Exclusion and self-cleaning in Article 57: discretion at the expense of clarity and trade?

Abstract

33 An example of this is its reworking of art. 55(3) (b) on bankruptcy; the Council had agreed to the Parliament's requirement that arrangements with creditors did not need to lead to exclusion before, but Parliament's first reading text widens this general principle to saying that where an economic operator in any of the bankruptcy-related situations does not need to be excluded if they can perform the contract and national law does not preclude this.

Striking a Balance Between EU Competition Law and Public Procurement Law: Analysing the CJEU attempt in the Vossloh Laeis case

“…31 The protection of this provision has led to a system called 'self-cleaning' programs whereby economic undertakings that wish to absolve themselves through an exclusion ground can prove their reliability and may thus be allowed to participate in future procurement processes. 32 However, the discretion left to contracting authorities per se conflicts with well-established EU principles of equal treatment, transparency and proportionality. As stressed by the CJEU in the field of public procurement law, a transparent procedure is one which is outlined by clear and accessible procedural rules.…”

“…34 In addition, the lack of clear discretionary rules for contracting authorities also leads to potential breaches of equal treatment as it is challenging to prove that they are treating similar undertakings who trigger similar exclusion grounds in an equal fashion if there are no transparent, strict nor accessible procedural rules to testify such treatment. 35 Consequently, this places a wide duty on contracting authorities to respect Treaty principles under, otherwise, vague and untouched rules on exclusion of economic operators from public procurement practices. Therefore, the competition rules on transparency end up limiting the discretionary powers offered to contracting authorities under Article 57 of Directive 2014/24.…”