Earlier notes in this series addressed the provisions that determine whether corporate liability attaches (Article 13), the upper end of the pecuniary consequence (Article 14), the aggravator applicable to obliged entities under the anti-money-laundering framework (Article 15(2)(f)), the mitigating circumstances (Article 16), and the question of negotiated resolution. All of those provisions operate within the criminal file. This note addresses the exposure that operates outside it. For companies whose revenue depends on public contracts or European funding, that exposure is frequently the more consequential of the two.
The provision: exclusion as a sanction rather than a consequence
Article 14 of the directive establishes not only the pecuniary regime applicable to legal persons but a catalogue of additional sanctions and measures that Member States are required to make available. These include exclusion from access to public funding, whether in the form of grants, subsidies or other public support; exclusion from tender procedures; disqualification from the exercise of business activity; the withdrawal of permits and authorisations; the annulment or rescission of the contract in respect of which the offence was committed; placement under judicial supervision; judicial winding-up; and the closure of establishments used in the commission of the offence. Member States are also to be able to apply exclusion to tender and concession award procedures falling below the thresholds of the relevant procurement and concessions directives.
Exclusion from public procurement is not itself new. It already operates as a decision of the contracting authority, under the mandatory and discretionary grounds of Directive 2014/24/EU and its national transpositions. What the directive adds is exclusion as a criminal sanction, imposed by a court. The difference between the two is not only who decides. It is whether the company can argue its way out.
Administrative exclusion is answerable. Article 57(6) of Directive 2014/24/EU allows an operator caught by an exclusion ground to show that the measures it has taken are sufficient to demonstrate its reliability, and a contracting authority that accepts that evidence is not to exclude it. Court-ordered exclusion is not answerable. The fourth subparagraph of Article 57(6) provides that an operator excluded by final judgment from participating in procurement or concession award procedures is not entitled to use that possibility during the period of exclusion resulting from the judgment, in the Member States where the judgment takes effect.
That is the change of position a company under investigation should be looking at. Today the corruption file threatens an exclusion ground it can answer with evidence. Once exclusion is available as a criminal sanction across the Union and a court has imposed it, there is nothing left to answer with.
Three tracks over one set of facts
For a company operating on European funds in Romania, one set of facts is capable of generating three distinct proceedings.
The criminal proceeding is the visible one: the National Anticorruption Directorate, the EPPO acting through European Delegated Prosecutors, or the ordinary prosecution service, depending on the offence and the funding source. Alongside it runs the administrative and financial track, where the managing authority ascertains an irregularity and imposes a financial correction under Government Emergency Ordinance No 66/2011, with the investigative activity of the European Anti-Fraud Office and of the national anti-fraud department in the background. The third is procurement: exclusion from award procedures now under way and from future ones, and the exercise of termination rights under contracts already signed.
The three share neither a standard of proof, nor a decision-maker, nor a timetable. The financial correction and the loss of a tender do not wait for a criminal judgment, and in practice they arrive years before one. A company that organises its response around the criminal file alone will find that the commercially decisive decisions were taken before.
The Romanian framework
On procurement exclusion specifically, Romanian law is already broadly aligned. Article 143 of the Criminal Code provides the complementary penalty of a ban on participating in public procurement procedures: exclusion of the legal person from direct or indirect participation in award procedures for a period of one to three years.
The administrative route is older and, in practice, more frequently determinative. Article 164 of Law No 98/2016 obliges the contracting authority to exclude an economic operator finally convicted of, among other offences, the corruption offences in Articles 289 to 294 of the Criminal Code and the offences assimilated to them; fraud within the meaning of Article 1 of the 1995 Convention on the protection of the European Communities' financial interests; offences against the Union's financial interests remain in the dedicated section of Law No 78/2000: Article 181, on the use in bad faith of false, inaccurate or incomplete documents or statements resulting in the unlawful obtaining of funds from the Union budget, and Article 182, on the change of destination of such funds. The ground ceases to apply once five years have elapsed from the final conviction, unless the judgment itself imposed a ban of a stated duration.
The provision that matters most for the design of an internal investigation is Article 171. An operator falling within Articles 164 or 167 may bring evidence that the measures it has taken are sufficient to demonstrate its credibility notwithstanding the exclusion ground. The text contemplates the payment of, or an undertaking to pay, compensation for the damage caused; the complete clarification of the facts and circumstances through active cooperation with the investigating authorities; and concrete measures of a technical, organisational and personnel nature, among them severing links with the persons and organisations involved in the improper conduct, personnel reorganisation, the implementation of control and reporting systems, the creation of an internal audit function, and the adoption of internal rules on liability and compensation.
Paragraph (5) of the same article is the one to read immediately afterwards. Where the operator has been subject to a final judgment banning it from participating in procurement procedures with effect in Romania, the self-cleaning provisions do not apply for the whole of the exclusion period. Romanian law transposes the second subparagraph of Article 57(6) faithfully on this point. A company can rehabilitate itself in the eyes of a contracting authority only up to the moment the criminal court imposes the Article 143 ban.
Set the Article 171 list against Article 16 of the directive: cooperation with the authorities, rapid voluntary self-disclosure accompanied by remedial measures, and the demonstrable effectiveness of the compliance programme. The two instruments serve different purposes and address different decision-makers, but they call for substantially the same evidence. Compensation, clarification through cooperation and documented remediation are the substance of both the criminal mitigator and the procurement self-cleaning case.
One investigative record can therefore serve both, but only if it was built to be produced. Most internal investigation records are built to advise the board, on the assumption of privilege and of an audience of one. A record designed for that purpose does not readily convert into a submission to a contracting authority, still less into one that must be made under the time pressure of an award procedure already under way. Whether it converts is settled by decisions taken at the outset of the investigation: what is recorded, in what form, by whom, and on what assumption as to eventual disclosure. Not at the point at which the exclusion question arises.
Closing observation
The fine is unlikely to be the part of this directive that hurts most. What hurts is that a corruption finding now costs a company its access to public money by two routes that run on different rules. On the administrative route, the company can still show it has cleaned itself up, and be heard. On the criminal route, once the ban is imposed, it cannot. And where the money is European, the PIF Directive's sanctions regime has been raised to match.
The directive has been in force since 31 May 2026 and the criminal-law transposition deadline is 1 June 2028. That interval is the period in which three questions can be settled without the pressure of an open file. Which contracts, grants and framework agreements carry exclusion or termination consequences, and on what trigger: indictment, charge or final conviction. Which public-sector touchpoints, intermediaries and consultants give rise to exposure. And what investigation protocol produces a record capable of being put, if required, before a prosecutor, a managing authority and a contracting authority alike.
This article is part of the EU Anti-Corruption Directive Romania Corporate Exposure Hub.