-du-Rhône is definitely at the forefront of case law on undue influence. In 2019 (CE 24th June, 2019, no. 428866, Département des Bouches-du-Rhône, classified A), the Conseil d’Etat accepted that this case of exclusion covered reprehensible behaviour not only in the context of the public procurement procedure in question, but also in the context of other “recent” public procurement procedures. This solution was extended to procedures for awarding concession contracts (CE, 24th March, 2022, Société EPI et al., no. 457733) and reinforced by a Grand Chamber ruling of the CJEU of 21st December, 2023 (CJEU, Grand Chamber, Infraestruturas de Portugal SA and Futrifer Indústrias Ferroviárias SA v. Toscca – Equipamentos em Madeira Lda, C-66/22).
In this new decision, the Conseil d’Etat clarifies the assessment of the “recent” period, i.e. the duration to be considered for the exclusion period, and its starting point:
« The provisions […] allow contracting authority to exclude from a public procurement procedure a person who can be considered, on the basis of precise and detailed elements, as having, in the context of the procurement procedure in question or in the context of other recent public procurement procedures, undertaken to influence the contracting authority’s decision and has not established, in response to the contracting authority’s request to this end, that its professionalism and reliability can no longer be called into question and that its participation in the procedure is not such as to undermine equal treatment between candidates.
[… The] contracting authority may not consider, to pronounce such an exclusion, facts committed more than three years ago. However, where a non-final conviction has been handed down in respect of such acts, the three-year period shall run from the date of the conviction. »
The judgment under review provides answers that partially satisfy the need for legal certainty. In the 2019 ruling, the inherent vagueness of the term “recent” was deplored. At the suggestion of its rapporteur public Nicolas Labrune, the Conseil d’Etat decided to apply the three-year period provided for in Article 57 § 7 of the Directive to non-mandatory grounds for exclusion. The French legislator had not transposed this three-year period for most of these non-mandatory exclusions, except for the case of sanctions for poor performance, since the transposition text stipulated that this applied to procurement procedures other than the current one, unlike the other cases of non-mandatory exclusion. However, as case law extends this possibility of exclusion to other cases of non-mandatory exclusion, it makes sense to apply the directive directly, thereby reinforcing legal certainty on this point.
As for the starting point of the time limit, article 57§7 of the Directive refers to the “event concerned” without any further clarification. In the view of the Conseil d’Etat, the time limit may start from the non-final criminal conviction, where such exists. The fact that the criminal conviction is not final is not an obstacle, since the directive itself implicitly, but necessarily, envisages this, opposing a period of five years from a final conviction for the cases referred to in paragraph 1 of this article 57 of the Directive and a period of three years for other cases.
But the conclusions tell us that the starting point could be earlier in some cases, and even as a matter of principle. Based on CJEU case law, the rapporteur public distinguishes between two hypotheses.
The first, when “an economic operator has engaged in conduct falling within the scope of a case of exclusion, but these facts have not – or not yet – been sanctioned by a competent authority, whether judicial or administrative“, case in which the time limit will run from these facts (CJEU judgment cited above, paragraph 79): a decision to impose a penalty on an operator “may lead the contracting authority to exclude that economic operator from the procedure for the award of the public contract in question“, but, “conversely, the absence of such a decision can neither prevent nor dispense the contracting authority from carrying out an (…) assessment” of that operator’s attitude.
The second hypothesis, “where the facts giving rise to a case of exclusion have already given rise to a sanction. And, in this configuration, the CJEU has given a very constructive interpretation to the notion of “event concerned“. Indeed, in a judgment of 24th October 2018 (CJEU, 24th October 2018, Vossloh Laeis GmbH v. Stadtwerke München GmbH, C-124/17), the court ruled, regarding another case of optional exclusion, that when the conduct falling within the exclusion clause “has been sanctioned by a competent authority“, then, “the maximum period of exclusion is calculated from the date of that authority’s decision. We believe that this rule, laid down for the case of exclusion provided for in Article 57(4)(d) of the Directive, i.e. anti-competitive agreements, should be extended to cases falling under (i), i.e. those where the operator has attempted to unduly influence the decision-making process or has attempted to obtain confidential information“.
We can approve this extension of the cartel solution, as there is no reason to distinguish between exclusions at the discretion of the contracting authority. On the other hand, we may question what seems to result from this: a reopening of the time limit in the event of a conviction after the three-year time limit from the commission of the acts. The rapporteur public points out, without abandoning the solution, that this could lead to candidates being excluded twice for three years: once from the facts of the case, and again from the criminal conviction… This seems clearly contrary to the directive, which speaks of a three-year exclusion period, even if the rapporteur public convinces the Conseil d’Etat that this is a consequence of CJEU case law… But this interpretation of the directive does not seem, to us, essential. Truthfully, he argues that it would be conceivable to exclude the reopening of the time limit once an exclusion has been pronounced. And, in any event, it should be possible to exclude from the notion of competent authority a criminal court ruling on offences under Article 57§1 of the Directive, even if this means going against the aforementioned “Vossloh Laeis GmbH” decision or interpreting this ruling as not including the jurisdictional bodies. Point 36 of Vossloh Laeis GmbH states: “First of all, under Article 57(7) of Directive 2014/24, Member States shall determine the maximum duration of the exclusion period if none of the measures referred to in Article 57(6) of that Directive has been taken by the economic operator to demonstrate its reliability, and this duration may not, where the duration of the exclusion period has not been fixed by final judgment, for the cases of exclusion referred to in Article 57(4) of the said Directive, exceed three years from the date of the event concerned“. Based on this passage, we can exclude from the scope of article 57§4 conduct sanctioned under article 57§1. We should even rule that conduct “sanctionable” under article 57§1 of Directive 2014/24 is concerned.
Be that as it may, it is interesting to note that the Conseil d’Etat, far from confining itself to the solution of the case in point, made clear that the three-year period would run from the commission of the acts, unless there had been a non-final conviction, in which case the period would run from the date of that conviction. It has been known to be more reluctant to apply obiter dictum – if that is what it is, but this was not the first case – and this solution is to be welcomed, as it sets out clear instructions for use.
This recognizes the possibility of using a criminal conviction as an instrument to prove undue influence, even if it is not final, and there is a “mandatory” (as the directives say) or “automatic” (as the French Code says) exclusion for certain final criminal convictions. In any case, it is possible that there is still a difference between the two: in the circumstances of the case under review, and unlike in the case commented on below where undue influence would have been characterized, there is no obligation to exclude the candidacy, as the Conseil d’Etat states in rejecting the company’s argument that it could not be excluded this time, since it had not been excluded by the Département previously (point 12 of the judgment). This is undoubtedly the case whenever undue influence results from a past procurement procedure.
But there is another “strangeness“, as the rapporteur public points out, to this solution: a criminal conviction can be used both for a case of compulsory exclusion, for a period of five years, and for a non-definitive exclusion, for a period of three years, with different (and variable) starting points for the second hypothesis. The combination of the two risks becoming inextricable, to the detriment of legal certainty. While the solution of extending the attempt to exert undue influence on previous procurement procedures can be approved, the inclusion of facts that have given rise or are likely to give rise to a criminal conviction should, in our view, have been excluded.
Lastly, the ruling provides an interesting example of what is not self-cleaning: the Conseil d’Etat rules that the rejected company “argues that the person found guilty of active bribery by the Marseille Criminal Court’s judgment of 2nd December 2022 no longer has the status of manager. However, the [company] has not established that it has taken any measures to ensure that this person, who still has control over the company in his capacity as majority shareholder, can no longer interfere in its management“. This seems logical under company law.
Link to the original decision: https://www.legifrance.gouv.fr/ceta/id/CETATEXT000049156234
