Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
of 7 May 2026 (1)
Case C‑268/25
ETS Srl,
Minnucci Associati Srl,
Mi.Cos.SpA,
ItesaSrl,
Maceg Srl,
Tekno Kons Innovation Srl,
Cartorender Srl,
Rilievi Topografici di Boninsegna G. & C. Snc,
Tecno top Srl,
I.G. Service Srl,
Sub-Service Srl
v
Rete Ferroviaria Italiana SpA,
Interveners:
Le Generali Costruzioni SpA,
VIA Ingegneria Srl
(Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy))
( Reference for a preliminary ruling – Public procurement in the field of railway transport – Directive 2014/24/EU – Article 57(2) – Infringements of tax rules that have been definitively established – Payment or commitment to pay after the expiration of the time limit for submitting the tender – Mandatory exclusion ground – Directive 2014/25/EU – Article 79(2) – Article 80 – Exclusion or substitution of a member of a temporary grouping of undertakings – Knowledge and obligation of diligence and supervision of the authorised representative )
Table of contents
I. Introduction
II. Legal framework
A. EU law
1. Directive 2014/24
2. Directive 2014/25
B. National law
III. Facts, questions referred for a preliminary ruling and the procedure before the Court
IV. Legal assessment
A. Subject matter and scope of the questions referred
B. Settlement of the tax debt only up to the expiration of the deadline for the submission of tenders?
C. Replacement of the member of the grouping of undertakings which gave rise to the (irremediable) compulsory exclusion ground
1. Conditions
(a) Applicability of the second sentence of the second subparagraph of Article 79(2) of Directive 2014/25 to temporary groupings of undertakings
(b) Decisive point in time
2. Exceptions
(a) Infringement of the obligation of diligence and supervision and imputability
(b) Subsequent material amendment of the tender
3. Interim conclusion
V. Conclusion
I. Introduction
1. This request for a preliminary ruling concerns the interpretation of the rules on exclusion of tenderers in accordance with Directive 2014/24/EU (2) and Directive 2014/25/EU. (3) Under those directives, economic operators which have submitted a tender in the context of a procurement procedure and have not fulfilled their obligation to pay taxes on time are to be mandatorily excluded from the procedure.
2. In the present case, the Court of Justice must, for the first time, address the question as to when, in an ongoing procurement procedure, an economic operator belonging to a temporary grouping of undertakings must fulfil its obligation to pay taxes in order to avoid being excluded from the procurement procedure. The question also arises as to whether and under what conditions the temporary grouping of undertakings can exclude or substitute such an economic operator on its own initiative in order to prevent its own exclusion.
3. Those questions are raised in connection with the award of a public contract in the railway sector in Italy. Under the national provisions applicable to the proceedings in the main case, it should not be possible to exclude or substitute a company participating in a temporary grouping of undertakings which has been caught by the compulsory exclusion ground of infringement of the obligation to pay taxes, where, first, the exclusion ground ceases to exist only after the expiration of the time limit for submitting the tender and, second, the temporary grouping of undertakings proposes such exclusion or such a substitution only after the notification of the exclusion ground by the contracting authority. In other words, the temporary grouping of undertakings loses the contract as a result of the irregularities of only one of its members. It is necessary to ascertain in the present case whether such provisions are compatible with Article 57 of Directive 2014/24 in conjunction with Article 79(2) and Article 80 of Directive 2014/25.
II. Legal framework
A. European Union law
4. The framework of the case in EU law is formed by Directive 2014/24.
1. Directive 2014/24
5. Article 57 (‘Exclusion grounds’) of Directive 2014/24 states, inter alia:
‘1. Contracting authorities shall exclude an economic operator from participation in a procurement procedure where they have established, by verifying in accordance with Articles 59, 60 and 61, or are otherwise aware that that economic operator has been the subject of a conviction by final judgment for one of the following reasons:
…
The obligation to exclude an economic operator shall also apply where the person convicted by final judgment is a member of the administrative, management or supervisory body of that economic operator or has powers of representation, decision or control therein.
2. An economic operator shall be excluded from participation in a procurement procedure where the contracting authority is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions and where this has been established by a judicial or administrative decision having final and binding effect in accordance with the legal provisions of the country in which it is established or with those of the Member State of the contracting authority.
Furthermore, contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure an economic operator where the contracting authority can demonstrate by any appropriate means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.
This paragraph shall no longer apply when the economic operator has fulfilled its obligations by paying or entering into a binding arrangement with a view to paying the taxes or social security contributions due, including, where applicable, any interest accrued or fines.
3. Member States may provide for a derogation from the mandatory exclusion provided for in paragraphs 1 and 2, on an exceptional basis, for overriding reasons relating to the public interest such as public health or protection of the environment.
Member States may also provide for a derogation from the mandatory exclusion provided in paragraph 2, where an exclusion would be clearly disproportionate, in particular where only minor amounts of taxes or social security contributions are unpaid or where the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes or social security contributions at such time that it did not have the possibility of taking measures as provided for in the third subparagraph of paragraph 2 before expiration of the deadline for requesting participation or, in open procedures, the deadline for submitting its tender.
…
5. Contracting authorities shall at any time during the procedure exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs 1 and 2.
At any time during the procedure, contracting authorities may exclude or may be required by Member States to exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraph 4.
6. Any economic operator that is in one of the situations referred to in paragraphs 1 and 4 may provide evidence to the effect that measures taken by the economic operator are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. If such evidence is considered as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.
For this purpose, the economic operator shall prove that it has paid or undertaken to pay compensation in respect of any damage caused by the criminal offence or misconduct, clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities and taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences or misconduct.
The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons for that decision.
…
7. By law, regulation or administrative provision and having regard to Union law, Member States shall specify the implementing conditions for this Article. They shall, in particular, determine the maximum period of exclusion if no measures as specified in paragraph 6 are taken by the economic operator to demonstrate its reliability. Where the period of exclusion has … been set by final judgment, that period shall not exceed five years from the date of the conviction by final judgment in the cases referred to in paragraph 1 and three years from the date of the relevant event in the cases referred to in paragraph 4.’
6. Article 59(1) of Directive 2014/24 contains, inter alia, the following provisions on the ‘European Single Procurement Document’:
‘At the time of submission of requests to participate or of tenders, contracting authorities shall accept the European Single Procurement Document (ESPD), consisting of an updated self-declaration as preliminary evidence in replacement of certificates issued by public authorities or third parties confirming that the relevant economic operator fulfils the following conditions:
(a) it is not in one of the situations referred to in Article 57 in which economic operators shall or may be excluded;
…
Where the economic operator relies on the capacities of other entities pursuant to Article 63, the ESPD shall also contain the information referred to in the [present] subparagraph of this paragraph in respect of such entities.
…’
7. Article 60 of Directive 2014/24 regulates the necessary evidence for the absence of grounds for exclusion and the fulfilment of the selection criteria.
8. The second and fourth subparagraphs of Article 63(1) of that directive provide:
‘…
The contracting authority shall, in accordance with Articles 59, 60 and 61, verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 57. The contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion.
Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract.
Under the same conditions, a group of economic operators as referred to in Article 19(2) may rely on the capacities of participants in the group or of other entities.’
2. Directive 2014/25
9. Article 2(6) of Directive 2014/25 defines the term ‘economic operator’ as ‘any natural or legal person, or a contracting entity, or a 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’.
10. According to Article 36(1) of that directive, ‘contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.’
11. Article 37(2) of Directive 2014/25 provides, under the heading ‘Economic operators’:
‘Groups of economic operators, including temporary associations, may participate in procurement procedures. They shall not be required by contracting entities to have a specific legal form in order to submit a tender or a request to participate.
Where necessary, contracting entities may clarify in the procurement documents how groups of economic operators are to meet the criteria and requirements for qualification and qualitative selection referred to in Articles 77 to 81 provided that this is justified by objective reasons and is proportionate. Member States may establish standard terms for how groups of economic operators are to meet those requirements.
…’
12. Article 79(2) of that directive regulates the reliance on the capacities of other entities as follows:
‘…
Where, pursuant to Article 80 of this Directive, contracting entities have referred to exclusion or selection criteria provided for under Directive [2014/24], contracting entities shall verify in accordance with Article 80(3) of this Directive whether the other entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria or whether there are grounds for exclusion, to which the contracting entities have referred, pursuant to Article 57 of Directive [2014/24]. The contracting entity shall require that the economic operator replaces an entity in respect of which there are compulsory grounds for exclusion to which the contracting entity has referred. The contracting entity may require or may be required by the Member State to require that the economic operator replaces an entity in respect of which there are non-compulsory grounds for exclusion to which the contracting entity has referred.
Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting entity may require that the economic operator and those entities be jointly liable for the execution of the contract.
Under the same conditions, a group of economic operators as referred to in Article 37(2) may rely on the capacity of participants in the group or of other entities.’
13. Article 80 of Directive 2014/25 provides under the heading ‘Use of exclusion grounds and selection criteria provided for under Directive [2014/24]’:
‘1. The objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system and the objective rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated procedures, in competitive dialogues or in innovation partnerships may include the exclusion grounds listed in Article 57 of Directive [2014/24] on the terms and conditions set out therein.
Where the contracting entity is a contracting authority, those criteria and rules shall include the exclusion grounds listed in Article 57(1) and (2) of Directive [2014/24] on the terms and conditions set out in that [a]rticle.
If so required by Member States, those criteria and rules shall, in addition, include the exclusion grounds listed in Article 57(4) of Directive [2014/24] on the terms and conditions set out in that [a]rticle.
2. The criteria and rules referred to in paragraph 1 of this Article may include the selection criteria set out in Article 58 of Directive [2014/24] on the terms and conditions set out therein, notably as regards the limits to requirements concerning yearly turnovers, as provided for under the second subparagraph of paragraph 3 of that [a]rticle.
3. For the purpose of applying paragraphs 1 and 2 of this Article, Articles 59 to 61 of Directive [2014/24] shall apply.’
14. Article 82 of Directive 2014/25 regulates the contract award criteria. According to paragraph 1, the award of contracts must be based ‘on the most economically advantageous tender’.
B. National law
15. The Decreto legislativo 31 marzo 2023, n. 36, Codice dei contratti pubblici (4) (Legislative Decree No 36 of 31 March 2023, Italian Public Procurement Code); ‘Legislative Decree No 36/23’) is intended to transpose the provisions of the Directives referred to above.
16. Article 94(6) of Legislative Decree No 36/23 provides:
‘An economic operator which has committed serious infringements, definitively established, of obligations relating to the payment of taxes or social security contributions under Italian law or the law of the State in which it is established shall … be excluded. Serious infringements definitively established are those listed in Annex II.10. This paragraph shall not apply where the economic operator has fulfilled its obligations by paying or entering into a binding arrangement with a view to paying the taxes or social security contributions due, including, where applicable, any interest accrued or penalties, or when the tax or social security debt is in any case extinguished in full, provided that the extinction, payment or commitment occurred before the deadline for submitting the tender.’
17. Article 96(2) of Legislative Decree No 36/23 concerns exclusion grounds for individual economic operators. It provides that the so-called ‘self-cleaning’ provision does not apply because of the automatic exclusion clause in Article 94(6).
18. Article 97 of Legislative Decree No 36/23 provides:
‘1. Without prejudice to the provisions of Article 96(2), (3), (4), (5) and (6), a grouping of undertakings shall not be excluded where one of its members is affected by an automatic or non-automatic ground for exclusion or does not meet a qualification requirement, if the conditions set out in paragraph 2 have been fulfilled and it has complied with the following obligations:
(a) at the time of the submission of the tender:
(1) it informed the contracting authority of the fact that a reason for exclusion existed prior to the submission of the tender and that the qualification requirement was no longer met, as well as the entity concerned thereby;
(2) it justified the measures taken pursuant to paragraph 2 or why it is was not possible to take them before that date;
(b) it adopted and notified the measures referred to in paragraph 2 before the award of the contract, where the reason for exclusion arose after the tender was submitted or where the qualification requirement was no longer met following the submission of the tender.
2. Without prejudice to Article 96, if a member of the grouping is in one of the situations referred to in Articles 94 and 95 or does not meet one of the requirements laid down in Article 100, the grouping may demonstrate that it has excluded that member or substituted it by another entity meeting the necessary requirements, without prejudice to the unalterable nature of the substance of the tender submitted. If those measures are considered to be sufficient and adopted in good time, the grouping shall not be excluded from the tender procedure. If the contracting authority takes the view that the measures are untimely or insufficient, the economic operator shall be excluded by reasoned decision.’
III. Facts, questions referred for a preliminary ruling and the procedure before the Court
19. The request for a preliminary ruling arises from a dispute between a temporary grouping of undertakings, consisting of the authorised and representative company ETS Srl, and the companies Minnucci Associati Srl, Mi.Cos.SpA, Itesa Srl, Maceg Srl, Tekno Kons Innovation Srl, Cartorender Srl, Rilievi Topografici di Boninsegna G. & C. Snc, Tecno Top Srl, I.G. Service Srl, Sub-Service Srl represented by it (‘the grouping of undertakings’), and the national rail company, Rete Ferroviaria Italiana SpA (‘RFI’), as the contracting authority.
20. After RFI initiated a restricted procedure for the award of works in the railway sector, the grouping of undertakings submitted a tender. RFI ranked the grouping’s tender as the first-placed of the most economically favourable tenders submitted to it and informed the grouping of this on 3 April 2024. RFI then became aware of three final decisions of the Italian tax authorities from 2016, 2018 and 2019, according to which a member of the group of undertakings, Sub-Service, contrary to what was stated in the European Single Procurement Document (ESPD), had not fulfilled its obligation to pay taxes. On 23 May 2024, RFI requested Sub-Service to inform it, inter alia, whether the tax debts concerned had been settled, indicating that the irregularities established by the tax authorities could result in exclusion from the procurement procedure. RFI also informed ETS of those circumstances. Sub-Service thereupon settled its tax debts and submitted the relevant proof of payment dated 27 May 2024.
21. On 27 May 2024, ETS informed RFI of its readiness to exclude Sub‑Service from the grouping of undertakings if the documents submitted were to be regarded as incomplete or insufficient for the purpose of demonstrating that the alleged infringements no longer existed. The grouping also pointed out that the exclusion would neither affect the conditions of its participation in the procurement procedure nor alter its tender.
22. By decision of 17 July 2024, RFI excluded the grouping of undertakings from the procurement procedure. Its justification for doing so was, in essence, that Sub-Service had, contrary to its declaration in the ESPD, been convicted by final judgment of three serious tax offences and only submitted a certificate of settlement of its tax debts on 27 May 2024, without demonstrating that it had already entered into a corresponding commitment to pay prior to the expiration of the time limit for submitting tenders (27 January 2024). That justification relied on the automatic exclusion ground laid down in Article 94(6) of Legislative Decree No 36/23. The possibility provided for in Article 97(1) and (2) of that legislative decree of substituting Sub-Service and preventing the exclusion was pursued by the grouping of undertakings not in good time, but only after the public contracting authority informed it of the existence of the exclusion ground.
23. On 5 November 2024, RFI awarded the public contract to the second‑placed temporary grouping of undertakings VIA Ingegneria Srl.
24. The grouping of undertakings brought an action against that decision and the exclusion decision before the referring court, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy). VIA Ingegneria intervened in the dispute in support of the defendant RFI.
25. In support of its action, the grouping of undertakings relied on an erroneous implementation of provisions of EU law on public contracting. First, it had been deprived of the possibility of remedying the irregularities established in respect of one of its members, albeit after the expiration of the time limit for submitting tenders but still before the exclusion decision was issued by the contracting authority. Second, the grouping had not been given any opportunity to exclude or substitute that member, even though that would not have entailed any material alteration to the original tender.
26. The referring court has doubts about the compatibility of, in particular, Article 94(6) and Article 97(2) of Legislative Decree No 36/23 with the rules of EU law on public procurement and the principle of proportionality, in so far as those national provisions preclude any ‘self-cleaning’ which does not take place before the expiration of the time limit for submitting tenders and/or do not allow a grouping of undertakings to exclude or substitute a member affected by the ground for the exclusion irrespective of the time when the company authorised to represent the members of the grouping became aware of it.
27. In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) Do Article 57 of Directive [2014/24], Article 80 of Directive [2014/25] and the [EU law] principle of proportionality preclude the introduction or interpretation of a national rule which does not allow for the exclusion or substitution of a principal of a grouping of undertakings which has infringed tax rules that have been definitively established prior to the [expiration] of the time limit for submitting the tender; in particular, by way of a provision according to which, in any event, the extinction, payment or commitment to pay must have taken place before the expiration of that time limit, even if the reason for exclusion ceased to exist during the tender procedure and before the adoption of the measure excluding the grouping?
(2) If the first question is answered in the affirmative, do the same rules and principles preclude the introduction or interpretation of a national rule that does not allow for the exclusion or substitution of a principal of a grouping irrespective of the agent’s actual knowledge of the reason for the exclusion of the principal?
(3) If the first and second questions are answered in the affirmative, do those same rules and principles preclude the introduction or interpretation of a national rule that does not allow for the exclusion or substitution of a principal where the reason for the exclusion of that principal came to the knowledge of the agent only following notification of the contracting authority’s checks?’
28. In addition to the parties to the main proceedings, ETS and Others, RFI and VIA Ingegneria, the Italian Government and the European Commission made written submissions in the proceedings before the Court. Those parties also attended the hearing on 26 March 2026, during which they answered the questions put to them by the Court for oral answer.
IV. Legal assessment
A. Subject matter and scope of the questions referred
29. By its request for a preliminary ruling, the referring court seeks an interpretation of Article 57(2) of Directive 2014/24, to which Article 80(1) of Directive 2014/25 refers. However, Article 79 of Directive 2014/25 should also be taken into account for the purpose of answering the questions referred.
30. Article 79(2) of Directive 2014/25 expressly covers the case where an economic operator relies on the capacity of another entity in order to fulfil the contract. (5) The contracting authority must verify, in accordance with the first sentence of the second subparagraph of Article 79(2) in conjunction with Article 80 of Directive 2014/25, whether there are grounds for excluding that undertaking pursuant to Article 57 of Directive 2014/24. Where there are compulsory grounds for exclusion, it must require the economic operator, under the second sentence of the second subparagraph of Article 79(2), to replace the entity concerned. Under the fourth subparagraph of Article 79(2), a group of economic operators (such as the grouping of undertakings concerned in the present case) may, under the same conditions, rely on the capacities of participants in the group, and therefore the question arises whether it may also replace them (see point 53 et seq. below)
31. The present request for a preliminary ruling therefore hinges on the interpretation of the grounds for exclusion under Article 57(2) of Directive 2014/24 in conjunction with Article 79(2) and Article 80(1) of Directive 2014/25.
32. Accordingly, the questions for a preliminary ruling are to be collectively understood as asking whether Article 57(2) of Directive 2014/24 in conjunction with Article 79(2) and Article 80(1) of Directive 2014/25 and the EU law principle of proportionality are to be interpreted as precluding national provisions or the interpretation of them under which a grouping of undertakings is to be excluded from a public procurement procedure because it has been established by a final administrative decision that one of its members did not fulfil its obligation to pay taxes before the expiration of the time limit for submitting tenders, even though that member, albeit after the expiration of that time limit, but before the grouping’s exclusion, settled its tax debt and the grouping can no longer exclude or replace that member because it was only made aware of the reason for the exclusion by the contracting authority.
33. In order to answer those questions, I shall examine, first, until what time in the procurement procedure corrective action in respect of such a compulsory exclusion ground may be taken (under B). I shall then examine whether and under what conditions a grouping of undertakings can exclude or replace one of its members which gave rise to the ground for the exclusion so as to prevent the grouping’s exclusion from the procurement procedure (under C).
B. Settlement of the tax debt only up to the expiration of the deadline for the submission of tenders?
34. According to subparagraphs 1 and 2 of Article 80(1) of Directive 2014/25, Article 57(2) of Directive 2014/24 is applicable to the present restricted procurement procedure conducted by RFI as the contracting authority (‘public undertaking’) within the meaning of Article 4(1)(a) of Directive 2014/25.
35. According to the first subparagraph of Article 57(2) of Directive 2014/24, an economic operator is to be excluded from participation in a procurement procedure where the contracting authority is aware that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions and where this has been established, in accordance with national legal provisions, by an administrative decision ‘having final and binding effect’, (6) in other words, no longer subject to appeal. That is a compulsory ground for exclusion (‘shall be excluded’).
36. According to the third subparagraph of Article 57(2) of Directive 2014/24, such an exclusion ground only ceases to apply when the economic operator has fulfilled its obligations by paying, or entering into a binding arrangement with a view to paying, the taxes due. By what time that must have happened is not immediately clear from that provision.
37. In interpreting a provision of EU law, it is necessary, however, to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (7)
38. From a contextual point of view, account should be taken of Article 57(3) of Directive 2014/24 in particular. Under that paragraph, Member States may provide for a derogation from the mandatory exclusion provided for in paragraph 2 if it would be clearly disproportionate, in particular where the economic operator was informed of the exact amount due following its breach of its obligations relating to the payment of taxes at such time that it did not have the possibility of taking measures as provided for in the third subparagraph of paragraph 2 before expiration of the deadline for requesting participation or (as here) in open procedures, before expiration of the deadline for submitting its tender (‘tender submission deadline’).
39. Article 57(3) of Directive 2014/24 therefore implies that a ground for exclusion under paragraph 2 can be remedied only exceptionally after the expiration of the tender submission deadline. The economic operator concerned can, in so far as the Member State makes use of that exclusion provision, pay or enter into a binding arrangement with a view to paying the tax debt after that deadline only under the abovementioned narrow conditions in order to prevent its exclusion from the procurement procedure. This implies, a contrario, that, where those conditions are not fulfilled, the relevant corrective measures may, in principle, only be taken until the expiration of that deadline. Any other interpretation would otherwise deprive that provision of all useful effect.
40. The corrective measures provided for in Article 57(6) of Directive 2014/24 are irrelevant in that regard. As that provision clearly states, they relate only to the exclusion grounds referred to in paragraphs 1 and 4, not to those in paragraph 2. This is confirmed by recital 102, which gives examples of any possible corrective measures such as personnel and organisational measures. (8) Those measures do not in fact concern the fulfilment of the obligation to pay taxes or social security contributions referred to in the first subparagraph of Article 57(2). The third subparagraph of Article 57(2) shows rather that the corrective measures in that regard merely consist in the payment of tax due or in the conclusion of a binding payment arrangement.
41. It also follows from the legislative context and from the objectives of Directive 2014/24 that the EU legislature wished to attach considerable importance to the fulfilment of the obligation to pay taxes and social security contributions in the assessment of the integrity and reliability of tenderers.
42. Thus, the Member States cannot provide for any maximum exclusion period in respect of the compulsory exclusion ground under the first subparagraph of Article 57(2) of Directive 2014/24. Under the second and third sentences of Article 57(7), that is possible only in respect of the exclusion grounds provided for in paragraphs 1 and 4 and the measures provided for (but not adopted) in paragraph 6 for the purpose of demonstrating reliability. The particular position of the compulsory exclusion ground in the first subparagraph of paragraph 2 in the general scheme of Article 57 confirms that. Otherwise, it would have been sufficient to include that ground in the list of compulsory exclusion grounds under paragraph 1. (9) The EU legislature therefore attaches such importance to the tenderer’s obligation to pay taxes and social security contributions on time that infringement of that obligation is intended, in principle, to result in permanent exclusion from the procurement procedure. (10) That also explains why such a corrective measure must be taken at the earliest possible time, namely by the expiration of the tender submission deadline.
43. The other objectives of Directive 2014/24 also support that interpretation.
44. The exclusion grounds provided for in Directive 2014/24 protect and limit the contracting authority’s broad discretion in selecting a suitable and efficient tenderer. It is therefore obliged to carefully examine the existence of exclusion criteria which cast doubt on the tenderer’s integrity and reliability at the earliest possible stage of the procurement procedure. (11) However, that would, in principle, argue against the admissibility of corrective measures after the expiration of the tender submission deadline.
45. The principles of equal treatment, non-discrimination and transparency reinforced in the first subparagraph of Article 18(1) of Directive 2014/24, which ensure fair competition between tenderers, also require the assessment of exclusion and selection criteria during the procurement procedure to be strictly limited in time. Those principles prohibit the contracting authority, in principle, from conducting negotiations with a tenderer which might result in unequal treatment or undermine competitive tendering. Therefore, a submitted tender cannot, in principle, be altered and the contracting authority cannot require the tenderer to provide clarification. (12) That applies all the more, subject to specific derogations, to any corrective measures or evidence of such measures after the submission of the tender or expiration of the tender submission deadline.
46. Accordingly, the Court has already ruled that the contracting authority may exceptionally ask a candidate, after the deadline for applying to take part in a tendering procedure, to provide documents describing that candidate’s situation, which can be objectively shown to pre-date that deadline, so long as it was not expressly laid down in the contract documents that, unless such documents were provided, the application would be rejected. That request must also not unduly favour or disadvantage the candidate or candidates to which it is addressed. (13)
47. Also as a result of that case-law, the focus must, in principle, be on the tenderer’s situation before the expiration of the tender submission deadline. What is decisive is whether that tenderer, when drawing up its tender, has exercised the care and diligence required to ensure that, in the course of performance of the contract, the obligations concerned are complied with in all circumstances, whether by itself or by the subcontractors to whom it intends to entrust (part of) that performance. (14) In the situation at issue in the main proceedings, however, the grouping or its member had taken the corrective measures only after the expiration of the tender submission deadline.
48. Economic operators participating in a procurement procedure are therefore obliged under the first subparagraph of Article 57(2) of Directive 2014/24 to pay the taxes and social security contributions owed by the expiration of the tender submission deadline at the latest and will otherwise be compulsorily excluded. If they are put in the position of taking corrective measures after the expiration of that deadline or even in the knowledge of their tender’s ranking, they may be motivated to settle their respective debts only if their tender is placed first or to completely refrain from doing so if they would not have been awarded the contract anyway. However, that would undermine the particular importance attached by the EU legislature to the obligation to pay taxes and social security contributions on time in the assessment of the integrity and reliability of the tenderers.
49. From a historic viewpoint, that conclusion is supported by Article 45(2)(f) of Directive 2004/18/EC 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, (15) which was repealed by Directive 2014/24. According to that provision, infringements of the obligation to pay taxes and social security contributions were still an optional ground for exclusion, which was only changed into a compulsory ground by the first subparagraph of Article 57(2) of Directive 2014/24. That development also emphasises the importance that the EU legislature now attaches to timely compliance with that obligation for the assessment of the integrity and reliability of the tenderers concerned.
50. It follows from a contextual, teleological and historical interpretation of Article 57(2) of Directive 2014/24 that a Member State must in principle require economic operators participating in a procurement procedure to take the corrective measures provided for before the expiration of the tender submission deadline in order to prevent their exclusion. Conversely, the Member State must provide that economic operators which take the necessary measures after the expiration of that deadline must be excluded from the procurement procedure.
51. As, in particular, explained above in point 48, compulsory exclusion is the only suitable means of achieving the abovementioned objectives of Directive 2014/24. In view of the foreseeability and reasonableness for the economic operator concerned of complying with its obligation to pay its tax debts (above the relevant threshold for ‘serious infringements’ laid down in Article 94(6) of, in conjunction with Article 1 of Annex 11.10 to, Legislative Decree No 36/23 of EUR 5 000) in good time and/or of doing so by the expiration of the tender submission deadline, such exclusion also does not appear to be inappropriate or disproportionate within the meaning of the first subparagraph of Article 36(1) of Directive 2014/25. What must be explained next is whether it is also appropriate to exclude the grouping of undertakings to which that economic operator belongs.
C. Replacement of the member of the grouping of undertakings which gave rise to the (irremediable) compulsory exclusion ground
52. In the light of the foregoing conclusions, it must be examined whether and, if so, under what conditions a grouping of undertakings can exclude or replace one of its members which gave rise to the (irremediable) compulsory exclusion ground, in order to prevent its own exclusion from the procurement procedure (under 1) and what exceptions apply in that regard (under 2).
1. Conditions
(a) Applicability of the second sentence of the second subparagraph of Article 79(2) of Directive 2014/25 to temporary groupings of undertakings
53. The second sentence of the second subparagraph of Article 79(2) of Directive 2014/25 (16) concerns the (possible) replacement of an ‘other entity’ which does not fulfil a relevant selection criterion or where there are compulsory grounds for its exclusion. In the situation directly covered by that provision, an economic operator, for the purpose of tendering for a public contract (and its subsequent implementation) relies on the capacity of another undertaking (‘ancillary undertaking’) in order to fulfil the criteria of economic and financial capacity and technical and professional ability. (17)
54. Under the first sentence of the second subparagraph of Article 79(2) of Directive 2014/25, the contracting authority must examine whether ancillary undertakings also fulfil the selection criteria or whether they are caught by a ground for exclusion under Article 57 of Directive 2014/24. Where they do not meet a relevant selection criterion or where there are compulsory grounds for exclusion in their regard to which the contracting entity has referred, the contracting entity must under the second sentence of the second subparagraph of Article 79require the economic operator (2) to replace the ancillary undertaking concerned. (18) That provision does not expressly refer to the members of a grouping of undertakings.
55. However, the fourth subparagraph of Article 79(2) of Directive 2014/25 provides that ‘a group of economic operators as referred to in Article 37’, which therefore includes groupings of undertakings, may rely on the capacities of participants in the group ‘under the same conditions’. The term ‘conditions’ covers, in principle, all provisions of Article 79(2), including the possibility of replacing a member of a grouping of undertakings pursuant to the second sentence of the second subparagraph of Article 79(2).
56. That interpretation is consistent with the case-law whereby the identical (but not applicable here) provisions in the second and fourth subparagraphs of Article 63(1) of Directive 2014/24 are applicable to situations in which only one of the members of the grouping of undertakings has given rise to the exclusion ground. (19) It is all the more cogent since groupings of undertakings (that is, ‘groups of economic operators’ within the meaning of the first sentence of Article 37(2) and, respectively, ‘economic operators’ within the meaning of Article 2(6) of Directive 2014/25) must be treated equally with other economic operators in accordance with Article 36(1) of that directive.
57. Therefore, a grouping of undertakings may also, in principle, replace a member which has given rise to a ground for exclusion under Article 57 of Directive 2014/24 under the conditions laid down in the second and fourth subparagraphs of Article 79(2) of Directive 2014/25.
58. However, it must be examined by what time the grouping of undertakings must be given the opportunity to replace the member caught by the exclusion ground in order to prevent the exclusion of the grouping. In the situation underlying the case in the main proceedings, the grouping was not, in fact, allowed to make such a replacement after the contracting authority informed it of the existence of a compulsory ground for excluding the member concerned.
(b) Decisive point in time
59. As Italy submits, the second and fourth subparagraphs of Article 79(2) of Directive 2014/25 and the identical provisions in Article 63 of Directive 2014/24 do not expressly state by what time an ancillary undertaking or a member of a grouping of undertakings may or must be replaced in order to prevent the exclusion of a tenderer or a grouping of undertakings.
60. According to the case-law on Article 63 of Directive 2014/24, that provision requires the public contracting authority, before it requires an ancillary undertaking to be replaced, to give the tenderer or that undertaking the opportunity to submit to it corrective measures which it may have adopted in order to remedy the irregularity found and thereby once again demonstrate the required reliability. Only if the tenderer or ancillary undertaking has failed to take any corrective action or it has been deemed inadequate may the public contracting authority (in the alternative) require that undertaking to be replaced. (20)
61. Those principles are transferable to Article 79 of Directive 2014/25.
62. As explained in point 34 et seq., the member of a grouping of undertakings caught by the exclusion ground must adopt the corrective measures by the expiration of the tender submission deadline at the latest in order to prevent its exclusion under Article 57(2) of Directive 2014/24. Conversely, the contracting authority must first give the member or the grouping of undertakings to which it belongs the opportunity to adopt such measures by the expiration of that deadline. Only thereafter can it exclude not only that member, but also the grouping of undertakings or require that grouping to replace the member. The second subparagraph of Article 79(2) of Directive 2014/25 therefore assumes (contrary to what RFI, VIA Ingegneria and Italy maintain) that the (compulsory or optional) ground for exclusion under Article 57 of Directive 2014/24 already (irremediably) existed at that time in respect of the ancillary undertaking concerned.
63. Under those conditions, the second sentence of the second subparagraph of Article 79(2) of Directive 2014/25 (21) even provides, in the event of the existence of an (as here) compulsory exclusion ground, for the contracting authority’s obligation to require the ancillary undertaking concerned to be replaced. Therefore, in that regard, unlike in the case of an optional exclusion ground (third sentence of the second subparagraph of Article 79(2): ‘may’), the Member States have no discretion regarding implementation. (22)
64. A grouping of undertakings must therefore be given the opportunity to replace one of its members which gave rise to a compulsory (irremediable) exclusion ground after the expiration of the tender submission deadline. That necessarily covers the possibility of merely excluding the member concerned without replacing it, as provided for in the first sentence of Article 97(2) of Legislative Decree No 36/23 and as suggested by ETS. However, the question arises under what conditions a contracting authority may refuse such exclusion or such replacement.
2. Exceptions
(a) Infringement of the obligation of diligence and supervision and imputability
65. In accordance with the case-law referred to above in point 47, replacement of the member of the grouping of undertakings which gave rise to the exclusion ground may be granted only in order to prevent exclusion from the procurement procedure, where the grouping of undertakings or the member authorised for that purpose has fulfilled its obligation of diligence and supervision. Conversely, an exclusion ground to which one of its members gave rise is to be attributed to a grouping of undertakings, where it or the authorised member infringed those obligations. However, the establishment of that infringement presupposes that the failure justifying the exclusion is attributable to the organisational power and power of oversight of the grouping of undertakings or its authorised (representative) member.
66. The Court requires, in fact, that the contracting authority carry out a specific and individual assessment in respect of tenderers wishing to replace one of their enlisted ancillary undertakings owing to the existence of an (optional) exclusion ground. According to the case-law, the contracting authority is required, in the light of the principle of proportionality, to assess the specific conduct of the tenderer concerned, taking into account all the relevant circumstances of the individual case. In that connection, it must take into consideration the means at the tenderer’s disposal enabling it to itself assess and establish whether the ancillary undertaking, on whose capacities the tenderer intended to rely, has given rise to a ground for exclusion. (23) In other words, an exclusion ground to which an ancillary undertaking has given rise cannot automatically be attributed to a tenderer or assumed to be attributable to it, but must be justified and established by the contracting authority in the individual case.
67. Those principles are transferable to a grouping of undertakings wishing to replace (or, as in the present case, merely exclude) one of its members which has given rise to a compulsory ground for exclusion. That also follows from the third subparagraph of Article 19(2) of Directive 2014/24 and from Article 36(1) of Directive 2014/25. Under those provisions, groupings of undertakings are to be regarded as on an equal footing with other economic operators or are themselves to be regarded as economic operators. Furthermore, the Court has ruled that, irrespective of the joint and several liability of the members of a grouping, the application of an (optional) ground for exclusion must be based on the wrongful or negligent nature of the individual conduct. (24) In other words, there must have been wrongful conduct which can be alleged against or attributed to the grouping of undertakings or its members that must be specifically established. The argument put forward by RFI, VIA Ingegneria and Italy that the grouping of undertakings is, in principle, automatically responsible, (25) as such, for the tender submitted and so also for the wrongful conduct of one of its members must therefore be rejected.
68. Schematic considerations also support the interpretation whereby the wrongful conduct of a member which has given rise to a ground for exclusion under Article 57(2) of Directive 2014/24 may not be automatically attributed to a grouping of undertakings in order to justify its exclusion from the procurement process.
69. The second subparagraph of Article 57(1) of Directive 2014/24 (26) provides for an irrefutable presumption of attribution only in respect of the compulsory exclusion grounds listed in the first subparagraph, where the underlying offences (27) have been committed by a person (convicted by final judgment) which is a member of the administrative, management or supervisory body of the economic operator or has powers of representation, decision or control therein. However, there is no such presumption and attribution rule in the case of the exclusion ground of infringement of the obligation to pay taxes and social security contributions laid down in Article 57(2). It is therefore necessary to carry out a specific and individual assessment and reasoning in that regard in order to attribute the wrongful conduct of a member to the grouping of undertakings as a whole. In so doing, account is being taken of the fact that the powers of organisation and the powers and possibilities of control in a (temporary) grouping of undertakings (as opposed to a group of undertakings with a group structure) are limited. (28)
70. Lastly, the aim of the EU provisions on public contracting, namely to attain the widest possible opening-up to competition and the concern to ensure the widest possible participation by tenderers in a call for tenders, (29) also supports such case-by-case analysis. Such opening-up serves not only the free movement of goods and services EU-wide, but also the interest of the contracting authority in being able to select from a greater choice of tenderers the tender offering the best value for money which best meets the needs of the public authority in question. (30) As is shown by the situation which gave rise to the dispute in the main proceedings, the exclusion of a grouping of undertakings may, in fact, result in the loss of the most economically favourable tender, even though the ground for that exclusion resulted only from the action of a subordinate member.
71. In order to be able to establish an infringement of the duty of care by the grouping of undertakings, or where applicable, by the member authorised by it (and with power of control), the public contracting authority must therefore establish and determine in the individual case whether the grouping of undertakings or the member authorised by it was in a position to examine (in sufficient time) whether one of its members had given rise to an exclusion ground, (31) or even to remedy or prevent it (by taking the relevant corrective action).
72. Ultimately, the national court must determine whether this was so in the case in question. As the Commission submits, it cannot be entirely ruled out that the authorised member of the grouping of undertakings ETS was not in a position (in law or in fact) to acquire knowledge of the existence of the exclusion ground before RFI was informed of it by the Italian tax authorities and communicated it to ETS. On the other hand, it might be considered (as, in particular, Italy and VIA Ingegneria asserted at the hearing) that the grouping infringed its duty of care in that ETS may have failed to fulfil its obligation to require all members of the grouping to submit a tax compliance certificate before the submission of the tender.
73. Lastly, it remains to be determined whether the exclusion of Sub-Service from the grouping of undertakings would have resulted in an inadmissible subsequent amendment of the tender.
(b) Subsequent material amendment of the tender
74. As stated in point 45, the principles of equal treatment and non-discrimination and the requirement of transparency, which ensure fair competition, preclude in principle the subsequent amendment of a tender which has already been submitted.
75. A request by a contracting authority addressed to a grouping of undertakings for the replacement of a member on whose capacities it intends to rely must not result in the grouping submitting what would in reality appear to be a new (as opposed to the original materially amended) tender, but, in any event, in a clarification as to substance and personnel of that tender. (32) In principle, the economic operator submitting the tender and the economic operator to which the contract might be awarded must be legally and substantively the same. (33) That also results from the fact that the members of a grouping of undertakings (as a ‘group of undertakings’ within the meaning of the first sentence of Article 37(2) and, respectively, ‘economic operators’ within the meaning of Article 2(6) of Directive 2014/25) are submitting one joint tender.
76. In so far as the replacement (or exclusion) of such a member results only in a subsequent non-material amendment of the tender, that should therefore be regarded as admissible under the second subparagraph of Article 79(2) of Directive 2014/25.
77. In accordance with that interpretation, the Court has ruled that a contracting entity is not in breach of the principle of equal treatment where it permits one of two members of a dissolved group of undertakings to take its place and to take part, in its own name, in the procurement procedure, provided that it is established that that economic operator by itself meets the requirements laid down by the contracting entity and that the continuation of its participation in that procedure does not place the other tenderers at a competitive disadvantage. (34) That is the case, for example, where a tenderer changes its personal identity by choosing a change of form or internal reorganisation in a purely formal manner which does not result in the modification in any fundamental manner of the contractual terms of the tender. (35)
78. According to the order for reference, the member to which the compulsory ground relates was intended to assume 0.31% of the service for which the grouping of undertakings tendered. The authorised member of the grouping of undertakings ETS has also stated that the exclusion of the member concerned does not affect the grouping’s participation in the procurement procedure and does not result in the alteration of the technical and economic terms of its tender.
79. Subject to verification by the referring court, the exclusion of that member might, as the Commission submits, (in view of its only marginal 0.31% share of the tender submitted) therefore be equivalent to a mere internal reorganisation of the grouping of undertakings without any material significance. In that regard, the referring court must further examine whether those circumstances could or even must have caused the contracting authority under the second sentence of Article 97(2) of Legislative Decree No 36/23 to refrain from excluding the grouping from the procurement procedure. This is because that provision clearly gives the contracting authority discretion in the matter whether the corrective measure envisaged by the grouping is sufficient (‘considered to be sufficient and adopted in good time’). If that is the case, that provision might also be amenable to interpretation in conformity with directives (in particular in the light of the second subparagraph of Article 79(2) of Directive 2014/25 (36)), which must also be assessed by the referring court.
3. Interim conclusion
80. Consequently, a grouping of undertakings must, in principle, be able to exclude or replace a member caught by a compulsory ground for exclusion under Article 57(2) of Directive 2014/25 in order to prevent itself from being excluded from the procurement procedure. That is conditional on the grouping or its authorised member (in fact or in law) not being in a position to establish the existence of the exclusion ground in good time, prevent its occurrence or adopt sufficient corrective measures in that regard. In so far as the member to be excluded or replaced was to assume only a marginal share of the service tendered for, such exclusion or such replacement may result in only an immaterial alteration of the grouping’s tender which does not adversely affect competition between the tenderers. The referring court must assess whether those conditions are met and whether the relevant national legislation may be interpreted and applied in accordance with those principles.
V. Conclusion
81. I therefore propose that the Court answer the request for a preliminary ruling of the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) as follows:
Article 57(2) 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 in conjunction with Article 79(2) and the second subparagraph of Article 80(1) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC and the principle of proportionality under EU law must be interpreted as precluding the introduction or interpretation of national rules whereby a temporary grouping of undertakings must be excluded from a public procurement procedure because it cannot exclude or substitute one of its members, which fulfilled its (definitively established) obligation to settle its tax debts only after the expiration of the tender submission deadline, merely because it proposed doing so only after it was informed of the existence of the exclusion ground by the contracting authority.