17.8.2020

Official Journal of the European Union

C 271/20

(Case C-472/19) (1)

(Reference for a preliminary ruling - Concession contract award procedure - Directive 2014/23/EU - Article 38(9) - System of compliance measures to demonstrate the reliability of an economic operator affected by a ground for exclusion - National legislation prohibiting economic operators which are the subject of a ground for compulsory exclusion from participating, for a period of 5 years, in a concession contract award procedure - Impossible for such operators to demonstrate that compliance measures have been taken)

(2020/C 271/27)

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Vert Marine SAS

Defendant: Premier ministre, Ministre de l’Économie et des Finances

Operative part of the judgment

1.Article 38(9) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts must be interpreted as precluding national legislation which does not allow an economic operator which has been definitively convicted of one of the offences referred to in Article 38(4) of that directive and which, on that ground, is automatically prohibited from participating in concession contract award procedures to provide evidence that it has taken compliance measures capable of demonstrating its restored reliability;

2.Article 38(9) and (10) of Directive 2014/23 must be interpreted as not precluding the assessment of the appropriateness of the compliance measures taken by an economic operator from being entrusted to the judicial authorities, provided that the national rules put in place for that purpose satisfy all the requirements laid down in Article 38(9) of that directive and that the relevant procedure is compatible with the time limits laid down by the concession contract award procedure. Moreover, Article 38(9) of Directive 2014/23 must be interpreted as not precluding national legislation which allows the judicial authorities to release a person from an automatic prohibition on participating in concession contract award procedures following a criminal conviction, to lift such a prohibition or to remove any mention of the conviction in the criminal record, provided that such judicial procedures effectively satisfy the conditions laid down and the objective pursued by that system and, in particular, make it possible, when an economic operator wishes to take part in a concession contract award procedure, to lift, in a timely manner, the prohibition affecting it, on the sole basis of the compliance measures claimed by that operator and assessed by the competent judicial authority in accordance with the requirements laid down in that provision, which it is for the referring court to ascertain.

(1) OJ C 280, 19.8.2019.