In its judgment of 19 June 2019 in Meca v. Comune di Napoli (case C-41/18), the Court of Justice stated that the discretion of the Member States about the optional grounds of exclusion of article 57 of Directive 2014/24 (the “Directive”) is not absolute. Once a Member State decides to include one of these optional grounds for exclusion, it must respect its essential characteristics, as expressed in the Directive.
Secondly, the Court notes that it follows from the wording of Article 57(4) of the Directive that it is for the contracting authorities, and not for the national judge, to determine whether an economic operator should be excluded from a procurement procedure.
Thirdly, the possibility for any contracting authority to exclude a tenderer from a procurement procedure is specifically designed to enable it to assess the integrity and reliability of each of the tenderers, as reflected in Article 57(4)(c) and (g) and in recital 101 of the Directive.
The Court further notes that, under Article 57(5) of the Directive, contracting authorities must be able to exclude an economic operator "at any time in the procedure" and not only after a court has issued a judgment. According to the Court, this is a further indication of the willingness of the EU legislator to allow the contracting authority to make its own assessment of the acts which an economic operator has committed or failed to commit either before or during the procurement procedure, in one of the cases referred to in Article 57(4) of the Directive.
Finally, the Court considers that if a contracting authority were to be automatically bound by an assessment made by a third party, it would probably be difficult for it to pay particular attention to the principle of proportionality when applying the optional grounds for exclusion.
According to the Italian legislation at issue, the lodging of a judicial remedy against the decision to terminate a public procurement contract taken by a contracting authority because of significant deficiencies in its performance prevents the contracting authority issuing a new call for tenders from making any assessment, at the stage of selecting tenderers, of the reliability of the operator concerned by such termination. Taking into account the above-mentioned principles, the Court considered that this legislation violates article 57 (4) point (c) and (g) of the Directive.
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