JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
15 February 2023 (*)
(Instrument for Pre-Accession Assistance – Financial Regulation – Investigation by OLAF – Commission decision imposing an administrative penalty – Exclusion from procurement and grant award procedures funded by the general budget of the European Union and by the EDF – Entry on the database of the early detection and exclusion system – Grave professional misconduct – Manifest error of assessment – Non-contractual liability – Sufficiently serious breach of a rule of law conferring rights on individuals)
In Case T‑175/21,
RH, established in D, represented by L. Levi, lawyer,
applicant,
v
European Commission, represented by J. Estrada de Solà, P. Rossi and R. Pethke, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed, at the time of the deliberations, of A. Kornezov, President, E. Buttigieg and G. Hesse (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 July 2022,
gives the following
Judgment
1 By its action, the applicant, RH, seeks, first, on the basis of Article 263 TFEU, the annulment of the decision of the European Commission of 18 February 2021 excluding it from participating in award procedures for public procurement and grants governed by the EU budget and by the 11th European Development Fund or from being selected for implementing EU funds under Regulation (EU, Euratom) 2018/1046 and for implementing funds under the European Development Fund governed by Regulation (EU) 2018/1877 (‘the contested decision’) and, secondly, on the basis of Article 268 TFEU, compensation for the damage which it allegedly suffered as a result.
Background to the dispute
2 On 17 July 2006, the Council of the European Union adopted Regulation (EC) No 1085/2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ 2006 L 210, p. 82). Under Article 1 of that regulation, the European Union was to assist the countries listed in Annexes I and II, which included Kosovo, in their progressive alignment with EU standards and policies.
3 In the context of two national programmes in favour of Kosovo financed under the IPA, two contracts were awarded to consortia led by the applicant. A contract was concluded on 19 September 2011 in respect of a first project (‘the TP project’). Another contract was concluded on 12 December 2012 in respect of a second project (‘the PFM project’). The estimated value of the latter project was EUR 1 144 033.22.
4 On 24 September 2015, following information received by the EU Office in Kosovo (‘the EUOK’), the European Anti-Fraud Office (OLAF) opened an investigation, under reference OF/2015/1023/A 2, into possible leaks of confidential information in connection with projects financed under the IPA implemented in Kosovo. On 24 May 2017, OLAF opened a second investigation, under reference OC/2017/0321/A 2, following the communication of anonymous information from the fraud notification system. The two investigations were merged under reference OF/2015/1023/A 2.
5 On 26 and 27 June 2018, in the context of that investigation, OLAF carried out on-the-spot checks at the applicant’s premises. By letters of 23 November 2018 and 19 February 2019, the applicant was given the opportunity to comment on the facts established concerning it.
6 On 11 June 2019, OLAF delivered its final report (‘the OLAF report’). It found that the applicant had committed irregularities relating to the award of contracts for the TP and PFM projects. As regards, more specifically, the procurement procedure relating to the PFM project, OLAF considered that, during the period between January 2012 and October 2014, the applicant had engaged the services of A, a local expert and former employee of the EUOK, thereby paying him for access to confidential information relating to the procurement procedure for the contract concerned.
7 OLAF heard B, an employee of the applicant, on 27 June 2018. B and C, a director of the applicant, replied in writing on 7 December 2018 to the facts established by OLAF.
8 On the basis of the OLAF report in particular, the panel referred to in Article 143 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1; ‘the Financial Regulation’), was requested to adopt a recommendation, pursuant to Article 143(6) of that regulation (‘the panel’).
9 By letter dated 13 October 2020, the panel notified the applicant of the facts concerned, their preliminary classification in law and the administrative penalties envisaged and invited it to submit its observations (‘the letter of notification’). The panel envisaged recommending the imposition of an administrative penalty on the applicant, consisting in its exclusion for a period of three years from participating in procurement and grant award procedures funded by the EU budget. An expunged version of the OLAF report together with certain annexes thereto was enclosed with that letter.
10 By letter dated 20 October 2020, the applicant acknowledged receipt of the letter of notification, the OLAF report and the annexes attached thereto. By letter of 29 October 2020, it requested the panel to grant it access to certain other annexes to that report. On 12 November 2020, the panel sent the applicant two annexes concerning it. By letters dated 9 and 19 November 2020, the applicant submitted its observations.
11 On 11 January 2021, the panel issued its recommendation to the Commission, by which it recommended that the applicant be excluded for a period of 18 months from participating in procurement and grant award procedures funded by the general budget of the European Union and award procedures covered by Council Regulation (EU) 2018/1877 of 26 November 2018 on the financial regulation applicable to the 11th European Development Fund, and repealing Regulation (EU) 2015/323 (OJ 2018 L 307, p. 1), and that that exclusion be published on the Commission’s website.
12 By the contested decision, the Commission followed the panel’s recommendation, taking the view that the applicant had been guilty of grave professional misconduct.
Forms of order sought
13 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to make good the damage allegedly suffered by the applicant as a result of the adoption of the contested decision;
– order the Commission to pay the costs.
14 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The claim for annulment
15 In support of its action for annulment, the applicant relies on seven pleas in law, alleging, first, an error of law relating to the legal classification of the applicant’s conduct as grave professional misconduct, secondly, an infringement of the presumption of innocence and reversal of the burden of proof, thirdly, a manifest error of assessment of the facts leading to the finding of grave professional misconduct, fourthly, a breach of the duty of diligence and of the principle of good administration, fifthly, an infringement of the applicant’s rights of defence, sixthly, an infringement of the obligation to state reasons and, seventhly, an infringement of the principle of proportionality regarding the penalty.
The first, third and fourth pleas in law, alleging manifest errors of assessment by the Commission, an error of law in the classification of the applicant’s conduct as grave professional misconduct, and an infringement of the right to good administration
16 By its first, third and fourth pleas in law, which it is appropriate to consider together, the applicant submits, in essence, that the Commission committed an error of law, manifest errors of assessment and an infringement of the right to good administration by classifying the applicant’s actions and activities as grave professional misconduct and by excluding it from participating in procurement and grant award procedures funded by the general budget of the European Union and the European Development Fund.
17 More specifically, first, by its first and third pleas in law, the applicant submits that the Commission infringed Article 93(1)(c) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), Article 106(1)(c) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Regulation No 1605/2002 (OJ 2012 L 298, p. 1), and Article 136(1) of the Financial Regulation by finding that the applicant had been guilty of grave professional misconduct.
18 Secondly, by its fourth plea in law, the applicant submits, in essence, that its right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), has been infringed. The relevant evidence in the case was not examined carefully and prudently and the Commission thus failed to fulfil its duty of diligence.
19 The Commission disputes the applicant’s arguments. First, it contends that the criteria in the light of which it is necessary to assess whether there is grave professional misconduct, as set out by the Court in paragraph 102 of the judgment of 23 September 2020, Fundación Tecnalia Research & Innovation v Commission (T‑314/19, not published, EU:T:2020:421), are met in the present case. The applicant colluded with the EUOK staff, in particular with A whom it hired and remunerated, in order to obtain confidential tender information. The applicant intended to use that information to gain an undue competitive advantage over less informed actual or potential tenderers, in order to win the contract for the PFM project, which was clearly set out in paragraphs 74 and 75 of the contested decision.
20 Secondly, the Commission disputes the applicant’s claim that its conduct fell within normal commercial practice in the preparation of a tender during the period between the publication of the prior information notice and that of the contract notice. While it is true, according to the Commission, that an economic operator has the right to contact the beneficiary institutions, it is necessary to determine the content and scope of such contacts. The Commission states that the contracting authority has a relatively broad margin of discretion to classify the behaviour concerned, by an economic operator, as grave professional misconduct. The Commission also refers to Article 136(1)(c)(v) of the Financial Regulation, according to which attempting to obtain confidential information that may confer an undue advantage in the award procedure is mentioned as a ground for exclusion.
21 Thirdly, the Commission contends that it did not infringe the applicant’s right to good administration. The Commission carefully examined the applicant’s arguments and took the view that they did not diminish the evidential value of the findings in the OLAF report regarding its conduct established in connection with the PFM project. Thus, the Commission, which enjoyed a margin of discretion in examining the facts presented by OLAF, maintains that it cannot be criticised for having relied on OLAF’s findings.
22 First of all, as regards the applicable rules, it must be noted that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (see judgment of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraph 27 and the case-law cited; see also, to that effect, judgment of 27 June 2017, NC v Commission, T‑151/16, EU:T:2017:437, paragraphs 35 and 36).
23 It follows that, in the present case, the provisions relating to the procedure and the formal requirements in force on the date on which the contested decision was adopted, namely those laid down by the Financial Regulation, are applicable. On the other hand, in order to ensure compliance with the principles of legal certainty and the protection of legitimate expectations, the substantive law applicable remains that in force at the time when the activities at issue took place, namely the provisions of Regulation No 1605/2002 and subsequently those of Regulation No 966/2012.
24 In the contested decision, the Commission considered that the conduct which the applicant was found to have committed had taken place between 17 January 2012 and 2 October 2014.
25 The substantive rules applied, depending on the relevant period, by the Commission in the contested decision are, on the one hand, Article 93(1)(c) of Regulation No 1605/2002, applicable until 31 December 2012 and, on the other hand, Article 106(1) of Regulation No 966/2012, applicable from 1 January 2013. It is clear from those provisions that administrative penalties may be imposed on an economic operator which has been guilty of grave professional misconduct.
26 Thus, according to Article 93(1)(c) of Regulation No 1605/2002, candidates or tenderers must be excluded from participation in a procurement procedure if they have been guilty of grave professional misconduct proven by any means which the contracting authority can justify.
27 In accordance with Article 106(1)(c) of Regulation No 966/2012, as in force at the material time, the contracting authority is to exclude an economic operator from participation in procurement procedures governed by that regulation if it has been guilty of grave professional misconduct.
28 Under Article 136(1)(c)(v) of the Financial Regulation:
‘1. The authorising officer responsible shall exclude a person or entity referred to in Article 135(2) from participating in award procedures governed by this Regulation or from being selected for implementing Union funds where that person or entity is in one or more of the following exclusion situations:
…
(c) it has been established by a final judgment or a final administrative decision that the person or entity is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person or entity belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibility where such conduct denotes wrongful intent or gross negligence, including, in particular, any of the following:
…
(v) attempting to obtain confidential information that may confer upon it undue advantages in the award procedure.’
29 It is clear from the case-law that the conditions which must be met in order to determine whether there is grave professional misconduct are as follows. First, the operator must have engaged in conduct which has an impact on its professional credibility, the failure to abide by its contractual obligations being capable of being considered such conduct, and secondly, that conduct must denote a wrongful intent or gross negligence. In addition, in order to find whether ‘grave misconduct’ exists, a specific and individual assessment of the conduct of the economic operator concerned must, in principle, be carried out (see, to that effect and by analogy, judgment of 13 December 2012, Forposta and ABC Direct Contact, C‑465/11, EU:C:2012:801, paragraphs 27 to 31).
30 It must be borne in mind that the Commission has discretion as regards the assessment of the breach of obligations which may lead to a finding of grave professional misconduct, for the purposes of Article 93(1)(c) of Regulation No 1605/2002 and Article 106(1)(c) of Regulation No 966/2012. In that regard, the review carried out by the Court must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment or misuse of power (see, to that effect, judgment of 9 February 2022, Companhia de Seguros Índico v Commission, T‑672/19, not published, EU:T:2022:64, paragraph 50 and the case-law cited).
31 Furthermore, in order to establish that, in the assessment of the facts, the Commission committed an error so obvious as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea alleging a manifest error must be rejected if, in spite of the evidence put forward by the applicant, the disputed assessment may be accepted as genuine or valid (see judgment of 9 February 2022, Companhia de Seguros Índico v Commission, T‑672/19, not published, EU:T:2022:64, paragraph 52 and the case-law cited).
32 First of all, the applicant submits that its conduct did not constitute grave professional misconduct since it formed part of a common and legitimate commercial practice designed to prepare for the call for tender for the PFM project. The allegations levelled against the applicant by the Commission in that regard, based on the evidence gathered by OLAF, are imprecise and do not demonstrate any attempt to obtain confidential information that may confer upon the applicant an undue advantage in the award procedure.
33 It must be noted, in that regard, that the Commission identified, in particular in paragraphs 77 to 79 of the contested decision, the grounds on which it considered that the applicant’s conduct constituted grave professional misconduct, inasmuch as the applicant sought to obtain confidential information that might confer upon it undue advantages in the context of the procedure for the award of the contract relating to the PFM project.
34 In particular, according to the Commission, first, this concerned the fact that the applicant had hired and remunerated A for organising early contacts with the key persons for the future tenders, including the contract for the PFM project, and so facilitating access to confidential information, while misrepresenting the real reasons for his remuneration. Secondly, B, on behalf of the applicant, met, long before the publication of the contract notice, with public servants of the beneficiary institutions. As a result, the applicant had the opportunity to gather confidential information and establish useful contacts that were later used to win the contract for the PFM project. That illegitimate access to then confidential information gave the applicant an unfair advantage in the tender procedure, as it was in the position to search for business partners, ensure the availability of the most suitable experts and draft the tender documents for the project before other competitors.
35 In addition, the Commission states that it did not take into account all the evidence put forward by OLAF, in particular the evidence produced with regard to the applicant’s participation in the TP project (see paragraph 3 above), considering it insufficiently substantiated to establish grave professional misconduct.
36 The applicant disputes, in particular, the interpretation and relevance of the evidence gathered by OLAF on which the Commission based the contested decision. It challenges the legal classification of its conduct as grave professional misconduct.
– The email correspondence
37 In the first place, as is apparent from paragraphs 18, 19 and 22 of the contested decision in particular, the Commission accepted, as evidence of the applicant’s conduct constituting grave professional misconduct, the exchange of emails between B and A concerning the preparation of the applicant’s fact-finding mission to Kosovo. Those emails include, in particular, an email of 17 January 2012 sent by B to A after the publication by the Commission, on 4 January 2012, of the prior information notice for the contract relating to the PFM project, and an email of 8 February 2012 from B to A.
38 In the email of 17 January 2012, B indicated to A his intention to organise a fact-finding mission to Kosovo to meet high-level representatives of the institutions benefiting from the PFM project. To that end, B asked A to propose contact persons to him or to confirm the names of the contact persons already identified by B on the basis of the project fiche. As is apparent, in particular, from the email sent by B to A on 8 February 2012, A offered his assistance in organising meetings for the applicant with, inter alia, officials of the beneficiary institutions in order to discuss a number of future tenders, including that for the PFM project.
39 The Commission does not deny that the applicant was entitled to collect information, establish contacts and visit the locality in order to prepare its participation in the procurement procedure. However, it alleges wrongful intent by the applicant in its actions. Nonetheless, at the hearing, the Commission conceded that the abovementioned correspondence, the content of which was recalled in paragraph 38 above, did not on its own reflect wrongful intent on the applicant’s part.
40 In the second place, according to the Commission, as is clear from paragraph 55 of the contested decision, that intent is apparent in particular from C’s undated draft email, which demonstrates the applicant’s objective of influencing the contracting authority’s decision-making and obtaining confidential information that could confer upon it an undue advantage. It should be noted that that draft contains a summary of what its author considered to be the general objectives of the fact-finding missions regularly carried out by the applicant, which were intended to provide information on the ‘current situation in the sector concerned’ and on the ‘needs and expectations that were not necessarily included in the [terms of reference]’, for example a possible ‘hidden agenda’. Those missions also aimed to identify ‘door openers’, namely those persons in a position to organise meetings with the beneficiary institutions, and ‘insiders’ ‘as long as they are allowed to be contacted’. In the definitive email dated 3 November 2016, sent by C, the objective of identifying ‘door openers’ had not been reproduced.
41 As the Commission confirmed at the hearing and stated in paragraph 55 of the contested decision, it considered that the draft email mentioned in paragraph 40 above and the version finally sent showed the applicant’s attitude towards the procurement procedures in general and its intention, during its fact-finding missions before publication of the contract notice, to meet persons with particular knowledge of the future tenders and to gather confidential information inaccessible to other tenderers, as well as its intention to influence representatives of the beneficiary institutions.
42 In that regard, as the applicant also noted, it is common ground that the email drafted by C was only a draft, the final version of which was sent on 3 November 2016, that is to say, more than two years after the alleged misconduct in the present case, which, according to the Commission, took place between 17 January 2012 and 2 October 2014. Furthermore, the wording of that draft email is neither unequivocal nor conclusive. Although the draft email does indeed refer to ‘information not necessarily included in the [terms of reference]’, to a ‘hidden agenda’ and to ‘door openers’, its author took care to state that such contacts could take place as long as they were allowed. Read as a whole, that draft email could not therefore, on its own, be regarded as constituting grave professional misconduct.
43 Indeed, it is not specifically apparent from the email concerned that the applicant’s objective was to collect information inaccessible to other tenderers, in the context of actual specific projects, such as the PFM project. Nor does the content of that email show that the applicant’s purpose was to influence the beneficiary institutions unduly.
44 In the third place, as is apparent from paragraphs 20 and 56 of the contested decision, the Commission also based that decision on an email dated 24 January 2012 by which B indicated to C that A was ‘well informed’ about the PFM project and in possession of the terms of reference. While it is true that that email relates specifically to the PFM project and to the fact that A was in possession of the terms of reference before the publication of the call for tenders, it cannot be inferred unequivocally therefrom that the applicant’s objective was to obtain confidential information through A.
45 It is stated, in essence, in that email that the assertion that A was well informed about the PFM tender is based on his experience with previous projects. It is also stated in the email that, according to A, the applicant had the possibility of winning that tender, since the beneficiary institutions would not simply work with operators which had already been in charge of previous projects. In addition, A identified the core element of the project as well as other important aspects of it. However, those factors cannot be classified as confidential information, but are the result of an analysis carried out by A based on his previous experience. Furthermore, it is apparent from paragraph 58 of the contested decision that the OLAF report does not establish that the applicant had access to the terms of reference before they were published, but only to a fiche of the project disclosed by an agency of the Federal Republic of Germany.
46 Accordingly, contrary to what the Commission found, inter alia, in paragraphs 55, 56 and 61 of the contested decision, the emails of 17 and 24 January and 8 February 2012 and the draft email and its definitive version of 3 November 2016 do not clearly and unequivocally show that the applicant attempted to obtain confidential information that might confer upon it an undue advantage in the award procedure for the PFM project.
– The remuneration of A
47 It is apparent, in particular, from paragraphs 31, 64 and 77 of the contested decision that, in support of its conclusion that the applicant was guilty of grave professional misconduct, the Commission also maintained that the applicant had remunerated A for the purposes of obtaining access to confidential information through him. In addition, according to the Commission, the applicant did not inform it of the real reasons for that remuneration.
48 It is apparent from the file before the Court that, through his company, A was engaged as an expert by the applicant with retroactive effect, by contract dated 24 September 2014. According to that contract, A carried out, during the period from 1 February 2012 to 27 September 2014, ‘Compilation of background material – Commenting on technical proposal – Advice on the drafting of new [terms of reference] for a potential extension of the project’. A received a lump sum payment of EUR 6 380 for those services. On the invoice issued by A’s company on 2 October 2014, it was stated that the services invoiced related to ‘assistance in preparing tender application’.
49 As regards the context of A’s engagement, it should be noted that the applicant explained, in paragraph 30 of its application, without being disproven, that it was normal for it in the context of tenders to engage a local company in order to identify and, if necessary, contract experts to carry out the project concerned. That is how it intended to establish lasting cooperation with A in the context of the future implementation of the PFM project, should it be awarded the contract. Furthermore, it is common ground that, at the time of his engagement by the applicant, as well as at the time of the first contact reported by the Commission between him and the applicant in the context of the PFM project, on 17 January 2012, A was no longer working for the EUOK, that engagement having ended on 31 December 2011.
50 Initially, as the applicant has also acknowledged, it was envisaged that A’s support services would be engaged in exchange for hours of work on the PFM project for an amount of between EUR 15 000 and EUR 20 000. It is apparent from an email dated 23 January 2013 that B asked the Team Leader of the project, ‘[As to A] … which concrete “activities” [she] would like to outsource and what budget [she] ha[d] in mind’. He also asked her whether she ‘could … outline a package of about EUR 15-20 000’. In that regard, the applicant submits, on the basis of the exchange of emails between B, A and the Team Leader of the project, that it had agreed that A would select and propose national non-key experts for the implementation of the PFM project.
51 Admittedly, A himself stated in that regard, during an interview with OLAF, the record of which is set out in Annex A.12 to the application, that ‘[the applicant] had a gentleman’s agreement with [him] that they would offer [him] a small number of days on the project through [his] company. This was to repay [him] for supporting their bid’. However, it is apparent from the applicant’s letter to the panel dated 19 November 2020, annexed to its application, that the applicant explained in that regard that it ‘[had] never asked [A] to promote [the applicant] or influence beneficiaries in any way’. Furthermore, the applicant stated that ‘A simply provided logistical support to the fact-finding mission by making appointments with these beneficiaries on [its] behalf’ and that he ‘played a minor role in supporting the preparation of [its] bid, i.e. limited to research, identification of consultants (potential local STEs), and organisational/logistics support for the PFM’. The Commission does not dispute the explanations provided by the applicant.
52 It is also apparent from the file before the Court that the Team Leader of the project had objected to the appointment of the experts proposed by A and that, consequently, the applicant decided to engage A himself as an external expert in accordance with a contract signed in 2014, thereby paying him EUR 6 380, an amount which compensated the time spent by A in the search of local experts who were not ultimately selected and in order to avoid its reliability being called into question on the ground that it had not complied with the informal agreement concluded with A.
53 Admittedly, the services which A performed for the applicant are not clearly defined in the contract of 24 September 2014 or on the invoice of 2 October 2014 (see paragraph 48 above). However, in the absence of a clear demonstration by the Commission that A was remunerated in exchange for services enabling the applicant to have access to confidential information, the mere fact that the applicant engaged and remunerated A is not sufficient to establish that it was thereby guilty of grave professional misconduct. On the contrary, the explanation provided by the applicant, according to which it found it necessary to remunerate A for the hours of work that he spent on identifying national experts for the implementation of the PFM project, is plausible and is supported by the material in the file before the Court. The remuneration of such a service is not, in itself and in the absence of other evidence, unlawful nor does it constitute misconduct, even if the experts in question were not ultimately recruited by the applicant. The Commission does not claim, still less prove, that the services provided by A were fictitious and that the applicant concealed the real reasons for his remuneration.
54 Moreover, it is common ground between the parties that the applicant paid A’s remuneration from its own funds and not from those from the EU budget.
– The nature of the information exchanged
55 According to paragraph 58 of the contested decision, the evidence gathered by OLAF contains examples of the nature of the confidential information exchanged between the applicant and A. According to the Commission, those examples include an email dated 7 February 2012 by which A had communicated to B the contact details of a public internal financial control expert in charge of the PFM project at the Commission, while stating that the applicant was not officially entitled to contact him (see, in particular, paragraph 21 of the contested decision). By that same email, A transferred the project fiche to the applicant. In addition, the Commission admitted as evidence, in paragraph 62 of the contested decision in particular, an extract from a Skype conversation dated 6 November 2012 between B and an unidentified interlocutor, from which it appears that the applicant was informed, before the official notification of the decision concerned, that it had won the contract for the PFM project.
56 As regards, first, the project fiche, it must be pointed out that the applicant argues, without being disproven, that the fiche had already been made available to it through an official agency of the Federal Republic of Germany on 6 December 2011, which had obtained it in the context of a meeting concerning the IPA. The applicant states that all the Member States are in principle represented at those meetings by their economic development agencies or by their embassies. It also states, again without being disproven, that it is common practice for potential tenderers to request project fiches from the agency concerned in their Member State of establishment. Thus, the fact that the Commission did not publish the project fiche until 8 February 2012 does not mean that it was confidential before that date.
57 It follows that, in the absence of any other evidence adduced by the Commission to the contrary, the project fiche at issue cannot be classified as confidential information at the time it was sent by A to B. The Commission’s contention that the mere receipt of that fiche, even if it was already legitimately available to the applicant and the other potential tenderers could, in principle, also have access to it, already showed wrongful intent on the part of the applicant and A, is not sufficiently substantiated in order to establish that the applicant attempted to obtain confidential information.
58 As regards, secondly, the public internal financial control expert in charge of the PFM project at the Commission, it has not been established that the applicant had contacted that person. The transmission of those contact details does not, therefore, unequivocally demonstrate that the applicant attempted to obtain confidential information of such a kind as to confer upon it an undue advantage. The Commission’s criticism of the applicant in paragraph 58 in fine of the contested decision, according to which the applicant did not reject A’s help and did not draw his attention to the unethical nature of releasing such information, cannot alter the foregoing. The fact that the applicant did not warn A does not on its own mean that it was guilty of grave professional misconduct.
59 As regards, thirdly, the Skype conversation of 6 November 2012, the applicant submits that it is not unusual for information on the outcome of a procurement procedure to be communicated informally before the official notification of the result. It should be noted, in that regard, that the communication, informally, of that information was not capable of conferring an undue advantage upon the applicant. Indeed, it is apparent from paragraph 26 of the contested decision that the last meeting of the evaluation committee had taken place on 5 November 2012. Even assuming that, between that date and the notification of the official decision awarding the contract concerned to the applicant, on 20 November 2012, the result of the evaluations had to remain strictly confidential, the Commission has not shown that the fact of having had access to it the day after the last meeting of the evaluation committee conferred an undue advantage upon the applicant in the procedure in question or that the applicant obtained that information as the result of a prohibited interference by B and A in the procedure in question.
60 The same applies, moreover, to the content of the Skype conversation between B and an unidentified interlocutor of 16 November 2012, to which the Commission refers in paragraph 27 of the contested decision; that conversation relates to the timing of the forthcoming notification of the official decision awarding the contract concerned, in which B states that, as far as he was aware, the procedure was being managed by the contracts department and that they had no longer had any influence. It is apparent from the extract of that conversation that it related solely to the timing of the end of the procurement procedure and that there was no question of an attempt or intention on the part of the applicant to influence the award procedure.
61 In the light of the evidence adduced by the applicant and not disproven by the Commission, it must be concluded that the Commission has not established clearly and unequivocally that the applicant had been guilty of grave professional misconduct by requesting and receiving confidential information that might confer upon it an undue advantage in the award procedure at issue.
– Conclusion
62 In the light of all of the foregoing, it must be held that the evidence relied on by the Commission as against the applicant, examined in the light of the matters adduced by the latter, is not sufficiently specific, convincing and concrete and is, therefore, incapable of establishing clearly and unequivocally that the applicant engaged in wrongful conduct having an impact on its professional credibility which, moreover, would denote wrongful intent or gross negligence within the meaning of Article 136(1)(c)(v) of the Financial Regulation and the case-law cited in paragraph 29 above.
63 The Commission has, therefore, failed to demonstrate to the requisite legal standard that the applicant had been guilty of grave professional misconduct justifying its exclusion from participation in procurement procedures, on the basis of Article 93(1)(c) of Regulation No 1605/2002 and Article 106(1)(c) of Regulation No 966/2012, and the publication of that penalty on its website.
64 Furthermore, it must be found that the manifest error of assessment by the Commission overlaps with a breach of the duty of diligence inherent in the right to good administration enshrined in Article 41(1) of the Charter (see, to that effect, judgment of 16 June 2022, SGL Carbon and Others v Commission, C‑65/21 P and C‑73/21 P to C‑75/21 P, EU:C:2022:470, paragraphs 30 to 32). As has been held in paragraphs 62 and 63 above, the evidence gathered by OLAF and partially reproduced by the panel and the Commission is not sufficiently convincing, concrete and specific to substantiate the allegations of irregularities on that part of the applicant in the context of the public contract relating to the PFM project. It follows that the Commission failed to examine with the requisite care and prudence, on the one hand, all the evidence adduced by OLAF, taken individually and as a whole, and, on the other, the facts and evidence adduced by the applicant setting out the context in which the conduct complained of occurred.
65 Consequently, the first, third and fourth pleas in law must be upheld.
The second plea in law, alleging an infringement of the principle of the presumption of innocence and reversal of the burden of proof
66 The applicant submits that the Commission presumed, without proving this, that confidential information had been exchanged between the applicant and its interlocutors in Kosovo, in particular A. The Commission claimed that the applicant had failed to adduce evidence showing that the information obtained, in particular during the meetings in Kosovo with representatives of the beneficiary institutions, was not confidential. However, it is for the Commission to prove and demonstrate that the applicant had attempted to obtain, or had even obtained, confidential information conferring an undue advantage upon it. In so doing, the Commission infringed the principle of the presumption of innocence, enshrined in particular in Article 48 of the Charter, and wrongly reversed the burden of proof.
67 The Commission disputes the applicant’s arguments.
68 As set out in Article 48(1) of the Charter, everyone who has been charged must be presumed innocent until proved guilty according to law.
69 In that regard, it should be noted that Article 52(3) of the Charter states that, in so far as that charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights are to be the same as those laid down by that convention. As is apparent from the explanations relating to Article 48 of the Charter, paragraph 1 of that article corresponds to Article 6(2) of the abovementioned convention (see, to that effect, judgment of 23 November 2021, IS (Illegality of the order for reference), C‑564/19, EU:C:2021:949, paragraph 101 and the case-law cited).
70 In that regard, the European Court of Human Rights has held that the principle of the presumption of innocence will be infringed if a decision or a statement by a public official concerning a person concerned contains a clear declaration, in the absence of a definitive decision establishing his or her guilt, that the person concerned has committed the infringement in question (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 43 and the case-law cited).
71 However, the applicant has not established that it was the subject of any clear declaration by the Commission, before the contested decision was adopted, that it had committed the infringement at issue.
72 Admittedly, it was for the Commission to adduce evidence in order to prove to the requisite legal standard the existence of grave professional misconduct. It is established that it did not succeed in doing so and that it made a manifest error of assessment in that regard. However, the fact that the classification of the applicant’s conduct as grave professional misconduct was erroneous does not mean that the Commission also infringed the principle of the presumption of innocence.
73 Accordingly, the applicant has not proven that the principle of the presumption of innocence had been infringed in the present case.
74 As to the remainder, the complaint that the Commission wrongly reversed the burden of proof has no independent content from the first, third and fourth pleas in law, since the applicant’s arguments in support of that complaint are directed, in essence, at the classification of its conduct as grave professional misconduct.
75 The second plea in law must, therefore, be rejected.
The fifth plea in law, alleging infringement of the right to be heard
76 By the fifth plea in law, the applicant submits that it was not informed of its status as a person concerned, before the summary of the facts was notified. Furthermore, its right to be heard before the contested decision was adopted was not respected by OLAF and, subsequently, by the Commission.
– The argument that the applicant was not informed of its status as a person concerned, before the summary of the facts was notified
77 The applicant submits, in essence, that it was not informed of its status as a person concerned, before the summary of the facts was notified, in breach of the procedural guarantees laid down in Article 9(3) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1). First, the authorisation given by the OLAF staff at the time of the on-the-spot checks of 26 and 27 June 2018 did not allow the applicant to form the view that it was a person concerned. Secondly, it did not receive a copy of the on-the-spot check report dated 23 July 2018, in breach of Article 14.6 of the Guidelines on Investigation Procedures for OLAF Staff. The applicant was only informed that it was considered to be a person concerned when the facts were notified on 22 November 2018.
78 The Commission disputes those arguments.
79 Under Article 9(3) of Regulation No 883/2013, as soon as an investigation reveals that an official, other servant, member of an institution or body, head of office or agency, or staff member may be a person concerned, that official, other servant, member of an institution or body, head of office or agency, or staff member must be informed to that effect, provided that this does not prejudice the conduct of the investigation or of any investigative proceedings falling within the remit of a national judicial authority.
80 In the present case, on 26 and 27 June 2018, OLAF carried out checks at the applicant’s premises, after an authorisation had been given by OLAF’s staff. It is apparent from the on-the-spot check report of 23 July 2018 that, during those checks, OLAF’s staff informed two managing directors of the applicant during the checks that the applicant had been identified as a person concerned as a result of suspicions of irregularities or fraud in the implementation of three EU-funded projects in which it had participated in Kosovo. That report was presented by OLAF to those two directors, who countersigned it, with the result that it must be concluded that they thus attested to having been informed, during the on-the-spot checks on 26 and 27 June 2018, of the applicant’s status as a person concerned.
81 In that regard, Article 7(2) of Regulation No 883/2013 requires the Director-General of OLAF to issue an authorisation indicating only the subject matter and the purpose of the investigation, the legal bases for conducting the investigation and the investigative powers stemming from those bases. There is, however, no provision of EU law that requires OLAF to indicate in that authorisation the identity of the person or persons concerned.
82 Nonetheless, the applicant submits that it was not properly informed of that status, in that it did not receive a copy of the on-the-spot check report, in breach of Article 14.6 of the Guidelines on Investigation Procedures for OLAF Staff. It claims that the copy of that report was not sent to it by the panel until 30 November 2020.
83 Article 14.6 of the Guidelines on Investigation Procedures for OLAF Staff states that copies of the on-the-spot check report must be provided to the national authority and, where necessary, to the economic operator concerned. That article does not specify the precise time at which OLAF must send a copy of that report to that operator.
84 In any event, it cannot be accepted that the failure to send the copy of the on-the-spot check report, or its allegedly late sending, prevented the applicant from becoming aware of its status as a person concerned. Indeed, since two of its managing directors countersigned the on-the-spot check report (see paragraph 80 above), it must be found that they consulted that report and confirmed that they had become aware of the applicant’s status as a person concerned, at the time of the checks in June 2018.
85 It follows that, in the circumstances of the present case, the applicant was, at the time of the on-the-spot checks, properly informed of the subject matter and purpose of the investigation as well as of its status as a person concerned.
86 Accordingly, the complaint alleging that the applicant was not informed of its status as a person concerned, in breach of Article 9(3) of Regulation No 883/2013, must be rejected as unfounded.
– The alleged infringement of the applicant’s right, as a ‘person concerned’, to be heard by OLAF
87 The applicant pleads infringement of the right to be heard, as enshrined in Article 41(2) of the Charter, in so far as, in essence, first, OLAF did not hear it before notification of the summary of the facts. The applicant argues, in particular, that its senior management should have been interviewed or questioned during the on-the-spot checks. Secondly, it states that it was not in a position to comment fully on the summary of the facts because that document did not refer to any infringement of Article 136(1)(c)(v) of the Financial Regulation. Moreover, the applicant asserts that if its right to be heard had been respected, the outcome of the procedure might have been different.
88 The Commission disputes those arguments.
89 Under Article 41(2) of the Charter, the right to good administration also includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.
90 That principle is put into effect in Article 9(4) of Regulation No 883/2013, which provides that OLAF must, in principle, once the investigation has been completed and before conclusions referring by name to a person concerned are drawn up, give that person the opportunity to comment on facts concerning him or her (judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraph 168). Article 9(4) provides in that regard that OLAF must send the person concerned an invitation to comment either in writing or at an interview with staff designated by OLAF, and to that end must attach a summary of the facts concerning him or her.
91 In the present case, it must be stated that the applicant does not deny that it had the opportunity on several occasions to comment, before the adoption of OLAF’s report on the facts established which formed the basis of the contested decision. In that regard, it must be noted that, when notifying the summary of the facts of 22 November 2018, OLAF invited the applicant to provide its comments on the facts established during the investigation. On 28 November 2018, the applicant sent OLAF its comments on the ‘Summary of the facts concerning the person concerned’ and submitted a request for certain documents to be provided. The applicant sent further comments to OLAF on 7 December 2018. On 19 February 2019, OLAF invited the applicant to submit supplementary comments on additional facts added to the summary of the facts. The applicant responded to that request on 28 February 2019.
92 In those circumstances, it must be concluded that, having heard the applicant on three occasions before drawing up its final report provided for in Article 11(1) of Regulation No 883/2013, OLAF respected its right to be heard.
93 The applicant’s argument that OLAF ought, during the on-the-spot checks, to have interviewed or questioned its senior management does not call that conclusion into question.
94 First, Article 9(4) of Regulation No 883/2013 does not require OLAF to give the person concerned the opportunity to comment on facts concerning him or her, before notification of the summary of the facts.
95 Secondly, according to settled case-law, the right to be heard does not necessarily mean that the person concerned must be given the opportunity to express his or her views orally (see, to that effect and by analogy, judgments of 25 February 2016, Musso v Parliament, T‑589/14 and T‑772/14, not published, EU:T:2016:101, paragraph 59, and of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 98). Thus, the exercise of the right to be heard does not necessarily require the person concerned to be given an oral hearing, since the opportunity to provide comments in writing also allows that right to be observed (judgment of 19 June 2018, Le Pen v Parliament, T‑86/17, not published, EU:T:2018:357, paragraph 99).
96 It must, therefore, be found that, although the applicant’s senior managers were not interviewed or questioned during the on-the-spot checks, the applicant had the opportunity to inform OLAF in writing of the reasons for which it took the view that the facts established by OLAF were not proven.
97 As regards the applicant’s argument that it was not in a position to comment fully, in that the summary of the facts of 22 November 2018 sent by OLAF did not refer to any infringement of Article 136(1)(c)(v) of the Financial Regulation, it must be stated that that summary cited the rules on ethics and the prevention of conflicts of interest included in the Practical Guide to Contract Procedures for EU External Actions and in the General Conditions for Service Contracts for External Actions financed by the European Union, which contain, in essence, the same ground for exclusion as that provided for by Article 136(1)(c)(v) of the Financial Regulation.
98 Moreover, and in any event, the applicant had the opportunity to present its views on the legal classification of the facts before the panel, including as regards Article 136(1)(c)(v) of the Financial Regulation.
99 In that regard, it must be borne in mind that the Financial Regulation establishes a single early detection and exclusion system, set up by the Commission in order to protect the financial interests of the European Union. Article 143(5) of that regulation provides that the panel must uphold the right of the person or entity concerned, as referred to in Article 135(2) thereof, to submit observations on the facts or findings referred to in Article 136(2) of that regulation and on the preliminary classification in law before adopting its recommendations.
100 In the present case, on 13 October 2020, the panel sent the applicant the notification of the facts and their preliminary classification in law, and invited it to submit comments. By an email of 9 November 2020, the applicant sent its comments to the panel. On 12 November 2020, the panel sent the applicant two additional annexes to the OLAF report, which the applicant had requested, and which were commented upon by it on 19 November 2020. On 30 November 2020, the panel informed the applicant that it had taken note of its comments of 9 November 2020 concerning the way in which OLAF had conducted its investigation and accordingly questioned the latter. OLAF transmitted certain documents to the panel, which were not known to the latter when it adopted its adversarial letter. The panel then invited the applicant to submit its comments on those documents, which were already in its possession or had already been seen and signed by it.
101 It follows that OLAF and the panel did not infringe the applicant’s right to be heard, given the multiple opportunities afforded the latter, once the investigation had been completed and before conclusions relating to that investigation had been drawn up, of making known its views in writing, a possibility of which the applicant made use (see, to that effect, judgment of 13 May 2020, Agmin Italy v Commission, T‑290/18, not published, EU:T:2020:196, paragraph 83). The present complaint must, therefore, be rejected.
– The applicant’s right to be heard by the Commission before the adoption of the contested decision
102 Lastly, as regards the applicant’s complaint that the Commission ought to have heard the applicant before adopting the contested decision, it must be borne in mind that, under Article 143(6) of the Financial Regulation, where the Commission envisages taking a more severe decision than that recommended by the panel, it must ensure due respect for the right to be heard of the person concerned.
103 In the present case, since the Commission followed the panel’s recommendation and did not, therefore, adopt a more severe decision than that recommendation, the applicant did not have to be heard again (see, to that effect, judgment of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraphs 62 and 63).
104 It follows from the foregoing that the complaint that the applicant was not heard prior to the adoption of the contested decision must be rejected as unfounded.
105 Accordingly, the applicant’s right to be heard was not infringed and, therefore, the fifth plea in law must be rejected in its entirety.
The sixth plea in law, alleging failure to state reasons
106 The applicant submits that by failing to identify the information which it considered to be confidential and the specific circumstances capable of justifying the legal classification of grave professional misconduct, the Commission did not make it possible for the applicant to understand the contested decision and challenge its lawfulness. Furthermore, the Commission did not assess the need for publication of that decision or explain why exclusion alone was not sufficient in the light of the circumstances of the case.
107 The Commission disputes those arguments.
108 It should be noted, from the outset, that the failure to fulfil the obligation to state reasons is a breach of essential procedural requirements and does not relate to the substantive legality of the contested decision (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraphs 67 to 72).
109 As regards the statement of reasons for the contested decision, it should be borne in mind that, according to settled case‑law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the nature of the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirement to state reasons must be assessed according to the circumstances of the case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 30 April 2014, Hagenmeyer and Hahn v Commission, T‑17/12, EU:T:2014:234, paragraph 173 and the case-law cited).
110 In the present case, the facts and evidence which the Commission considered relevant are apparent from the contested decision, in particular paragraphs 55, 56, 77 and 78 thereof. The Commission classifies those facts as constituting grave professional misconduct, in particular in paragraphs 75 and 76 of the contested decision. In paragraphs 83 and 84 of that decision, it gives reasons for the penalty and, in particular, explains in paragraph 89 of the decision that it considers it necessary to publish the exclusion.
111 Furthermore, in terms of the context in which the contested decision was adopted, it must be found that the numerous written exchanges, which took place first in the context of the OLAF on-the-spot investigation and then following the letter of notification, referred to in particular in paragraphs 91 and 100 above, contain sufficient and consistent information enabling the applicant to understand the grounds on which the Commission’s position was based.
112 The contested decision therefore enabled the applicant to ascertain the reasons for the measure and, as is apparent from the analysis of the first to fifth pleas in law, the Court to exercise its power of review. It follows that the Commission did not fail to fulfil its obligation to state reasons.
113 The sixth plea in law must, therefore, be rejected.
The seventh plea in law, alleging an infringement of the principle of proportionality
114 As the Court has held in paragraphs 22 to 64 above, the Commission’s contentions that the applicant was guilty of grave professional misconduct have not been established to the requisite legal standard, with the result that the administrative penalty imposed on account of that grave professional misconduct has no legal basis. Accordingly, the arguments directed against the proportionality of the administrative penalty at issue have become devoid of purpose.
115 Consequently, there is no need to rule on the seventh plea in law.
Conclusion on the application for annulment
116 Since the first, third and fourth pleas in law in the action are well founded, the contested decision must be annulled.
Claim for compensation
117 The applicant also claims that the Court should order the Commission to pay it compensation in the amount of EUR 17 385 832. It argues that the conditions for non-contractual liability on the part of the European Union, laid down in the second paragraph of Article 340 TFEU, are met.
118 First, it states that there has been a sufficiently serious breach of a number of rules of law intended to confer rights on individuals, in particular breaches of the rights of the defence, of the obligation to state reasons, of the duty of diligence, and of the principles of proportionality and of the presumption of innocence.
119 Secondly, the applicant submits that it sustained real and certain damage, consisting in part in the loss of an opportunity to win tenders during the period of exclusion, but also in the loss of reputation which it would suffer over a longer period.
120 Thirdly, the applicant maintains that the damage sustained by it is directly caused by the contested decision.
121 The Commission contends that the claim for compensation is unfounded.
122 It should be borne in mind that, according to settled case-law, the non-contractual liability of the European Union for unlawful conduct on the part of its institutions, within the meaning of the second paragraph of Article 340 TFEU, depends on fulfilment of several conditions, namely the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of. Where one of those conditions is not fulfilled, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (see judgments of 9 November 2006, Agraz and Others v Commission, C‑243/05 P, EU:C:2006:708, paragraph 26 and the case-law cited; of 2 March 2010, Arcelor v Parliament and Council, T‑16/04, EU:T:2010:54, paragraph 139; and of 8 May 2019, Enrico Colombo and Corinti Giacomo v Commission, T‑690/16, not published, EU:T:2019:303, paragraph 118).
123 As regards the condition relating to the unlawfulness of the conduct alleged against the institutions, case-law requires that a sufficiently serious breach of a rule of law intended to confer rights on individuals be established. The decisive test for a finding that the requirement of not leaving those parties to bear the consequences of flagrant and inexcusable misconduct by the institution concerned has been satisfied is whether the institution concerned has manifestly and gravely disregarded the limits of its discretion. The concept of ‘manifest and grave disregard’ is not the same as the concept of ‘manifest error of assessment’, but must be regarded as a distinct concept. If such a distinction were not made, any manifest error of assessment and, therefore, any error made by an administrative authority of the European Union in circumstances where it has some discretion could result in its incurring non-contractual liability. However, it does not follow from the relevant case-law that any unlawful act is, by itself, a basis for such liability. The determining factor in deciding whether there has been such an infringement is, therefore, the discretion available to the institution concerned (see, to that effect, judgment of 16 December 2020, SGL Carbon v Commission, T‑639/18, not published, EU:T:2020:628, paragraph 82 and the case-law cited).
124 However, the extent of the discretion enjoyed by the institution concerned, although determinative, is not the only yardstick. On the contrary, account must also be taken, in particular, of the complexity of the situations to be regulated and the difficulties in applying or interpreting the legislation (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraphs 36 and 37 and the case-law cited) or, more generally, of the field, circumstances and context in which the infringed rule was imposed on the EU institution or body concerned (see, to that effect, judgment of 4 April 2017, Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraph 40 and the case-law cited).
125 It follows that only the finding of an irregularity that an administrative authority, exercising ordinary care and diligence, would not have committed in similar circumstances, can render the European Union liable (see judgment of 16 December 2020, SGL Carbon v Commission, T‑639/18, not published, EU:T:2020:628, paragraph 85 and the case-law cited).
126 In that context, it is for the EU judicature, once it has first determined whether the institution concerned enjoyed any discretion, next to take into consideration the complexity of the situations to be regulated, any difficulties in applying or interpreting the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable or intentional (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 40 and the case-law cited).
127 In that regard, the Court of Justice has also held that a mere breach of the principle of diligence cannot be sufficient to establish the existence of a sufficiently serious breach that may render the European Union liable (see, to that effect, judgment of 4 April 2017, Ombudsman v Staelen, C‑337/15 P, EU:C:2017:256, paragraphs 36 and 37).
128 In the light of the case-law cited in paragraphs 123 to 127 above, it is appropriate to reject, from the outset, the applicant’s argument that a manifest error of assessment is, in all circumstances, a sufficiently serious breach of a rule leaving scope for discretion. Indeed, as an action for damages is an independent form of action, the fact that a measure adopted by the Commission is unlawful is not, in itself, enough for the European Union to incur non-contractual liability.
129 Account must be taken of the circumstances of the case, which are as follows.
130 In the first place, as is apparent, in particular, from paragraph 63 above, the Commission infringed Article 93(1)(c) of Regulation No 1605/2002 and Article 106(1)(c) of Regulation No 966/2012, as well as Article 136(1) of the Financial Regulation and committed a manifest error of assessment in that regard. At the same time, the Commission infringed the applicant’s right to good administration, and more specifically its duty of diligence.
131 However, as can be seen from paragraphs 73, 105, 112 and 114 above, it has not been established to the requisite legal standard that the Commission had infringed the principle that the applicant was presumed to be innocent, the applicant’s right to be heard, the obligation to state reasons for its decisions or the principle of proportionality.
132 In the second place, it should be noted that the field concerned relates to public procurement and, therefore, the management of funds drawn from the public purse of the European Union. The provisions infringed, cited in paragraph 130 above, must be understood in the light of the principle of sound financial management referred to in Article 310(5) and the first paragraph of Article 317 TFEU. In view of the role and responsibility which those provisions of primary EU law and the Financial Regulations confer on the Commission as regards the implementation of the EU budget, the Commission has the task of ensuring compliance with that principle (see, to that effect, judgments of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraphs 65 and 66, and of 16 July 2020, ADR Center v Commission, C‑584/17 P, EU:C:2020:576, paragraphs 100 and 101).
133 In that regard, as the Commission stated at the hearing, it relies, as regards future public procurement, on past experience in order to ensure sound financial management of EU resources. It rightly notes that, provided that one or more of the exclusion criteria laid down in Article 136 of the Financial Regulation are met, the adoption of an exclusion measure constitutes above all a preventive measure in order to avoid less optimal financial management of the public funds at issue.
134 In the third place, as regards the circumstances and context in which the infringed rules were imposed in the present case, it must be stated that, first, as is also apparent from paragraph 4 above, the EUOK and OLAF received on several occasions, between 2015 and 2017, information from various anonymous sources referring to irregularities and fraud in relation to EU public contracts in Kosovo. According to that information, this concerned, in particular, leaks of confidential information by the EUOK staff to commercial parties interested in the public contracts concerned.
135 Secondly, the Commission and OLAF had certain indicia capable of giving rise to questions regarding some of the applicant’s actions and of justifying the opening of an investigation in that regard. In the present case, certain aspects of the evidence, mentioned in paragraphs 37, 40, 44, 47, 53 and 55 above, might demonstrate conduct which cannot be characterised in some respects as complying with the norm or customs of the sector concerned. However, the Commission has failed to demonstrate to the requisite legal standard that those actions were of such gravity that they had to be regarded as constituting grave professional misconduct.
136 In the light of its role of ensuring sound financial management of the European Union’s resources, provided for in Article 317 TFEU, and the factual and legal context of the present case, set out in paragraphs 130 to 135 above, the manifest error of assessment and the infringement of the applicant’s right to good administration committed by the Commission cannot be regarded as being so inexcusable and flagrant as to amount to a manifest and serious disregard of the limits on the Commission’s discretion. It must be noted, in that regard, that the Commission did not fail to investigate the questions which were central to that examination, nor did it draw from it clearly inappropriate, deficient, unreasonable or unsubstantiated conclusions.
137 Indeed, the Commission examined the evidence produced by OLAF and the panel’s recommendation. In so doing, as is apparent from paragraph 35 above, it decided, like the panel, not to accept all the evidence and accusations put forward by OLAF. Thus, it did not take into account the evidence relating to the TP project and a certain amount of evidence relating to the PFM project, since, in its view, that evidence was not sufficiently relevant or convincing. In addition, it examined the facts and evidence adduced by the applicant, as is apparent from paragraphs 37, 39, 50, 51, 54, 57, 59, 63, 65, 70 and 72 of the contested decision. Even if the Commission has made errors in the assessment of those facts and evidence and in their legal classification, it must be concluded that those errors are not so serious that they should be classified as sufficiently serious breaches of EU law.
138 Accordingly, the Commission did not commit a sufficiently serious breach of the provisions cited in paragraphs 26 and 27 above or of the duty of diligence.
139 Consequently, the claim for compensation must be dismissed.
Costs
140 Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties must bear their own costs.
141 In the present case, the applicant and the Commission have been partially unsuccessful in their pleas. Consequently, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1. Annuls the decision of the European Commission of 18 February 2021 excluding RH from participating in award procedures for public procurement and grants governed by the EU budget and by the 11th European Development Fund or from being selected for implementing EU funds under Regulation (EU, Euratom) 2018/1046 and for implementing funds under the European Development Fund governed by Regulation (EU) 2018/1877;
2. Dismisses the action as to the remainder;
3. Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 15 February 2023.
E. Coulon | | M. van der Woude |