Case C‑199/15

Ciclat Soc. Coop.

v

Consip SpA

and

Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture

(Request for a preliminary ruling from the Consiglio di Stato)

(Reference for a preliminary ruling — Directive 2004/18/EC — Article 45 — Articles 49 TFEU and 56 TFEU — Public procurement — Conditions for exclusion from a procedure for the award of public works contracts, public supply contracts and public service contracts — Obligations relating to the payment of social security contributions — Social security contributions payment certificate — Correction of irregularities)

Summary — Judgment of the Court (Ninth Chamber), 10 November 2016

Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a tender procedure — Member States’ discretion — Non-performance of obligations relating to payment of social security — National legislation obliging the contracting authority to exclude an operator affected, on the date of its participation in a tendering procedure, by an infringement relating to that matter recorded in a certificate issued by a competent body — Lawfulness

(European Parliament and Council Directive 2004/18, Art. 45)

Article 45 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation which obliges a contracting authority to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, to be a ground for exclusion, where that infringement existed on the date of the participation in a tender procedure, even if it no longer existed at the time of the award or of the verification carried out on the contracting authority’s own initiative.

First, Article 45(2)(e) of Directive 2004/18 allows Member States to exclude any economic operator from participation in a public contract, where that operator fails to fulfil his obligations relating to the payment of social security contributions. Secondly, it is of little consequence if an economic operator has not been warned of such an irregularity as long as he has the possibility to verify, at any time, the regularity of his situation with the competent authorities. If that is indeed the case, which it is for the national court to determine, an economic operator may not rely on a certificate issued by the social security institutions obtained before his tender was submitted and certifying that he complied with his obligations relating to the payment of social security contributions during a period before that tender was submitted, while being aware, as the case may be, after making enquiries with the competent authorities, that he no longer complies with such obligations on the date his tender was submitted.

Article 45(2) of Directive 2004/18 does not provide for uniform application at EU level of the grounds of exclusion it mentions, since the Member States may choose not to apply those grounds of exclusion at all or to incorporate them into national law with varying degrees of rigour according to legal, economic or social considerations prevailing at national level. That provision does not therefore oblige the Member States to grant the contracting authority freedom of appreciation in that regard.

(see paras 33, 34, 36, 40, operative part)