Article 13 — Mandatory exclusion grounds
In brief
This Article requires public buyers to exclude an economic operator from an R&D procurement procedure where the operator, or a key person within it, has been convicted by final judgment of specified serious offences. The listed offences include participation in a criminal organisation, corruption, fraud against the Union’s financial interests, terrorism, money laundering, human trafficking and several others defined by reference to Union directives. Separate rules address unpaid taxes or social security contributions and limited grounds for derogation.
Key points
- Exclusion is mandatory following a final conviction for any of the listed offences, whether committed by the operator or by a key person in a leading position within a legal person.
- The listed offences are defined by reference to specific Union legal acts, or to equivalent national legislation where a Member State is not bound by the relevant act.
- The exclusion applies for five years from the final judgment, unless the judgment itself sets the exclusion period.
- Operators must also be excluded for established breaches of tax or social security payment obligations, unless a binding payment arrangement has been concluded, with a limited proportionality carve-out for minor amounts.
- Buyers may derogate exceptionally for overriding public-interest reasons such as public health or environmental protection, with the justification documented.
What it means in practice
Contracting authorities must screen bidders, and the key persons behind them, against the listed convictions and against tax and social security compliance at any stage of the procedure. Innovative firms, start-ups and SMEs should ensure their integrity records and those of their leadership are in order and be prepared to evidence resolved tax or social security matters. Any decision to rely on an exceptional public-interest derogation must be recorded in the procedure documentation.
Official text — Article 13 (COM(2026) 567)
1. Public buyers shall at any time exclude an economic operator, including individual
members of a group of economic operato rs, from participation in a R&D
procurement procedure where that economic operator, or a key person in the
functioning of a legal person as defined in the second subparagraph, has been the
subject, in any Member State, of a conviction by final judgment, fo r any of the
offences listed in this subparagraph, or, regarding Member States not bound by the
relevant Union legal act, offences as defined in equivalent national legislation:
(a) participation in a criminal organisation, as defined in Article 1, point 1 , of
Council Framework Decision 2008/841/JHA30;
(b) corruption offences, within the meaning of Directive (EU) 2026/102131;
(c) fraud affecting the Union’s financial interests within the meaning of Article 1
of the Convention on the protection of the Europe an Communities’ financial
interests and criminal offences referred to in Article 3, 4 and 5 under Directive
(EU) 2017/137132;
(d) terrorist offences and offences related to a terrorist group, as well as offences
related to terrorist activities, as defined in Articles 3 to 12 of Directive (EU)
2017/54133;
(e) Money laundering within the meaning of Article 3 of Directive
2018/1673/EU34;
(f) trafficking in human beings within the meaning of Article 2 of Directive (EU)
2011/3635;
(g) criminal offences concerning the employment of illegally staying third -country
nationals, as referred to in Articles 2, 3 and 9 of Directive 2009/52/EC36;
(h) environmental criminal offences as referred to in Articles 3 and 4 of Directive
(EU) 2024/120337;
(i) criminal offe nces concerning the violation of Union Restrictive Measures as
referred to in Article 3 and 4 of Directive (EU) 2024/122638;
30 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight again st organised crime
(OJ L 300, 11.11.2008, p. 42, ELI: http://data.europa.eu/eli/dec_framw/2008/841/oj).
31 Directive (EU) 2026/1021 of the European Parliament and of the Council of 29 April 2026 on
combatting corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on
the fight against corruption involving officials of the European Communities or officials of Member
States of the European Union and amending Direc tive (EU) 2017/1371 of the European Parliament and
of the Council (OJ L, 2026/1021, 11.5.2026, ELI: http://data.europa.eu/eli/dir/2026/1021/oj).
32 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight
against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29,
ELI: http://data.europa.eu/eli/dir/2017/1371/oj).
33 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on
combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council
Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6, ELI: http://data.europa.eu/eli/dir/2017/541/oj).
34 Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 Oct ober 2018 on
combating money laundering by criminal law (OJ L 284, 12.11.2018, p. 22, ELI:
http://data.europa.eu/eli/dir/2018/1673/oj).
35 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and
combating traffi cking in human beings and protecting its victims, and replacing Council Framework
Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1, ELI: http://data.europa.eu/eli/dir/2011/36/oj).
36 Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the
protection of the environment through criminal law and replacing Directives 2008/99/EC and
2009/123/EC (OJ L, 2024/1203, 30.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1203/oj).
37 Directive (EU) 2024/1203 of the European Parliame nt and of the Council of 11 April 2024 on the
protection of the environment through criminal law and replacing Directives 2008/99/EC and
2009/123/EC (OJ L, 2024/1203, 30.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1203/oj).
38 Directive (EU) 2024/1226 of the European Parliament and of the Council of 24 April 2024 on the
definition of criminal offences and penalties for the violation of Union restrictive measures and
amending Directive (EU) 2018/1673 (OJ L, 2024/1226, 29.4.2024, ELI:
http://data.europa.eu/eli/dir/2024/1226/oj).
(j) fraudulent use of non-cash payment instruments as referred to in Articles 3 to 8
of Directive 2019/713/EU39
(k) offences in the area of sexual abuse and sexual exploitation of children and
child sexual abuse material as referred to in Article 3 to 9 of Directive
2011/93/EU40;
For the purposes of the first subparagraph, a key person in the functioning of a legal
person means a person having a leading position within the legal person, based on
any of the following:
(a) a power of representation of the legal person;
(b) an authority to take decisions on behalf of the legal person; or
(c) an authority to exercise control within the legal person.
2. The exclusion grounds set out in this Article shall apply for five years from the date
of the delivery of the final judgment, except where the period of exclusion has been
set by the final judgment, meaning that no exclusion d ecision shall be taken after the
expiry of the periods referred to in this sentence.
3. Public buyers shall at any time during the R&D procurement procedure exclude an
economic operator from participation in a R&D procurement procedure where it
becomes awa re that the economic operator or contractor is in breach of its
obligations relating to the payment of taxes or social security contributions and this
has been established by final judicial or administrative decision, except if by that
moment in time, the economic operator has concluded a binding arrangement on
paying the taxes or social security contributions due, including, where applicable,
any interest accrued or fines.
Public buyers may derogate from the mandatory exclusion provided for in the first
subparagraph where an exclusion would be clearly disproportionate, in particular
where only minor amounts are unpaid.
4. Public buyers may decide to derogate from the mandatory exclusion provided for in
this Article, on an exceptional basis, for overriding r easons relating to the public
interest such as public health or protection of the environment. Any decision to
derogate and the justification therefore shall be documented in the individual
documentation of the R&D procurement procedures.
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
The mandatory exclusion grounds track the familiar catalogue of the general procurement directives — organised crime, corruption, fraud against the Union budget, terrorism, money laundering and the rest — but the list is notably updated, reaching environmental crime and, tellingly, the violation of Union restrictive measures. What I find most useful for practitioners is the express definition of a key person, which extends the reach of a conviction to those holding representation, decision-making or control powers within the legal person, closing a gap that has caused real uncertainty in the past.
My reading is that the calibration matters as much as the list: the five-year limitation from final judgment, the proportionality escape for minor unpaid taxes, and the exceptional public-interest derogation for reasons such as public health or the environment all soften what would otherwise be a blunt instrument. This article should be read together with Article 14 on self-cleaning, and I would expect the interplay between exclusion and rehabilitation to be one of the areas most tested once buyers begin applying the Regulation in practice.