1. Cross-Debarment
Christopher Yukins

2. Cross-Debarment Options: Automatic cross-debarment
Debarment to be considered in other systems
Debarment + adverse info to be considered
Do nothing
10/04/2019

3. Cross-Debarment: Multilateral Development Banks (MDBs)

4. Cross-Debarment: MDBs
Cross-enforce
Common sanctionable practices
Fair investigations
Investigate vs. decision-making
Opportunity to respond
“More probable than not” standard
Proportionate sanctions

5. Cross-Debarment: MDBs
Cross-enforce
Common sanctionable practices
Fair investigations
Investigate vs. decision-making
Opportunity to respond
“More probable than not” standard
Proportional sanctions

6. Sharing Exclusion Information: European Commission: Early Detection and Exclusion System (EDES)
    The economic operators listed below have been excluded from participation in EU procurement, grant, prizes procedures, financial instruments and selection of experts or any other form of contribution from the EU budget for the periods mentioned and or have been imposed a financial penalty. Therefore, they cannot be awarded any contract financed by the EU budget.      Please note that the list below concerns only the cases for which a decision was taken to publish for, where necessary, reinforcing the deterrent effect of the sanctions. Other cases of exclusions and financial penalty are listed in the Commission's database (EDES-DB) which is only accessible to authorised users involved in the implementation of the EU budget.      * * *
    The decision to publish is taken in compliance with the criteria of the proportionality principle (seriousness of the situation, including the impact on the Union's financial interests and image, the time which has elapsed since the relevant conduct, its duration and its recurrence, the intention or degree of negligence, the limited amount at stake) and in line with the protection of personal data.

7. Sharing Exclusion Information: European Commission
    The economic operators listed below have been excluded from participation in EU procurement, grant, prizes procedures, financial instruments and selection of experts or any other form of contribution from the EU budget for the periods mentioned and or have been imposed a financial penalty. Therefore, they cannot be awarded any contract financed by the EU budget.      Please note that the list below concerns only the cases for which a decision was taken to publish for, where necessary, reinforcing the deterrent effect of the sanctions. Other cases of exclusions and financial penalty are listed in the Commission's database (EDES-DB) which is only accessible to authorised users involved in the implementation of the EU budget.      * * *
    The decision to publish is taken in compliance with the criteria of the proportionality principle (seriousness of the situation, including the impact on the Union's financial interests and image, the time which has elapsed since the relevant conduct, its duration and its recurrence, the intention or degree of negligence, the limited amount at stake) and in line with the protection of personal data.
How to reconcile these goals: publish to deter, but protect the European Union’s reputation?

8. Sharing Exclusion Information: European Commission
Sample Entries in EDES
    The economic operators listed below have been excluded from participation in EU procurement, grant, prizes procedures, financial instruments and selection of experts or any other form of contribution from the EU budget for the periods mentioned and or have been imposed a financial penalty. Therefore, they cannot be awarded any contract financed by the EU budget.      Please note that the list below concerns only the cases for which a decision was taken to publish for, where necessary, reinforcing the deterrent effect of the sanctions. Other cases of exclusions and financial penalty are listed in the Commission's database (EDES-DB) which is only accessible to authorised users involved in the implementation of the EU budget.      * * *
    The decision to publish is taken in compliance with the criteria of the proportionality principle (seriousness of the situation, including the impact on the Union's financial interests and image, the time which has elapsed since the relevant conduct, its duration and its recurrence, the intention or degree of negligence, the limited amount at stake) and in line with the protection of personal data.
How to reconcile these goals: publish to deter, but protect the European Union’s reputation?

9. Sharing Exclusion Information: European Commission
    The economic operators listed below have been excluded from participation in EU procurement, grant, prizes procedures, financial instruments and selection of experts or any other form of contribution from the EU budget for the periods mentioned and or have been imposed a financial penalty. Therefore, they cannot be awarded any contract financed by the EU budget.      Please note that the list below concerns only the cases for which a decision was taken to publish for, where necessary, reinforcing the deterrent effect of the sanctions. Other cases of exclusions and financial penalty are listed in the Commission's database (EDES-DB) which is only accessible to authorised users involved in the implementation of the EU budget.      * * *
    The decision to publish is taken in compliance with the criteria of the proportionality principle (seriousness of the situation, including the impact on the Union's financial interests and image, the time which has elapsed since the relevant conduct, its duration and its recurrence, the intention or degree of negligence, the limited amount at stake) and in line with the protection of personal data.
Art. 106(1)(d) of the European Commission Financial Regulations: Exclude if “ it has been established by a final judgment that the economic operator is guilty of (i) fraud, within the meaning of Article 1 of the Convention on the protection of the European Communities' financial interests ; (ii) corruption, as defined in Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union . . .; (iii) participation in a criminal organization (iv) money laundering or terrorist financing . . .; (v) terrorist-related offences or offences linked to terrorist activities, or inciting, aiding, abetting or attempting to commit such offences; (vi) child labour or other forms of trafficking in human beings ”
How to reconcile these goals: publish to deter, but protect the European Union’s reputation?

10. Sharing Exclusion Information: U. S. System for Award Management (SAM
Sharing Exclusion Information: U.S. System for Award Management (SAM.gov)

11. Sharing Exclusion Information: EU Directive 2014/24/EU – Recital 85
It is important that the decisions of contracting authorities should be based on recent information, in particular as regards exclusion grounds, given that important changes can intervene quite rapidly, for instance in the event of financial difficulties which would render the economic operator unsuitable or, conversely, because an outstanding debt on social contributions would meanwhile have been paid. It is therefore preferable that, whenever possible, contracting authorities should verify such information by accessing relevant databases, which should be national in the sense of being administered by public authorities. At the current stage of development, there might still be cases where doing so is not yet possible because of technical reasons. The Commission should therefore envisage promoting measures that could facilitate easy recourse to up-to-date information electronically, such as strengthening tools offering access to virtual company dossiers, or means of facilitating interoperability between databases or other such flanking measures.

12. Germany: Register
“The ‘Register of Competition Act’ (RCA) establishes the Register, which lists companies that have committed white-collar crimes or certain administrative offences. For contracting authorities, it simplifies the assessment of the reliability of tenderers by providing them with easy access to the relevant information in digital form. On that basis, they can exclude companies more easily from public procurement procedures according to EU public procurement law. However, the Register does not only serve the interests of contracting authorities: For companies, it offers a centralised, one-time self-cleaning assessment with a result that is binding for all German contracting authorities.” Pascal Friton, Christopher Wolters, The German Register of Competition and Its International Context, 13 EPPPL 119 (2018)

14. Pascal Friton, Christopher Wolters, The German Register of Competition and Its International Context, 13 EPPPL 119 (2018)

15. Review of Discussion Problem
Conclusion
Review of Discussion Problem