Exclusion ground code for Art. 24(2) of Directive 2023/970

Directive 2023/970 to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms deals with public procurement in its Article 24.

Article 24(2) provides that "where Member States’ authorities act in accordance with Article 38(7), point (a), of Directive 2014/23/EU, Article 57(4), point (a), of Directive 2014/24/EU, or Article 80(1) of Directive 2014/25/EU in conjunction with Article 57(4), point (a), of Directive 2014/24/EU, contracting authorities may exclude or may be required by Member States to exclude any economic operator from participation in a public procurement procedure where they can demonstrate by any appropriate means an infringement of the obligations referred to in paragraph 1 of this Article, related either to a failure to comply with pay transparency obligations or a pay gap of more than 5 % in any category of workers which is not justified by the employer on the basis of objective, gender-neutral criteria. This shall be without prejudice to any other rights or obligations set out in Directive 2014/23/EU, 2014/24/EU or 2014/25/EU."

Article 57(4), point (a) of Directive 2014/24/EU, as one example, provides for exclusion (mandated by MS or choice of CA) where the contracting authority can demonstrate by any appropriate means a violation of applicable obligations referred to in Article 18(2) [which requires the compliance with labour, social and environmental laws].

It is a little unclear whether this is meant to be a specific expression of Art. 57(4)(a) or a new exclusion ground. Considering that it will have to be transposed, however, it may very well show up as a separate exclusion ground and would therefore likely have to be included in the codelist for exclusion grounds.

The transposition deadline for this Directive is 7 June, 2026.