Automatic exclusion from procurement procedures for an ongoing criminal investigation is unconstitutional

Context of the decision

The decision concerns art. 81 para. (4) of Law no. 100/2016 on works and services concessions, declared unconstitutional. The Constitutional Court had previously ruled in the same manner on similar provisions from other legislative acts in the field of public procurement, thereby consolidating a consistent body of case law on this matter.

Key findings

Violation of the presumption of innocence

Excluding an economic operator from a procurement procedure solely because it is the subject of an ongoing criminal investigation, without a final court conviction having been rendered, amounts to a violation of the presumption of innocence.

Substitution of the criminal court

The text allows the contracting authority to assess, in advance, that the operator has committed a serious professional misconduct, thereby substituting itself for the criminal court or the competent administrative authority. Such an assessment exceeds the competences of the contracting authority and undermines fundamental procedural guarantees.

Lack of individualised analysis

The measure operates automatically, without an individualised analysis of the facts, without an assessment of gravity, and without the possibility of remediation, thus being disproportionate and lacking an objective basis. In a rule-of-law state, any restriction on access to public procedures must be justified, proportionate, and subject to review.

Exceeding the European framework

The legislative solution exceeds the framework of Directive 2014/23/EU, which conditions mandatory exclusion on the existence of a final conviction and requires reasoned assessments for cases of discretionary exclusion. The transposition into national law went further than the directive allowed, introducing an automatism incompatible with the principles of European law.

Why this decision matters

The CCR decision confirms an essential principle: participation in public procurement procedures cannot be conditioned on the absence of any criminal investigation. Contracting authorities must assess each situation individually, based on objective and proportionate criteria, in accordance with constitutional guarantees. For economic operators, this means concrete protection against arbitrary exclusions.