Mandatory exlusion grounds and the use of solemn declaration

To declare a Swedish entity in the procurement process of a European Institution, the Swedish entity and the person signing the Declaration on Honour need to provide an extract of their criminal/judicial records. We understand that for Sweden access to these records in limited. What similar document can be provided or how do Swedish entities meet these requirements from the European procurement process?

Hello Karel,

In short, Swedish suppliers can use a solemn declaration instead of providing an extract from their judicial records when verifying that there is no ground for exclusion concerning certain criminal offences.

Mandatory exclusion grounds and the question of evidence
Contracting authorities are obliged to exclude suppliers from participating in a public procurement that have been found guilty of certain criminal offences, in accordance with the mandatory grounds for exclusion within the public procurement directives.

To verify that suppliers are not subject to the exclusion grounds, the contracting authority shall accept extracts from relevant register, such as judicial records or documents issued by a competent judicial or administrative authority in the Member State or country of origin or the country where the supplier is established.

However, as you mentioned, access to criminal records in Sweden, is restricted and does not, for several reasons, constitute an appropriate means of verifying suppliers against the mandatory grounds for exclusion. Further background on this matter can be found in a joint statement between our own agency and the Swedish Police Authority, addressed to the Swedish Government Offices. The letter is in Swedish and unfortunately, we do not have a translated version.

Legal ground for alternative means of evidence
The Public Procurement Directive (2014/24/EU) primarily emphasizes structured mechanisms for verifying the mandatory grounds for exclusion, such as mentioned above. When there is no structured solution available in a Member State, contracting authorities are permitted to accept a lower level of evidence, whereby a solemn declaration constitutes an alternative. This is also the lowest level of evidence that the EU directive allows to be accepted as final proof of compliance with the mandatory grounds for exclusion. The requirement to accept a solemn declaration as evidence follows from Article 60(2)(b) of the Public Procurement Directive.

Swedish suppliers may therefore rely only on a solemn declaration. This means that a representative of the supplier declares that no grounds for exclusion due to criminal offences apply to any of the people concerned. Criminal liability may be imposed if a false solemn declaration is submitted.

Steps toward a more structured solution
Sweden has taken steps towards a more structured solution as regards to verifying that suppliers have not been convicted of crimes listed under the mandatory exclusions grounds. The Swedish Government has assigned the Swedish Companies Registration Office (Bolagsverket) to develop a system for registry-based checks of companies, with the aim of making it easier to verify suppliers participating in public procurement. The development is taking place during 2025–2027, and the system is intended to be in use in 2028. Until then, a solemn declaration remains the applicable means of evidence.

Best regards