ECJ provides guidance on the “grave professional misconduct” discretionary exclusion

An Italian court requested a preliminary reference ruling from the European Court of Justice (“ECJ”) around the meaning of the “grave professional misconduct” discretionary exclusion, pursuant to Directive 2004/18.

In this case, an Italian authority decided to withdraw contract the award to the winning bidder following the authority’s discovery that that bidder had been fined by the Italian competition authority for its participation in a horizontal restrictive agreement, which aimed to influence the outcome of another procurement procedure.

The ECJ held that whilst this finding shouldn’t lead to the automatic exclusion of the bidder, an infringement of the competition rules (and in particular where that infringement was met with a fine) did constitute “grave professional misconduct” which could lead to exclusion following an individual assessment of the economic operator and relevant circumstances. The ECJ recalled that the concept of professional misconduct covered all wrongful conduct that had an impact on the professional credibility of the economic operator and that it did not only cover the infringement of ethical standards of the profession the economic operator belonged to.

Consorzio Nazionale Servizi Società Cooperativa (CNS) v Gruppo Torinese Trasporti Gtt SpA (Case C-425/18)

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