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Article 38 of the old Italian Public Procurement Code (Legislative Decree no. 163/2006), partially transfused into article 80 of the new Public Procurement Code (Legislative Decree no. 50/2016), provides the exclusion of an economic operator from the participation in a procurement procedure, where its directors have been convicted by final judgment for some specific criminal offences.

Such exclusion also applies if the person convicted is a director who left one’s office in the year before the publication of the contract notice, where the economic operator does not demonstrate that it has fully and effectively dissociated itself from the conduct kept by its former director.

On this issue, in the case C-178/16, the Advocate General of the European Court of Justice, with his opinion of last 21st June, has stated that an undertaking which has not declared the  conviction (even if not by final judgment) of a director who left one’s office in the year before the publication of the contract notice, de facto approves that illegal conduct. Therefore, according to the Advocate General, the conviction (even if not by final judgment) should be properly indicated and it is also necessary that the undertaking has fully and effectively dissociated itself from the illegal conduct of its former director.