Decision n°575/2022, 27 January 2022, Council of State, sez. V, Italy (ENGLISH VERSION)

Article(s) in Directive 2014/24/EU: Art. 57 
Topic: Exclusion grounds 
Member State: ITA 
Court/rev. board: Consiglio di Stato, sez. V, 27 January 2022, n. 575 

1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION

Author: Edoardo Tozzo, Review: Michele Cozzio

 

Art. 80 (Exclusion grounds) D.lgs. 50/2016 (italian public contracts code)

Art. 57 (Exclusion grounds) Directive 2014/24/EU.

The Italian legislation (Article 80) integrates the catalogue of offences or misconduct that determine the exclusion of the economic operator from participation in a procurement procedure. It also specifies the hypotheses of exclusion grounds with respect to the provisions of the EU Legislator (Article 57) of Directive 2014/24/EU.

 

2. FACTS

The case concerns the tender procedure relating to the award of “the activity of passenger and luggage security control”.

The applicant complained that the successful tenderer had failed to report certain events concerning the majority shareholder which had ceased in the year preceding the publication of the tender notice (a conviction not having the force of res judicata for the offence of extortion under Article 629 of the Italian Criminal Code) such as to constitute a case of exclusion from the tendering procedure on the ground of grave professional misconduct (Article 80 (5) of the Italian public contracts code). The latter rule provides that any economic operator may be excluded from participation in a contract if it is liable of grave professional misconduct, which renders its integrity doubtful.

 

3. JUDGMENT

The judgment offers insights on the identification of the time limit within which there is a general obligation on the economic operator to declare the facts that may constitute an exclusion ground for grave professional misconduct. The issue is significant because, in the Italian system, the vagueness of the concept of professional misconduct has been extended to the point of introducing a generic and non-typical category, which leads to considerable uncertainties in terms of interpretation and application (see G. Gischione, F. Lilli, Casi e materiale sull’ illecito professionale e contrattuale nelle gare pubbliche, Napoli, in Editoriale Scientifica, 2021).

The judicial decision provides for identifying as the reference period for exclusion for serious professional misconduct the three years from the date on which the act was committed.

In the opinion of the Council of State, there is no rule of national law establishing a general chronological limit within which the facts liable to constitute grave professional misconduct are relevant. The three-year period precluding participation in tenders, provided for in Article 80(10-bis) of the Italian Public Contracts Code, concerns only cases where there has been an exclusion from previous tenders or a judgment which has become final.

In the absence of specific indications, the Italian court considers directly applicable the European rule setting a time limit of three years for the relevance of the grave professional misconduct (Article 57 (7), Directive 2014/24/EU). This means that for economic operators, the obligation to declare their professional history does not extend to all information, but only to those relevant in the three years preceding the call for tenders.

In other words, the facts which are the subject of a non-final criminal conviction attributable to the ceased majority shareholder are not subject to the reporting obligations if the three-year period of relevance has elapsed with respect to both the commission of the facts which are the subject of the judgment and the date of the judgment.