JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
29 June 2022 (*) (1)
(Pre-Accession Assistance Instrument – OLAF investigation – Commission decision imposing an administrative sanction – Exclusion from procurement and grant award procedures covered by the general budget of the European Union for a period of four years – Registration in the early detection and exclusion system database – Financial regulation – Unlimited jurisdiction – Proportionality of the sanction)
In Case T‑609/20,
LA International Cooperation Srl, established in Milan (Italy), represented by B. O’Connor and M. Hommé, lawyers,
applicant,
v
European Commission, represented by R. Pethke, acting as Agent,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, E. Buttigieg and G. Hesse (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action based on Article 263 TFEU, the applicant, LA International Cooperation Srl, formerly Lattanzio e Associati SpA, seeks annulment of the decision of the European Commission of 20 July 2020 excluding it, for a period of four years, from participating in procurement and grant award procedures covered by the general budget of the European Union and participation in procedures for the award of funds governed by Council Regulation (EU) 2015/323 of 2 March 2015 on the financial regulation applicable to the 11th European Development Fund (OJ 2015 L 58, p. 17), and ordered the publication of that exclusion on the Commission’s website (‘the contested decision’).
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, including the Republic of North Macedonia, in the progressive alignment with its standards and policies.
3        In the framework of two national programmes in favour of the Republic of North Macedonia, adopted under the component ‘Transition Assistance and Institution Building’ of the Instrument for Pre-Accession Assistance (IPA), two contracts were awarded to the applicant.
4        The object of the first contract, concluded on 15 April 2013, was technical assistance to the Ministry of Information Society and Administration of the Republic of North Macedonia and the strengthening of the implementation of the national system for training coordination. The final contribution of the European Union paid under that contract amounted to EUR 982 631.65.
5        The object of the second contract, concluded on 19 November 2015, was the implementation of legislation on the mutual recognition of professional qualifications. The contribution of the European Union paid under that contract was EUR 771 620.20.
6        On 27 May 2016, following information provided by the Delegation of the European Union to Skopje (North Macedonia), the European Anti-Fraud Office (OLAF) opened investigation OF/2016/0312/A 2 into potential acts of fraud and corruption committed in the context of IPA-funded projects implemented in North Macedonia.
7        On 3, 4 and 5 October 2017, as part of that investigation, OLAF carried out on-the-spot checks, including a digital forensic operation at the applicant’s premises in Milan (Italy).
8        On 18 July 2018, OLAF delivered its final report. In particular, it found that, during the period between October 2012 and January 2017, (i) the procurement procedures for the contracts referred to in paragraphs 4 and 5 above had been manipulated by the applicant and its associates in North Macedonia in order to ensure the award of those contracts in exchange for bribes offered and paid to officials in the public administration of the country, (ii) the payment of bribes was organised by A, the Director of International Cooperation of the group to which the applicant and its associates belonged, (iii) B, a partner in the group to which the applicant belonged and the sole administrator of the applicant, was also aware of the applicant’s activities in North Macedonia and authorised them, (iv) the CV of an expert submitted as part of the bid relating to the procurement procedure referred to in paragraph 5 above presented false information with regard to the person’s qualifications and past experience, (v) the applicant was doing favours for high level officials in the public administration of the Republic of North Macedonia by agreeing to hire the non-key experts they had recommended and by maintaining close relations with those officials, and (vi) as a result, the applicant had an undue competitive advantage over other bidders, thereby distorting competition (‘the activities at issue’).
9        Following the OLAF final report, 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 Panel’), received a request for a recommendation under Article 143(6) of that regulation.
10      On 9 August 2019, OLAF sent, by registered letter with acknowledgement of receipt, a letter to the applicant, the subject of which was ‘Notification of closure of investigation to the persons concerned’ (‘the letter closing the investigation’).
11      By letter dated 21 February 2020, the Panel notified the applicant of the facts concerned, their preliminary classification in law and the administrative sanctions envisaged and requested it to submit its observations (‘the notification letter’). A version of the OLAF final report expunged of personal data was annexed to that letter.
12      By letter dated 19 March 2020, the applicant requested an additional period of eight weeks to submit its observations to the Panel, which it was granted. By letter of 21 April 2020, the Commission submitted its observations within the period prescribed.
13      On 3 July 2020, the Panel made its recommendation.
14      By the contested decision, following the recommendation of the Panel, the Commission excluded the applicant, for a period of four years, from participating in procurement and grant award procedures financed by the general budget of the European Union and from participating in procedures for the award of funds under Regulation 2015/323 and ordered the publication of that exclusion on its website.
Forms of order sought
15      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
16      The Commission contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
17      In support of the action, the applicant raises three categories of complaint, the first relating to the procedure before OLAF, the second relating to the proceedings before the Panel and the third relating to the merits of the contested decision. It also disputes the appropriateness of the sanction imposed.
The complaints relating to the procedure before OLAF
Breach of the obligation to inform the person concerned in the context of an OLAF investigation
18      The applicant submits, in essence, that it was never informed that it was a person concerned by the OLAF investigation, 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), and of other fundamental principles of EU law, namely the principle of good administration, the duty of care, the right to a fair hearing and the prohibition of abuse of rights. Even though OLAF carried out an on-the-spot check in 2017, that check does not constitute a valid notification that it was a person concerned within the meaning of Article 9 of Regulation No 883/2013. Nor can the letter closing the investigation be regarded as a valid notification, since it was addressed to A, who was not the applicant’s legal representative. Not having been duly informed that it was a person concerned, the applicant could not challenge in good time the OLAF Director-General’s decision to defer its right to comment on the facts concerning it.
19      The Commission disputes that line of argument.
20      As a preliminary point, it should be noted that, according to the contested decision, that decision is based exclusively on the expunged OLAF final report made available to the Panel and communicated as such to the applicant (paragraph 21 of the contested decision). In paragraph 19 of the contested decision, the Commission considered that the applicant’s claim that OLAF had breached the procedural guarantees laid down by Regulation No 883/2013 was unfounded and that, therefore, it could legitimately rely upon the information contained in that report in reaching its decision.
21      It is that conclusion which the applicant disputes by its complaints relating to the procedure before OLAF.
22      Regarding more specifically the obligation to inform the person concerned in the context of an OLAF investigation, Article 9(3) of Regulation No 883/2013 provides that, 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 is to be informed to that effect, provided that that does not prejudice the conduct of the investigation or of any investigative proceedings falling within the remit of a national judicial authority.
23      The same applies to OLAF’s external investigation procedure (see, to that effect, judgment of 20 July 2016, Oikonomopoulos v Commission, T‑483/13, EU:T:2016:421, paragraphs 229 and 230) and where the person concerned, within the meaning of Article 9 of Regulation No 883/2013, is a legal person, as is apparent from Article 2(5) of the same regulation. In that case, where it is apparent from such an investigation that an economic operator might be concerned by it, that operator should be informed of it, provided that that information does not prejudice the conduct of the investigation or of any investigative proceedings falling within the remit of a national judicial authority.
24      In the present case, it is apparent from the file that, on 3 October 2017, OLAF visited the applicant’s registered office in order to carry out an on-the-spot check. In accordance with Article 7(2) of Regulation No 883/2013, OLAF’s staff were to carry out their tasks on production of a written authorisation issued by the Director-General of OLAF showing their identity and their capacity. As is apparent from Annex A.14 produced by the applicant, the authorisation in question indicated the subject matter and the purpose of the investigation, the legal bases for conducting the investigation and the investigative powers stemming from those bases. According to that authorisation, the investigation concerned potential irregularities and acts of fraud and corruption committed in the framework of IPA-financed projects implemented in North Macedonia by the applicant. The purpose of the investigation was to find evidence for and against the applicant’s possible involvement.
25      The report on that on-the-spot check submitted to the Court by the applicant confirms that OLAF investigators informed the applicant that an investigation was ongoing concerning potential irregularities and acts of fraud and corruption committed in the context of IPA-funded projects implemented in North Macedonia by itself. That report bears the signature of the applicant’s legal representative.
26      In those circumstances, it must be held that, as early as 3 October 2017, the applicant knew that an OLAF investigation concerning the IPA-funded projects it had implemented in North Macedonia was ongoing, which it does not dispute.
27      In addition, on 9 August 2019, OLAF sent, by registered letter with acknowledgement of receipt, a letter to the applicant in which it informed it that that investigation had been closed and that, in the context of that investigation, it was regarded as a person concerned. In that letter, OLAF also indicated that it had recommended, first, that the Commission undertake certain measures, in particular the inclusion of the applicant in the Early Detection and Exclusion System and, second, that the Italian judicial authorities initiate proceedings against it and that, to those ends, it had transmitted its final report to the Commission and to the Milan public prosecutor’s office. Furthermore, that letter specified that, pursuant to the third subparagraph of Article 9(4) of Regulation No 883/2013, the Director-General of OLAF had decided, on 20 June 2018, to defer the applicant’s right to comment on the facts concerning it because it was necessary to preserve the confidentiality of the investigation and because the case entailed the use of investigative proceedings falling within the remit of a national judicial authority in Italy and in North Macedonia.
28      However, the applicant submits that the letter closing the investigation was not properly notified to it, in breach of Article 9(3) of Regulation No 883/2013.
29      In that regard, according to the case-law, a decision – and, a fortiori, the letter closing the investigation – is properly notified provided that it is communicated to the person to whom it is addressed and the latter is put in a position to become acquainted with it (judgments of 21 February 2018, LL v Parliament, C‑326/16 P, EU:C:2018:83, paragraph 48, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 47).
30      In order to prove that the letter closing the investigation was properly notified to the applicant, the Commission has produced, as an annex to its defence, that letter and the acknowledgement of receipt of that letter. It is apparent from that annex that the letter closing the investigation was received by the applicant on 14 August 2019. It is common ground that the letter did indeed reach the applicant’s registered office. The applicant after all acknowledges in the application that, in February 2020, it consulted its archives and found the letter in question. According to the applicant, the letter closing the investigation had not been opened since its receipt on 14 August 2019. It maintains, however, that that letter cannot be regarded as having been properly notified to it within the meaning of the case-law cited in paragraph 29 above since it was addressed to A, who was not its legal representative.
31      It is true that, in addition to the applicant’s name and the address of its registered office, the letter closing the investigation and the acknowledgement of receipt bore A’s name and the words ‘Project Director’.
32      However, as the Commission rightly contends, it follows from the case-law that, given that the registered office of a company is the only place which is required to be mentioned in the company’s official documents and to be recorded in the public registers, the notification of a measure to a company’s registered office meets in all cases the requirement of legal certainty and makes it possible for the company to take cognisance of the measure notified (order of 4 July 2019, Daico International v EUIPO, C‑36/19 P, not published, EU:C:2019:568, paragraph 5; see also, to that effect, judgment of 15 December 1994, Bayer v Commission, C‑195/91 P, EU:C:1994:412, paragraph 21). The existence of valid notification of a measure to its addressee is thus in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the company addressed. A company, such as the applicant, therefore has no right to require the notification of a measure to a particular person (see, to that effect, orders of 20 November 2012, Shahid Beheshti University v Council, T‑120/12, not published, EU:T:2012:610, paragraph 38, and of 22 November 2018, Daico International v EUIPO – American Franchise Marketing (RoB), T‑356/17, not published, EU:T:2018:845, paragraph 37 and the case-law cited).
33      In the present case, since it is not disputed that the letter closing the investigation was delivered to the applicant’s registered office, it must be considered, first, that that letter was properly notified to the applicant and, second, that the fact that that letter mentioned A and not the applicant’s legal representative does not alter that conclusion. It must therefore be held that, contrary to what it maintains, the applicant was informed that it was a person concerned as soon as the disclosure of that information was no longer likely to prejudice the conduct of the investigation, in accordance with Article 9(3) of Regulation No 883/2013.
34      Moreover, in so far as the applicant duly received the letter closing the investigation informing it that the Director-General of OLAF had decided to defer its right to comment, the assertion that it was impossible for it to challenge that decision in good time has no factual basis.
35      Consequently, all the complaints alleging breach of the obligation to inform the person concerned by an OLAF investigation must be rejected, without it being necessary to rule on the Commission’s arguments challenging their admissibility.
36      In that context and for the same reasons, the applicant’s claims concerning alleged breaches of other fundamental principles of EU law, namely the principle of good administration, the duty of care, the right to a fair hearing and the prohibition of abuse of rights, which are not supported by any independent argument, must be rejected.
Breach of the right of the person concerned to be heard before conclusions concerning it are drawn
37      The applicant claims, in essence, that it was not given an opportunity to put forward its comments on the OLAF report before it was finalised. The decision of the Director-General of OLAF to defer the applicant’s right to comment on that report thus breaches its right to a fair trial and its right under Article 9(4) of Regulation No 883/2013 to be heard before conclusions concerning it are drawn. That decision is moreover not sufficiently reasoned. The applicant considers that, in those circumstances, the OLAF final report could not serve as a basis for the contested decision.
38      The Commission disputes that line of argument.
39      Under Article 9(4) of Regulation No 883/2013, a person concerned must be given the opportunity to comment on facts concerning him or her once the investigation has been completed and before conclusions are drawn up, except in duly justified cases where it is necessary to preserve the confidentiality of the investigation or entailing the use of investigative proceedings falling within the remit of a national judicial authority. In such cases, the Director-General of OLAF may decide to defer the fulfilment of the obligation to invite the person concerned to comment.
40      In the present case, the Director-General of OLAF decided, on 20 June 2018, to defer the applicant’s right to comment on the facts concerning it. The applicant was informed of this by the letter closing the investigation.
41      So far as concerns the reasoning for the decision of the Director-General of OLAF contained in that letter, it must be recalled 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).
42      According to the letter closing the investigation, the decision to defer the applicant’s right to comment was taken in order to preserve the confidentiality of the investigation and on account, in particular, of the use of investigative proceedings by the Italian judicial authorities. In that regard, it should be noted that that letter expressly stated that OLAF had recommended to the Italian judicial authorities that proceedings be initiated against the applicant and had transmitted its report to them to that end.
43      Thus, a reading of that letter shows that the statement of reasons in question is appropriate to the nature of the decision and discloses in a clear and unequivocal fashion the reasoning followed by the institution which adopted it in such a way as to enable the applicant to ascertain the reasons for the measure and to enable the Court to exercise its power of review. As regards the accuracy of the facts adduced in that letter, it is apparent from the file, in particular from the documents produced by the applicant, that the Milan public prosecutor’s office did in fact receive the OLAF final report and ultimately decided to initiate proceedings against the applicant and other persons.
44      Furthermore, the applicant challenges the grounds on which the decision to defer its right to comment was based, which confirms that OLAF’s letter provided it with sufficient information to enable it to assess whether that decision was well founded or whether it might be vitiated by a defect permitting its legality to be contested.
45      As regards those grounds, the applicant maintains that it was not necessary to defer its right to comment in order to preserve the confidentiality of the investigation given that it already knew, as a result of the checks carried out at its registered office, that an investigation had been opened, that documents had been seized from its premises and that some of its employees had been questioned. Nor did the disclosure of the OLAF final report to the applicant create a risk of leakage or falsification of evidence, since all the documents and witness statements had already been gathered during the on-the-spot checks.
46      In that regard, it must be stated that, in cases necessitating the maintenance of confidentiality for the purposes of an investigation and requiring the use of investigative proceedings falling within the remit of a national judicial authority, OLAF has a margin of discretion when deciding whether to defer the right of an individual concerned to comment (see, to that effect, judgments of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 154, and of 6 June 2019, Dalli v Commission, T‑399/17, not published, EU:T:2019:384, paragraph 135). In the present case, the applicant merely assumes that, due to the on-the-spot checks, maintaining confidentiality, at the stage of the closure of OLAF’s investigation, was unnecessary and that disclosure of the OLAF final report would not have impeded the proper conduct of the national investigation. Such a general assertion is not such as to call into question the reasons which led the Director-General of OLAF to decide to defer its right to comment.
47      It follows from the foregoing that, contrary to what the applicant claims, no infringement of Article 9(4) of Regulation No 883/2013 or of the right to a fair hearing, and no breach of the obligation to state reasons, has been established.
48      Consequently, all the complaints alleging breach of the right of the person concerned to be heard before the conclusions concerning it are drawn must be rejected, without it being necessary to rule on the Commission’s arguments seeking to challenge their admissibility.
Breach of the obligation on the administration to act within a reasonable time
49      The applicant claims, in essence, that the investigation was excessively long, without the expunged OLAF final report containing any indication as to whether measures to speed up the investigation were taken, which constitutes an infringement of Article 7(8) of Regulation No 883/2013 and a breach of the principle of good administration.
50      The Commission disputes that line of argument.
51      Regulation No 883/2013 does not prescribe any specific and binding period for the completion of investigations by OLAF. That said, Article 7(5) of that regulation states that investigations are to be conducted continuously over a period which must be proportionate to the circumstances and complexity of the case.
52      In the present case, it is common ground that the investigation lasted 26 months. During that period, OLAF carried out numerous investigative activities. First, it collected and analysed all the information available to the EU Delegation in Skopje. In particular, it examined the documents relating to the award of public contracts provided by the delegation. Next, it contacted the Office of the Special Prosecutor of North Macedonia in order to obtain further information. OLAF also contacted the Milan public prosecutor’s office and requested the assistance of the Romanian Anti-Fraud Coordination Service so as to be able to investigate certain Romanian bank accounts linked to the applicant. Five meetings with informants were also held in Brussels (Belgium) and Skopje. Finally, from 3 to 5 October 2017, OLAF, with the assistance of the Guardia di Finanza (Financial Police, Italy), carried out checks at the applicant’s premises in Milan. In the course of those checks, OLAF interviewed three witnesses and carried out a digital forensic operation. On that occasion, OLAF took copies of a large number of documents, including emails. That investigation may therefore be regarded as being of a certain complexity. The investigation required numerous documents to be examined and OLAF had to coordinate with the competent authorities of two Member States and a third country. Therefore, it must be held, in the light of the abovementioned factors, that the length of the investigation is, in accordance with Article 7(5) of Regulation No 883/2013, proportionate to the circumstances and complexity of the case.
53      It follows that, contrary to what the applicant claims, no breach of the administration’s obligation to act within a reasonable time has been established.
54      It is true that, as the applicant maintains, Article 7(8) of Regulation No 883/2013 provides that, if an investigation cannot be closed within 12 months after it has been opened, the Director-General, at the expiry of that 12-month period and every 6 months thereafter, is to report to the Supervisory Committee, indicating the reasons and the remedial measures envisaged with a view to speeding up the investigation.
55      However, even assuming that OLAF did not act in accordance with Article 7(8) of Regulation No 883/2013, it must be held that failure to comply with that obligation, which does not create rights in respect of the applicant, would not directly affect the applicant and that such a failure would have no effect on the fact that, as has been established, the duration of the investigation was proportionate to the circumstances of the present case. The arguments of the applicant based on Article 7(8) of Regulation No 883/2013 are therefore ineffective.
56      Consequently, all the complaints alleging breach of the administration’s obligation to act within a reasonable time must be rejected, without it being necessary to rule on the Commission’s arguments challenging their admissibility.
Breach of the requirement to seek evidence for and against the person concerned
57      The applicant claims, in essence, that the reports on the on-the-spot checks show the degree of cooperation it demonstrated. The expunged OLAF final report does not however reflect that favourable assessment, which constitutes an infringement of Article 9(1) of Regulation No 883/2013 and a breach of the principle of good administration and directly influenced the Panel’s assessment as to the sanction to be applied in the present case.
58      The Commission disputes that line of argument.
59      It is true that, as the applicant maintains, the reports on the on-the-spot checks note the applicant’s good and full cooperation. That information is not, however, to be found in the expunged OLAF final report.
60      Under Article 9(1) of Regulation No 883/2013, OLAF is to seek evidence for and against the person concerned. It is to conduct investigations objectively and impartially and in accordance with the principle of the presumption of innocence and with the procedural guarantees set out in that article.
61      It should be recalled that OLAF exercises its powers of investigation in the fight against fraud, corruption and any other illegal activity affecting the financial interests of the European Union (Article 1 of Regulation No 883/2013). To that end, OLAF investigates the potentially irregular nature of the activities it inspects (Article 2(4) of Regulation No 883/2013). At the end of the investigation, it is to draw up a report which gives an account of the legal basis for the investigation, the procedural steps followed, the facts established and their preliminary classification in law, the estimated financial impact of the facts established, the respect of the procedural guarantees in accordance with Article 9 of Regulation No 883/2013 and the conclusions of the investigation (Article 11 of Regulation No 883/2013).
62      In those circumstances, the concept of evidence ‘for’ the person concerned, within the meaning of Article 9(1) of Regulation No 883/2013, must be understood as any factual or legal element capable of demonstrating that a person concerned is not involved in acts of fraud or corruption or any other illegal activities affecting the financial interests of the European Union.
63      Accordingly, it must be considered that good cooperation or, conversely, a lack of cooperation on the part of an economic operator during on-the-spot checks is not evidence for or against the person concerned, within the meaning of Article 9(1) of Regulation No 883/2013, capable of establishing the possible irregularity of the actions committed by that operator.
64      In this case, the OLAF final report must contain, inter alia, all the evidence proving or disproving the irregular nature of the applicant’s activities in the context of IPA-funded projects implemented in North Macedonia. Since the applicant’s good cooperation during the on-the-spot checks can neither prove nor disprove the irregular nature of the activities under investigation by OLAF, that body cannot be criticised for not having mentioned it in its final report.
65      Nor has it been established that, by omitting that information from its final report, OLAF acted contrary to the principle of good administration.
66      The foregoing considerations do not mean that the Commission was exempted from transmitting that information to the Panel or from taking it into account when determining the sanction. In that latter regard, the impact of the applicant’s good cooperation on the sanction is examined in paragraph 152 et seq. below.
67      It follows that, contrary to what the applicant claims, the mere fact that its good cooperation during the on-the-spot checks was omitted from the OLAF final report does not establish either an infringement of Article 9(1) of Regulation No 883/2013 or a breach of the principle of good administration.
68      Accordingly, the complaints alleging breach of the requirement to seek evidence for and against the person concerned must be rejected, without it being necessary to rule on the Commission’s arguments challenging their admissibility.
69      Consequently, the complaints relating to the procedure before OLAF must be rejected in their entirety.
The complaints relating to the proceedings before the Panel
70      The complaints of the applicant relating to the proceedings before the Panel are of two kinds.
71      In the first place, the applicant submits, in essence, that the Panel infringed ‘Articles 41, 47, 48 and 54’ of the Charter of Fundamental Rights of the European Union, in that it did not allow it to submit observations on the facts established in the OLAF report before sending it the preliminary classification in law of those facts.
72      The Commission disputes that line of argument.
73      In that respect, it is important to recall that it is for the authorities to which the OLAF final report is addressed and which intend to adopt measures adversely affecting the persons concerned on the basis of the information contained in that report to give access to that information so that those persons can exercise their rights of defence (see judgment of 28 November 2018, Le Pen v Parliament, T‑161/17, not published, EU:T:2018:848, paragraph 67 and the case-law cited).
74      The right to be heard is now affirmed not only in Articles 47 and 48 of the Charter of Fundamental Rights, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter of Fundamental Rights, which guarantees the right to good administration. Article 41(2) of the Charter of Fundamental Rights provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken.
75      In accordance with that principle, which applies where the authorities are minded to adopt a measure which will adversely affect an individual, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision (see judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 30 and the case-law cited). The right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 31 and 39 and the case-law cited).
76      In the present case, the applicable rules provide, in Article 143(5) of Regulation 2018/1046 and in Article 13(2) of Commission Decision (EU) 2018/1220 of 6 September 2018 on the rules of procedure of the panel referred to in Article 143 of Regulation 2018/1046 (OJ 2018 L 226, p. 7; ‘the Panel’s rules of procedure’), that, before adopting its recommendation, the Panel is to uphold the right of the person concerned to submit observations on the facts and on the preliminary classification in law of those facts.
77      It is common ground that the applicant did indeed receive the notification letter from the Panel inviting it to submit observations (see paragraphs 11 and 12 above). That letter contained the facts concerned, their preliminary classification in law and the administrative sanctions envisaged as well as the OLAF final report made available to the Panel. The applicant requested an additional period of eight weeks to submit its observations, which was granted. The applicant was thus placed in a position in which it could effectively make known its views as regards the information on which the administration intended to base its decision. The applicant submitted its observations within the period prescribed, as is apparent from paragraph 11 of the contested decision.
78      In so doing, the Panel acted in observance of the applicant’s right to be heard, as enshrined in Article 41(2) of the Charter of Fundamental Rights. Given that the facts concerned, their preliminary classification in law, the administrative sanctions envisaged and the OLAF final report in the Panel’s possession had been communicated to it, the applicant had at its disposal the elements on which the Commission intended to base the contested decision before it adopted it. The preliminary classification in law of the facts addressed to the person concerned, pursuant to Article 143(5) of Regulation 2018/1046, is to take place before the Panel adopts its recommendation and before the Commission takes its decision. In other words, the preliminary classification in law of the facts contained in the notification letter, on which the applicant submitted its observations, was merely ‘preliminary’ and could therefore, if necessary, be revised in the light of the arguments and evidence which the applicant presented.
79      It follows that the fact that the applicant was not able to comment on the OLAF final report before the Panel sent it the preliminary classification in law of the facts does not constitute an infringement of Article 41 of the Charter of Fundamental Rights.
80      Moreover, as regards the alleged infringements of Articles 47, 48 and 54 of the Charter of Fundamental Rights, the applicant does not put forward any independent argument capable of justifying the applicability of those provisions to the present case, let alone establishing their infringement. Those claims must therefore be rejected.
81      Consequently, all the complaints criticising the Panel for not having given the applicant the possibility to submit its observations on the facts established in the OLAF final report before classifying them in law must be rejected.
82      In the second place, the applicant submits, in essence, that the Panel infringed Article 13(2) of its rules of procedure and failed to respect its rights of defence in so far as it communicated to it heavily redacted information and had more information than it did.
83      The Commission disputes that line of argument.
84      Under Article 13(2) of the Panel’s rules of procedure, the Panel is to send the economic operator concerned a letter disclosing the facts and their preliminary classification in law, in which the Panel is to have regard only to documents which that operator has been able to examine.
85      In the present case, that is the notification letter. In paragraph 6 of that letter, the Panel informed the applicant that the OLAF final report had been expunged. According to that letter, the expunged version of the OLAF final report was the same as that which had been made available to the Panel. As regards the expunged parts of the report, the letter stated that expunction was limited to what was necessary for the protection of the legitimate rights of third parties and the confidentiality of judicial proceedings and investigations by OLAF.
86      It follows that the Panel and the applicant had access to the same version of the OLAF final report, namely the expunged version. Contrary to what the applicant claims, it had at its disposal, at the very least, the same information as the Panel.
87      As regards the information redacted from the report, it should be noted, first of all, that the applicant does not criticise the Panel or the Commission for relying on evidence against it which was not communicated to it during the administrative procedure.
88      Next, it is important to point out that, as is apparent from the OLAF final report, the evidence gathered and on which the Panel relied consists primarily of email excerpts. Those emails were seized by OLAF during the digital forensic operation that took place at the applicant’s premises. The applicant has that email correspondence on its servers. It is therefore possible for it, in principle, to find the emails in question and to consult them if it has doubts as to the veracity of the facts reported in the expunged OLAF final report. The redaction of certain data from that report did not therefore prevent the applicant from understanding the facts alleged against it in the notification letter, their preliminary classification in law and the evidence supporting those allegations. It must be held that the applicant had all the information necessary for its defence.
89      Last, even assuming that evidence for the applicant had been redacted or omitted from the expunged OLAF final report, the applicant, having access to all of the electronic correspondence in question on its servers, could have seized the opportunity afforded to it by the Panel to submit its observations in order to produce any exculpatory emails. However, it did not produce any evidence for itself before the Panel or before the Court (see paragraph 116 et seq. below).
90      In those circumstances, it must be concluded that the procedure before the Panel is not vitiated by an irregularity in that it disregarded the applicant’s rights of defence or infringed Article 13(2) of the Panel’s rules of procedure. On the contrary, it must be held that the Panel observed that principle and that provision, since the notification letter containing the facts concerned and their preliminary classification in law was based solely on information which the applicant had been able to examine.
91      The fact that the Panel mentioned the date of the OLAF final report in paragraph 9 of the notification letter – even though that date was not disclosed in the expunged version of that report – does not call that conclusion into question. The mere fact that the Panel was aware of the date of submission of the OLAF final report is not, contrary to what the applicant claims, sufficient in itself for it to be considered to have had access to information other than that contained in the expunged version of that report. Nor has the applicant identified any element capable of demonstrating that the Panel, and then the Commission, relied on information to which it did not have access.
92      Likewise, the mere fact that Article 9 of its rules of procedure provides that the Panel is to consult OLAF before sending the notification letter to the economic operator concerned does not, as such, permit the conclusion that, in the present case, the Panel had access to the confidential version of the OLAF final report. Contrary to what the applicant claims, it cannot be inferred from the wording of that provision that the Panel initially had access to the full version of the final report and that, only after consulting OLAF, was that report expunged. The wording of that provision permits only the conclusion that the Panel most probably communicated the notification letter containing the preliminary classification in law of the facts to OLAF before communicating it to the applicant.
93      In the light of the foregoing, neither the infringement of Article 13(2) of the Panel’s rules of procedure nor the violation of the applicant’s rights of defence has been established. The applicant’s complaints in that regard must be rejected.
94      Consequently, the complaints relating to the proceedings before the Panel must be rejected in their entirety.
The complaints relating to the merits of the contested decision
The Panel’s understanding of the expunged OLAF final report and of the evidence annexed to that report
95      In the first place, the applicant claims, in essence, that the Panel was not able to assess, independently of OLAF, the evidence annexed to the final report because it was in Italian.
96      The Commission disputes that line of argument.
97      There is nothing to indicate on what basis the fact that the evidence annexed to the expunged OLAF final report was in Italian would have deprived the Panel of any possibility of assessing its content. That complaint must therefore be rejected.
98      In the second place, the applicant claims, in essence, that the Panel was not capable of properly assessing the facts alleged against it, since it had access only to an expunged version of the OLAF final report and its annexes. According to the applicant, the Panel could not understand whether the names redacted from the OLAF final report and the annexes thereto were those of its employees, lobbyists or officials in the public administration of North Macedonia. The Panel worked on incomplete evidence and was forced to rely on OLAF’s interpretation of the confidential evidence known only to it. In so doing, the Panel infringed ‘Articles 135 to 143’ of Regulation 2018/1046 and breached the principle of good administration, the duty of care and the right to a fair hearing.
99      The Commission disputes that line of argument.
100    As a preliminary point, it should be noted that the applicant bases that complaint on Regulation 2018/1046, both for procedural rules and for substantive rules.
101    In that regard, it is settled case-law 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, 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).
102    In other words, the Commission had to adopt the contested decision in accordance with the procedure and in the manner prescribed by the provisions in force at the date of that decision, namely those laid down by Regulation 2018/1046. On the other hand, in order to ensure compliance with the principles of legal certainty and protection of legitimate expectations, the applicable substantive law remains that in force at the time when the activities at issue were committed. That rule follows in particular from the principle of legality and proportionality of criminal offences and penalties enshrined in Article 49(1) of the Charter of Fundamental Rights.
103    In the contested decision, the Commission considered that the activities at issue had taken place between 17 October 2012 and 12 January 2017.
104    The substantive rules applied, depending on the relevant period, by the Commission in the contested decision are:
–        Article 93 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), as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (OJ 2006 L 390, p. 1), applicable from 22 August 2006, which provides that administrative penalties may be imposed on an economic operator who has been guilty of grave professional misconduct;
–        Article 106(1) 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), applicable from 1 January 2013, which provides that administrative penalties may be imposed on an economic operator who has been guilty of grave professional misconduct;
–        and Article 106(1) of Regulation No 966/2012, as amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1), applicable from 1 January 2016, which provides that administrative penalties may be imposed on an economic operator who is guilty of corruption and on one who is guilty of grave professional misconduct.
105    Consequently, as regards the substantive rules, the references made by the applicant to the provisions of Regulation 2018/1046 must be understood as referring to the provisions mentioned in paragraph 104 above.
106    As regards the question whether the Panel and the Commission were able to understand and assess the information contained in the expunged OLAF final report and its annexes despite the redaction of personal data, it should be recalled that the evidence in question is for the most part emails which were collected from the applicant’s servers. In addition to the summaries provided by OLAF in its final report, the Panel and the Commission had the emails themselves, even if they were expunged of certain personal data. It is important to note that those emails systematically involve A and B, whose names and functions within the applicant are disclosed. That information and the very content of those emails are sufficient for understanding their substance and assessing their probative value, irrespective of the redacted personal data. In those circumstances, the Panel or the Commission cannot be considered to have relied on evidence which they were not able to understand.
107    Moreover, the applicant has not adduced any evidence or any offer of evidence capable of casting doubt on the accuracy or veracity of the facts assessed in the contested decision, whether before the Panel or before the Court (see paragraphs 122 and 123 below). Therefore, in the absence of such evidence, there is no reason to doubt the credibility of the elements adduced against it or to criticise the Panel or the Commission for having taken them into account.
108    Consequently, the applicant’s complaint alleging that the Panel and the Commission were unable to understand and assess the content of the OLAF final report and its annexes as a result of the redaction of certain data must be rejected.
109    In that context and for the same reasons, the applicant’s claims concerning alleged breaches of the principle of good administration and of the duty of care, which are not supported by any independent argument, must be rejected. The claims concerning an alleged breach of the applicant’s rights of defence have, for their part, already been examined and rejected in paragraphs 82 to 90 above.
110    It follows that all the complaints concerning the Panel’s understanding of the expunged OLAF final report and of the evidence annexed to that report must be rejected.
The acts of corruption and grave professional misconduct committed by the applicant
111    As a preliminary point, it should be recalled that, in the contested decision, the Commission found that, between 17 October 2012 and 12 January 2017, the applicant had manipulated the procurement procedures for two contracts financed by the EU budget by paying bribes to officials in the public administration of North Macedonia, by hiring non-key experts recommended by those officials and by presenting false information on the qualifications and past experience of an expert in one of those procurement procedures. The payment of the bribes had been arranged by A, of which B, a partner in the group to which the applicant belonged and the sole administrator of the applicant, was aware. Consequently, the applicant obtained an undue competitive advantage over other bidders, thereby distorting competition (paragraphs 7 to 27 of the contested decision).
112    Grave professional misconduct is defined in the contested decision as being, inter alia, conduct by which an economic operator violates applicable laws or regulations or ethical standards of the profession to which it belongs, or engages in any wrongful conduct which has an impact on its professional credibility where such conduct denotes wrongful intent or gross negligence.
113    The Commission considered that, in view of the applicant’s conduct set out in paragraph 109 above, it had been guilty of grave professional misconduct and, therefore, had to be excluded from participating in procurement and award procedures covered by the general budget of the European Union in accordance with Article 93 of Regulation No 1605/2002, as amended by Regulation No 1995/2006, Article 106(1) of Regulation No 966/2012 and Article 106(1) of Regulation No 966/2012, as amended by Regulation 2015/1929.
114    Furthermore, in the contested decision, the Commission found, in the light of Article 106(1) of Regulation No 966/2012, as amended by Regulation 2015/1929, that an economic operator had to be regarded as guilty of corruption where it had committed acts defined as such by the law of the country in which it was established. The Commission noted that the relevant law in this case was the Italian Criminal Code. In that regard, according to the contested decision, Article 319 of the Italian Criminal Code provides, in particular, that the public official who, in order to perform an act contrary to the duties of office, receives, for himself or herself or for a third party, money or other benefits, or accepts its promise, is punished with imprisonment from 6 to 10 years. Article 319a of the Italian Criminal Code provides, moreover, that the penalty is increased if the act referred to in Article 319 has as its object the stipulation of contracts that involves the administration to which the public official belongs. Article 321 of the Italian Criminal Code provides that the penalties set out in the first paragraph of Article 318, Articles 319, 319a, 319b of that code, as well as in Article 320 thereof in relation to the aforementioned hypotheses of Articles 318 and 319, also apply to those who give or promise money or other benefits to the public official or to the person in charge of a public service. Finally, Article 322a of the Italian Criminal Code provides, inter alia, that the provisions of the second paragraph of Article 319c, Article 321 and the first and second paragraphs of Article 322 of that code also apply if the money or other benefits is given, offered or promised to persons who perform functions or activities corresponding to those of public officials and persons in charge of a public service in the context of other foreign States or public international organisations. The persons indicated in the first paragraph of that Article 322a are assimilated to the public officials if they exercise corresponding functions and to persons in charge of a public service in other cases.
115    The Commission concluded that, by the conduct described in paragraph 111 above, which was continuous throughout the period concerned, the applicant had been guilty of acts of corruption and, consequently, had to be excluded from participating in procurement and award procedures covered by the general budget of the European Union in accordance with Article 106(1) of Regulation No 966/2012, as amended by Regulation 2015/1929. In that latter respect, the Commission considered that, while it could not, in principle, impose sanctions for acts of corruption committed before 1 January 2016, the continuous nature of the misconduct until 12 January 2017 enabled it to adopt a decision imposing administrative sanctions on such grounds.
116    The applicant contests those conclusions. It claims, in essence, that the Panel and the Commission committed several errors in assessing the facts established in the expunged OLAF final report, thereby breaching the principle of good administration and the duty of care.
117    The Commission disputes that line of argument.
118    The right to good administration is one of the guarantees conferred by the EU legal order in administrative proceedings and is enshrined in Article 41 of the Charter of Fundamental Rights. The duty of care is inherent in the principle of good administration and entails that the EU administration must act with care and caution (see, to that effect, judgment of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraphs 92 and 93).
119    As a preliminary point, it should be recalled that, as paragraph 104 above sets out, under the substantive law applicable ratione temporis, acts of corruption could not be found against the applicant until 1 January 2016, whereas grave professional misconduct could be found against it for the entire duration of the period at issue.
120    In the first place, the applicant claims that the activities referred to in the exchange of emails attached as Annex 11 to the OLAF final report were classified, wrongly, as acts of fraud and corruption. Annex A.19 produced by the applicant shows that it involved lobbying activities, ‘success fees’, problems relating to the expenses of a local office and to the staff necessary for carrying out the applicant’s activities in North Macedonia and more generally in the Balkans. In the applicant’s view, those activities are not unlawful and to consider otherwise would breach the principle of good administration.
121    In that regard, it should be noted that the expunged OLAF final report indicates, in point 2.3.6.2, that, in July 2015, A advised his colleagues that an official in the public administration of the Republic of North Macedonia wanted the applicant to pay for a holiday in Spain for him in an amount of EUR 2 500. A then told his colleagues that, if they wanted to keep the contact with that official, they did not have much choice. According to that report, the applicant did indeed take the decision to pay for that holiday.
122    It must be stated that Annex A.19, produced by the applicant, confirms the foregoing in every respect. It is apparent from the email exchanges contained in that annex that the applicant’s main contact in North Macedonia was C, a senior official of the Ministry of Information Society and Administration of the Republic of North Macedonia. In particular, the exchanges reveal not only that C wanted the applicant to pay for a holiday in Spain for him and that it agreed to do so, but also that the applicant had already paid for a trip for him the previous year.
123    In those circumstances, it must be concluded that those activities may be classified, in the light of the definitions set out in paragraphs 112 and 114 above, as acts of corruption and grave professional misconduct.
124    In the second place, the applicant claims that the Commission merely assumed that the ‘success fees’ that it had paid to officials in the public administration of the Republic of North Macedonia were payments intended to obtain favours from those officials, when in reality those fees were intended to remunerate the lobbyists who were working directly for it in the Balkans. In its view, the Commission merely reproduced OLAF’s findings without examining that issue independently. In so doing, the Commission breached the principle of good administration and the duty of care.
125    In that regard, it must be stated at the outset that, contrary to what the applicant claims, it is apparent from paragraphs 13 to 33 of the contested decision that the Commission assessed independently, taking into consideration the applicant’s observations, the evidence gathered and the findings made by OLAF, including those relating to the issue of the ‘success fees’.
126    Next, even accepting that certain payments – or ‘success fees’ – were intended for lobbyists working for the applicant, the fact remains that other payments were undoubtedly intended for officials, as paragraph 121 above illustrates. It is also apparent from the expunged OLAF final report that, in 2015, A endorsed, on behalf of the applicant, the payment of EUR 1 500 divided between three officials working within the ministry involved in the award procedure for one of the contracts at issue. In addition to those payments, the contested decision notes the favours which the applicant was willing to grant to certain officials. It follows for example from the OLAF investigation that, in 2012, A made a commitment to an official to find an expert post for one of his friends in the context of one of the contracts at issue. The applicant does not dispute the substance of those facts.
127    In the light of the foregoing, it must be concluded that, contrary to what the applicant claims, it has been established that certain payments – or ‘success fees’ – and favours were intended for officials in the public administration of North Macedonia who were involved directly or indirectly in the procedures for the award of the contracts at issue. Those payments and favours, granted by the applicant with a view to obtaining privileged information concerning the procedures for the award of the contracts at issue, constitute, in the light of the definitions set out in paragraphs 112 and 114 above, acts of corruption and grave professional misconduct. The Commission did not therefore breach the principle of good administration or the duty of care, as the applicant claims.
128    In the third place, the applicant claims, as regards the emails exchanged between December 2016 and January 2017, that the expunged version of the OLAF final report could not enable the Commission to know to whom the January 2017 payment mentioned in point 2.3.1.3 of that report was intended. It maintains that if the Commission had had access to all the information, it would have known that that payment was intended for D, its lobbyist in the Balkans. The conclusion that the acts of corruption lasted until January 2017 is incorrect.
129    In that regard, it should be noted that, in point 2.3.1.1 of the expunged OLAF final report, it is indicated that, in 2014 and 2015, A was in contact with an official of the Ministry of Information Society and Administration who had access to key persons of the Ministry of Education, namely the ministry involved in the procedure for the award of the contract mentioned in paragraph 5 above. The official in question gave the applicant privileged information on that procurement procedure.
130    Next, it is apparent from point 2.3.1.2 of the expunged OLAF final report that, after the contract at issue had been signed, negotiations between the applicant and that official began as to the amount of his ‘success fee’. It may be inferred from the context of that final report that the redacted names belong sometimes to the official in question and sometimes to a person working on behalf of the applicant. That person was expected to receive EUR 5 000 for his role as intermediary. In the light of the applicant’s assertions set out in paragraph 128 above, that intermediary was D, the applicant’s ‘lobbyist’. Again according to that final report, in December 2015 the applicant reached an agreement with the said official as regards the terms and timing of payments. Those payments were supposed to be made in cash. The expunged OLAF final report then describes the applicant’s difficulties in finding the means of withdrawing cash cheaply and without being detected by the authorities responsible for combating money laundering and the financing of terrorism. In parallel, new negotiations took place to encourage the official to agree to a reduction in the amount of the ‘success fee’. Point 2.3.1.3 of the expunged OLAF final report refers to discussions between A and B seeking to resolve the problem of the payment of that ‘success fee’. Finally, the applicant decided, after receiving the funds under the contract at issue, that an initial transfer to a Romanian account would take place in January 2016 and another in March 2016. A, who had power of attorney for that account, made a first withdrawal from it in January 2016 immediately after the initial transfer, then a second withdrawal in March 2016 under the same procedure. In its final report, OLAF concludes that both sums were intended for the official in question.
131    Last, the passage from the expunged OLAF final report mentioned by the applicant, which concerns the January 2017 payment to D, indicates that D contacted A in August 2016 regarding the sum of EUR 5 000 that was owed to him. New emails were exchanged on that subject in December 2016 as payment had still not taken place. During those exchanges, it was recalled that D had paid sums to third parties so that the applicant could obtain the contract at issue. The payment at issue was finally made on 12 January 2017.
132    In the light of the foregoing, it must be concluded that, contrary to what the applicant claims, the Commission was perfectly capable of understanding, on the basis of the expunged OLAF final report, that, even though the January 2017 payment was intended for a ‘lobbyist’ working for the applicant, that payment was aimed at remunerating that person’s contribution to the performance of the activities at issue. Thus, in the light of the factors set out in paragraphs 129 to 131 above, although the bribery pact between the applicant and the official was entered into in 2015, the last act in the execution of that pact is the payment made in January 2017 by the applicant to D for his role as intermediary.
133    In that context, contrary to what the applicant claims, the fact that the January 2017 payment was intended for a ‘lobbyist’ working for it is not such as to alter the conclusion that that conduct, which was continuous, constituted acts of corruption and grave professional misconduct, in so far as it was part of an overall plan pursuing a single objective – to obtain a competitive advantage over other bidders.
134    Moreover, in addition to those payments, it may be noted that, in August 2016, that is to say, after the entry into application of Regulation 2015/1929, which provides for sanctions for operators guilty of corruption, the applicant sought to employ several persons recommended by an official in order to perform work for it. According to the expunged OLAF final report, the purpose of those recruitments was more to maintain good relations with that official than to serve best the interests of the project financed by the EU budget. Such facts, which are not disputed by the applicant, also constitute, in the light of the definitions set out in paragraphs 112 and 114 above, acts of corruption and grave professional misconduct.
135    In the fourth place, the applicant denies that the activities at issue can be imputed to it. In essence, B did not have detailed knowledge of all of A’s actions and did not authorise them. According to the applicant, there is no indication that B knew that the payments were anything other than ‘normal business expenses’.
136    In that regard, it must be noted that the applicant acknowledges, in the application, that A was acting on its behalf in North Macedonia. Despite this, the applicant denies that all of A’s actions can be imputed to it. However, at the material time, A was Director of International Cooperation of the group to which the applicant belonged and the project director for the two contracts in question. As such, he had in fact signed one of the contracts at issue on behalf of the applicant. In addition, it is clear beyond any doubt from the documents in the file that the emails sent by A were sent on behalf of the applicant in order for it to obtain the contracts at issue.
137    It must therefore be concluded, as the Commission did in the contested decision, that the applicant cannot evade its responsibility by stating that A was acting autonomously and that B, its director, thought those were ‘normal business expenses’. Since A was acting on behalf of the applicant, its acts must be regarded as being those of the applicant (see, by analogy, judgment of 7 February 2013, Slovenská sporiteľňa, C‑68/12, EU:C:2013:71, paragraph 25).
138    Moreover, despite the applicant’s allegations, it is apparent from points 2.3.1.3 and 2.3.8 of the expunged OLAF final report that, apart from Annex 11 to that report, several other items of evidence gathered in the course of the investigation, which are not contested by the applicant, show that B was aware of the applicant’s activities in North Macedonia and authorised them. The mere fact that the applicant’s director did not have detailed knowledge of all of A’s actions cannot alter that conclusion.
139    In any event, Annex A.19 produced by the applicant demonstrates, at the very least, that B examined and endorsed the applicant’s payment of the holidays of a senior official of the Ministry of Information Society and Administration of the Republic of North Macedonia who was likely to have information on the procurement procedures at issue (see paragraph 121 above). The applicant’s assertion that B believed that the payments at issue were ‘normal business expenses’ cannot therefore be accepted.
140    In the light of the foregoing, it must be held that, contrary to what the applicant claims, the activities at issue are imputable to it.
141    In the fifth place, the applicant submits that, as regards the accusation of falsification of an expert’s CV, the Commission relied on incorrect information. After all, in its final report, OLAF had not provided concrete evidence of the alleged falsification. The principle of good administration, the duty of care and its rights of defence were therefore not observed.
142    In that regard, and in any event, even if those allegations of the applicant were well founded and that ground of the contested decision were vitiated by defects, that would not in itself suffice to call into question the legality of the contested decision in view of the fact that the other grounds of that decision, the merits of which have been confirmed in paragraphs 121 to 123, 126, 127 and 129 to 134 above, are such as to justify its operative part (see, to that effect, judgment of 14 January 2009, Kronoply v Commission, T‑162/06, EU:T:2009:2, paragraph 62 and the case-law cited). Furthermore, for the reasons set out in paragraph 152 et seq. below, even if those allegations were proved, that would not affect the duration of the sanction adopted in the contested decision, either. There is therefore no need to rule on this complaint.
143    In the sixth place, the applicant claims that the Commission failed to give sufficient reasons for the contested decision on certain points.
144    First, the applicant submits that paragraph 31 of the contested decision is too vague in that it mentions the applicant’s ‘lobbying’ activities being carried out ‘in this region’.
145    However, the question whether the statement of reasons for a decision 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 (see, to that effect, judgments of 13 December 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v Commission, T‑764/14, not published, EU:T:2016:723, paragraph 99, and of 16 February 2017, Romania v Commission, T‑145/15, EU:T:2017:86, paragraph 44 and the case-law cited). In the present case, paragraph 31 of the contested decision must be read in the light of its context, namely the remainder of the contested decision and the expunged OLAF final report of which the applicant had knowledge. That paragraph of the contested decision refers expressly to Annex 11 to that report. It must be stated that, when that paragraph refers to the applicant’s ‘lobbying’ activities ‘in this region’, it reproduces the vocabulary used by the applicant in its emails and refers without any possible doubt to the activities at issue, such as the payment of C’s holidays, examined, endorsed and organised by A and B. Using such a vocabulary did not render the reasoning underpinning the contested decision either abstruse or equivocal. As a whole, the contested decision has enabled the Court to exercise its power of review and the applicant to ascertain the reasons for the measure and to assert its rights, as is demonstrated by the fact that it disputed on several occasions that that Annex 11 was capable of establishing that its director was aware of the activities at issue.
146    Second, the applicant maintains that the contested decision does not adequately address its arguments concerning confidentiality, the redaction of certain data from the OLAF final report and the need to inform it of the facts in such a way as to allow it to exercise its rights of defence and its right to a fair hearing.
147    In that regard, it must be recalled that the Commission is not obliged to adopt a position on all the arguments relied on by the person concerned, but it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (judgment of 30 April 2014, Hagenmeyer and Hahn v Commission, T‑17/12, EU:T:2014:234, paragraph 173).
148    That being so, in the present case, a reading of paragraphs 21 to 23 of the contested decision supports the finding that the Commission responded to the applicant’s arguments mentioned in paragraph 146 above. The applicant’s complaint therefore has no factual basis.
149    The complaints alleging an inadequate statement of reasons and all the complaints relating to the acts of corruption and grave professional misconduct committed by the applicant must therefore be rejected.
150    Accordingly, the complaints relating to the merits of the contested decision must be rejected in their entirety.
The appropriateness of the sanction
151    The applicant claims that its good cooperation during the OLAF investigation should have been taken into account by the Panel for the purposes of determining the appropriate sanction to be applied in the present case. It adds that, in accordance with Italian law, in April 2016 it adopted a model of organisation, management and control with a code of ethics and a related disciplinary system. It also dismissed A and B from their posts in 2019.
152    The Commission submits that, under its contractual obligations and Article 5 of Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ 1996 L 292, p. 2), the applicant was required to cooperate and to grant access to its premises in order to facilitate checks and inspections carried out by OLAF on its behalf. The applicant’s argument that its good cooperation should have affected the assessment made by the Panel of the appropriate sanction must, in its view, be rejected. The Commission points out that the Panel had access to the reports on the on-the-spot checks, in which it was mentioned that the applicant and its representatives had cooperated with OLAF.
153    As a preliminary point, it should be recalled that, in respect of acts occurring prior to 1 January 2016, the Commission noted, in the contested decision, that Article 133a(2)(b) of its Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (OJ 2002 L 357, p. 1), as amended, and Article 145(1) of its Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1), before its amendment by its Delegated Regulation (EU) 2015/2462 of 30 October 2015 (OJ 2015 L 342, p. 7), provided that the maximum period for which an entity could be excluded was five years.
154    For acts committed after 1 January 2016, the Commission noted that Article 106(14)(c) of Regulation No 966/2012, as amended by Regulation 2015/1929, provided that the duration of exclusion could not exceed three years in the cases of grave professional misconduct referred to in Article 106(1)(c) of that regulation and five years in the cases of corruption referred to in Article 106(1)(d) of the same regulation.
155    In that context, the Commission excluded the applicant on the basis of a preliminary classification in law of its conduct, having regard to the facts established and the findings set out in the recommendation issued by the Panel, in accordance with Article 106(2) of Regulation No 966/2012, as amended by Regulation 2015/1929. It considered that the seriousness of the misconduct, the intentional nature of that misconduct, its duration and the high amounts involved justified exclusion for a period of four years.
156    In that regard, the Court notes that Article 133a(1) of Regulation No 2342/2002, as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13), and Article 106(3) of Regulation No 966/2012, as amended by Regulation 2015/1929, require a contracting authority which excludes an economic operator to comply with the principle of proportionality. In particular, the said Article 106(3) provides that the contracting authority’s decision must take into account, inter alia, the seriousness of the situation, including the impact on the European Union’s financial interests and image, the time which has elapsed since the relevant conduct, its duration and its recurrence, the intention or degree of negligence, or any other mitigating circumstances, such as the degree of collaboration of the economic operator with the relevant competent authority and its contribution to the investigation as recognised by the contracting authority.
157    In accordance with Article 108(11) of Regulation No 966/2012, as amended by Regulation 2015/1929, the General Court ‘shall have 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’. Beyond the mere review of legality, which allows only for the dismissal of the action for annulment or for the annulment of the contested act, that unlimited jurisdiction empowers the Court to vary the contested act, even without annulling it, by taking into account all the factual circumstances, so as to amend, for example, the duration of the exclusion. In those circumstances, the Court may, if necessary, make different findings from those made by the Commission in the contested decision with regard to the duration of the exclusion.
158    In the present case, the argument by which the applicant claims that the good cooperation it showed during the investigation and the reorganisation measures it adopted should have had an impact on the assessment of the appropriate sanction to be imposed on it must be interpreted as inviting the Court to assess, in the exercise of its unlimited jurisdiction, the duration of the exclusion taking into account the mitigating circumstances invoked.
159    In the exercise of its unlimited jurisdiction, the Court finds that the applicant committed the acts of corruption and grave professional misconduct set out in paragraphs 121 to 123, 126, 127 and 129 to 134 above. Those acts are very serious by their very nature, since the purpose of the applicant’s conduct was to bribe officials in the public administration of the Republic of North Macedonia in order to obtain a competitive advantage over other bidders. It must be held that the applicant intentionally sought to corrupt officials in the public administration of the Republic of North Macedonia. That conduct lasted slightly over four years, during which time several persons within the applicant and external to it were involved.
160    Account must also be taken of the seriousness of the impact of those acts on the European Union’s financial interests, in so far as they concern a sum exceeding EUR 1.7 million.
161    Next, as regards the elements relied on by the applicant, it is true that the reports on the on-the-spot checks note its ‘very good’ and ‘full’ cooperation during those checks. However, it is equally true that, as the Commission maintains, the applicant had been under a legal obligation to cooperate with OLAF. In any event, it must be held that, in the present case, the applicant’s conduct at the time of the investigation can have only a slight impact on the degree of severity of the sanction given the seriousness of the acts at issue.
162    As for the organisational model adopted by the applicant in 2016, the Court endorses the assessments made by the Commission in that regard in the contested decision. First, that model was adopted in April 2016 but did not, however, put an end to the applicant’s misconduct, which continued until January 2017. Second, while that new model may possibly have an effect on the applicant’s conduct in the future, it had no effect at all during the relevant period. Likewise, the dismissal of A and B in 2019 can have an effect only on the applicant’s future conduct. The Court therefore considers that there is no need to take those factors into account.
163    Finally, it may be emphasised that the maximum period of exclusion laid down by the legislature was, before 1 January 2016, five years for grave professional misconduct and, after 1 January 2016, three years for grave professional misconduct and five years for acts of corruption. In the present case, however, the Court has found, in paragraphs 121 to 123, 126, 127 and 129 to 134 above, that the applicant’s conduct entailed both acts of grave professional misconduct and acts of corruption.
164    In the light of all the foregoing findings and circumstances set out above, it must be held that an exclusion of four years is appropriate and proportionate in this case.
The requests for measures of organisation of procedure
165    The applicant requests the Court to order various measures of organisation of procedure, namely to produce the OLAF letter, to produce the statement of reasons for the decision of 20 June 2018 of the Director-General of OLAF to defer its right to comment on the facts concerning it, to demonstrate the measures taken by OLAF to speed up the investigation, to indicate the nationality and linguistic knowledge of the members of the Panel and to produce all communications exchanged between OLAF and the Panel. In the reply, the applicant makes a further request, relating to the production of the unexpunged version of the ‘two emails of 2 November and that of 17 November as set out in Annex 11’ to the OLAF final report.
166    The Commission requests the Court to take all the measures of organisation of procedure necessary for the applicant to place on the file the documents relating to the agreement which it concluded with the Italian public prosecutor’s office as part of the proceedings initiated against it on the basis of the findings of OLAF’s investigation. The Commission requests, if necessary, that the Court request the Italian Republic to submit those documents under Article 24 of the Statute of the Court of Justice of the European Union.
167    In that regard, it should be recalled that it is for the Court to appraise the usefulness of measures of organisation of procedure and of measures of inquiry (see, to that effect, judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 417 and the case-law cited).
168    In the present case, as regards, first, the request for the production of the OLAF letter, it must be pointed out that the Commission produced it in Annex B.2 to the defence. The request at issue was therefore granted.
169    As regards, second, the request seeking, in essence, the production of the decision of 20 June 2018 of the Director-General of OLAF to defer the applicant’s right to comment on the facts concerning it, it should be noted that, as is apparent from paragraph 43 above, the statement of reasons to which the applicant had access was sufficient to enable it to understand the reasons underpinning the measure taken and to enable the Court to exercise its power of review. There is therefore no need to order the measure requested.
170    As regards, third, the request that the Commission demonstrate that measures were taken by OLAF to speed up the investigation, it should be noted that, since that investigation was not excessively long (see paragraphs 52 and 53 above), additional information on the subject is not necessary. There is therefore no need to order the measure requested.
171    As regards, fourth, the request that the Commission indicate the nationality and linguistic knowledge of the members of the Panel, in the absence of elements from the applicant such as to establish that that panel misinterpreted or did not actually understand certain specific items of evidence, there is no need to order the measure requested.
172    As regards, fifth, the request for the production of all communications exchanged between OLAF and the Panel, the indication presented by the applicant, namely the fact that the Panel knew the date of the expunged OLAF final report, is not sufficient for the measure requested to be deemed necessary for the resolution of the dispute. Accordingly, there is no need to order the measure requested.
173    As regards, sixth, the request for the production of the unexpunged version of the ‘two emails of 2 November and that of 17 November as set out in Annex 11’ to the final OLAF report, it must be held that the relevance of that request for the resolution of the dispute has not been established. The applicant requests the production of those emails only to argue that the ‘success fees’ were paid to lobbyists working for it. As has already been noted in paragraph 126 above, however, even accepting that certain payments – or ‘success fees’ – were intended for lobbyists working for the applicant, the fact remains that other payments were undoubtedly intended for officials who had privileged information on the procedures for the award of the contracts at issue. Accordingly, there is no need to order the measure requested.
174    As regards, seventh, the Commission’s requests for production of the settlement agreement concluded by the applicant with the Italian public prosecutor’s office, it must be held that the information contained in the file, including Annexes C.1 to C.3, is sufficient to enable the Court to give a ruling. Accordingly, there is no need to order the measure requested.
175    Consequently, the requests for measures of organisation of procedure made by the parties are rejected.
Costs
176    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders LA International Cooperation Srl to pay the costs.
Kornezov
Buttigieg
Hesse
Delivered in open court in Luxembourg on 29 June 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.
1      The present judgment is the subject of publication in extract form.