Provisional text

Provisional text

2 October 2024 (*)

2 October 2024 (*)

( Public procurement – Financial regulation – Exclusion from procurement procedures and from the award of grants financed by the general budget of the European Union and by the EDF for a period of two years – Publication of exclusion – Registration in the early detection and exclusion system database – Grave professional misconduct – Decision of a national competition authority – Suspension by a national court – Obligation to state reasons – Right to effective judicial protection – Remedial measures – Unlimited jurisdiction – Manifest error of assessment – Error of assessment – Proportionality )

( Public procurement – Financial regulation – Exclusion from procurement procedures and from the award of grants financed by the general budget of the European Union and by the EDF for a period of two years – Publication of exclusion – Registration in the early detection and exclusion system database – Grave professional misconduct – Decision of a national competition authority – Suspension by a national court – Obligation to state reasons – Right to effective judicial protection – Remedial measures – Unlimited jurisdiction – Manifest error of assessment – Error of assessment – Proportionality )

In Case T‑126/23,

In Case T‑126/23,

VC, represented by J. Rodríguez Cárcamo and S. Centeno Huerta, lawyers,

VC, represented by J. Rodríguez Cárcamo and S. Centeno Huerta, lawyers,

applicant,

applicant,

European Agency for Safety and Health at Work (EU-OSHA), represented by E. Ortega Urretavizcaya, acting as Agent, and by M. Troncoso Ferrer, L. Lence de Frutos and F.-M. Hislaire, lawyers,

European Agency for Safety and Health at Work (EU-OSHA), represented by E. Ortega Urretavizcaya, acting as Agent, and by M. Troncoso Ferrer, L. Lence de Frutos and F.-M. Hislaire, lawyers,

defendant,

defendant,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of S. Papasavvas, President, R. da Silva Passos, S. Gervasoni (Rapporteur), N. Półtorak and I. Reine, Judges,

composed of S. Papasavvas, President, R. da Silva Passos, S. Gervasoni (Rapporteur), N. Półtorak and I. Reine, Judges,

Registrar: A. Juhász-Tóth, Administrator,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the written part of the procedure,

having regard to the written part of the procedure,

having regard to the applicant’s request to omit some of its data, including its name,

having regard to the applicant’s request to omit some of its data, including its name,

having regard to the applicant’s application for interim relief,

having regard to the applicant’s application for interim relief,

having regard to the order of 13 March 2023, VC v EU-OSHA (T‑126/23 R, not published), staying the enforcement of the contested decision until the order terminating the proceedings for interim relief before the General Court has been made,

having regard to the order of 13 March 2023, VC v EU-OSHA (T‑126/23 R, not published), staying the enforcement of the contested decision until the order terminating the proceedings for interim relief before the General Court has been made,

having regard to the order of 14 July 2023, VC v EU-OSHA (T‑126/23 R, not published, EU:T:2023:405), revoking that order and ordering a stay of enforcement of the contested decision, in so far as Article 4 of that decision provides for the publication on the European Commission’s website of certain information relating to the exclusion of the applicant from participation in certain procedures,

having regard to the order of 14 July 2023, VC v EU-OSHA (T‑126/23 R, not published, EU:T:2023:405), revoking that order and ordering a stay of enforcement of the contested decision, in so far as Article 4 of that decision provides for the publication on the European Commission’s website of certain information relating to the exclusion of the applicant from participation in certain procedures,

having regard to the appeal brought by the applicant against that order and the order of 27 July 2023, VC v EU-OSHA (C‑456/23 P(R)-R, not published, EU:C:2023:612), adopted on the basis of Article 160(7) of the Rules of Procedure of the Court of Justice, ordering a stay of enforcement of Articles 1 to 3 and 5 of the contested decision until the adoption of whichever is the earlier of the orders (i) disposing of the proceedings for interim relief and (ii) ruling on the appeal,

having regard to the appeal brought by the applicant against that order and the order of 27 July 2023, VC v EU-OSHA (C‑456/23 P(R)-R, not published, EU:C:2023:612), adopted on the basis of Article 160(7) of the Rules of Procedure of the Court of Justice, ordering a stay of enforcement of Articles 1 to 3 and 5 of the contested decision until the adoption of whichever is the earlier of the orders (i) disposing of the proceedings for interim relief and (ii) ruling on the appeal,

having regard to the order of 24 October 2023, VC v EU-OSHA (C‑456/23 P(R), not published, EU:C:2023:831), setting aside the order of 14 July 2023, VC v EU-OSHA (T‑126/23 R, not published, EU:T:2023:405), in so far as it dismissed the application for suspension of operation of Articles 1 to 3 and 5 of the contested decision, and, ruling itself on that application, also dismissing it,

having regard to the order of 24 October 2023, VC v EU-OSHA (C‑456/23 P(R), not published, EU:C:2023:831), setting aside the order of 14 July 2023, VC v EU-OSHA (T‑126/23 R, not published, EU:T:2023:405), in so far as it dismissed the application for suspension of operation of Articles 1 to 3 and 5 of the contested decision, and, ruling itself on that application, also dismissing it,

having regard to the referral of the present case to the Fourth Chamber, Extended Composition, of the General Court,

having regard to the referral of the present case to the Fourth Chamber, Extended Composition, of the General Court,

having regard to the designation of another Judge to complete the Chamber as one of its Members was prevented from acting,

having regard to the designation of another Judge to complete the Chamber as one of its Members was prevented from acting,

having regard to the application for a measure of organisation of procedure lodged by the applicant on 23 April 2024, to EU-OSHA’s observations on that application lodged on 10 May 2024 and to the withdrawal of its application by the applicant on 13 May 2024,

having regard to the application for a measure of organisation of procedure lodged by the applicant on 23 April 2024, to EU-OSHA’s observations on that application lodged on 10 May 2024 and to the withdrawal of its application by the applicant on 13 May 2024,

further to the hearing on 16 May 2024,

further to the hearing on 16 May 2024,

gives the following

gives the following

1.1 By its action based on Article 263 TFEU, the applicant, VC, is seeking the annulment of the decision of the European Agency for Safety and Health at Work (EU-OSHA) of 13 January 2023 ordering the exclusion of the applicant from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the European Development Fund (EDF) governed 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), for a period of two years with effect from 18 January 2023 (Articles 1 and 2), the inclusion of the applicant’s name in the database of the early detection and exclusion system for the duration of the exclusion period (Article 3), and the publication on the European Commission’s website of certain information relating to the exclusion (Article 4) (‘the contested decision’).

1. 1 By its action based on Article 263 TFEU, the applicant, VC, is seeking the annulment of the decision of the European Agency for Safety and Health at Work (EU-OSHA) of 13 January 2023 ordering the exclusion of the applicant from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the European Development Fund (EDF) governed 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), for a period of two years with effect from 18 January 2023 (Articles 1 and 2), the inclusion of the applicant’s name in the database of the early detection and exclusion system for the duration of the exclusion period (Article 3), and the publication on the European Commission’s website of certain information relating to the exclusion (Article 4) (‘the contested decision’).

Background to the dispute and events subsequent to the bringing of the action

2. 2 On 11 May 2021, EU-OSHA published call for tenders EUOSHA/2021/OP/F/SE/0144 for the provision of information and communication technology (ICT) and web services. This procurement contract was divided into three lots.

2.2 On 11 May 2021, EU-OSHA published call for tenders EUOSHA/2021/OP/F/SE/0144 for the provision of information and communication technology (ICT) and web services. This procurement contract was divided into three lots.

3. 3 On the same day, the Comisión Nacional de los Mercados y la Competencia (National Commission on Markets and Competition, Spain) (‘the CNMC’) adopted a decision finding that the applicant had participated in a single and continuous infringement of competition law and imposing a fine on it and prohibiting it from being awarded contracts with the Spanish authorities (‘the CNMC Decision’). According to the CNMC, between March 2009 and May 2017 the applicant participated, with several other companies, in a cooperative network in which the participants exchanged commercially sensitive information and engaged in joint strategies aimed at eliminating competition in certain tenders for the provision of consultancy services to Spanish government departments and other public bodies.

3.3 On the same day, the Comisión Nacional de los Mercados y la Competencia (National Commission on Markets and Competition, Spain) (‘the CNMC’) adopted a decision finding that the applicant had participated in a single and continuous infringement of competition law and imposing a fine on it and prohibiting it from being awarded contracts with the Spanish authorities (‘the CNMC Decision’). According to the CNMC, between March 2009 and May 2017 the applicant participated, with several other companies, in a cooperative network in which the participants exchanged commercially sensitive information and engaged in joint strategies aimed at eliminating competition in certain tenders for the provision of consultancy services to Spanish government departments and other public bodies.

4. 4 On 21 June 2021, the applicant submitted a bid for the second lot of the procurement contract in question, relating to the provision of project management support and consultancy services.

4.4 On 21 June 2021, the applicant submitted a bid for the second lot of the procurement contract in question, relating to the provision of project management support and consultancy services.

5. 5 On 29 July 2021, after becoming aware of the CNMC decision, EU-OSHA asked the applicant to explain why it had not mentioned that decision in its declaration on honour and whether it had implemented any remedial measures to remedy the infringement.

5.5 On 29 July 2021, after becoming aware of the CNMC decision, EU-OSHA asked the applicant to explain why it had not mentioned that decision in its declaration on honour and whether it had implemented any remedial measures to remedy the infringement.

6. 6 On 24 August 2021, the applicant replied that it had not declared the CNMC decision because, first, the decision was not final, since the Audiencia Nacional (National High Court, Spain) had not ruled on the appeal against the decision or on the application for interim relief and, second, it did not entail an effective ban on participating in public procurement contracts, since the Spanish Minister for the Economy and Finance had not determined the scope of the ban.

6.6 On 24 August 2021, the applicant replied that it had not declared the CNMC decision because, first, the decision was not final, since the Audiencia Nacional (National High Court, Spain) had not ruled on the appeal against the decision or on the application for interim relief and, second, it did not entail an effective ban on participating in public procurement contracts, since the Spanish Minister for the Economy and Finance had not determined the scope of the ban.

7. 7 On 10 February 2022, the authorising officer responsible asked the panel convened pursuant to 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’), to make a recommendation concerning whether to impose an exclusion or a financial penalty on the applicant.

7.7 On 10 February 2022, the authorising officer responsible asked the panel convened pursuant to 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’), to make a recommendation concerning whether to impose an exclusion or a financial penalty on the applicant.

8. 8 Subsequently, the Audiencia Nacional (National High Court) ordered a stay of enforcement of the CNMC decision (‘the national decision to stay enforcement’) on 11 April 2022.

8.8 Subsequently, the Audiencia Nacional (National High Court) ordered a stay of enforcement of the CNMC decision (‘the national decision to stay enforcement’) on 11 April 2022.

9. 9 On 13 July 2022, the panel convened in accordance with Article 143 of the Financial Regulation (‘the panel’) notified the applicant of the preliminary classification of that party’s conduct within the meaning of Article 136(2) of the Financial Regulation.

9.9 On 13 July 2022, the panel convened in accordance with Article 143 of the Financial Regulation (‘the panel’) notified the applicant of the preliminary classification of that party’s conduct within the meaning of Article 136(2) of the Financial Regulation.

10. 10 The applicant submitted its observations on this preliminary classification on 22 August 2022.

10.10 The applicant submitted its observations on this preliminary classification on 22 August 2022.

11. 11 On 8 December 2022, the panel sent its recommendation to EU-OSHA. Taking the view that the applicant’s conduct should be regarded as ‘grave professional misconduct’, it recommended that the applicant be excluded and that this exclusion be published.

11.11 On 8 December 2022, the panel sent its recommendation to EU-OSHA. Taking the view that the applicant’s conduct should be regarded as ‘grave professional misconduct’, it recommended that the applicant be excluded and that this exclusion be published.

12. 12 By the contested decision, of which the applicant was notified on 17 January 2023, EU-OSHA followed this recommendation and ordered the following:

12.12 By the contested decision, of which the applicant was notified on 17 January 2023, EU-OSHA followed this recommendation and ordered the following:

– the exclusion of the applicant from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the EDF governed by Regulation (EU) 2018/1877 for a period of two years with effect from 18 January 2023 (Articles 1 and 2);

– the exclusion of the applicant from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the EDF governed by Regulation (EU) 2018/1877 for a period of two years with effect from 18 January 2023 (Articles 1 and 2);

– the inclusion of the applicant’s name in the database of the early detection and exclusion system described in Article 142(1) of the Financial Regulation for the duration of the exclusion period (Article 3);

– the inclusion of the applicant’s name in the database of the early detection and exclusion system described in Article 142(1) of the Financial Regulation for the duration of the exclusion period (Article 3);

– the publication on the European Commission’s website, three months after notification of the decision, of certain information relating to the applicant’s exclusion from participation in award procedures, in accordance with Article 140 of the Financial Regulation (Article 4); and

– the publication on the European Commission’s website, three months after notification of the decision, of certain information relating to the applicant’s exclusion from participation in award procedures, in accordance with Article 140 of the Financial Regulation (Article 4); and

– notification of the decision to the applicant (Article 5).

– notification of the decision to the applicant (Article 5).

13. 13 On 21 November 2023, subsequent to the action being brought in the present case, the applicant applied to EU-OSHA for a review of the contested decision on the basis of Article 136(8) of the Financial Regulation.

13.13 On 21 November 2023, subsequent to the action being brought in the present case, the applicant applied to EU-OSHA for a review of the contested decision on the basis of Article 136(8) of the Financial Regulation.

Forms of order sought

Forms of order sought

14. 14 The applicant contends that the Court should:

14.14 The applicant contends that the Court should:

– annul the contested decision;

– annul the contested decision;

– in the alternative, replace the exclusion measure with a financial penalty and/or annul Article 4 of the contested decision;

– in the alternative, replace the exclusion measure with a financial penalty and/or annul Article 4 of the contested decision;

– order EU-OSHA to pay the costs of the present proceedings.

– order EU-OSHA to pay the costs of the present proceedings.

15. 15 EU-OSHA contends that the Court should:

15.15 EU-OSHA contends that the Court should:

– dismiss the application;

– dismiss the application;

– order the applicant to pay the costs of the proceedings.

– order the applicant to pay the costs of the proceedings.

Law

Law

16. 16 The applicant raises five pleas in law in support of its action. The first plea alleges a failure to respect the national decision to stay enforcement and the second criticises the assessment of the remedial measures implemented by the applicant. The third plea asserts that the decision to adopt the exclusion penalty breached the principle of proportionality. The fourth plea contests the publication of the exclusion. By the fifth plea in law, which is raised in the alternative, the applicant alleges that EU-OSHA failed to consider the application of a financial penalty as an alternative to exclusion.

16.16 The applicant raises five pleas in law in support of its action. The first plea alleges a failure to respect the national decision to stay enforcement and the second criticises the assessment of the remedial measures implemented by the applicant. The third plea asserts that the decision to adopt the exclusion penalty breached the principle of proportionality. The fourth plea contests the publication of the exclusion. By the fifth plea in law, which is raised in the alternative, the applicant alleges that EU-OSHA failed to consider the application of a financial penalty as an alternative to exclusion.

The first plea, alleging infringement of the national decision to stay enforcement

The first plea, alleging infringement of the national decision to stay enforcement

The first branch, alleging infringement of Article 106(2) of the former Financial Regulation, Article 136(2) of the Financial Regulation, Article 4(3) TEU and Article 325(1) TFEU

The first branch, alleging infringement of Article 106(2) of the former Financial Regulation, Article 136(2) of the Financial Regulation, Article 4(3) TEU and Article 325(1) TFEU

17. 17 The applicant contends that – based on Article 106 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 Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), as amended in particular by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1) (‘the former Financial Regulation’), and Article 136 of the Financial Regulation, in that they both require, in paragraph 1, the exclusion of an entity where it has been established by a final national judgment that the entity is guilty of grave professional misconduct and in that they both allow, in paragraph 2, such exclusion on the basis of a preliminary classification by the Union authorities on the basis of a non-final national decision – the Union authorities must also respect decisions adopted as a precautionary measure by national courts in respect of non-final national administrative decisions, in particular where, as in the present case, those authorities do not themselves carry out any investigative activity. Thus, if the decision serving as the exclusive basis for the abovementioned preliminary classification is suspended, that decision can no longer be used to support that classification. The applicant asserts that the national decision to stay enforcement – even without mentioning an examination of the prima facie case – calls into question the validity and legality of the CNMC decision. The applicant also notes the similarity between the objective pursued by the exclusion ordered by the contested decision and that pursued by the prohibition on being awarded procurement contracts ordered by the CNMC, which represents a typical penalty in the field of public procurement contracts and was suspended by the national decision to stay enforcement.

17.17 The applicant contends that – based on Article 106 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 Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1), as amended in particular by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1) (‘the former Financial Regulation’), and Article 136 of the Financial Regulation, in that they both require, in paragraph 1, the exclusion of an entity where it has been established by a final national judgment that the entity is guilty of grave professional misconduct and in that they both allow, in paragraph 2, such exclusion on the basis of a preliminary classification by the Union authorities on the basis of a non-final national decision – the Union authorities must also respect decisions adopted as a precautionary measure by national courts in respect of non-final national administrative decisions, in particular where, as in the present case, those authorities do not themselves carry out any investigative activity. Thus, if the decision serving as the exclusive basis for the abovementioned preliminary classification is suspended, that decision can no longer be used to support that classification. The applicant asserts that the national decision to stay enforcement – even without mentioning an examination of the prima facie case – calls into question the validity and legality of the CNMC decision. The applicant also notes the similarity between the objective pursued by the exclusion ordered by the contested decision and that pursued by the prohibition on being awarded procurement contracts ordered by the CNMC, which represents a typical penalty in the field of public procurement contracts and was suspended by the national decision to stay enforcement.

18. 18 The applicant also relies on Article 325 TFEU, which relates to provisions intended to counter fraud, and on Article 4(3) TEU, which lays down the principle of sincere cooperation, in order to highlight the manifest contradiction between the national decision to stay enforcement and the contested decision, which is the result of a clear lack of coordination between the competent authorities in protecting the financial interests of the Union, which is required by those provisions.

18.18 The applicant also relies on Article 325 TFEU, which relates to provisions intended to counter fraud, and on Article 4(3) TEU, which lays down the principle of sincere cooperation, in order to highlight the manifest contradiction between the national decision to stay enforcement and the contested decision, which is the result of a clear lack of coordination between the competent authorities in protecting the financial interests of the Union, which is required by those provisions.

19. 19 It should be remembered as a preliminary point that 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 to situations existing before their entry into force (see, to that effect, judgments of 12 November 1981, Meridionale Industria Salumi and Others, 212/80 to 217/80, EU:C:1981:270, paragraph 9; of 6 July 1993, CT Control (Rotterdam) and JCT Benelux v Commission, C‑121/91 and C‑122/91, EU:C:1993:285, paragraph 22; and of 26 March 2015, Commission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraph 33). Consequently, the rules applicable to the exclusion procedure at issue are those laid down in the Financial Regulation, which entered into force in 2018, while the substantive rules applicable to that exclusion are those laid down in the former Financial Regulation, which was in force on the date of the single and continuous infringement resulting in the exclusion, which ended in 2017.

19.19 It should be remembered as a preliminary point that 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 to situations existing before their entry into force (see, to that effect, judgments of 12 November 1981, Meridionale Industria Salumi and Others, 212/80 to 217/80, EU:C:1981:270, paragraph 9; of 6 July 1993, CT Control (Rotterdam) and JCT Benelux v Commission, C‑121/91 and C‑122/91, EU:C:1993:285, paragraph 22; and of 26 March 2015, Commission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraph 33). Consequently, the rules applicable to the exclusion procedure at issue are those laid down in the Financial Regulation, which entered into force in 2018, while the substantive rules applicable to that exclusion are those laid down in the former Financial Regulation, which was in force on the date of the single and continuous infringement resulting in the exclusion, which ended in 2017.

20. 20 It must also be observed that Article 106 of the former Financial Regulation and Article 136 of the Financial Regulation are identical in their provisions relevant to the present case.

20.20 It must also be observed that Article 106 of the former Financial Regulation and Article 136 of the Financial Regulation are identical in their provisions relevant to the present case.

21. 21 Thus, in accordance with paragraph 1(c)(ii) of those articles, a person or entity will be excluded from participating in award procedures governed by the Financial Regulation where 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, in particular entering into agreement with other persons or entities with the aim of distorting competition.

21.21 Thus, in accordance with paragraph 1(c)(ii) of those articles, a person or entity will be excluded from participating in award procedures governed by the Financial Regulation where 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, in particular entering into agreement with other persons or entities with the aim of distorting competition.

22. 22 Similarly, in accordance with the first and second subparagraphs of paragraph 2, in the absence of a final judgment or, where applicable, a final administrative decision under paragraph 1(c), the authorising officer responsible will exclude a person or entity on the basis of a preliminary classification in law of a conduct of that person or entity, having regard to established facts or other findings contained in the recommendation of the panel. That preliminary classification does not prejudge the assessment of the conduct of the person or entity concerned by the competent authorities of Member States under national law. The authorising officer responsible will review his or her decision to exclude the person or entity and/or to impose a financial penalty without delay following the notification of a final judgment or a final administrative decision. In cases where the final judgment or the final administrative decision does not set the duration of the exclusion, the authorising officer responsible will set that duration on the basis of established facts and findings and having regard to the recommendation of the panel.

22.22 Similarly, in accordance with the first and second subparagraphs of paragraph 2, in the absence of a final judgment or, where applicable, a final administrative decision under paragraph 1(c), the authorising officer responsible will exclude a person or entity on the basis of a preliminary classification in law of a conduct of that person or entity, having regard to established facts or other findings contained in the recommendation of the panel. That preliminary classification does not prejudge the assessment of the conduct of the person or entity concerned by the competent authorities of Member States under national law. The authorising officer responsible will review his or her decision to exclude the person or entity and/or to impose a financial penalty without delay following the notification of a final judgment or a final administrative decision. In cases where the final judgment or the final administrative decision does not set the duration of the exclusion, the authorising officer responsible will set that duration on the basis of established facts and findings and having regard to the recommendation of the panel.

23. 23 Under the third subparagraph of paragraph 2, where the final judgment or final administrative decision holds that the person or entity is not guilty of the conduct subject to a preliminary classification in law, on the basis of which that person or entity has been excluded, the authorising officer responsible will, without delay, bring an end to that exclusion and/or reimburse, as appropriate, any financial penalty imposed. Furthermore, in accordance with the fourth subparagraph of paragraph 2, the facts and findings referred to in the first subparagraph will include, in particular, facts established in the context of audits or investigations carried out by the Court of Auditors or the European Anti-Fraud Office (OLAF), or any other check, audit or control performed under the responsibility of the authorising officer as well as decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law.

23.23 Under the third subparagraph of paragraph 2, where the final judgment or final administrative decision holds that the person or entity is not guilty of the conduct subject to a preliminary classification in law, on the basis of which that person or entity has been excluded, the authorising officer responsible will, without delay, bring an end to that exclusion and/or reimburse, as appropriate, any financial penalty imposed. Furthermore, in accordance with the fourth subparagraph of paragraph 2, the facts and findings referred to in the first subparagraph will include, in particular, facts established in the context of audits or investigations carried out by the Court of Auditors or the European Anti-Fraud Office (OLAF), or any other check, audit or control performed under the responsibility of the authorising officer as well as decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law.

24. 24 It follows from those provisions that an entity is excluded from participating in the proceedings concerned either where it is established by a final judgment or a final administrative decision that the entity in question is guilty of grave professional misconduct or, in the absence of a final judgment or a final administrative decision, on the basis of a preliminary classification in law of its conduct by the competent authority of the Union in the light of established facts or findings determined, in particular, by decisions of a national competition authority.

24.24 It follows from those provisions that an entity is excluded from participating in the proceedings concerned either where it is established by a final judgment or a final administrative decision that the entity in question is guilty of grave professional misconduct or, in the absence of a final judgment or a final administrative decision, on the basis of a preliminary classification in law of its conduct by the competent authority of the Union in the light of established facts or findings determined, in particular, by decisions of a national competition authority.

25. 25 It follows that the absence of a final judgment or decision establishing the misconduct in question does not preclude the adoption of an exclusion measure by the competent EU authority in order to protect the financial interests of the Union (see, to that effect, judgments of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 76, and of 21 December 2022, Vialto Consulting v Commission, T‑537/18, not published, EU:T:2022:852, paragraph 142).

25.25 It follows that the absence of a final judgment or decision establishing the misconduct in question does not preclude the adoption of an exclusion measure by the competent EU authority in order to protect the financial interests of the Union (see, to that effect, judgments of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 76, and of 21 December 2022, Vialto Consulting v Commission, T‑537/18, not published, EU:T:2022:852, paragraph 142).

26. 26 It must also be inferred from this that the Union legislature intended to allow the competent EU authority to make its own assessment of the acts committed by the economic operator concerned, without waiting for a court to give judgment (see, by analogy, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraph 31). The same applies to the effectiveness of the exclusion system, which implies that it should be applied as quickly as possible, without having to wait for a final judgment (see, to that effect, judgment of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 77).

26.26 It must also be inferred from this that the Union legislature intended to allow the competent EU authority to make its own assessment of the acts committed by the economic operator concerned, without waiting for a court to give judgment (see, by analogy, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraph 31). The same applies to the effectiveness of the exclusion system, which implies that it should be applied as quickly as possible, without having to wait for a final judgment (see, to that effect, judgment of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 77).

27. 27 Moreover, the factors that may be taken into consideration in this respect are specified – in a non-exhaustive list – in the fourth subparagraph of Article 106(2) of the former Financial Regulation and in the fourth subparagraph of Article 136(2) of the Financial Regulation (see paragraph 23 above), and are based in particular on the investigative activities of other Union entities or of the Member States, such that it is irrelevant whether the Union authority concerned does not itself carry out an investigation before adopting an exclusion decision.

27.27 Moreover, the factors that may be taken into consideration in this respect are specified – in a non-exhaustive list – in the fourth subparagraph of Article 106(2) of the former Financial Regulation and in the fourth subparagraph of Article 136(2) of the Financial Regulation (see paragraph 23 above), and are based in particular on the investigative activities of other Union entities or of the Member States, such that it is irrelevant whether the Union authority concerned does not itself carry out an investigation before adopting an exclusion decision.

28. 28 Thus, in the present case, given that there was no final decision because an appeal had been lodged against the CNMC decision and was pending on the date of the contested decision, it was for EU-OSHA to make its own assessment of the conduct of the applicant on the basis of the CNMC decision, which is one of the factors listed by the relevant provisions (see paragraph 23 above), but also on the basis of other relevant elements of the context, including, in particular, the suspension of that decision. The situation governed by Article 106(2) of the former Financial Regulation and by Article 136(2) of the Financial Regulation is precisely the scenario in which the decision potentially serving as the basis for exclusion is not final, either because the time limit for lodging an appeal against that decision has not expired or because such an appeal has been lodged, or because it has been suspended, as in the present case. To take the view, as the applicant does, that a suspended decision can no longer serve as a basis for an exclusion decision would be tantamount to rendering ineffective the possibility provided for by the applicable provisions, as well as Article 106(7)(c) of the former Financial Regulation and Article 136(6)(a) of the Financial Regulation, which encourage persons or entities that have not been the subject of a final judgment to adopt remedial measures designed to demonstrate their reliability despite the decision finding an infringement of competition law (see, to that effect and by analogy, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraph 40; see also the paragraph 55 below).

28.28 Thus, in the present case, given that there was no final decision because an appeal had been lodged against the CNMC decision and was pending on the date of the contested decision, it was for EU-OSHA to make its own assessment of the conduct of the applicant on the basis of the CNMC decision, which is one of the factors listed by the relevant provisions (see paragraph 23 above), but also on the basis of other relevant elements of the context, including, in particular, the suspension of that decision. The situation governed by Article 106(2) of the former Financial Regulation and by Article 136(2) of the Financial Regulation is precisely the scenario in which the decision potentially serving as the basis for exclusion is not final, either because the time limit for lodging an appeal against that decision has not expired or because such an appeal has been lodged, or because it has been suspended, as in the present case. To take the view, as the applicant does, that a suspended decision can no longer serve as a basis for an exclusion decision would be tantamount to rendering ineffective the possibility provided for by the applicable provisions, as well as Article 106(7)(c) of the former Financial Regulation and Article 136(6)(a) of the Financial Regulation, which encourage persons or entities that have not been the subject of a final judgment to adopt remedial measures designed to demonstrate their reliability despite the decision finding an infringement of competition law (see, to that effect and by analogy, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraph 40; see also the paragraph 55 below).

29. 29 It must be observed, in the first place, that EU-OSHA did in fact – in line with the findings established in the panel’s recommendation – take account of the suspension of the CNMC decision, in response to the applicant’s argument based on such a suspension. In recitals 35 to 37 of the contested decision, it began by reiterating that argument, before setting out the reasons why, in its view, that suspension did not, in the present case, prejudge the application of the EU rules. More specifically, EU-OSHA considered that, in the absence of a position on the prima facie case, the national decision to stay enforcement did not raise doubts as to the validity and legality of the CNMC decision and was based on considerations unrelated to the present administrative procedure, serving a different purpose from that for which the national penalty was imposed. EU-OSHA added that this decision was by definition not final and was therefore not binding on it.

29.29 It must be observed, in the first place, that EU-OSHA did in fact – in line with the findings established in the panel’s recommendation – take account of the suspension of the CNMC decision, in response to the applicant’s argument based on such a suspension. In recitals 35 to 37 of the contested decision, it began by reiterating that argument, before setting out the reasons why, in its view, that suspension did not, in the present case, prejudge the application of the EU rules. More specifically, EU-OSHA considered that, in the absence of a position on the prima facie case, the national decision to stay enforcement did not raise doubts as to the validity and legality of the CNMC decision and was based on considerations unrelated to the present administrative procedure, serving a different purpose from that for which the national penalty was imposed. EU-OSHA added that this decision was by definition not final and was therefore not binding on it.

30. 30 In the second place, it should also be noted that EU-OSHA rightly considered that the suspension of the CNMC decision did not preclude the findings of that decision from being taken into account in order to demonstrate the existence of grave professional misconduct on the part of the applicant and to adopt an exclusion measure.

30.30 In the second place, it should also be noted that EU-OSHA rightly considered that the suspension of the CNMC decision did not preclude the findings of that decision from being taken into account in order to demonstrate the existence of grave professional misconduct on the part of the applicant and to adopt an exclusion measure.

31. 31 First, the facts alleged against the applicant are not based on mere supposition or presumption, but were established on the basis of the findings of an investigation carried out by the CNMC (see, to that effect, judgment of 21 December 2022, Vialto Consulting v Commission, T‑537/18, not published, EU:T:2022:852, paragraph 143; see also, by analogy, judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C‑66/22, EU:C:2023:1016, paragraph 78).

31.31 First, the facts alleged against the applicant are not based on mere supposition or presumption, but were established on the basis of the findings of an investigation carried out by the CNMC (see, to that effect, judgment of 21 December 2022, Vialto Consulting v Commission, T‑537/18, not published, EU:T:2022:852, paragraph 143; see also, by analogy, judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias, C‑66/22, EU:C:2023:1016, paragraph 78).

32. 32 Second, the national decision to stay enforcement does not take a position on the merits of the CNMC decision. The findings and considerations of the CNMC decision relating to the applicant’s failure to comply with competition law are therefore in no way called into question, or even doubted, by the national court. That court based its decision to stay enforcement on considerations derived solely from the consequences of the fine imposed and the prohibition on contracting for the applicant’s continued activities. The latter admits, moreover, that the national court did not expressly examine the existence of a prima facie case. In so far as the applicant submits that the national court implicitly but necessarily recognised the plausibility of the applicant’s allegations challenging the CNMC decision – since, according to national case-law, the granting of an interim measure presupposes such plausibility – it should be noted that such implicit considerations cannot, in any event, be sufficient to call into question the explicit considerations and findings of the CNMC decision.

32.32 Second, the national decision to stay enforcement does not take a position on the merits of the CNMC decision. The findings and considerations of the CNMC decision relating to the applicant’s failure to comply with competition law are therefore in no way called into question, or even doubted, by the national court. That court based its decision to stay enforcement on considerations derived solely from the consequences of the fine imposed and the prohibition on contracting for the applicant’s continued activities. The latter admits, moreover, that the national court did not expressly examine the existence of a prima facie case. In so far as the applicant submits that the national court implicitly but necessarily recognised the plausibility of the applicant’s allegations challenging the CNMC decision – since, according to national case-law, the granting of an interim measure presupposes such plausibility – it should be noted that such implicit considerations cannot, in any event, be sufficient to call into question the explicit considerations and findings of the CNMC decision.

33. 33 Furthermore, it is irrelevant that the national decision to stay enforcement suspends not only the payment of the fine imposed by the CNMC decision but also the prohibition on the applicant’s being awarded procurement contracts in Spain, also imposed by that decision. Admittedly, this prohibition is similar to the exclusion ordered by the contested decision, especially since, according to the applicant, certain prohibitions on awarding procurement contracts are not ordered or applied when the operator concerned has adopted remedial measures or compliance measures to repair the damage caused by its illegal conduct. However, as can be seen from paragraph 32 above, the reason for suspending the prohibition on awarding public contracts is independent of the findings and considerations of the CNMC decision and is therefore not such as to call them into question. Thus, even if, as the applicant maintains, the difference in purpose between the exclusion procedure under the EU rules and the national procedure is not sufficient, as such, to preclude the national decision to stay enforcement from being taken into account by EU-OSHA (see paragraph 28 above), the fact remains that, in the present case, the reasons for the suspension of the CNMC decision do not call into question the material existence of the facts applied in the contested decision as the basis for excluding the applicant. Furthermore, the national decision to stay enforcement does not provide any information as to the adoption of remedial measures by the applicant or as to the justification for the suspension by the adoption of such measures.

33.33 Furthermore, it is irrelevant that the national decision to stay enforcement suspends not only the payment of the fine imposed by the CNMC decision but also the prohibition on the applicant’s being awarded procurement contracts in Spain, also imposed by that decision. Admittedly, this prohibition is similar to the exclusion ordered by the contested decision, especially since, according to the applicant, certain prohibitions on awarding procurement contracts are not ordered or applied when the operator concerned has adopted remedial measures or compliance measures to repair the damage caused by its illegal conduct. However, as can be seen from paragraph 32 above, the reason for suspending the prohibition on awarding public contracts is independent of the findings and considerations of the CNMC decision and is therefore not such as to call them into question. Thus, even if, as the applicant maintains, the difference in purpose between the exclusion procedure under the EU rules and the national procedure is not sufficient, as such, to preclude the national decision to stay enforcement from being taken into account by EU-OSHA (see paragraph 28 above), the fact remains that, in the present case, the reasons for the suspension of the CNMC decision do not call into question the material existence of the facts applied in the contested decision as the basis for excluding the applicant. Furthermore, the national decision to stay enforcement does not provide any information as to the adoption of remedial measures by the applicant or as to the justification for the suspension by the adoption of such measures.

34

34

It also follows from the balancing exercise correctly carried out by EU-OSHA in the present case between the CNMC decision and the national decision to stay enforcement that it cannot be accused of either a permitting conflict between the grounds of the contested decision and those of the national decision to stay enforcement, or of a failure to coordinate with the national authorities which would undermine the principle of sincere cooperation laid down in Article 4(3) TEU and the provisions intended to counter fraud governed by Article 325 TFEU.

35

It follows that the first limb of the first plea in law must be rejected.

The second limb, alleging infringement of Article 47 of the Charter and of Article 19(1) TEU

36

The applicant submits that, by rendering the national decision to stay enforcement irrelevant, the contested decision calls into question the judicial protection that it obtained from the national court and, consequently, infringes Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 19(1) TEU. Respect for national court proceedings is all the more necessary in the case of ‘composite proceedings’, such as the exclusion procedure, in which the Union authorities take their decisions on the basis of national decisions. The applicant adds that the right to request a review of the exclusion decision or the opportunity to submit observations to the competent panel or authorising officer represent administrative safeguards, which prevent any replacement of the guarantees relating to review of the legality of acts adversely affecting an individual and of compliance with court rulings that are characteristic of effective judicial protection.

37

According to settled case-law, the principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 35 and the case-law cited).

38

It is also clear from the case-law that the effects of bringing administrative or legal proceedings are closely linked to the exercise and safeguard of fundamental rights in relation to judicial protection, respect for which is also guaranteed by the Community legal order and that legislation that paid no heed to the effects of bringing administrative or legal proceedings on the opportunity to participate in a procedure for the award of a contract would risk infringing the fundamental rights of the parties concerned (see, by analogy, judgment of 9 February 2006, La Cascina and Others, C‑226/04 and C‑228/04, EU:C:2006:94, paragraph 38).

39

However, it cannot be considered that, in the present case, the national decision to stay enforcement was disregarded and that the applicant’s right to judicial protection was infringed.

40

In fact, on the one hand, as can be seen from paragraphs 29 to 33 above, this decision was duly taken into account by the panel and then by EU-OSHA in the contested decision. In particular, EU-OSHA rightly considered that, in the absence of a position on the merits of the CNMC decision in the national decision to stay enforcement, it could rely on the findings of that decision to establish that grave professional misconduct had taken place and adopt an exclusion measure (see paragraphs 30 and 32 above). In addition, under the applicable provisions, if there is no final judgment or final decision, an exclusion penalty can only be ordered on the basis of a preliminary classification in law of the conduct at issue by the panel, taking into account all the relevant factors, including the suspension of the CNMC decision (see paragraphs 22, 23 and 28 above), a preliminary classification in law on which the applicant has, moreover, had the opportunity to present its observations (see paragraph 10 above) in accordance with Article 143(5) of the Financial Regulation. As the applicant argues, these are certainly administrative safeguards, but they do ensure that the national court decision is duly taken into account. It is also important to emphasise that the contested decision, which excludes the applicant from procurement contracts awarded by EU administrations, in no way calls into question the effects of the national decision to stay enforcement, in that it suspends the prohibition on award of contracts with Spanish government departments.

41

On the other hand, as is clear from paragraphs 24 to 26 above, it follows from the applicable provisions that, if there is no final judgment or final decision, as in the present case, the EU authority is not bound by administrative or judicial decisions taken at national level and thus has the power to exclude a person or entity – in this case the applicant – from procedures for the award of EU public contracts on the basis of a preliminary classification in law of its conduct.

42

The exercise of this right does not infringe Article 47 of the Charter. The existence – not contested by the applicant and confirmed by the present action – of a remedy to challenge the contested decision before the courts of the European Union specifically makes it possible to ensure that the applicant is afforded judicial protection. In particular, the General Court has jurisdiction in the present case both to annul the contested decision and to review that decision, by virtue of its unlimited jurisdiction under Article 143(9) of the Financial Regulation (judgment of 9 February 2022, Elevolution – Engenharia v Commission, T‑652/19, not published, EU:T:2022:63, paragraph 80; see also paragraph 127 below). Interim judicial protection is also safeguarded by the judge of the General Court hearing the application for interim measures, who has the power to order a stay of enforcement of the contested decision, in particular if that party believes, as in the present case, that it is not possible to rule out, prima facie, that EU-OSHA should have drawn the necessary conclusions from the national decision to stay enforcement (order of 14 July 2023, VC v EU-OSHA, T‑126/23 R, not published, EU:T:2023:405, paragraph 51).

43

Therefore, it is not appropriate to give the national decision to stay enforcement the same effect as that given to final decisions or judgments that require the EU authorities to exclude the person or entity concerned, in accordance with Article 136(1) of the Financial Regulation, or, where applicable, to allow the participation of that person or entity in EU public procurement procedures. If the power of the EU authorities to exclude a party from such a procedure were to be paralysed by the mere fact of the lodging of an appeal with suspensory effect against the national decision that might serve as a basis for the exclusion or of a suspension of that decision, such a power would be rendered ineffective (see, to that effect and by analogy, judgment of 19 June 2019, Meca, C‑41/18, EU:C:2019:507, paragraphs 37 and 38).

44

It should be added that in the event that the national decision to stay enforcement is followed by a final judgment annulling the CNMC decision, the third subparagraph of Article 136(2) of the Financial Regulation provides that the authorising officer is to terminate the exclusion without delay, thereby giving full effect to the national court decision and at the same time guaranteeing the applicant’s judicial protection, which attaches in this case to the national court decision, a decision that is binding on the EU authority.

45

It follows that the second limb of the first plea must be dismissed, and that plea must therefore also be dismissed.

The second plea, concerning the remedial measures adopted by the applicant

46

The applicant asserts that the contested decision contains serious errors of assessment and infringes Article 106(7)(a) of the former Financial Regulation and Article 136(6)(a) of the Financial Regulation, since, on the basis of the information it provided to EU-OSHA, that body should have found that the applicant had implemented sufficient remedial measures. However, for each of the remedial measures, EU-OSHA demanded a disproportionate level of proof from the applicant, without giving it any opportunity to correct or supplement the information requested. In this respect, the applicant alleges that there was a lack of any independent assessment of those measures by the panel and that it relied on the CNMC’s assessment even though the latter is based on different documents. The applicant also asserts that the broad discretionary power concerning the award of a public contract cannot be applied to a penalty decision that goes beyond the framework of a specific procurement procedure and causes significant damage that would not result from the simple non-award of a contract.

47

The applicant adds that, in so far as the General Court has unlimited jurisdiction to review the contested decision pursuant to Article 143(9) of the Financial Regulation, based on Article 261 TFEU, it is submitting new documents in the present proceedings attesting to the reliability of the remedial measures. It stresses in this respect that remedial measures are not constituent elements of the infringement over which the Court would not have jurisdiction. According to the applicant, in any event, irrespective of that unlimited jurisdiction, those documents will be relevant for reviewing the legality of the contested decision, in so far as they relate to remedial measures adopted prior to that decision.

48

By way of conclusion, the applicant notes in its reply that it has not engaged in any anti-competitive practices since 2018, which demonstrates that the system it has put in place, as a whole, offers the required degree of reliability. For the sake of completeness, it has annexed to its reply a number of documents attesting to this reliability.

49

As a preliminary point, it should be borne in mind that the applicant does not dispute before the Court that it committed the infringement identified and punished by the CNMC decision. Neither does it dispute that its exclusion as a result of that finding of an infringement of Spanish competition law and Article 101 TFEU constitutes a penalty.

50

However, the applicant contests its exclusion in this case on the grounds of grave professional misconduct, on the basis that it adopted remedial measures demonstrating its reliability, in accordance with Article 106(7)(c) of the former Financial Regulation and Article 136(6)(a) of the Financial Regulation, the legal provisions successively applicable in the present case, having regard to the date of adoption of the remedial measures in question.

51

Before examining the applicant’s arguments challenging EU-OSHA’s assessment of the remedial measures adopted, it is appropriate, first, to clarify the nature of the jurisdiction and the extent of the review that the Court may exercise over the assessments in question, which are also at issue between the parties.

The nature of the General Court’s jurisdiction and the extent of its review of the remedial measures

52

Pursuant to Article 143(9) of the Financial Regulation:

‘The Court of Justice of the European Union shall have unlimited jurisdiction to review a decision whereby the authorising officer excludes a person or entity referred to in Article 135(2) and/or imposes a financial penalty on a recipient, including annulling the exclusion, reducing or increasing its duration and/or annulling, reducing or increasing the financial penalty imposed …’

53

In so doing, the EU legislature made use of the option offered by Article 261 TFEU, which establishes that ‘regulations adopted jointly by the European Parliament and the Council, and by the Council pursuant to the provisions of the Treaties, may give the Court of Justice of the European Union unlimited jurisdiction with regard to the penalties provided for in such regulations’.

54

Article 143(9) of the Financial Regulation should therefore be interpreted in the light of Article 261 TFEU, such that the scope of that unlimited jurisdiction is strictly limited to determining the amount of the penalty, to the exclusion of any alteration of the constituent elements of the conduct justifying that penalty (see, by analogy, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 76 and 77 and the case-law cited).

55

In the present case, contrary to what the applicant maintains, examination of the remedial measures must be considered as part of the assessment of that conduct. Under Article 106(7)(c) of the former Financial Regulation and Article 136(6)(a) of the Financial Regulation, the relevant authorising officer ‘shall not exclude’ a person or entity if that person or entity ‘has taken remedial measures … to an extent that is sufficient to demonstrate its reliability’. This provision therefore establishes that an operator that has taken certain remedial measures demonstrating its reliability cannot be excluded from procurement contracts (judgment of 27 June 2017, NC v Commission, T‑151/16, EU:T:2017:437, paragraph 58). In accordance with the objective of protecting the financial interests of the EU pursued by the exclusion penalty (see, to that effect, judgment of 21 December 2022, Vialto Consulting v Commission, T‑537/18, not published, EU:T:2022:852, paragraphs 159 and 164; see also paragraph 25 above), there is no reason to exclude an offending operator that has become reliable once again. In this case, the grave professional misconduct initially observed has been corrected to the point where it no longer constitutes grounds for exclusion. The assessment to be made of the remedial measures is therefore, essentially, a verification of the continued existence of the grave professional misconduct – inferred in this case from the infringement established by a national authority – and of the possibility of its recurrence, which is a matter of assessing the conduct of the operator concerned, and the factual circumstances directly linked to it, and not of assessing its penalty.

56

It is irrelevant in this respect that the remedial measures are generally implemented after the infringement established by the national authority has occurred. As is clear from paragraphs 26 to 28 above, such a finding of infringement by a national authority is merely a preliminary step that may lead, following the assessment by the EU authority (see, to that effect, judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 29), to the latter finding that grave professional misconduct has occurred. The conduct, that must be distinguished from the penalty for the purposes of determining the scope of unlimited jurisdiction, is not limited – in the field of public procurement, particularly in view of the two-stage procedure laid down in the Financial Regulation – to the infringement established by a national authority and its constituent elements, but includes other elements, possibly subsequent to that infringement that could lead the Union authority to infer that the operator concerned is reliable despite that infringement.

57

It follows that the Court cannot exercise its unlimited jurisdiction, as provided for in Article 143(9) of the Financial Regulation, for the purposes of considering the present plea in law. It cannot therefore substitute its own assessment of the remedial measures in question for that of EU-OSHA and will confine itself to reviewing the legality of that assessment.

58

It must be made clear, first, in view of the different positions expressed by the parties on this point, that this review of legality is limited to verifying compliance with the rules of law, in particular the procedural rules and the obligation to state reasons, the material accuracy of the facts and the absence of manifest error of assessment or misuse of powers (see judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 30 and the case-law cited). As regards the assessment by the EU Courts as to whether an act of an institution is vitiated by a manifest error of assessment, it must be stated that, in order to establish that that institution committed a manifest error in assessing complex facts such as to justify the annulment of that act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the act implausible (see, to that effect, judgments of 12 December 1996, AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, paragraph 59, and of 28 February 2012, Grazer Wechselseitige Versicherung v Commission, T‑282/08, EU:T:2012:91, paragraph 158). Subject to that review of plausibility, it is not the Court’s role to substitute its assessment of complex facts for that made by the institution that adopted the decision (judgments of 15 October 2009, Enviro Tech (Europe), C‑425/08, EU:C:2009:635, paragraph 47, and of 12 February 2008, BUPA and Others v Commission, T‑289/03, EU:T:2008:29, paragraph 221).

59

In so far as the institutions have a margin of discretion in assessing whether conduct can be classified as grave professional misconduct (judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 30; see also, by analogy, judgments of 4 July 2008, Entrance Services v Parliament, T‑333/07, not published, EU:T:2008:250, paragraph 59, and 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) and where the assessment of remedial measures is an integral part of the assessment of such conduct (see paragraph 55 above), a margin of discretion must also be granted to them in assessing those remedial measures.

60

It should be added – in response to the applicant – that the potential consequences of the exclusion decision, which go beyond the framework of a specific procurement procedure and cause significant damage to the excluded entity, are factors to be taken into consideration in the exercise of the discretionary power available to the institution and cannot, in themselves, call into question that margin of discretion.

61

There is also a need to specify the factors that may be taken into account by the Court in order to review the legality of EU-OSHA’s assessment of the remedial measures adopted by the applicant, given the differences between the parties in that regard.

62

It is clear from the case-law in competition matters that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the Court, in the light of the pleas raised by the applicants and taking into account all the elements submitted by them, whether those elements pre-date or post-date the decision at issue, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the Court, in so far as those elements are relevant to the review of the legality of the Commission decision (judgments of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72, and of 14 September 2022, Google and Alphabet v Commission (Google Android), T‑604/18, under appeal, EU:T:2022:541, paragraph 89).

63

Contrary to the applicant’s claims, it cannot be inferred from this case-law that, in the present case, the Court should take into account documents submitted to it by the applicant in the context of the present proceedings without having first been submitted in the course of the administrative procedure before EU-OSHA.

64

In accordance with Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (see judgment of 8 September 2016, Lundbeck v Commission, T‑472/13, EU:T:2016:449, paragraph 105 and the case-law cited). It is then possible for the undertaking concerned to adduce evidence to the contrary, including by relying on evidence that had not been presented during the administrative procedure (see judgment of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 43 and the case-law cited).

65

On the other hand, by establishing that a person or entity will not be excluded if that person or entity has implemented sufficient remedial measures to demonstrate its reliability, Article 106(7)(c) of the former Financial Regulation and Article 136(6)(a) of the Financial Regulation place the onus on the person or entity in question to establish that the remedial measures adopted are such as to prevent exclusion (see also Article 106(10) of the former Financial Regulation and Article 137(1) of the Financial Regulation). It follows that, unless the burden of proof imposed by those provisions is rendered ineffective, the operator concerned cannot be allowed to adduce evidence before the Court that was not submitted during the exclusion procedure, in order to obtain the annulment of the decision that imposed its exclusion because no evidence had been submitted by that operator that was deemed sufficient to demonstrate its reliability. A fortiori, the Court cannot rule in these proceedings on remedial measures not presented before EU-OSHA.

66

This is all the more true given that Article 136(8) of the Financial Regulation governs the case of remedial measures or elements presented after the exclusion decision, stipulating in such cases that the decision will be reviewed without delay by the authorising officer responsible. It would be prejudicial to the proper administration of justice and to the principle of institutional balance if the Court were to rule on new remedial measures or new evidence submitted, where applicable, at the same time as the authorising officer and that might lead that officer to review the contested decision in the course of the procedure (see, to that effect, judgment of 13 May 2020, Agmin Italy v Commission, T‑290/18, not published, EU:T:2020:196, paragraphs 46 and 47). Such a risk is, moreover, real in the present case, since the applicant submitted a request for review pursuant to Article 136(8) of the Financial Regulation to EU-OSHA on 21 November 2023, in the course of the present proceedings, attaching to it the items appearing in the annex to the application and the reply, without first having submitted those elements to EU-OSHA.

67

The situation would be different if, in the course of the procedure before it, EU-OSHA had not allowed the applicant to present all the evidence it wished to put forward to establish that the remedial measures it had adopted demonstrated its reliability (see, to that effect and by analogy, judgment of 7 June 2023, TC v Parliament, T‑309/21, under appeal, EU:T:2023:315, paragraph 131 and the case-law cited). However, that is not the position in the present case.