Judgment;Judgment (extracts) — ECLI:EU:T:2018:889
Date: 2018-12-07
Language of the case: Italian
Court formation: Third Chamber
Subject matter: Public procurement in the European Union
Procedure: Action for annulment - successful;Action for annulment - inadmissible
Origin: Italy

Summary — Judgment of the General Court (Third Chamber), 7 December 2018 1. EU law — Principles — Rights of defence — Right to be heard — Scope (Charter of Fundamental Rights of the European Union, Art. 41(1)) 2. EU budget — Financial regulation — Administrative penalties which may be imposed by the Commission — Exclusion of an operator from a public procurement procedure — Notification by the Commission of the classification in law of the material fact and of the penalty considered — Notification by e-mail — Proof of receipt — Automatic generation, by the addressee’s computer system, of a read receipt — Insufficient to establish receipt of the notification (European Parliament and Council Regulation No 966/2012, as amended by Regulation No 2015/1929, Art. 108(8)(c)) 1. See the text of the decision. (see paras 42-44) 2. It is clear from Article 108(8)(c) of Regulation No 966/2012 on the financial rules applicable to the general budget of the Union, as amended by Regulation 2015/1929, that, before adopting any recommendation, the panel established under Article 108 is to give the economic operator and the notified contracting authorities the opportunity to submit observations. However, the applicable legislation does not specify the means of communication by which the economic operator is to be notified by the panel established under Article 108 of the classification in law of the facts in question and the penalty considered. In that regard, a letter from the Commission containing the classification in law of the facts in question and the penalty considered by the panel established under Article 108 is properly notified provided that it is communicated to its addressee and the addressee is placed in a position to become aware of it. Thus, it is for the Commission to ensure the effectiveness of the right to be heard, and consequently, it is for the Commission to show that it placed the applicant in a position in which it can effectively make known its views as regards the information on which the Commission intends to base its decision. In those circumstances, it was not sufficient for the Commission to rely on the read receipt to prove that the applicant had been placed in a position to become aware of the letter at issue or that the applicant was aware of the existence or dispatch of such a letter. A read receipt is an email generated and sent automatically by the addressee’s computer system without any manual intervention on the part of the addressee and, therefore, without the addressee necessarily being made aware of the existence of that email. Moreover, although notification by registered letter with acknowledgement of receipt is not the only possible means of notification of administrative decisions, it remains a particularly safe solution due to the specific guarantees it offers both to the individual concerned and to the administration, especially when the individual concerned is external to the institutions. One of those guarantees is the confirmation afforded by the addressee’s signature on the acknowledgement of receipt that the addressee knows that a letter is addressed to him and requires his attention. A read receipt differs from a postal acknowledgement of receipt in that it offers no such guarantee. Unlike the signature on an acknowledgement of receipt by the addressee of a letter, or the composing and sending of a confirmation of receipt of an email by its addressee, a read receipt, which is generated and sent automatically by the addressee’s computer system, does not enable it to be established beyond doubt that the addressee was aware of or was placed in a position to become aware of the letter at issue on the day that the read receipt was sent. (see paras 45-47, 60-62)