62016CC0178
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 21 June 2017 (
1
)
Case C‑178/16
Impresa di Costruzioni Ing. E. Mantovani SpA,
Guerrato SpA
v
Provincia autonoma di Bolzano,
Agenzia per i procedimenti e la vigilanza in materia di contratti pubblici di lavori servizi e forniture (ACP),
Autorità nazionale anticorruzione (ANAC)
intervening parties:
Società Italiana per Condotte d’Acqua SpA,
Inso Sistemi per le Infrastrutture Sociali SpA
(Request for a preliminary rulingfrom the Consiglio di Stato (Council of State, Italy))
(Public procurement — Declaration that former directors of the tendering company have no final criminal convictions — Requirement that the company show complete and genuine dissociation from the conduct of the former director in order to avoid exclusion — Assessment by the contracting authority of the conditions relating to that requirement)
1.
The Italian legislation on public procurement states that (subject to the qualifications that shall be examined subsequently) public contracts are not be awarded to persons who have been convicted of serious professional conduct offences against the State ‘or the Community’. This prohibition extends to undertakings whose directors are convicted of such offences, unless those undertakings can show that they have completely and genuinely dissociated themselves from the criminal conduct of their directors.
2.
The Consiglio di Stato (Council of State, Italy) is being called upon to decide an appeal against a judgment upholding the decision of a contracting authority to exclude from a procurement procedure a tendering company whose director was convicted of one of those offences. In order to resolve the dispute, it is asking the Court of Justice, in essence, whether the Italian legislation under which the exclusion was effected is compatible with Directive 2004/18/EC. (
2
)
3.
The reference for a preliminary ruling will allow the Court of Justice to refine its case-law on the ability of Member States to determine and vary the content of the optional grounds for excluding tenderers that are set out in Directive 2004/18.
I. Legislative framework
A.
European Union law
Directive 2004/18
4.
By virtue of Article 45 (‘Personal situation of the candidate or tenderer’):
‘1.   Any candidate or tenderer who has been the subject of a conviction by final judgment of which the contracting authority is aware for one or more of the reasons listed below shall be excluded from participation in a public contract:
(a)
participation in a criminal organisation, as defined in Article 2(1) of Council Joint Action 98/773/JHA;
(b)
corruption, as defined in Article 3 of the Council Act of 26 May 1997 … and Article 3(1) of Council Joint Action 98/742/JHA … respectively;
(c)
fraud within the meaning of Article 1 of the Convention relating to the protection of the financial interests of the European Communities;
(d)
money laundering, as defined in Article 1 of Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering.
Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.
They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.
For the purposes of this paragraph, the contracting authorities shall, where appropriate, ask candidates or tenderers to supply the documents referred to in paragraph 3 and may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned. Where the information concerns a candidate or tenderer established in a State other than that of the contracting authority, the contracting authority may seek the cooperation of the competent authorities. Having regard for the national laws of the Member State where the candidates or tenderers are established, such requests shall relate to legal and/or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer.
2.   Any economic operator may be excluded from participation in a contract where that economic operator:
…
(c)
has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning his professional conduct;
(d)
has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate;
…
(g)
is guilty of serious misrepresentation in supplying the information required under this Section or has not supplied such information.’
5.
By virtue of Article 45(3):
‘Contracting authorities shall accept the following as sufficient evidence that none of the cases specified in [paragraph] … 2 … (c) … applies to the economic operator:
(a)
... the production of an extract from the ‘judicial record’ or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or the country whence that person comes showing that these requirements have been met;
...’
B.
Italian law
6.
The order for reference indicates that Article 38(1)(c) of Legislative Decree No 163/2006, (
3
) in the version applicable at the material time, provides that the ground for exclusion [from participating in procedures for the award of public works contracts, public supply contracts and public service contracts] consisting of a conviction by final judgment or the issuing of a judgment imposing a sentence that has been negotiated between the parties pursuant to Article 444 of the Codice di procedura penale (Code of Criminal Procedure), for the offences specified, (
4
)‘applies also in respect of persons having ceased to hold [managerial] office in the year preceding the date of publication of the contract notice, if the undertaking does not show that there has been complete and genuine dissociation from the conduct which carries criminal sanctions’.
7.
Article 38(1)(f) and (h) of the Legislative Decree No 163/2006 also provide for the exclusion from this type of competitive tendering of: (i) persons guilty of serious professional error, established by the contracting authority using any means of proof; and (ii) persons who have submitted false statements or documents concerning the criteria and requirements for participation in public tendering procedures.
II. Facts of the case and the question referred for a preliminary ruling
8.
On 27 July 2013 a contract notice was published in the Official Journal of the European Union (
5
) for the financing, definitive planning and final design, construction and management of a new prison in Bolzano. The value of the contract was EUR 165400000.
9.
Impresa di Costruzioni Ing. E. Mantovani SpA (‘Mantovani’) responded to the invitation to tender both on its own behalf and as part of a temporary association of undertakings and submitted two declarations (dated 4 and 16 December 2013) stating that it satisfied the general requirements in the invitation to tender.
10.
In particular, Mantovani stated (in the first declaration) that Mr B., formerly chairman of the board of directors and [managing] director of the company, with powers to act on its behalf, had ceased to hold office on 6 March 2013 and that Mantovani was not aware of any judgment of the type referred to in Article 38(1)(c) of the Legislative Decree No 163/2006 having been issued. The second declaration was similarly worded.
11.
At a meeting held on 9 January 2014, the contracting authority conditionally authorised Mantovani to take part in the procedure, pending certain clarifications, since it was ‘common knowledge’ according to a story published in a local newspaper, that, having been accused of running a system of false invoices, Mr B had negotiated a sentence of one year and 10 months’ imprisonment.
12.
In the course of verifying that the requirements had been met, the contracting authority obtained an extract from the judicial record in relation to Mr B., which stated that he had been sentenced to one year and 10 months’ imprisonment for various offences that he had committed (judgment of the Tribunale di Venezia (District Court, Venice, Italy) of 5 December 2013, which became final on 29 March 2014).
13.
At a meeting held on 29 May 2014, the contracting authority decided not to lift the condition relating to Mantovani’s authorisation to take part in the procedure and on 3 June 2014 it requested Mantovani to give further details regarding the judgment in question.
14.
By statements of 10 June 2014 and 17 October 2014, Mantovani provided the further details requested, claiming that:
–
the judgment had been published and become final only after it had submitted the statements concerning compliance with the general requirements;
–
it had put in place a series of measures demonstrating that it had promptly, genuinely and completely dissociated itself from the conduct of Mr B. The latter had been immediately removed from all positions of responsibility in the Mantovani group, which had implemented an internal restructuring of the company’s management bodies, recovered the shares held by Mr B. and brought an action for damages against him.
15.
The contracting authority requested an opinion from the Autorità nazionale anticorruzione (National Anti-Corruption Authority, ‘ANAC’), which was issued on 25 February 2015 and stated, in summary, as follows:
–
Where the tenderer submits a statement attesting that, in relation to the grounds of exclusion referred to in Article 38(1)(c) of the CCP, persons who have ceased to hold office in the year preceding the date of publication of the contract notice are not covered by those grounds, using the wording ‘to the best of its knowledge’ and duly identifies such persons, it is for the contracting authority to undertake the necessary checks.
–
In this case, there was no misrepresentation as that would have required a final judgment rather than the mere existence of pending criminal proceedings.
–
It was for the contracting authority to assess whether the measures taken by Mantovani to demonstrate that the company had genuinely and completely dissociated itself from the criminal activities of the former director were actually effective.
–
These measures may have been compromised by Mantovani’s failure to declare the conviction in the tendering procedure. According to the case-law, a failure to keep the contracting authority informed in a timely manner of the progress of criminal proceedings involving the persons mentioned in Article 38(1)(c) of the CCP is indicative of a lack of dissociation, as it is contrary to the duty of sincere cooperation.
16.
In the light of the opinion issued by ANAC, on 27 February 2015, the contracting entity decided to exclude Mantovani from the tendering procedure on the grounds of its delayed and inadequate disclosure of the evidence required to demonstrate its dissociation from the director who had been convicted. It added that the conviction of the director preceded the submission of the declarations in the tendering procedure and Mantovani could therefore have reported it.
17.
Mantovani brought an action in the Tribunale regionale di giustizia amministrativa, Sezione autonoma di Bolzano (Regional Administrative Court, Bolzano autonomous section, Italy) in respect of the exclusion and, by judgment No 270 of 27 August 2015, that court held that the action was inadmissible in so far as it challenged both the opinion of the ANAC (which was merely a procedural step) and the award (which had not yet been put into effect). The judgment also rejected the arguments made for granting access to all the documents on the case-file relating to the tendering procedure and held that the company had failed to show that it had dissociated itself from the former director’s criminal conduct.
18.
Mantovani brought an appeal against that judgment before the Consiglio di Stato (Council of State), arguing, inter alia, that Article 38 of the CCP is incompatible with EU law and seeking a reference to the Court of Justice for a preliminary ruling.
19.
By a decision of 1 December 2015, the Consiglio di Stato (Council of State) referred the following question for a preliminary ruling:
‘Is it contrary to the correct application of Article 45(2)(c) and (g), and Article 45(3)(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts … and of the EU law principles of protection of legitimate expectations and legal certainty, equal treatment, proportionality and transparency, of the prohibition of making the procedure more cumbersome, and of the greatest possible openness to competition of public tender procedures, as well as of the principle of completeness and accuracy of the requirements governing the implementation of penalties, for national legislation such as Article 38(1)(c) of Legislative Decree No 163 of 12 April 2006 (Code on public works contracts, public service contracts and public supply contracts implementing Directives 2004/17/EC and 2004/18/EC) and subsequent amendments:
–
to extend the legal obligation to make a declaration regarding the absence of convictions by way of final judgment (including judgments implementing a sentence resulting from a negotiated plea), for the offences referred to in that provision, to office-holders in the companies intending to submit a tender who ceased to hold office in the year preceding the publication of the tender notice,
–
which amounts to a corresponding ground for exclusion of that company from the call for tender if the undertaking fails to show that there has been complete and genuine dissociation from the conduct which carries criminal sanctions,
–
where assessment of compliance with the dissociation requirement is a matter for the contracting authority, which contracting authority can effectively introduce certain obligations entailing the exclusion of the tenderer in the event that they are not fulfilled, namely:
(i)
an obligation to provide information and make declarations relating to criminal activities not yet settled by a final judgment (and the outcome of which is therefore uncertain), not laid down in the Legislative Decree, even in respect of office holders;
(ii)
an obligation of voluntary dissociation, without describing the kind of conduct which would be exculpatory, the period to be taken into account (including whether it must occur before the criminal conviction becomes final) and the stage of the proceedings at which those obligations must be implemented;
(iii)
an obligation of sincere cooperation, not clearly defined, except with reference to the general principle of good faith?’
III. Procedure before the Court of Justice
20.
The order for reference was received at the Registry of the Court of Justice on 24 March 2016.
21.
Written observations were submitted by Mantovani, Provincia Autonoma di Bolzano (Autonomous Province of Bolzano), the Italian Government and the European Commission within the time-limit specified in the second paragraph of Article 23 of the Statute of the Court of Justice.
22.
Following the Court’s decision to hold a hearing and in accordance with Article 61(2) of the Rules of Procedure of the Court of Justice, it invited the parties to focus their submissions on the interpretation of Article 45(2)(d) of Directive 2004/18.
23.
The hearing took place on 5 April 2017 and was attended by Mantovani, the Autonomous Province of Bolzano, the Italian Government and the European Commission.
IV. Summary of the observations of the parties
24.
Mantovani argues that Article 38(1)(c) of the CCP is contrary to Article 45(2) of Directive 2004/18 because it extends the ground of exclusion (based on a criminal conviction) to persons who were company directors until up to one year preceding the publication of the contract notice and because it requires the company to show that it has genuinely dissociated itself from such directors.
25.
In its view, once directors are no longer in office, they cease to have any influence in the company, with the result that to require the company to provide information about them would, in addition to being superfluous, be disproportionate and would constitute a burden which is contrary to the aim of opening up public procurement to market forces as much as possible.
26.
Even if it were accepted that EU law does not preclude extending the scope of the ground in this way, the additional requirement that the company demonstrate that it has genuinely dissociated itself is unlawful, since it is entirely lacking in precision and it is left to the discretion of the contracting authority to determine whether or not it is met. Legal certainty would be particularly affected in that a judgment need not be final, there is no clear indication as to the manner in which declarations are to be made, the period that they should cover or the stage in the procedure at which they should be submitted. Furthermore, the nature of the tenderer’s duty of sincere cooperation is not specified.
27.
The Autonomous Province of Bolzano argues that the question referred is inadmissible because:
–
it is similar to the question already answered by the Court of Justice in its judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici (C‑358/12, EU:C:2014:2063), particularly paragraph 36 thereof, which refers to the ability of the Member States to incorporate the optional grounds of exclusion into national law and to vary their content;
–
Mantovani was not excluded for a breach of the duty to provide information or to make declarations but because the measures taken to demonstrate that it had completely and genuinely dissociated itself from the criminal acts of its former director were taken too late and were inadequate. In that regard, the references to Article 45(2)(g) and Article 45(3)(a) of Directive 2004/18 are irrelevant.
28.
On the merits, the Autonomous Province of Bolzano does not perceive any incompatibility between Article 38(1)(c) of the CCP and Directive 2004/18. Article 45 of the directive gives the Member States the freedom both to choose which of the optional grounds of exclusion mentioned in Article 45(2) will operate in their domestic law and to determine the manner in which contracting authorities will assess the elements covered by the grounds selected. The national legislation at issue is consistent with this system.
29.
The Italian Government notes that the rationale behind Article 45 of Directive 2004/18 and Article 38 of the CCP is to ensure that those persons proposing to conclude contracts with governments are morally, financially and professionally reliable. The Italian legislature adopted a less stringent system than that of the directive by limiting the range of offences which can form the basis of an exclusion.
30.
In the view of the Italian Government, the exclusion of an undertaking due to the conduct of its directors can be justified by that very rationale: without such a provision the contractor could easily elude the assessment of its reliability. Moreover, the tenderer has the opportunity to demonstrate to the contracting authority that it has entirely dissociated itself from the criminal conduct of its directors.
31.
The Commission notes that even if the referring court is seeking an interpretation of Article 45(2)(c) and (g) and Article 45(3)(a) of Directive 2004/18, in order to provide it with a helpful answer, it is necessary to have regard to Article 45(2)(d), which relates to grave professional misconduct.
32.
Although the order for reference focuses on the fact that the judgment was not final at the time that Mantovani made the declarations, the conduct of its director (issuing false invoices relating to sums in excess of EUR 9000000 and criminal association) could be considered grave professional misconduct. Even if the director was no longer in office when the tendering procedure took place, Article 45(2)(d) of Directive 2004/18 also covers the past conduct of an operator and encompasses all wrongful conduct which has an impact on the professional credibility of that operator. (
6
) Consequently, the conduct of directors only recently removed from office may affect the contracting authority’s assessment of professional credibility.
33.
According to the Commission, the fact that the director’s conviction did not have the force of res judicata at the time the declarations were submitted is immaterial. It has been stated in the case-law of the Court of Justice that the grounds of exclusion set out in Article 45(2)(d) and (g) of Directive 2004/18 do not require the economic operator to have been convicted by a judgment that has become final. (
7
) Both EU law and national law allow grave professional misconduct to be proven by any means, so that the mere fact that criminal proceedings are pending may be sufficient.
34.
The Commission goes on to state that, in assessing whether there was grave professional misconduct, the contracting authority should have taken account of the measures that Mantovani had taken to dissociate itself from the criminal conduct of its director.
35.
The fact that Mantovani may not have been aware of the criminal proceedings involving its director might also form part of the ground of exclusion under Article 45(2)(g) of Directive 2004/18. The duty of the tenderer to declare grave professional misconduct is separate from the review and verification powers given to the contracting authority under Article 45(3) and Article 51 of Directive 2004/18, since the latter are concerned only with a purely formal verification or confirmation of matters already established.
36.
Finally, the Commission asserts that, in the circumstances of the case, it is not contrary to the principle of proportionality to apply those grounds of exclusion.
V. Analysis
A.
Preliminary remark
37.
The questions referred by the Consiglio di Stato (Council of State) principally concern the compatibility of a provision of Italian law (Article 38(1)(c) of the CCP) with Directive 2004/18. Nevertheless, both in the dispute before that court and in the observations of some of the parties over the course of the preliminary ruling proceedings, the debate has extended to include the interpretation (and application) of the national provision, an issue over which the Court of Justice has no jurisdiction.
38.
The answer provided by the Court of Justice must be limited to the interpretation of Directive 2004/18, in order to clarify for the benefit of the referring court whether the provision of domestic law, as described by the national court, is contrary to EU law. If it is established that it is compatible, then it is for the national court to explain how the various paragraphs of Article 38 of the CCP are to be interpreted and applied.
39.
I shall be examining how the Italian legislature has a large measure of discretion when it comes to adopting the optional grounds of exclusion referred to in Directive 2004/18 and determining their content. It is for the Member States to decide, in accordance with their own legislative policies, the content of the relevant national legislation, provided that it does not contravene that directive.
40.
The fact that, in previous preliminary ruling proceedings, the Court of Justice has already answered certain questions relating to the optional grounds of exclusion is not a sufficient reason to hold that the question now being referred is inadmissible, as the Autonomous Province of Bolzano alleges, as there are specific features that distinguish it from previous cases. (
8
)
B.
The wording of the question referred for a preliminary ruling
41.
It may be inferred from the account provided by the Consiglio di Stato (Council of State) that Mantovani was excluded from the tendering procedure due to its late and inadequate disclosure of the evidence required to prove its dissociation from the conduct of its director, who had been convicted prior to submission of the declarations to the contracting authority.
42.
From the account of the facts it is already possible to state that the first of the EU law provisions to which the request for a preliminary ruling relates (Article 45(2)(c) of Directive 2004/18) can be of little relevance.
43.
This provision refers to an economic operator who ‘has been convicted by a judgment which has the force of res judicata … of any offence concerning his professional conduct’. Prima facie, the contracting authority’s decision does not seem to be based on that premiss, perhaps because the director’s conviction became final on 29 March 2014, after Mantovani had submitted its declarations concerning the general requirements contained in the contract notice (on 4 and 16 December 2013).
44.
Indeed, a reading of the grounds of the administrative decision excluding Mantovani shows that the contracting authority did not rely directly on the criminal conviction of Mr B., but on the late and inadequate disclosure (by Mantovani) of the evidence required to prove its dissociation from the criminal conduct of its director. The decisive factor was therefore the failure of the tenderer properly to report the existence of Mr B.’s criminal conviction, as evidence, pursuant to national case-law, of the severing of ties between the undertaking and its director.
45.
This might suggest, as the Commission argues, that the real ground of exclusion does not fall under Article 45(2)(c) of Directive 2004/18, although it does relate to it. However, the conduct of Mantovani could be seen as potentially falling under Article 45(2)(d), namely ‘grave professional misconduct proven by any means which the contracting authorities can demonstrate’.
46.
The fact is, however, that even though the ground of exclusion based on ‘grave misconduct’ was incorporated into Italian law under Article 38(1)(f) of the CCP, the question raised by the Consiglio di Stato (Council of State) does not mention this ground. Nevertheless, there is nothing to prevent the Court of Justice from examining this ground in its answer. (
9
)
47.
As the Court of Justice has repeatedly held, ‘the fact that the referring court’s question refers only to certain provisions of EU law does not mean that the Court may not provide the national court with all the guidance on points of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question. It is, in this regard, for the Court to extract from all the information provided by the referring court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute’. (
10
)
48.
In this regard, and specifically in relation to Directive 2004/18, the Court of Justice saw fit in its judgment in the Croce Amica One Italia case, (
11
) to point out to the referring court that, although that court appeared to associate ‘the conduct of [the] legal representative [of …] only with the grounds for exclusion relating to criminal law and entailing a conviction by a judgment that has become final … the grounds for exclusion set out in Article 45(2)(d) and (g) of the directive also give contracting authorities the power to exclude any economic operator who has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate … without there being any need for the economic operator concerned to have been convicted by a judgment that has become final’.
49.
It might therefore be helpful for the Court’s answer to address not only the ground of exclusion set out in Article 45(2)(c) and (g) (which are the subject matter of the question being referred) but also the ground set out in Article 45(2)(d). The Court would essentially be clarifying whether a provision of national law such as the one at issue is precluded by these provisions of Directive 2004/18.
50.
It is worth repeating that if the question of the compatibility of the Italian legislation with Directive 2004/18 is answered in the affirmative, it will be for the national court to decide whether, in the light of the circumstances of the case, it was lawful for the contracting authority to exclude Mantovani from the contract for failing to pass on the information concerning the conviction of its former director, who had been removed from office less than one year prior to publication of the contract notice.
C.
The optional grounds of exclusion
51.
On the subject of the discretion enjoyed by contracting authorities in relation to the optional grounds of exclusion set out in Article 45(2) of Directive 2004/18, I drew attention in my Opinion in the Connexxion Taxi Services case (
12
) to the statements already made by the Court in the judgment in La Cascina and Others (
13
) under Directive 92/50/EEC (
14
) (Article 29 of which is worded in a similar way to Article 45(2) of Directive 2004/18), to the effect that application of the cases of optional exclusion are to be left to the assessment of the Member States, as shown by the phrase ‘may be excluded from participation in a contract’, which appears at the beginning of Article 29. The Member States cannot add grounds of exclusion to those referred to in the provision, but Article 29 of Directive 92/50 does not provide for uniform application of those grounds of exclusion.
52.
After Directive 2004/18 came into force, the Court of Justice pursued the same line of reasoning in Consorcio Stabile Libor Lavori Publicci, (
15
) restating in paragraph 35 of the judgment the points made in La Cascina and Others. (
16
) It reiterated that the Member States must specify, in accordance with their national law and having regard to EU law, the implementing conditions for Article 45(2) of Directive 2004/18. The Court therefore again endorsed the power of the Member States to apply the exclusion criteria and, should they so wish, make them more flexible, and repeated this in its judgment of 14 December 2016, Connexxion Taxi Services. (
17
)
53.
As I highlighted in my Opinion in that case, (
18
) it follows from the judgment in Consorcio Stabile Libor Lavori Publicci (
19
) that the exercise of that power by Member States is not, however, unconditional. First, the European Union attaches great importance to freedom of establishment and freedom to provide services, which impels it to facilitate opening up procurement procedures as far as possible, an aim which could be hindered by application of the optional grounds for exclusion. Secondly, it is legitimate to justify the grounds for exclusion in terms of general interest objectives, such as guarantees of the tenderer’s reliability, diligence, professional honesty and seriousness. In order to balance those interests, the Court applies the principle of proportionality.
D.
Impact on the tendering company of the criminal acts of its directors (Article 45(2)(c) of Directive 2004/18)
54.
At the root of the lack of reliability of the tenderer in the present case is the criminal conduct of a former director at the time he was managing the company. Can the consequences of that offence extend to the company of which he was a director? EU law provides that this is indeed the case, based on the premiss that legal persons can only act through their officers. It follows, therefore, that any assessment of the credibility of a legal person should take into consideration the criminal acts of those in whose hands its management rests.
55.
By virtue of the final sentence of Article 45(1) of Directive 2004/18, requests for information concerning the ground of exclusion for certain serious offences (which is a mandatory rather than an optional ground) may relate to ‘legal and/or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer’.
56.
This provision shows that certain criminal acts committed by those managing a legal person are important enough to exclude that legal person from participation in a public tendering procedure. It seems to me that there can be no objection from an EU law perspective to the same principle being extended (albeit optionally) to other types of offences and even to irregularities in the conduct of directors of legal persons, to the extent that they have repercussions which concern the professional conduct of such legal persons.
57.
Admittedly, Article 45(2) of Directive 2004/18, unlike Article 45(1), does not contain a specific provision to that effect. However, I do not think that this omission necessarily precludes national law from associating one of the optional grounds for excluding legal persons with irregular conduct on the part of their directors.
58.
As I have mentioned, the final subparagraph of Article 45(2) of Directive 2004/18 gives the Member States wide discretion to determine the ‘implementing conditions’ for the optional grounds of exclusion. In exercising that freedom, the national legislation containing the specific content of certain grounds (such as those relating to the probity of the tendering company) may include the unprofessional conduct of company directors as a relevant factor.
59.
By the same token, based on the discretion of Member States to shape their legislation, there is nothing to prevent domestic law from providing that, when assessing optional grounds of exclusion, the failure of the undertaking to dissociate itself from the criminal behaviour of its director should be taken into consideration where this ‘[concerns] his professional conduct’. It is also for the national legislature and, where relevant, the court called upon to decide the case, to determine what indicators or relevant factors may be relied on to ascertain whether or not that dissociation took place.
60.
Those factors include those mentioned by the referring court, namely the voluntary nature of the dissociation, ‘the extent to which exculpatory conduct is described’, the relative timing and the stage of the procedure at which such dissociation should occur. It is, I repeat, for the national courts to define the scope of these factors, which are in reality simply ‘clarifications’ introduced by the national legislature in order to define the parameters of the optional grounds of exclusion and the evidence needed to establish them. (
20
)
61.
The question referred by the Consiglio di Stato (Council of State), is framed so as to emphasise that Article 38(1)(c) of the CCP on the one hand ‘extends’ the obligation to disclose convictions by making it cover situations where senior office-holders of tendering companies have been convicted and, on the other hand, ‘[treats .. as a ground for exclusion]’ the fact that the ‘undertaking does not show’ that it has dissociated itself from the criminal conduct of such persons.
62.
This reasoning leads me to assert that there is nothing in Directive 2004/18 to prevent the national legislature from clarifying this optional ground of exclusion in the way that the CCP has done. I do not see how this might harm the freedom of establishment or the freedom to provide services. Furthermore, this ground of exclusion is likely to protect the general interest which underlies the requirement that tenderers should be reliable, diligent and honest in their professional dealings.
63.
In this regard, I do not think that the referring court’s appeal (in rather general and unreasoned terms) to the ‘EU law principles of protection of legitimate expectations and legal certainty, equal treatment, proportionality and transparency, of the prohibition of making the procedure more cumbersome, and of the greatest openness of the public procurement market …’ adds anything significant to the debate.
64.
In conclusion, the fact that Article 45(2)(c) of Directive 2004/18 does not specifically refer to the undertaking dissociating itself from the offences committed by its directors does not mean that the national legislature cannot incorporate this factor into the relevant provision of the CCP. As I have already mentioned several times, it is for the Member States to define the ‘implementing conditions’ for Article 45(2) of Directive 2004/18 in its domestic law.
65.
Consequently, a provision such as Article 38(1)(c) of the CCP, by virtue of which it is possible to exclude from participating in a tendering procedure undertakings that fail to show that there has been complete and genuine dissociation from certain offences (
21
) previously committed by their directors, is compatible with EU law.
E.
Exclusion of an economic operator for having failed to supply the contracting authority with the appropriate information (Article 45(2)(g) of Directive 2004/18)
66.
The referring court refers to the ‘discretion of the contracting authority’ which allows it to ‘introduce effectively’ an obligation on tendering undertakings to provide information which is ‘not laid down in the Legislative Decree’. The contracting authority is also supposed to have introduced ‘obligations of sincere cooperation, not clearly defined, except with reference to the general clause of good faith’.
67.
In so far as these comments made by the Consiglio di Stato (Council of State) call into question the actions of an administrative body which is subject to judicial review by the Consiglio di Stato (Council of State) itself, then it is for that court to draw any conclusions as far as domestic law is concerned. (
22
) The answer provided in preliminary ruling proceedings should not affect the jurisdiction of the national courts.
68.
I should also point out that the question has been referred for a preliminary ruling in order to identify any incompatibility between national legislation and Directive 2004/18. With that in mind, when answering the question, the wording of Article 38(1)(h) of the CCP should be analysed in comparison with Article 45(2)(g) of Directive 2004/18.
69.
However, the fact is that (as noted in the observations of the Autonomous Province of Bolzano) the exclusion was not based on those grounds, but rather on the grounds that the silence of the tenderer indicated that it had not dissociated itself from the criminal conduct of the director. It does not seem that it is therefore strictly necessary to interpret Article 45(2)(g) of Directive 2004/18, since the national legislation transposing that particular provision of the directive has not been applied in this case.
70.
Even so, I do not think that the national provision can be criticised for being incompatible in this respect, since its wording is substantially the same as that of the EU provision which it transposes. Both require that the information supplied by tenderers to the contracting authority should not contain any misrepresentations. Article 45(2)(g) of Directive 2004/18 adds that tenderers can be excluded not only for misrepresentations but also where they fail to supply information relating to the ‘criteria for qualitative selection’ (Section II of Chapter VII, under Title II of the directive).
71.
However, concealing the criminal acts of a former director from the contracting authority may also constitute a factor to be considered by the national court when assessing whether there has been grave professional misconduct, which I will now proceed to assess.
F.
Exclusion of an economic operator for grave professional misconduct (Article 45(2)(d) of Directive 2004/18)
72.
Even though the question referred by the Consiglio di Stato (Council of State) does not, strictly speaking, relate to this ground of exclusion, as I have already explained, there is nothing to prevent the Court of Justice offering its observations on the subject. The submissions of the parties at the hearing focused on precisely this aspect, as requested by the Court of Justice itself.
73.
The professional misconduct to which Article 45(2)(d) of Directive 2004/18 refers covers all wrongful conduct which has an impact on the professional credibility of the operator. (
23
) The concept of ‘grave misconduct’ refers to conduct which denotes a wrongful intent or negligence of a certain [gravity]. (
24
) A conviction, even one that has not become final, (
25
) is a good indicator that acts which amount to a criminal offence should be assessed in terms of grave professional misconduct. (
26
) The conviction itself is a justifiable means of objectively establishing the way in which the tendering company was being run.
74.
On that basis, and having regard to the nature of the offences of which the director was convicted, which were unquestionably indicative of a lack of business ethics in his professional conduct, the failure of Mantovani to dissociate itself from that conduct might legitimately be covered by that ground of exclusion.
75.
In this regard, it is necessary to make a distinction between questions of substance and those relating to proving the facts. In terms of the latter, Article 45(3) of Directive 2004/18 is of assistance in seeing the logic and system of the different methods of obtaining information that may be used by the contracting authority to assess the tenderer’s reliability.
76.
This provision requires contracting authorities to accept, by way of evidence, the methods specified therein in respect of the situations referred to in Article 45(1) and Article 45(2)(a), (b), (c), (e) and (f). These are situations in which there is a (relatively simple) way of officially establishing the conduct by means of registers or certificates issued by public bodies.
77.
By contrast, in relation to the other situations (namely, those relating to Article 45(2)(d) and (g) of Directive 2004/18), I am not aware of any such means by which to obtain documentation. This is only logical since in respect of these grounds of exclusion (grave professional misconduct and misrepresentation or failure to supply the required information) the means of establishing the facts are more varied. It is unlikely that there is a sufficient degree of convergence, in the different Member States, in respect of the legal mechanisms making it possible to record officially those circumstances in a harmonised manner.
78.
When it comes to the optional grounds of exclusion in respect of which no official method of recording a finding is specified, as is the case for grave professional misconduct, the discretion of the contracting authority is not confined to any particular document or certificate. The misconduct can be assessed on the basis of the contracting authority’s knowledge of the relevant facts, however that knowledge was obtained.
79.
As far as the evidence is concerned, it should be borne in mind that, in this case, the existence of the conviction (under the negotiated procedure) of the director of Mantovani for offences concerning his professional conduct at the time he was in office was properly documented and has not been called into question.
80.
In the light of that incontrovertible fact, it is for the national courts before which Mantovani’s claim has been brought, to ascertain whether or not the tendering company had genuinely and completely dissociated itself from the criminal conduct of its director. The debate on this question then becomes one of substance, as I have called it, and is no longer simply procedural.
81.
In that debate, the conduct of Mantovani must be assessed not only from the viewpoint of characterising the actual conduct, but also from the perspective of the proportionality of the contracting authority’s response. One factor which may be important in this context is the length of time between the criminal conduct, the conduct of the undertaking and the date of the contract notice.
82.
It seems to me that the period of time referred to in the CCP (the year preceding the date of publication of the contract notice) is reasonable for assessing the connection between the conduct of the director and the undertaking, in relation to the acts immediately prior to the tendering procedure. Moreover, that period of time does not mean that there is an absolute presumption that the company had been involved in the activities of the director, since the company may show that it had genuinely and completely dissociated itself from the director.
83.
Finally, I do not think that the discretion granted to the contracting authority by the national legislation necessarily leads to a disproportionate result. On the contrary, I think that Article 38(1)(c) of the CCP respects the necessary balance between the means used and the objective sought, which is simply to exclude from such selection procedures any tenderers that are untrustworthy, precisely because they have failed to dissociate themselves within a defined period from the earlier criminal conduct of their directors.
84.
Thus, the exclusion of the tenderer is not automatic, (
27
) but is the result of a careful assessment of the particular case, which the contracting authority must carry out. Neither is the tenderer put in a compromising position as far as protection of its legal position is concerned, since there is always the possibility of an effective review by the courts of the exercise of the public authority’s powers to evaluate how the operator has satisfied its professional obligations.
85.
In short, I can find no basis on which to hold that the national legislation which is the subject matter of the referring court’s question is incompatible with EU law.
VI. Conclusion
86.
In the light of the foregoing, I suggest that the Court reply to the Consiglio di Stato (Council of State, Italy) in the following terms:
It is not contrary to Article 45(2)(c), (d) and (g), and to Article 45(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts for a provision of national law to permit a contracting authority to:
(
1
)	Original language: Spanish.
(
2
)	Directive of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).
(
3
)	Decreto legislativo n. 163, Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163, Code on public works contracts, public service contracts and public supply contracts implementing Directives 2004/17/EC and 2004/18/EC) of 12 April 2006 (GURI No 100 of 2 May 2006), (‘the CCP’).
(
4
)	Namely the offences of ‘participation in a criminal organisation, corruption, fraud and money laundering, as defined in the provisions referred to in Article 45(1) of Directive 2004/18’.
(
5
)	S 145-251280.
(
6
)	On this point, the Commission cites the judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801), paragraph 27.
(
7
)	Judgment of 11 December 2014, Croce Amica One Italia (C‑440/13, EU:C:2014:2435), paragraph 28.
(
8
)	The point made at the hearing by the Autonomous Province of Bolzano and also raised in the opinion of the ANAC of 25 February 2015 to the effect that the Consiglio di Stato (Council of State) has already ruled in a similar case, in which the exclusion of Mantovani from another public procurement for similar reasons was upheld, does not constitute an obstacle to the admissibility of the question either. That judgment of 22 December 2014 (number 6284), delivered by the Consiglio di Stato (Council of State) sitting in a formation (the fourth section) which differed from the formation which is now making the reference for a preliminary ruling (the sixth section) held that it was lawful to exclude Mantovani from the tendering procedure for having failed to show genuine disassociation from the criminal conduct of directors by not disclosing their convictions.
(
9
)	The observations made at the hearing indicate that there would be no procedural obstacles under domestic law to the referring court taking this part of the Court’s answer into consideration when ultimately deciding the case.
(
10
)	Judgment of 22 October 2015, Impresa Edilux and SICEF (C‑425/14, EU:C:2015:721), paragraph 20 and the case-law referred to therein.
(
11
)	Judgment of 11 December 2014 (C‑440/13, EU:C:2014:2435), paragraph 28.
(
12
)	C‑171/15, EU:C:2016:506, paragraph 41 et seq.
(
13
)	Judgment of 9 February 2006 (C‑226/04 and C‑228/04, EU:C:2006:94), paragraphs 21 and 23.
(
14
)	Council Directive of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).
(
15
)	Judgment of 10 July 2014 (C‑358/12, EU:C:2014:2063).
(
16
)	Judgment of 9 February 2006 (C‑226/04 and C‑228/04, EU:C:2006:94).
(
17
)	C‑171/15, EU:C:2016:948, paragraph 29.
(
18
)	Connexxion Taxi Services (C‑171/15, EU:C:2016:506), paragraph 44.
(
19
)	Judgment of 10 July 2014 (C‑358/12, EU:C:2014:2063), paragraphs 29, 31 and 32.
(
20
)	I will be referring to evidence, in connection with Article 45(3) of Directive 2004/18, when analysing exclusion for professional misconduct in point 75 et seq. of this Opinion.
(
21
)	These are listed in footnote 4. All concern the professional conduct of the offenders.
(
22
)	At the hearing, some of the parties relied on Article 38(2) and Article 46 of the CCP, claiming that they demonstrate that tenderers have a duty to disclose in the declarations made to the contracting authority any judgments by which they were convicted. The Consiglio di Stato (Council of State) referred to the same provisions in the judgment of 22 December 2014 cited in footnote 8.
(
23
)	Mantovani submits that, under Italian law, the only grave misconduct that meets the conditions of Article 38(1)(f) of the CCP is that which occurs in the context of its previous relationships with contracting authorities (although it accepts that it could be extended to other areas, such as breaches of competition law). Even if this were the case (and this argument is rejected by the Autonomous Province of Bolzano), this would not affect the reply to the question referred, which only concerns the interpretation of Article 45(2)(d) of Directive 2004/18, to which this supposed restriction clearly does not apply. Furthermore, it should also be noted that the Consiglio di Stato (Council of State) has confirmed that the wording of Article 38(1)(f) of the CCP ‘reproduces that of the Community legislation, which therefore makes all professional misconduct relevant (judgment of section 5 of the Consiglio di Stato (Council of State) of 20 November 2015, No 5299, issued in respect of Case No 7974 of 2012).
(
24
)	Judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801), paragraphs 27, 30 and 31.
(
25
)	In paragraph 28 of the judgment of 11 December 2014, Croce Amica One Italia (C‑440/13, EU:C:2014:2435), the Court of Justice indicated that, in the case of grave professional misconduct, there is no need for the economic operator concerned to have been convicted by a judgment that has become final.
(
26
)	Judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801), paragraph 28.
(
27
)	It follows from the judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801), paragraph 31 that automatic exclusion (in relation to a tenderer guilty of grave misconduct) may go beyond the discretion given to the Member States under Article 45(2) of Directive 2004/18.