Antitrust Infringements As A Ground For Exclusion From Participation In Public Procurement Procedures

On 19 April 2016, legislative decree n. 50/2016 containing the new Italian Public Procurement Code (PPC) entered into force. The PPC aims to implement, among others, Directive 2014/24/EU which sets out, at Article 57, a number of mandatory and discretionary grounds for excluding an economic operator from public procurement procedures. The discretionary grounds also include anticompetitive conduct.

In December 2016, the Italian Anti-Corruption Authority (ANAC) adopted Guidelines aiming to shed light on the application of the exclusion provisions, with a view to promoting the adoption of common practices by contracting authorities. The Guidelines, however, raise more questions than they answer and are likely to create considerable uncertainty for economic operators as to the relevance of antitrust infringements for the purposes of participating in public procurement procedures.