European Union: The New Procurement Code (Legislative Decree No. 36/2023) And The General Requirements Relating, In Particular, To The Non-Payment Of Taxes And Duties Or Social Security Contributions: Has Anything Changed?

The new provisions, which incorporate the decisions of EU and national case law, include some clarification as well as some new elements.

As correctly already highlighted in the "Report to the Code of Contracts of the Council of State", in the old public procurement code (Legislative Decree No. 50/2016) in force, most of the litigation was developed on the rules concerning general requirements (Art. 80). This is because article 80 , although adopted largely from the text of art. 57 of Directive no. 24/2014, did not actually distinguish the exclusion causes between the so-called "mandatory" (that is, those that were applied directly, without the contracting authority being left with any margin of appreciation on the existence of the conditions) compared to the so-called "optional" causes for exclusion.

By issuing this new procurement code, the legislator introduced a specific framework, in certain respects clarifying, dividing the original provision (ex art. 80) into five distinct articles (from 94 to 98) of which – with regard to the non-payment of taxes and duties or social security contributions – the most relevant are articles numbers 94 and 95 (paragraph 4 of article 80 on the other hand grouped both a mandatory cause of exclusion, and a so-called "optional" one, having the same "reason": failure to pay taxes, social security contributions).

The new code identifies two distinct causes for the same case: one included among the "automatic" exclusions (Art. 94 paragraph 6) and the other (Art. 95 paragraph 2) among the "non-automatic" ones, these cases being defined in Annex II.10 to the procurement code, in which essentially, also in consideration of the amount, a distinction is made between the cases in which the violation has been "definitively ascertained" and those in which the ascertainment is not definitive.

A) in particular, Article 94, on the basis of numerous decisions of the Court of Justice and national case law, provides for specific grounds for exclusion from the tender, distinguishing them with the adjective "automatic" when more serious.

The serious violations of tax and social security obligations, which constitute an automatic cause for exclusion, fully reproduce the very recent Ministerial Decree of 22 September 2022, issued in implementation of art. 80, paragraph 4, of the current Legislative Decree no. 50/2016, as amended by art. 10, paragraph 1, letter c), n. 2, of Law no. 238 of 23 December 2021 ("European Law 2019-2020").

B) As mentioned above, Article 95 alternatively governs the "non-automatic" causes of exclusion (the previous code regulated them under paragraph 5 of art. 80, in line with the decisions adopted repeatedly by Community and national caselaw: ref. Council of State, plenary session, 27 May 2021, no. 9).

If we compare the "old provision" provided under the second part of paragraph 4 of art. 80 of Legislative Decree no. 50/2016 with the "new provision" established in paragraph 2 of art. 95 of Legislative Decree no. 36/2023, in substance the framework relating to the non-automatic cause of exclusion deriving from the failure to pay taxes and duties or social security contributions has not changed. And in fact the recent Ministerial Decree of 28 September 2022 containing "provisions on the possible exclusion of the economic operator from the participation in a procurement procedure for serious breach in tax matters not definitively ascertained" have been included under Annex II.10 of the code.

In realty, upon closer examination there is a new element which can be identified in the last indent of paragraph 2 of art. 95. In fact, where previously it was provided (and is still provided) that the paragraph does not apply when the economic operator has fulfilled its obligations by paying or undertaking in a binding manner to pay the taxes or social security contributions due, a further type of operation of the provision has been added, provided that the exclusion does not operate: namely: "in the event that the economic operator has offset the tax debt with certified claims against the public administration".

Originally Published by 15 September 2023

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