Answer given by Mrs Grybauskaitė on behalf of the Commission
The question of the Honourable Members concerns the possible application of Article 93(1) point b and point c of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(1) (hereinafter: Financial Regulation) to a specific company, namely Microsoft.
The provisions on procurement of the Financial Regulation have been inspired by the provisions of Directive 2004/18/EC of 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(2) (hereinafter: Public Procurement Directive). In particular, Article 93(1) points b and c of the Financial Regulation correspond to Article 45(2) points c and d of the Public Procurement Directive, which, however, provide for the possibility (not the obligation) to exclude an economic operator. Article 45(2) of the Public Procurement Directive states that the Member States shall specify the implementing conditions for the exclusion situations set out therein. This provision concerns only the public procurement of the Member States.
Article 93(1) of the Financial Regulation provides that economic operators shall be excluded from participation in procurement procedures if they are in one of the exclusion situations defined therein.
Article 93(1) point b of the Financial Regulation applies to convictions for an offence concerning the economic operator’s professional conduct by a judgment which has the force of ‘res judicata’. The terms used imply a criminal conviction of a criminal offence by a final judgment from a Court. The Commission therefore considers that Article 93(1) point b of the Financial Regulation does not include either judgments of the European Court of Justice, or Commission decisions imposing fines for violations of EC competition rules(3).
Article 93(1) point c of the Financial Regulation refers to economic operators that have been guilty of grave professional misconduct proven by any means which the contracting authority can justify. The Implementing Rules of the Financial Regulation(4) do not further define the exclusion situations referred to in Article 93(1) point c of the Financial Regulation. The interpretation of this provision would currently require a case-by-case assessment which can only be done in the framework of an ongoing procurement procedure.
The attention of the Honourable Members is also drawn to the answer of the Commission to Written Question E‑1533/08 by Mr Papastamkos.
According to Article 23(5) of Council Regulation n° 1/2003 on the implementation of the rules on competition laid down in Article 81 and 82 of the Treaty, Commission decisions imposing fines shall not be of a criminal law nature, OJ L 1, 4.1.2003.
Commission Regulation (EC, Euratom) No 2342/2002 of 23 December laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 357, 31.12.2002. Regulation as last amended by Regulation (EC, Euratom) No 478/2007, OJ L 111, 28.4.2007.