Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 11 July 2019(1)

Case C‑395/18

Tim SpA — Direzione e coordinamento Vivendi SA

v

Consip SpA,

Ministero dell’Economia e delle Finanze,

with the intervention of:

E-VIA SpA

(Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy))

(Request for a preliminary ruling — Directive 2014/24/EU — Public procurement — Optional grounds for exclusion — Exclusion of an economic operator from participating in a tender procedure due to non-compliance of a subcontractor proposed by it — Breach of the environmental, social or labour law obligations referred to in Article 18(2) — Exclusion of the tenderer — Article 71 — Article 57(4)(a))

1.        An Italian contracting authority (Consip SpA) (2) issued a tender for a public contract for the provision of certain services. The tender specifications permitted the services to be subcontracted. In order to take advantage of this option, tenderers had to state in their tenders that they intended to subcontract part of the services and had to provide a list of three subcontractors.

2.        One of the tenderers (Tim SpA) stated in its tender that it would subcontract some of the services covered by the contract and listed the names of three subcontractors. As one of the subcontractors was subject to an optional ground for exclusion (it had breached social and labour law requirements), the contracting authority excluded the tenderer from the procedure.

3.        In summary, the referring court wishes to know whether, under Directive 2014/24/EU, (3) the contracting authority is entitled to exclude a tenderer from the procurement procedure on grounds that have to do with the subcontractor proposed in the tender.

I.      Legal framework

A.      EU law. Directive 2014/24

4.        Recital 101 is as follows:

‘Contracting authorities should further be given the possibility to exclude economic operators which have proven unreliable, for instance because of violations of environmental or social obligations …

…

In applying facultative grounds for exclusion, contracting authorities should pay particular attention to the principle of proportionality. Minor irregularities should only in exceptional circumstances lead to the exclusion of an economic operator. However repeated cases of minor irregularities can give rise to doubts about the reliability of an economic operator which might justify its exclusion.’

5.        Recital 105 states that:

‘It is important that observance by subcontractors of applicable obligations in the fields of environmental, social and labour law, established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in this Directive, provided that such rules, and their application, comply with Union law, be ensured …

…

It should also be clarified that the conditions relating to the enforcement of observance of applicable obligations in the fields of environmental, social and labour law, established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in this Directive, provided that such rules, and their application, comply with Union law, should be applied whenever the national law of a Member State provides for a mechanism of joint liability between subcontractors and the main contractor. Furthermore, it should be stated explicitly that Member States should be able to go further, for instance by extending the transparency obligations, by enabling direct payment to subcontractors or by enabling or requiring contracting authorities to verify that subcontractors are not in any of the situations in which exclusion of economic operators would be warranted. Where such measures are applied to subcontractors, coherence with the provisions applicable to main contractors should be ensured so that the existence of compulsory exclusion grounds would be followed by a requirement that the main contractor replace the subcontractor concerned. Where such verification shows the presence of non-compulsory grounds for exclusion, it should be clarified that contracting authorities are able to require the replacement. It should, however, also be set out explicitly that contracting authorities may be obliged to require the replacement of the subcontractor concerned where exclusion of main contractors would be obligatory in such cases.

It should also be set out explicitly that Member States remain free to provide for more stringent liability rules under national law or to go further under national law on direct payments to subcontractors.’

6.        Article 18 (‘Principles of procurement’) provides as follows:

‘1.      Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.

…

2.      Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X.’

7.        Article 57 (‘Exclusion grounds’) stipulates that:

‘…

4.      Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:

(a)      where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2);

…’

8.        Article 71 (‘Subcontracting’) establishes that:

‘1.      Observance of the obligations referred to in Article 18(2) by subcontractors is ensured through appropriate action by the competent national authorities acting within the scope of their responsibility and remit.

2.      In the procurement documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors.

…

4.      Paragraphs 1 to 3 shall be without prejudice to the question of the main contractor’s liability.

…

6.      With the aim of avoiding breaches of the obligations referred to in Article 18(2), appropriate measures may be taken, such as:

(a)      Where the national law of a Member State provides for a mechanism of joint liability between subcontractors and the main contractor, the Member State concerned shall ensure that the relevant rules are applied in compliance with the conditions set out in Article 18(2).

(b)      Contracting authorities may, in accordance with Articles 59, 60 and 61, verify or may be required by Member States to verify whether there are grounds for exclusion of subcontractors pursuant to Article 57. In such cases, the contracting authority shall require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are compulsory grounds for exclusion. The contracting authority may require or may be required by a Member State to require that the economic operator replaces a subcontractor in respect of which the verification has shown that there are non-compulsory grounds for exclusion.

7.      Member States may provide for more stringent liability rules under national law or to go further under national law on direct payments to subcontractors, for instance by providing for direct payments to subcontractors without it being necessary for them to request such direct payment.

8.      Member States having chosen to provide for measures pursuant to paragraphs 3, 5 or 6 shall, by law, regulation or administrative provisions and having regard for Union law, specify the implementing conditions for those measures. In so doing, Member States may limit their applicability, for instance in respect of certain types of contracts, certain categories of cont[r]acting authorities or economic operators or as of certain amounts.’

B.      Italian law. Legislative Decree No 50/2016 (4)

9.        Article 80(5) provides as follows:

‘The contracting authorities shall exclude an economic operator from participation in a procurement procedure in any of the following situations, and this shall also apply to a subcontractor of the economic operator in the cases referred to in Article 105(6), where:

…

(i)      the economic operator fails to submit the certification referred to in Article 17 of Law No 68 of 12 March 1999 or to self-certify that the requirement in question has been satisfied; ^[(5)^]

…’

10.      Article 105 stipulates that:

‘…

6.      The list of three subcontractors must be provided where the value of the works contracts, service contracts or supply contracts is equal to or greater than the thresholds laid down in Article 35 and no special qualifications are required in order to perform the contracts. In such cases this requirement must be specified in the call for tenders. The contracting authority may specify in the call for tenders other situations in which the list of three subcontractors must be provided even where the value of the contract is below the thresholds laid down in Article 35.

…

12.      The contractor must replace any subcontractors which, following an inspection, are shown to be subject to the grounds for exclusion laid down in Article 80.

…’

II.    Facts of the case and questions referred for a preliminary ruling

11.      On 29 July 2016, Consip published an invitation to tender for ‘a contract for the provision of the WDM system for interconnecting the data processing centre for the RGS, DT and DAG Departments’. (6) The estimated value of the contract was EUR 1 420 785.60, excluding VAT.

12.      Clause 11 of the tender conditions permitted subcontracting. In order to subcontract, tenderers had to state in their tenders that they intended to avail themselves of this option and provide a list of three subcontractors.

13.      Tim submitted its tender, in which it listed the three subcontractors it intended to use if it was awarded the contract. It attached the European single procurement document (ESPD) for each subcontractor.

14.      When it checked the status of the subcontractors, the contracting authority found that, according to a certificate dated 5 April 2017 issued by Milan City Council, one of them (Maticmind SpA) was in breach of the rules on disabled persons’ right to work.

15.      Consip therefore excluded Tim from the tender procedure under Article 80(5)(i) of the PPC.

16.      Tim lodged an appeal against that decision with the referring court arguing, in summary, that:

–      The exclusion was unfair and disproportionate because, under Directive 2014/24, where there are grounds for excluding a subcontractor the only permissible outcome is the replacement of the subcontractor.

–      In any event, in order to perform the contract it could have used the other two subcontractors, to which no grounds for exclusion applied.

–      Subcontracting was not essential in order to perform the contract, as Tim fulfilled all the requirements needed in order to perform the services itself.

17.      According to the referring court, Tim’s exclusion is compliant with Article 80(5) of the PPC. However, the referring court’s reading of paragraphs 6 and 12 of Article 105 of the PPC leads it to identify different courses of action where a subcontractor is found to be subject to a ground for exclusion:

–      If the fact that one of the group of three subcontractors on the list is subject to a ground for exclusion is identified during the tender procedure, the tenderer is excluded (Article 80(5) of the PPC).

–      If the issue is identified after the contract has been signed, the contracting authority must ask the contractor to replace the subcontractor (Article 105(12) of the PPC).

18.      Given this difference in treatment, the referring court has doubts as to whether the exclusion of the tender in the circumstances of the present case is compatible with Article 71(6) of Directive 2014/24 and with the proportionality principle.

19.      In view of the situation, the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy) refers the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Do Articles 57 and 71(6) of Directive 2014/24/EU preclude national legislation, such as Article 80(5) of Legislative Decree No 50 of 2016, which requires the exclusion of a tendering economic operator where, during the tendering procedure, a ground is established for excluding a subcontractor forming part of the group of three subcontractors specified in the tender, rather than requiring the tenderer to replace the designated subcontractor?

(2)      In the alternative, if the Court of Justice considers that the option of excluding the tenderer is one of the options open to the Member State, does the principle of proportionality enshrined in Article 5 of the EU Treaty, referred to in recital 101 of Directive 2014/24/EU and established as a general principle of EU law by the Court of Justice, preclude national legislation, such as Article 80(5) of Legislative Decree No 50 of 2016, which provides that, where a ground for excluding a designated subcontractor is established during the tendering procedure, a tendering economic operator is to be excluded in all cases, including where there are other subcontractors that have not been excluded and satisfy the requirements for the provision of the services to be subcontracted, or where the tendering economic operator declares that it will not subcontract as it satisfies the requirements for the provision of the services on its own?’

III. Proceedings before the Court of Justice

20.      The order for reference was received at the Court on 14 June 2018.

21.      Under Article 101 of the Rules of Procedure, the Court of Justice asked the referring court to clarify certain aspects of the procurement procedure. In its reply of 26 March 2019, the referring court clarified that:

–      If Tim intended to subcontract, it had to list three subcontractors in its tender. Alternatively, it could have opted not to list any subcontractors, in which case it would forego the option to subcontract.

–      Tim was not under any obligation to use all or any of the subcontractors on the list if it was awarded the contract. It could opt not to subcontract, and perform the contract itself.

–      In preparing its tender, Tim was not required to verify whether the proposed subcontractors were subject to the optional ground for exclusion in Article 57(4)(a) of Directive 2014/24, since it was only asked to provide the ESPD issued by the representative of each subcontractor.

22.      Written observations have been submitted by Tim, Consip, the Austrian Government and the Commission. With the exception of the Austrian Government, all of them attended the hearing held on 2 May 2019.

IV.    Assessment

A.      The issue

23.      Under the Italian legislation, breaches committed by a subcontractor can impact on the tenderer which included the proposed subcontractor in its tender, resulting in the exclusion of the tenderer from the procurement procedure.

24.      That same legislation, however, treats two sets of circumstances differently:

–      If the breach by the subcontractor comes to light after the contract has been awarded, the successful tenderer must replace the subcontractor.

–      By contrast, if the breach is uncovered during the contractor selection stage the consequences are more extreme, as the tenderer is then excluded.

25.      The referring court has doubts as to whether this dual treatment is compatible with Directive 2014/24. In order to answer its questions, I believe that we first need to examine whether it is permissible under Article 57 of that directive for a breach by a subcontractor to constitute grounds for excluding a tenderer, before going on to ascertain whether such an exclusion is possible under the provisions on subcontracting in Article 71 of that directive.

26.      In both cases, the background to Tim’s exclusion is failure (by the subcontractor) to comply with social or labour law obligations — specifically, failure to comply with national regulations on the employment of disabled persons.

27.      Article 18(2) of Directive 2014/24 requires Member States (7) to take appropriate measures to ensure that in the performance of public contracts economic operators comply with their obligations in the fields of social and labour law (amongst others), as established in national law.

28.      This requirement applies both to main contractors and to subcontractors, since both groups are economic operators. In this way, the EU legislator sought to use administrative procurement as a tool to achieve certain other public interest objectives, and this is reflected in Articles 57 and 71 of Directive 2014/24.

29.      In particular, ‘control of the observance of the … social and labour law provisions should be performed at the relevant stages of the procurement procedure, when applying the general principles governing the choice of participants and the award of contracts, when applying the exclusion criteria …’. (8)

B.      The interpretation of Article 57(4)(a) of Directive 2014/24

30.      The EU legislator makes a link between Article 18(2) of Directive 2014/24 and the optional ground for exclusion in Article 57(4)(a) of that directive. This latter provision refers specifically to breach of the obligations that apply under the former provision.

31.      The question is whether the behaviour of the subcontractor can justify the (optional) exclusion of the tenderer, or whether the tenderer can be excluded only on grounds of actions attributable to the tenderer itself.

32.      An examination of the wording of Article 57(4)(a) of Directive 2014/24 reveals that it is deliberately generic. It uses an impersonal expression (in Spanish, ‘se ha[ya]n incumplido obligaciones’) (9) to refer to breach of social or labour obligations, without specifying who has perpetrated those breaches. Viewed literally, this provision thus contrasts with other provisions that identify who is responsible for behaviour that constitutes grounds for exclusion.

33.      Under this grammatical construction it is therefore possible for the breach (and, consequently, the ground for exclusion) to have been committed by the subcontractor which, as a party that employs workers on its account in the course of the public contract, is subject to national rules of social or labour law.

34.      If one adopts a systematic approach to interpretation, attributing a breach committed by the subcontractor to the tenderer during the initial selection stage is consistent with recital 40 of Directive 2014/24, which states that ‘control of the observance of the environmental, social and labour law provisions should be performed at the relevant stages of the procurement procedure’. (10)

35.      Applying this approach, Article 57(5) of Directive 2014/24 confirms that any economic operator (which therefore includes the tenderer) may be excluded ‘in view of acts committed or omitted either before or during the procedure’. Failure by the tenderer to carry out checks when it includes in its tender a subcontractor that has breached the obligations in Article 18(2) is, at the very least, a case of negligent omission.

36.      Finally, Article 71(6)(a) of Directive 2014/24 refers explicitly, in connection with the application of Article 18(2), to ‘joint liability between subcontractors and the main contractor’ as one of the mechanisms that may be used by Member States.

37.      Recital 105 of Directive 2014/24 reiterates that both parties are liable, in that it authorises the Member State to establish ‘a mechanism of joint liability between subcontractors and the main contractor’. It is well known that an action to require joint obligors to perform their obligations and to enforce the consequences of breach can be brought against any of the obligors, regardless of the internal relationship that holds between them.

38.      The objective of Article 57(4)(a) of Directive 2014/24 provides support for this approach, which I believe is the most appropriate in the light of the EU legislator’s clear intention to safeguard social and labour rights by also strengthening protection for these rights in the field of public procurement.

39.      The desire to ensure fair competition between tenderers also points in the same direction. Competition would be distorted if, while others complied with the rules, one tenderer were to submit its tender in the knowledge that one of its main elements (the subcontractor to which it intended to entrust a significant part of the contract) had an illegal cost advantage precisely because it did not comply with its social obligations. This would affect the credibility of the tenderer which sought to exploit this unfair advantage.

40.      Once this premiss has been established, then logically the tenderer’s suitability as a contractor could be affected by breaches committed by the subcontractor. Given that it is the tenderer that decides of its own volition to use the subcontracting mechanism and that selects and proposes the subcontractors to be involved in performing the contract, there is no reason why the tenderer’s liability should not extend to cover the conduct of those subcontractors in respect of that contract (even if only on grounds of culpa in eligendo).

41.      Moreover, ploys designed to avoid liability and achieve an unjustified reduction in the main contractor’s labour costs are not uncommon in the field of administrative subcontracting, and they can take shape even during the initial (tender) stage of the procurement.

42.      It is true that, in its general approach to administrative procurement, EU law attaches great importance to ensuring freedom of establishment and freedom to provide services, and to encouraging competition between economic operators. This objective is facilitated by opening up procurement procedures as widely as possible, and could be hampered by excessive use of the optional grounds for exclusion.

43.      However, the optional grounds for exclusion enable Member States to satisfy public interest objectives and are, in any event, intended to ensure the reliability, diligence, professional honesty and responsibility of the tenderer. (11)

44.      As I noted in my Opinion in Delta Antrepriză de Construcţii şi Montaj 93, (12) Directive 2014/24 includes reliability as a key element of the relationship. Under the first paragraph of recital 101, contracting authorities may exclude ‘economic operators which have proven unreliable’. The element of reliability thus imbues the grounds for exclusion concerning the status of both the tenderer and the other economic operators which the tenderer intends to use as subcontractors to perform the contract.

45.      Article 57(4)(a) of Directive 2014/24 is not immune from this influence. Indeed, recital 101 begins with a reference to the unreliability of the economic operator prompted precisely by violations of ‘environmental or social obligations, including rules on accessibility for disabled persons’.

46.      The case-law of the Court of Justice allows Member States considerable discretion in configuring the optional grounds for exclusion. (13) Article 57(7) of Directive 2014/24 nevertheless makes clear that Member States shall specify the implementing conditions for those grounds ‘having regard to Union law’.

47.      It seems to me that a Member State can legitimately use that discretion in order to enable its contracting authorities to use the optional ground for exclusion provided for in Article 57(4)(a) against a tenderer in situations where the breach of social or labour obligations has been committed by one of the tenderer’s proposed subcontractors.

48.      However, the scope to exclude the tenderer is not automatic: it will instead depend on the specific circumstances of the case, as assessed in accordance with the principles underpinning administrative procurement, including the principle of proportionality. (14)

49.      Under the proportionality principle, in order for offences by the subcontractor to impact so significantly on the tenderer as to prompt its exclusion from the procedure, the breaches committed by the subcontractor will generally have to be such that the contracting authority is unable to trust the tenderer. I will address this issue below.

C.      The interpretation of Article 71 of Directive 2014/24

50.      Article 71(1) of Directive 2014/24 imposes a duty on the competent authorities to ensure ‘observance of the obligations referred to in Article 18(2) by subcontractors’ (including, amongst others, social and labour obligations).

51.      Article 71(6) gives Member States authority so that ‘with the aim of avoiding breaches [by subcontractors] of the obligations referred to in Article 18(2), appropriate measures may be taken’.

52.      Some of the parties taking part in the proceedings (15) have argued that Article 71 of Directive 2014/24 does not apply to the tenderer selection stage but to the contract performance stage. In support of their argument they cite recital 105 of the directive, which refers only to the main contractor and the subcontractors, but not to tenderers.

53.      In my view, this terminological objection is not decisive. In fact, in addition to ‘main contractor’ (meaning ‘the economic operator to whom the public contract has been awarded’), Article 71 of Directive 2014/24 also uses the terms ‘subcontractor’, ‘tenderer’ (the person who has submitted a tender) and ‘economic operator’. This last term is the broadest, encompassing any undertaking that supplies its goods or services in the market, (16) which logically includes subcontractors.

54.      Recital 105 should be read in conjunction with the express references in Article 71 of Directive 2014/24 to the tenderer, main contractor and economic operators. There is therefore nothing to prevent this provision from applying both prior to the award of the contract (that is, to the tenderers) and after the award (that is, to the contractors) so that it covers the relationship between both tenderers and contractors and their subcontractors.

55.      Specifically, Article 71(6)(b) of Directive 2014/24, which deals specifically with the exclusion of a subcontractor for breach of the obligations referred to in Article 18(2), refers to the ‘economic operator’, and therefore it applies during both the selection stage and the contract performance stage.

56.      This is logical, because the information which the economic operator has to supply to the contracting authority regarding the subcontractors’ relationship to the contract is central to Directive 2014/24. On this point, I refer to my comments in the Opinion in Delta Antrepriză de Construcţii şi Montaj 93. (17)

57.      This desire on the part of the legislator finds its legislative expression in Article 71(2) and (5) of Directive 2014/24, which refers to the obligation on the tenderer and the main contractor respectively to inform the contracting authority of any subcontracting, whether proposed (during the selection stage) or in operation (after the award of the contract).

58.      Article 71(6)(b) establishes a link with this duty to provide information when it authorises contracting authorities to use the means provided for in Articles 59, 60 and 61 of Directive 2014/24 to verify whether there are grounds for excluding any subcontractor pursuant to Article 57.

59.      The reference in Article 71 to Article 57 covers both the mandatory and the optional grounds for exclusion, in the context of breach of the obligations in Article 18(2). The consequences are different, however:

–      If the subcontractor is subject to a mandatory ground of exclusion, (18) the economic operator shall be required to replace the subcontractor.

–      In the case of a non-mandatory ground for exclusion, (19) the contracting authority may require the economic operator to replace the subcontractor. As I shall explain, this is one of several measures that may be taken to guard against unsuitable subcontractors.

60.      In this regard, two elements of the legislation are particularly significant:

–      Firstly, the open formulation used in Article 71(6) of Directive 2014/24 (‘With the aim of avoiding breaches of the obligations referred to in Article 18(2), appropriate measures may be taken, such as: …’).

–      Second, the power for Member States to provide for ‘more stringent liability rules’ (Article 71(7)).

61.      Taken together, in my view, these two elements reinforce what can already be inferred from the interpretation of Article 57(4)(a) of Directive 2014/24, namely that in these circumstances Member States have the power to attribute direct liability to tenderers which have proposed subcontractors that have breached the obligations referred to in Article 18(2) of the directive.

62.      Indeed, the wording of Article 71(6) of Directive 2014/24 leaves the door open to the introduction of other national measures. The EU legislator has set out, purely by way of example, some of the measures that may be taken in respect of breach of social and labour obligations, such as replacing the subcontractor to which the (mandatory or optional) grounds of exclusion apply; but it does not close off other options. Under Article 71(8), Member States must specify the implementing conditions for those measures.

63.      This same approach prevails in Article 71(7), when it makes provision for Member States to decide to implement ‘more stringent liability rules’ regarding subcontracting in national law. In my opinion, a reading of this paragraph shows that these rules are not limited to ‘direct payments to subcontractors’ (where the text uses the expression ‘to go further’), but may apply more generally.

64.      This can be inferred more clearly from recital 105 of Directive 2014/24, which states that ‘Member States remain free to provide for more stringent liability rules under national law or to go further under national law on direct payments to subcontractors’. Use of the conjunction ‘or’ shows that these are two different types of (possible) interventions.

65.      These powers available to Member States do not apply only to the relationship between the main contractor and its subcontractors, but may also extend to the relationship between the contracting authority and a tenderer that has submitted a tender in which it proposes to use the services of a subcontractor affected by one of the grounds for exclusion. I refer to my earlier comments on the joint liability of main contractors and subcontractors.

66.      Article 57 of Directive 2014/24 deals specifically with grounds for exclusion, and in referring to that provision Article 71(6) and (7) reinforces the possibility of excluding tenderers on the grounds of breaches by subcontractors which have failed to comply with the obligations referred to in Article 18(2). The exclusion of tenderers is specifically addressed in Article 57 but, I repeat, the provisions on subcontracting in Article 71 confirm that possibility.

D.      The Italian provisions on exclusion due to offences committed by subcontractors, as they apply to the facts of the case

67.      Under the combined application of Articles 80(5) and 105(12) of the PPC, where a tender includes a subcontractor which has breached the social and labour obligations regarding disabled persons, the tenderer which freely chose to propose that subcontractor is automatically excluded, provided the situation is identified before the contract is signed.

68.      This categorical outcome may perhaps be incompatible with the principle of proportionality. The Court of Justice ruled on the optional grounds of exclusion in connection with Directive 2004/18 (20) and ruled out their automatic application. It can be concluded from the judgment in Forposta and ABC Direct Contact (21) that automatic application might exceed the limits of the discretion granted to Member States by Article 45(2) of Directive 2004/18 (now Article 57(7) of Directive 2014/24).

69.      That judgment held that ‘a specific and individual assessment of the conduct of the economic operator concerned’ (22) must be carried out. The Court of Justice ruled that provisions of national legislation that ‘require the contracting authority … to exclude an economic operator from a … procedure for the award of a contract … without allowing the contracting authority the power to assess, on a case-by-case basis, the gravity of the allegedly wrongful conduct of that operator ’ were incompatible with EU law, because they did not comply with that requirement.

70.      However, in Connexxion Taxi Services the Court of Justice did not follow that case-law, which had been followed in previous judgments. In weighing up the (previously mandatory) requirement for a tenderer’s offence to be assessed under the proportionality principle against respect for the principles of transparency and equal treatment, the Court came down in favour of the latter. It concluded that the latter principles took precedence in a case where, according to the ‘tender conditions of [the] contract, a tenderer which has been guilty of grave professional misconduct must necessarily be excluded, without consideration of the proportionality of that sanction’. (23)

71.      It would therefore seem that different types of assessment are required, depending on whether the requirement for automatic exclusion appears only in the legislation (in which case the proportionality check must be capable of being applied, even if the legislation makes no such provision) or whether it is explicitly included in the tender specifications.

72.      Neither the order for reference nor the subsequent clarification (24) indicates that the requirement for automatic exclusion was included in the documents governing the award of the contract. It will be for the national court to decide whether Clause 11, or any other clause in the tender specifications, included such a mandatory requirement. If it did, the principles of transparency and equal treatment of tenderers, as set out in the Connexxion Taxi Services judgment, (25) will take precedence, thereby ensuring that a tenderer which complied with the tender specifications is not passed over in favour of someone who breached the requirements.

73.      If the requirement for automatic exclusion was not included in the tender documentation, then the demands imposed by the proportionality principle come into play. Once again, it is for the referring court to assess all the relevant factors, in this case in order to decide whether the sanction of excluding the tenderer is appropriate to the seriousness of its conduct.

74.      The factors to be assessed could include the point put forward by the referring court in its clarificatory submission, namely that the excluded tenderer was under no obligation to check whether the ESPD supplied by the subcontractor was correct, which could mitigate the tenderer’s negligence. The tenderer would, however, still be negligent, albeit to a lesser extent, because there was nothing to prevent it from using other means to verify the subcontractor’s non-compliance beforehand (as the contracting authority did subsequently).

75.      The fact that, in addition to the non-compliant subcontractor, the tenderer included two other economic operators with an unblemished record on the list of subcontractors is not enough to reduce its liability. If such a practice were to be allowed, it could encourage a form of fraud involving the designation of a non-compliant subcontractor (which, as I noted earlier, tends to have lower labour or social costs), whose services will be called upon if the irregularity goes unnoticed, and two other subcontractors which are simply there to make up the numbers.

76.      Nor does the fact that the tenderer could have performed the contract itself without using a subcontractor reduce its liability. Given that it was free to use the subcontracting mechanism and that it had informed the contracting authority in its tender that it intended to make use of this option and to submit a list of three subcontractors, it was responsible for ensuring that the list did not include anyone who had breached national requirements regarding the employment of disabled persons.

V.      Conclusion

77.      In the light of the reasoning set out above, I suggest that the Court of Justice should reply to the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy) in the following terms:

‘(1)      Article 57(4)(a) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC does not in principle preclude the exclusion of a tenderer which stated in its tender that it intended to subcontract to an economic operator where the subcontractor in question has breached its labour or social obligations under national law.

(2)      In reaching a decision on exclusion, the contracting authority must have power to assess the proportionality of the measure on a case-by-case basis, taking into account all relevant circumstances in order to determine the tenderer’s reliability, unless the tender specifications stipulate that the tenderer must be excluded without taking into consideration the proportionality of the sanction.’

1      Original language: Spanish.

2      Consip is a public limited company whose entire share capital is owned by the Italian Ministry of Economic Affairs and Finance. It acts solely on behalf of the public administration.

3      Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

4      Decreto legislativo 18 aprile 2016, n. 50. Attuazione delle direttive 2014/23/UE, 2014/24/UE e 2014/25/UE sull’aggiudicazione dei contratti di concessione, sugli appalti pubblici e sulle procedure d’appalto degli enti erogatori nei settori dell’acqua, dell’energia, dei trasporti e dei servizi postali, nonchè per il riordino della disciplina vigente in materia di contratti pubblici relativi a lavori, servizi e forniture: Codice dei contratti pubblici (GURI No 91 of 19 April 2016 — Ordinary supplement No 10) (Legislative Decree No 50 of 18 April 2016 implementing Directives 2014/23/EU, 2014/24/EU and 2014/25/EU on the award of concession contracts, on public procurement and on procurement by entities operating in the water, energy, transport and postal services sectors, and restructuring the regulations governing public contracts for works, services or supplies: Public Procurement Code) (‘PPC’).

5      Under Article 17 of Law No 68 of 1999, both public and private sector companies which take part in public procurement procedures, operate concessions or have agreements with government bodies must first provide the government body in question with a declaration by their legal representative stating that they comply with the rules on disabled persons’ right to work. If they fail to do so they face exclusion.

6      The tender concerned, specifically, the provision of interconnection services together with maintenance and support, optional services for increasing the bandwidth, with maintenance and support, and optional transfer services.

7      Although Article 18(2) is addressed only to Member States, recital 37 of Directive 2014/24 also refers to contracting authorities: ‘with a view to an appropriate integration of environmental, social and labour requirements into public procurement procedures, it is of particular importance that Member States and contracting authorities take relevant measures to ensure compliance with obligations in the fields of environmental, social and labour law …’.

8      Recital 40 of Directive 2014/24.

9      The language versions that I have consulted contain an equivalent meaning: peut démontrer, par tout moyen approprié, un manquement aux obligations, in French; can demonstrate by any appropriate means a violation of applicable obligations, in English; dimostrare con qualunque mezzo adeguato la violazione degli obblighi applicabili, in Italian; puder demonstrar, por qualquer meio adequado, o incumprimento das obrigações aplicáveis, in Portuguese; or kann auf geeignete Weise Verstöße gegen geltenden Verpflichtungen, in German.

10      The proposal for a directive sent by the European Commission to the Council and the European Parliament (COM/2011/0896 final — 2011/0438 (COD)) even referred to participants in the supply chains (Article 55). The open formulation that was finally adopted is, if anything, broader in scope.

11      Judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici (C‑358/12, EU:C:2014:2063, paragraphs 29, 31 and 32).

12      Case C‑267/18, EU:C:2019:393.

13      Judgment of 20 December 2017, Impresa di Costruzioni Ing. E. Mantovani and Guerrato (C‑178/16, EU:C:2017:1000, paragraph 31 and the case-law cited).

14      Article 18(1) of Directive 2014/24 stipulates that ‘contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner’.

15      Consip and the Austrian Government.

16      Article 2(1)(10) of that directive defines ‘economic operator’ as ‘any natural or legal person or public entity or group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market’. In addition, ‘tenderer’ is defined as ‘an economic operator that has submitted a tender’ (Article 2(1)(11)).

17      Case C‑267/18, EU:C:2019:393.

18      That is, where there has been a final judgment confirming breach of social or labour obligations that fall within one of the grounds in Article 57(1).

19      As established in Article 57(4)(a), which deals specifically with breach of the obligations in Article 18(2).

20      Directive of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

21      Judgment of 13 December 2012 (C‑465/11, EU:C:2012:801, paragraph 35).

22      Judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801, paragraph 31).

23      Judgment of 14 December 2016, Connexxion Taxi Services (C‑171/15, EU:C:2016:948, operative part).

24      Summarised in point 21 of this Opinion.

25      Judgment of 14 December 2016 (C‑171/15, EU:C:2016:948).

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