Analysis: “Court of Justice clarifies scope and effects of self-cleaning under Directive 2014/24” by Piotr Bogdanowicz
Under Article 57(6) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (Directive 2014/24) any economic operator that is caught by one of the grounds for exclusion may provide evidence to the effect that measures taken thereby are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure. This is called ‘self-cleaning’.
In this context, the recent judgment of the Court of Justice in RTS infra and Aannemingsbedrijf Norré-Behaegel (C-387/19) deserves particular attention.
At the request of the Belgian Council of State (Raad van State), the Court clarified whether the economic operator must act on its own initiative in order to demonstrate that it had adopted self-cleaning measures.
The case before the Belgian Council of State concerned the decision of the Flemish Administration to exclude one of the tenderers (a joint venture) from the procedure because its members had previously committed acts of grave professional misconduct. The claimants asserted that before being excluded, they should have been allowed to demonstrate that they had taken corrective measures evidencing their reliability, in accordance with Article 57(6) of Directive 2014/24. In their view, that provision is directly applicable.
The Belgian Council of State wished to ascertain whether Article 57(6):
(i) allows a tenderer to be excluded without being given the opportunity to present evidence of reliability, in the case where, according to the contracting authority, that tenderer has committed an act of grave professional misconduct and has not indicated on its own initiative the corrective measures it has taken;
(ii) is directly effective, in the event that it precludes a requirement that the tenderer provide evidence on its own initiative.
Advocate General Campos Sánchez-Bordona suggested that the Court of Justice reply to the national court that Article 57(6) of Directive 2014/24 does not preclude an economic operator from having to declare and, in that event, prove, on its own initiative, that the self-cleaning measures it has taken are sufficient to demonstrate its reliability, despite the existence of a ground for exclusion by which it has been caught. This was, however, misleading… and has no justification in the Opinion itself.
In particular, in point 95 of his Opinion AG Campos Sánchez-Bordona indeed pointed out Article 57(6) of Directive 2014/24 does not preclude a position whereby the economic operator must, on its own initiative, declare (and, in that event, provide evidence of) the self-cleaning measures it has taken, however only where the ground for exclusion is clearly set out in the contract notice. This reflection of the principle of transparency is particularly important in the case of exclusion grounds based on such vague concepts as ‘grave professional misconduct’. At times, the tenderer is unable to foresee whether its behaviour will be classified as an act of grave misconduct.
The Court of Justice held that Article 57(6) of Directive 2014/24 precludes a practice whereby an economic operator is required to make a spontaneous contribution, at the time of submission of his application to participate or of his tender, of proof of the corrective measures taken to demonstrate his reliability despite the existence, with regard to him, of a ground for optional exclusion referred to in Article 57(4) of that Directive, where that obligation does not result either from the applicable national legislation or from the contract documents. By contrast, in the view of the Court of Justice, Article 57(6) of Directive 2014/24 does not preclude such an obligation where it is clearly, precisely and unequivocally provided for in the applicable national legislation and is brought to the attention of the economic operator concerned by means of the contract documents.
The position of the Court should not be surprising.
It has already been held that the above mentioned principle of transparency requires that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way. Consequently, tenderers cannot be required to disclose on their own initiative circumstances internal to them where neither the contract notice nor specifications provide for such an obligation. In those circumstances, that obligation would not constitute a clearly, precisely and unequivocally defined condition, and the principle of transparency would be infringed.
One can also agree with the Court of Justice that Article 57(6) of Directive 2014/24 is directly effective. That article, in a sufficiently precise manner, confers on tenderers a right (to rely on self-cleaning measures before the contracting authority) which they may assert before the national courts and which the latter are bound to protect. At the same time, the right at hand does not depend on the Member States (it is unconditional). Consequently, all the premises of direct effect are fulfilled.
Dr hab. Piotr Bogdanowicz is an Associate Professor of EU Law and EU Procurement Law at Warsaw University.