Las prohibiciones de contratar en el Derecho de la Unión Europea

Abstract

Abstract The public procurement Directives have foreseen since 2004 two types of reasons for the exclusion of a candidate or a tenderer wishing to participate in the award procedures for public contracts (mandatory and discretionary exclusions). The first set of exclusions, of an obligatory nature, are established for all the Member States, in such a way that their contractual regulations should necessarily, at the time of their transposition, include the grounds for exclusion from contracting contemplated under article 57.1 of Directive 2014/24/EU. Their obligatory nature arises from the wish to achieve a synergic effect with other European policies and, by so doing, to serve as an instrument in the fight against corruption, fraud, money laundering, terrorism and/or human trafficking. The other set of grounds for exclusion, established as optional for national legislators, leave the decision over whether – or not – to incorporate those prohibitive reasons for contracting in their domestic legislations in the hands of the different Member States. Among those optional grounds for exclusion, the ones that deserve to be highlighted refer to serious professional misconduct that raises questions over the integrity of the economic operator or that demonstrates its failure to comply with the legislation on environmental, social and labour matters. Their conceptual imprecision leaves us with little choice but to interpret them in the light of the case-law of the European Court of Justice. The objective of this study is to analyze the regulation of those grounds for exclusion and to establish the way they are being transposed in the different Member States, even though the deadline for their transposition has yet to elapse. Special attention will be paid to the Spanish regulations in the completion of this task. Keywords: public procurement, grounds for exclusion, corruption, conflict of interests, integrity.