Judgment — ECLI:EU:T:2018:755
Date: 2018-11-08
Language of the case: German
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - unfounded
Origin: Germany

Summary — Judgment of the General Court (Ninth Chamber), 8 November 2018 1. Judicial proceedings — Burden of proof, etc. — Documentary evidence — Sworn statement — Probative value — Assessment by the EU judicature — Criteria 2. EU law — Principles — Rights of defence — Right to be heard — Scope (Charter of Fundamental Rights of the European Union, Art. 41(1)) 3. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility (Rules of Procedure of the General Court, Art. 84(1)) 4. EU budget — Financial regulation — Administrative sanctions which may be imposed by the Commission — Exclusion of an operator from a public procurement procedure — Imposition of a financial penalty — Judicial review — Obligation of the EU judicature to examine of its own motion the lawfulness of the measure — None (European Parliament and Council Regulation No 966/2012, as amended by Regulation No 2015/1929, Art. 108(11)) 1. Although a sworn statement may have a probative value, in order to assess that value it is necessary to check the probability and the veracity of the account contained in the statement, by taking account of, inter alia, the person from whom the document originates, the circumstances in which it came into being, the person to whom it is addressed and whether, on its face, the document appears sound and reliable. (see para. 39) 2. See the text of the decision. (see para. 56) 3. See the text of the decision. (see paras 70, 85-87) 4. Pursuant to Article 108(11) of Regulation No 966/2012 on the financial rules applicable to the general budget of the Union, as amended by Regulation 2015/1929, the Court has unlimited jurisdiction to review a decision whereby the contracting authority excludes an economic operator and/or imposes on it a financial penalty, including reducing or increasing the duration of the exclusion and/or cancelling, reducing or increasing the financial penalty imposed. However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas. The failure to review the whole of the contested decision of the Court’s own motion does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file. (see paras 82, 83)