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Exclusion and Self-Cleaning in Article 57: Discretion at the Expense of Clarity and Trade?

Sylvia de Mars

This paper analyses the rules in Directive 2014/24/EU (the 2014 Public Procurement Directive) on exclusion of economic operators. In particular, it will focus on the aspects of the exclusion rules (relating to grounds for discretionary exclusion, self-cleaning and time limits for exclusion) that grant discretion to Member States and/or contracting authorities. The exclusion rules will be examined for the extent to which they encourage the Single Market Act (I) procurement goals of simplicity, flexibility and ease of access, particularly for SMEs. In considering the more general Europe 2020 goals of efficiency in the use of public funds and maintaining an EU-wide procurement market, however, it will be argued that Article 57’s extent of discretion may have negative repercussions for inter-state trade. The paper will conclude by weighing the benefits of Article 57 against the harm that a broad implementation in practice may result in, and will recommend that further guidance to the Member States than is available in the Directive's recitals is needed

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