In its judgement of 28 March 2019 in Idi v. Arcadis (case C-101/18), the Court of Justice of the EU confirmed its settled case-law stating that article 45 (2) of Directive 2004/18 (the “Directive”) leaves to the Member States to determine the application of the seven grounds for excluding candidates from participation in a contract, relating to their professional honesty, solvency and reliability. More specifically, in order to guarantee the solvency of the party entering into the contract with the contracting authority, Article 45(2), first subparagraph, point (b), of the Directive allows for the exclusion from participation in a public contract of any economic operator who is the subject of an arrangement with creditors. Under Article 45(2), second subparagraph, of the Directive, the Member States are to specify, in accordance with their national law and having regard for EU law, the implementing conditions for that paragraph. It follows that the concepts used in Article 45(2), first paragraph, including the expression ‘entered into an arrangement with creditors’ may be specified and explained in national law, provided that that is done with regard for EU law.
Grounds of exclusion may vary at national level, depending on legal, economic or social considerations
Moreover, the Court confirmed that Article 45(2) of the Directive 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 rigor according to legal, economic or social considerations prevailing at national level. In that context, Member States have the power to make the criteria laid down in Article 45(2) less onerous or more flexible.
The Italian legislation at issue is not incompatible with the Directive, as interpreted by the CJEU
After having confirmed the above-mentioned principles, the Court considered that Italian legislation, which allows the exclusion from a public procurement procedure of an economic operator who, at the date of the exclusion decision, has filed an application for an arrangement with creditors, while reserving the right to present a plan which provides for the continuation of the business, does not violate article 45 (2) first subparagraph, point (b) of the Directive. According to the Court, the fact that Italian legislation provides for a difference in treatment, as regards their eligibility to participate in public procurement procedures, between economic operators who have filed an application for an arrangement with creditors depending on whether or not they have included a plan in their application that provides for the continuation of the business, is not incompatible with the case-law of the Court.
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