Jurisdiction(s):
United Kingdom

CJEU clarifies Article 57(4): no automatic exclusion for subcontractor breaches; discretion and self-cleaning required - UK PCR 2015 approach unaffected

Published on: 07 February 2020

Published by a LexisNexis Public Law expert

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Article summary

Tim SpA—Direzione e coordinamento Vivendi SA v Consip SpA, Ministero dell’Economia e delle Finanze Case C-395/18

What are the practical implications of this case?

General implications

This ruling is expected to trigger reconsideration of national procurement laws across EU Member States that impose automatic, rather than discretionary, exclusions. Under Article 57(4) of Directive 2014/24/EU, contracting authorities may choose to bar tenderers shown to be unreliable—for example due to breaches of environmental or social duties, including accessibility rules for disabled persons (Article 57(4)(a)). Member States may transpose these grounds with differing levels of rigour, provided the conditions align with general EU law (paras [33] and [34]). The Court of Justice delineated the scope of that discretion by confirming that Member States may require contracting authorities to exclude bidders for infringements of social and labour law committed by their nominated sub-contractors, so long as the exclusion is not automatic.

Implications for UK public procurements

In keeping with the UK’s ‘copy out’ method for transposing Directive 2014/24/EU, the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, effectively preserve the maximum flexibility for contracting authorities...

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