TITLE II

RULES ON CONTRACTS
CHAPTER VII

Conduct of the procedure
Section 2

Criteria for qualitative selection

Personal situation of the candidate or tenderer
Article 39
1
Any candidate or tenderer which has been the subject of a conviction by final judgment of which the contracting authority/entity is aware, for one or more of the reasons listed below, shall be excluded from participation in a contract:
a
participation in a criminal organisation, as defined in Article 2(1) of Joint Action 98/733/JHA ;
b
corruption, as defined in Article 3 of the Act of 26 May 1997 and Article 2(1) of Framework Decision 2003/568/JHA ;
c
fraud within the meaning of Article 1 of the Convention relating to the protection of the financial interests of the European Communities ;
d
terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA respectively, or inciting, aiding or abetting or attempting to commit an offence, as referred to in Article 4 of that Framework Decision;
e
money laundering and terrorist financing, as defined in Article 1 of Directive 2005/60/EC .
Member States shall specify, in accordance with their national law and having regard to Community law, the implementing conditions for this paragraph.
They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.
For the purposes of this paragraph, the contracting authorities/entities shall, where appropriate, ask candidates or tenderers to supply the documents referred to in paragraph 3 and may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned. Where the information concerns a candidate or tenderer established in a State other than that of the contracting authority/entity, the contracting authority/entity may seek the cooperation of the competent authorities. Having regard for the national laws of the Member State where the candidates or tenderers are established, such requests shall relate to legal and/or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer.
2
Any economic operator may be excluded from participation in a contract where that economic operator:
a
is bankrupt or is being wound up, where its affairs are being administered by a court, where it has entered into an arrangement with creditors, where it has suspended business activities or is in any analogous situation arising from a similar procedure under national laws and regulations;
b
is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by a court or of an arrangement with creditors or of any other similar proceedings under national laws and regulations;
c
has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning its professional conduct, such as, for example, infringement of existing legislation on the export of defence and/or security equipment;
d
has been guilty of grave professional misconduct proven by any means which the contracting authority/entity can supply, such as a breach of obligations regarding security of information or security of supply during a previous contract;
e
has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the Member State;
f
has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which it is established or with those of the country of the contracting authority/entity;
g
has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country in which it is established or with those of the country of the contracting authority/entity;
h
is guilty of serious misrepresentation in supplying the information required under this Section, or has not supplied such information.
Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.
3
Contracting authorities/entities shall accept the following as sufficient evidence that none of the cases specified in paragraph 1 or paragraph 2(a), (b), (c), (f) or (g) applies to the economic operator:
a
as regards paragraph 1 and paragraph 2(a), (b) and (c), the production of an extract from the ‘judicial record’ or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or provenance, showing that these requirements have been met;
b
as regards paragraph 2(f) and (g), a certificate issued by the competent authority in the Member State concerned.
Where the country in question does not issue such documents or certificates, or where these do not cover all the cases specified in paragraph 1 and paragraph 2(a), (b) and (c), they may be replaced by a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin or provenance.
4
Member States shall designate the authorities and bodies competent to issue the documents, certificates and declarations referred to in paragraph 3, and shall inform the Commission thereof. Such notification shall be without prejudice to data protection law.
Joint Action 98/733/JHA of 21 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union (OJ L 351, 29.12.1998, p. 1).
Council Act of 26 May 1997 drawing up, on the basis of Article K.3 (2) (c) of the Treaty on European Union, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (OJ C 195, 25.6.1997, p. 1).
Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector (OJ L 192, 31.7.2003, p. 54).
OJ C 316, 27.11.1995, p. 49.
Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ L 164, 22.6.2002, p. 3).
Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ L 309, 25.11.2005, p. 15).