Edited by Grith S. Ølykke and Albert Sanchez-Graells
Chapter 11: Exclusion and self-cleaning in Article 57: discretion at the expense of clarity and trade?
This chapter discusses the rules on exclusion of economic operators, as articulated in Article 57 of the 2014 Directive. In particular, it focuses on the aspects of the exclusion rules (relating to grounds for discretionary exclusion, self-cleaning and time limits for exclusion) that grant significant discretion to Member States. Article 57 is the product of significant negotiations between the Council and Parliament on a very scant Commission proposal to grant greater discretion to contracting authorities when both excluding and including economic operators. The chapter shows that the final wording of Article 57 represents a victory for the Council; however, its victory may prove hollow in light of the CJEU’s interpretation of Article 57, which may be narrow so as to prevent contracting authorities’ exercise of these new discretionary powers from limiting inter-state trade. The chapter concludes by recommending that further guidance than is available in the 2014 Directive’s recitals is made available before the CJEU is asked to interpret Article 57; the alternative may be a Court interpretation of Article 57 of the 2014 Directive that more closely resembles the Commission’s limited original 2011 Proposal.
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