ORDER OF THE PRESIDENT OF THE GENERAL COURT
7 August 2025 (*)
( Interim relief – Public procurement – Exclusion from award procedures governed by Regulation (EU, Euratom) 2024/2509 and from being selected to implement Union funds and the imposition of a financial penalty – Publication of information – Application for suspension of operation of a measure – Prima facie case – Urgency – Balancing of competing interests )
In Case T‑281/25 R,
JB, represented by P. de Bandt, M.-R. Gherghinaru, V. Heinen and Z. Irusta Ortega, lawyers,
applicant,
v
European Union Agency for the Space Programme (EUSPA), represented by E. Villa, acting as Agent, and by T. Hokr and P. Bříza, lawyers,
defendant,
THE PRESIDENT OF THE GENERAL COURT
having regard to the order of 5 May 2025, JB v EUSPA (T‑281/25 R, not published),
makes the following
Order
1        By its application under Articles 278 and 279 TFEU, the applicant, JB, seeks suspension of the operation of Article 3 of Decision No 310882/2025 of the European Union Agency for the Space Programme (EUSPA) of 21 February 2025 on its exclusion from award procedures governed by Regulation (EU, Euratom) 2024/2509 and from being selected to implement Union funds and the imposition of a financial penalty (‘the contested decision’), pending the decision of the General Court ruling on the action for annulment of that decision.
Background to the dispute and forms of order sought by the parties
2        The applicant is [confidential]. (1)
3        On 20 October 2016, the European Global Navigation Satellite System (GNSS) Agency (GSA) and the European Commission awarded the applicant framework contract [confidential], signed on 22 November 2016.
4        On 16 September 2021, several lots were awarded to the applicant under framework contract [confidential], signed on 21 and 22 October 2021.
5        On 14 October 2021, EUSPA, which replaced the GSA on 12 May 2021, received information concerning potential irregularities in the procurement procedures referred to in paragraphs 3 and 4 above and in the implementation of the framework contracts. That information was forwarded to the European Anti-Fraud Office (OLAF), which opened an investigation on 2 December 2021.
6        On 13 December 2023, EUSPA and the Commission received OLAF’s final report.
7        On 21 December 2023, following receipt of OLAF’s final report, EUSPA notified the applicant of its decision to terminate, inter alia, the [confidential] framework contracts, which were still in force. No contractual measures were taken in respect of the [confidential] framework contract, since it had expired on 21 May 2021.
8        On 21 February 2025, EUSPA adopted the contested decision, Article 3 of which provides that the information concerning the applicant’s name, the exclusion situation, the duration of the exclusion and the amount of the financial penalty imposed is to be published on the Commission’s public website, in accordance with Article 142(1) of Regulation (EU, Euratom) 2024/2509 of the European Parliament and of the Council of 23 September 2024 on the financial rules applicable to the general budget of the Union (OJ L, 2024/2509).
9        On 1 May 2025, the applicant brought an action before the General Court for the annulment of the contested decision.
10      By a separate document lodged at the Registry of the General Court on the same day, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:
–        suspend the operation of Article 3 of the contested decision until the judgment of the General Court on the application for the annulment of that decision submitted pursuant to Article 263 TFEU;
–        reserve the costs.
11      In its observations on the application for interim measures, which were lodged at the Registry of the General Court on 30 May 2025, EUSPA contends that the President of the General Court should:
–        dismiss the application for interim measures;
–        order the applicant to pay the costs.
Law
General considerations
12      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
13      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to state ‘the subject
matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
14      The judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
15      In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
16      Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
The condition relating to a prima facie case
17      According to settled case-law, the prima facie case requirement is satisfied where at least one of the pleas in law put forward by the party seeking interim measures in support of the main action appears, prima facie, not unfounded. That is the case where one of the pleas relied on reveals the existence of a major legal or factual disagreement the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings (see, to that effect, orders of 3 December 2014, Greece v Commission, C‑431/14 P-R, EU:C:2014:2418, paragraph 20 and the case-law cited, and of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 59 and the case-law cited).
18      In the present case, in order to demonstrate that the contested decision is, prima facie, vitiated by illegality, the applicant puts forward three pleas in law in the application for interim measures.
The first plea in law
19      By its first plea, the applicant claims that the on-the-spot checks and the digital forensic operation carried out by OLAF at its premises between 27 June and 29 June 2022 infringed the right to the inviolability of its commercial premises, as enshrined in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, the principles of legality and legal certainty and the duty to state reasons laid down in Article 296 TFEU.
20      By the first part of its first plea, the applicant claims that the on-the-spot checks and the digital forensic operations and examinations carried out at its premises were unlawful in so far as OLAF had not obtained prior judicial authorisation to conduct the searches.
21      By the second part of its first plea, the applicant claims that OLAF unlawfully extended the subject matter and scope of its investigation by examining the issue of the consultant’s conflict of interest and the consultancy contract.
22      EUSPA disputes the applicant’s arguments.
23      In that regard, as regards the first part of the first plea, it is appropriate to recall recital 21 of Regulation (EU, Euratom) 2020/2223 of the European Parliament and of the Council of 23 December 2020 amending Regulation (EU, Euratom) No 883/2013 as regards cooperation with the European Public Prosecutor’s Office and the effectiveness of the European Anti-Fraud Office investigations (OJ 2020 L 437, p. 49). That recital states that ‘the conduct by [OLAF] of on-the-spot checks and inspections in situations where the economic operator concerned submits to the on-the-spot check and inspection should be subject to Union law alone.’
24      In addition, reference should be made to Article 3(4) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (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), as amended by Regulation 2020/2223. That article expressly provides that ‘where, in accordance with paragraph 3 of this Article, the economic operator concerned submits to an on-the-spot check and inspection authorised pursuant to this Regulation, Article 2(4) of Regulation (EC, Euratom) No 2988/95, the third subparagraph of Article 6(1) of Regulation (Euratom, EC) No 2185/96 and Article 7(1) of Regulation (Euratom, EC) No 2185/96 shall not apply in so far as those provisions require compliance with national law and are capable of restricting access to information and documentation by [OLAF] to the same conditions as those that apply to national administrative inspectors.’
25      Moreover, as recalled in the case-law, Regulation No 883/2013 or 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) make no provision for compliance with national requirements such as those concerning the need for a warrant to be obtained beforehand from a national court where there is no resistance on the part of the operator concerned, as those regulations make on-the-spot checks and inspections conducted by OLAF conditional solely on the existence of written authorisation from its Director-General (judgment of 3 May 2018, Sigma Orionis v Commission, T‑48/16, EU:T:2018:245, paragraph 82).
26      Consequently, as EUSPA has argued, it appears, prima facie, that OLAF may carry out checks and inspections on its own authority and in accordance with the provisions of EU law, whereas the requirements of national law must apply only in cases where the economic operator chooses not to comply with the inspection, as provided for in Article 3(4) of Regulation No 883/2013, as amended.
27      In the present case, as EUSPA confirms, the applicant did not object to the on-the-spot checks. A representative of the applicant signed all the reports from the on-the-spot checks. The report on the check carried out on 21 April 2023 states that ‘the [confidential] Group expressed willingness to fully cooperate with the investigation as required and in accordance with law’. The same statement appears in the report from the checks carried out on 27, 28 and 29 June 2022. During those inspections in June, the applicant was represented on its premises by legal representatives who raised no legal objection.
28      In the light of the foregoing, it appears, prima facie, that OLAF was not required in the present case to request judicial authorisation before carrying out the on-the-spot checks and inspections.
29      As regards the second part of the first plea, it should be recalled that Article 7(2) of Regulation No 883/2013, as amended by Regulation 2020/2223, provides that OLAF staff are to carry out their tasks on production of a written authorisation from the Director-General indicating, inter alia, the subject matter and purpose of the investigation, the legal bases for conducting those investigations and the investigative powers stemming from those bases.
30      In addition, it is apparent from the first subparagraph of Article 7(1) of Regulation No 2185/96 and the second subparagraph of Article 3(5) of Regulation No 883/2013, as amended by Regulation 2020/2223, that, in the context of an on-the-spot check, OLAF is authorised to have access to all information, documents and data relating to the matters under investigation and to take copies of the relevant documents which prove necessary to carry out such a check.
31      In addition, Article 7(1) of Regulation No 2185/96 confers on OLAF a certain discretion in determining the information and documentation to which it considers it necessary to have access and of which it wishes, for that purpose, to take copies, in the context of an investigation opened on the basis of Article 3 of Regulation No 883/2013 (judgment of 21 December 2022, Vialto Consulting v Commission, T‑537/18, not published, EU:T:2022:852, paragraph 146).
32      However, it should be noted that, where, as a result of an inspection of premises, OLAF happens to discover evidence giving rise to sufficient suspicion that there have been unlawful activities falling within its competence which are distinct from those to which the investigation as part of which that inspection was conducted originally related, it is for OLAF, if it intends to investigate in that regard in order to verify or supplement information which it happened to obtain during that investigation, to initiate a new investigation, or, as the case may be, to extend the original subject matter of its investigation, if the unlawful activities which it happened to discover are sufficiently linked to those to which the original investigation related to justify them being part of a single investigation procedure (see, to that effect, judgment of 30 September 2021, Court of Auditors v Pinxten, C‑130/19, EU:C:2021:782, paragraph 154 and the case-law cited).
33      In the present case, it is apparent from the authorisation to carry out an inspection issued by the Director-General of OLAF, attached as Annex A.5 to the application for interim measures, that the investigation concerned possible irregularities in procurement procedures relating to contracts financed by the European Union and awarded to the [confidential] Group by EUSPA, in particular, but not only, in the calls for tenders [confidential]. The purpose of the investigation is to gather evidence concerning the subject matter of the investigation.
34      According to the applicant, it is apparent in particular from the OLAF report that, without the applicant having been informed of it beforehand, the inspectors also investigated a consultancy contract concluded between the applicant and one of the national representatives on the independent Security Accreditation Board of EUSPA. The applicant adds that it is clear that the investigation into its relations with that consultant did not fall within the scope of the authorisation to carry out an inspection issued by OLAF. That authorisation does not mention any irregularity with regard to the contractual relations with a representative of a Member State.
35      In that regard, it appears, prima facie, that the factual findings relating to the consultancy contract made in the course of the OLAF investigation were linked to contracts awarded by EUSPA to the applicant. In particular, point (a) of section 2.2.2(a) of the OLAF report, on page 135 of Annex A.14 to the application for interim measures, in which it is stated that the consultancy contract, signed on 24 June 2020, expressly provided that one of the activities to be carried out by the consultant was assistance and active participation in recruiting staff for GSA’s next bid. In addition, paragraphs 45 and 46 of the contested decision, on page 15 of Annex A.1 to the application for interim measures, establish, prima facie, that the applicant intended to use the information provided by the consultant in order to obtain an advantage in the calls for tenders opened by EUSPA, in particular call for tenders [confidential]. Similarly, paragraph 46 of the contested decision establishes, prima facie, that the applicant had asked the consultant to draft a section of its proposal in procedure [confidential].
36      Consequently, it appears, prima facie, that OLAF remained within the framework of the investigation defined in the decision to open the investigation.
37      It follows from the foregoing that, without prejudging the General Court’s decision on the main action, it must be concluded that both the first and second parts of the first plea relied on by the applicant appear, prima facie, to be unfounded.
The second plea in law
38      By its second plea, the applicant alleges that OLAF infringed the principle of impartiality laid down in Article 41 of the Charter of Fundamental Rights and the obligation, laid down in Article 9(1) of Regulation No 883/2013, to seek evidence for and against the person concerned.
39      In particular, the applicant claims that OLAF omitted, both in its report and in the annexes thereto, several items of evidence for the applicant, namely a statement by the consultant of 4 December 2023, an email from the consultant in which he stated that the drafting of part of a proposal for a call for tenders for the applicant could constitute a conflict of interest, a letter from the applicant of 29 April 2021, sent in the context of its bid for Lot 4 of call for tenders [confidential], in which it stated that it was in the process of obtaining accreditation of a cryptographic product and also numerous emails and internal exchanges which also demonstrate that it did not intend to conceal deliberately its lack of possession of an accredited communication and information system or an approved cryptographic product.
40      EUSPA disputes those arguments.
41      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.
42      It should be recalled that, pursuant to Article 1 of Regulation No 883/2013, 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. To that end, in accordance with Article 2(4) of that regulation, OLAF is to investigate whether the activities which it carries out are irregular. At the end of the investigation, in accordance with Article 11 of that regulation, 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 that regulation and the conclusions of the investigation.
43      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 (judgment of 29 June 2022, LA International Cooperation v Commission, T‑609/20, EU:T:2022:407, paragraph 62 (not published)).
44      Where an exculpatory document has not been communicated, it is settled case-law that the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the procedure and the content of the final decision (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 74 and the case-law cited).
45      In the present case, it is necessary to assess, prima facie, whether the applicant has established that the non-disclosure of the exculpatory documents on which it relied could have had an effect on the course of the procedure and the content of the final decision.
46      In particular, first, as regards the consultant’s statement in an email of 4 December 2023, it appears, prima facie, that that statement cannot be regarded as evidence for the applicant, but simply as a subsequent statement by a person interested in the investigation who allegedly actively participated in the misconduct. In any event, even if the consultant’s assertion that the applicant did not use internal documents to obtain information or an advantage could be given probative value, that fact is irrelevant for the purposes of characterising the applicant’s conduct as active corruption. In accordance with Article 4(2)(b) of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29), ‘active corruption’ means the action of a person who promises, offers or gives, directly or through an intermediary, an advantage of any kind to a public official for himself or herself or for a third party for him or her to act or to refrain from acting in accordance with his or her duty or in the exercise of his or her functions in a way which damages or is likely to damage the European Union’s financial interests. Consequently, the question whether the information was actually used by the applicant for such purposes is not decisive, since it is sufficient that that act is likely to damage the European Union’s financial interests.
47      Second, as regards the consultant’s email in which he stated that the drafting of part of a proposal for a call for tenders for the applicant could present a conflict of interest, it appears, as argued by EUSPA, that that email cannot be regarded as evidence for the applicant, but, on the contrary, as evidence against the applicant, in so far as it shows that the applicant actively asked the consultant to write that proposal. Paragraph 46 of the contested decision is based precisely on the fact that the applicant had requested specific information from the consultant and to draft a proposal for the purposes of the procurement procedure for the [confidential] framework contract. That paragraph therefore does not concern the conduct of the consultant, but that of the applicant.
48      Third, as regards the applicant’s letter of 29 April 2021, it appears, prima facie, that that evidence was specifically examined during the procedure which led to the adoption of the contested decision. As EUSPA confirms, the applicant used that letter in its defence during the adversarial procedure and also the letter was then explicitly addressed by the panel referred to in Article 145 of Regulation 2024/2509, in paragraph 64 of its recommendation on page 289 of Annex A.28 to the application for interim measures. However, notwithstanding the specific examination of that letter during the administrative procedure, it did not invalidate the negative findings of EUSPA and the EDES
Panel concerning the applicant’s conduct.
49      Fourth, as regards the numerous emails and internal exchanges which establish that the applicant did not intend to deliberately conceal its lack of possession of an accredited communication and information system or an approved cryptographic product, it must be held that the applicant neither attached nor identified those alleged exchanges.
50      In addition, in paragraph 77 of the contested decision, EUSPA set out the reasons why it ultimately concluded that the evidence gathered showed that the applicant did not intend to show transparency regarding its lack of possession of an accredited communication and information system or an approved cryptographic product.
51      Fifth, as regards the applicant’s claim that the consultant was not the subject of an investigation or disciplinary proceedings, it should be noted, as EUSPA did, that at the time of the discovery of the misconduct, the consultant was not a beneficiary of EU funding and was no longer a member of the Security Accreditation Board, so that the authorising officer responsible was not to investigate it.
52      It follows from the foregoing that the second plea in law appears, prima facie, to be unfounded.
The third plea in law
53      By its third plea, the applicant submits that EUSPA breached the principle of proportionality by publishing information relating to its exclusion and its financial penalty, that is to say, its name, its exclusion situation, the duration of its exclusion and the amount of the financial penalty imposed, on the Commission’s public website, in accordance with Article 142(1) of Regulation 2024/2509.
54      EUSPA disputes the applicant’s arguments.
55      First, EUSPA claims that the applicant has not put forward any specific argument demonstrating why it considers that the principle of proportionality has not been respected in the present case.
56      Second, EUSPA recalls the case-law according to which the need to reinforce the deterrent effect of the exclusion is inherent to the seriousness of the conduct in question.
57      Third, EUSPA submits that, contrary to what the applicant suggests, the mere fact that the contested decision was adopted on the basis of a preliminary classification in law is not a factor which supports the conclusion that the publication was disproportionate.
58      In that regard, it should be recalled that Article 142 of Regulation 2024/2509 is worded as follows:
‘Publication of exclusion and financial penalties
1.      In order to, where necessary, reinforce the deterrent effect of the exclusion and/or financial penalty, the Commission shall, subject to a decision of the authorising officer responsible, publish on its website the following information related to the exclusion and, where applicable, the financial penalty in the cases referred to in Article 138(1), points (c) to (i):
(a)      the name of the person or entity referred to in Article 137(2) concerned;
(b)      the exclusion situation;
(c)      the duration of the exclusion and/or the amount of the financial penalty.
Where the decision on the exclusion and/or financial penalty has been taken on the basis of a preliminary classification as referred to in Article 138(2), the publication shall indicate that there is no final judgment or, where applicable, final administrative decision. In such cases, information about any appeals, their status and their outcome, as well as any revised decision of the authorising officer responsible shall be published without delay. Where a financial penalty has been imposed, the publication shall also indicate whether that penalty has been paid.
The decision to publish the information shall be taken by the authorising officer responsible either following the relevant final judgment or, where applicable, final administrative decision, or following the recommendation of the panel referred to in Article 145, as the case may be. That decision shall take effect three months after its notification to the person or entity concerned, as referred to in Article 137(2).
The information published shall be removed as soon as the exclusion has come to an end. In the case of a financial penalty, the publication shall be removed six months after payment of that penalty.
…
2.      The information referred to in paragraph 1 of this Article shall not be published in any of the following circumstances:
…
(b)      where publication would cause disproportionate damage to the person or entity referred to in Article 137(2) concerned or would otherwise be disproportionate on the basis of the proportionality criteria set out in Article 138(4) and having regard to the amount of the financial penalty;
…’
59      In the present case, first, as regards the applicant’s argument that the publication of the penalties imposed will have a particularly stigmatising and enduring impact on its reputation, it must be held that damage to reputation is inherent in the publication of the exclusion (see, to that effect, judgment of 2 October 2024, VC v EU-OSHA (Exclusion from participation in public procurement procedures on the basis of a national administrative decision which has been stayed), T‑126/23, under appeal, EU:T:2024:666, paragraph 152).
60      However, in that context, as regards the question whether such damage constitutes in the present case disproportionate damage within the meaning of Article 142(2)(b) of Regulation 2024/2509, the applicant’s line of argument is succinct in that regard, but sufficiently clear to understand its fears. It submits, inter alia, that the effects of the publication of the information at issue on the Commission’s website are likely to exceed significantly the financial burden resulting from a financial penalty.
61      It is true that EUSPA carried out an assessment of proportionality as regards the publication of the information at issue in the contested decision. As stated in paragraph 124 of the contested decision, in view of the seriousness of the misconduct committed by the applicant, the relevant information relating to the exclusion and the financial penalty should be published on the Commission’s website in order to reinforce the specific deterrent effect of those measures. That publication should contribute to ensuring that the same misconduct is not repeated, that that kind of behaviour on the part of entities receiving EU funds does not go unnoticed and that it becomes publicly known that any entity or person acting in the same or similar way will have to bear the consequences.
62      However, it appears, prima facie, that the applicant’s line of argument is not unfounded, since the publication of the information at issue is likely to have a significant adverse financial effect on the applicant and, from that point of view, to cause it damage.
63      It should be observed in that regard that the question whether that damage is disproportionate depends on the examination of the specific circumstances of the case and, furthermore, that the assessment criteria listed in Article 138(4) of Regulation 2024/2509 are not exhaustive, as is apparent from the adverb ‘in particular’ in that provision.
64      To that end, the assessment of the applicant’s line of argument calls for an analysis of both its economic situation and the impact of the publication of the information concerned on the financial viability of its business. Such an analysis cannot be carried out by the judge hearing the application for interim measures, but is the responsibility of the formation of the court called upon to decide the main proceedings.
65      Second, as regards the argument that publication reinforces the punitive aspect of the penalty imposed, it should be noted that, according to the case-law, in the case of grave professional misconduct, exclusion and publication are complementary, since they ultimately have the same objective of inducing all the persons concerned to desist from any transgression of the rules. As a complement to the penalty of exclusion, it must be held that, in accordance with the case-law relating to review of the legality of penalties, the review of the proportionality of publication cannot be restricted, but must be a thorough review both in law and in fact (judgment of 2 October 2024, VC v EU-OSHA (Exclusion from participation in public procurement procedures on the basis of a national administrative decision which has been stayed), T‑126/23, under appeal, EU:T:2024:666, paragraph 149).
66      Furthermore, it should be added that exclusion and publication are not equivalent in their effects, exclusion being essentially punitive whereas publication is deterrent and preventive. It follows that the decision to publish must be the subject of a specific proportionality analysis, even if the facts giving rise to the publication and the exclusion penalty may be common and studied concomitantly and the criteria for assessing their proportionality are in part common (judgment of 2 October 2024, VC v EU-OSHA (Exclusion from participation in public procurement procedures on the basis of a national administrative decision which has been stayed), T‑126/23, under appeal, EU:T:2024:666, paragraph 150).
67      Third, as regards the applicant’s argument that the disproportionate nature of that measure is reinforced by the fact that it is based only on a preliminary classification in law, it appears, as EUSPA has argued, that the mere fact that the contested decision was adopted on the basis of a preliminary classification in law is not a factor which in itself supports the conclusion that the publication is disproportionate.
68      If that were the case, any publication would never be proportionate where the exclusion of an entity or the imposition of a financial penalty would be based on a preliminary classification in law.
69      However, it should be borne in mind that, as mentioned in paragraph 58 above, the second subparagraph of Article 142(1) of Regulation 2024/2509 provides that, ‘where the decision on the exclusion and/or financial penalty has been taken on the basis of a preliminary classification as referred to in Article 138(2), the publication shall indicate that there is no final judgment or, where applicable, final administrative decision. In such cases, information about any appeals, their status and their outcome, as well as any revised decision of the authorising officer responsible shall be published without delay. Where a financial penalty has been imposed, the publication shall also indicate whether that penalty has been paid.’
70      It follows from the foregoing that, without prejudging the decision of the General Court in the main action, it must be concluded that the applicant’s argument that the publication of the penalties imposed will have a particularly stigmatising and enduring impact on its reputation, relied on in the context of the third plea in the present proceedings for interim measures, appears, prima facie, not unfounded within the meaning of the case-law referred to in paragraph 17 above.
71      It must therefore be found that there is a prima facie case.
The condition of urgency
72      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU judicature. To attain that objective, urgency must generally be assessed in the light of the need of an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measures. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
73      It is in the light of those criteria that it must be examined whether the applicant has succeeded in demonstrating urgency.
74      In the present case, in the first place, the applicant claims that the publication provided for in Article 3 of the contested decision would have a disastrous impact on its reputation and on that of the persons who have worked or are working for it.
75      Furthermore, the applicant submits that the criminal charges against it, which will be published erga omnes, have not been established by a final judgment or a final administrative decision, but on the basis of a preliminary classification in law made by EUSPA. Therefore, it cannot be ruled out that EUSPA’s preliminary classification of the facts on which the contested decision and, a fortiori, Article 3 thereof, is based may be called into question by the General Court at the end of the main proceedings. However, given that publication has an irreversible effect, even if the General Court annuls the contested decision, it will be extremely difficult, if not impossible, to clear the applicant’s reputation retrospectively.
76      In the second place, the applicant submits that such publication would have a considerable impact on the prospect of continuing its economic activities. Once sensitive information relating to its exclusion is published on the Commission’s public website, neither public authorities nor private partners or clients will be willing or able to collaborate with the applicant on certain projects.
77      According to the applicant, that damage is all the more serious since the publication provided for in Article 3 of the contested decision is accessible to the general public and everyone can access the information at issue and use it against the applicant in order to damage its reputation or activities. The damage suffered is all the more significant because the applicant operates in a highly competitive niche sector.
78      In addition, such publication would place it in a situation of general vulnerability. That situation is all the more damaging given that the publication relating to the exclusion and the charges giving rise to that exclusion are supposed to remain online for the entire duration of the exclusion, namely four and a half years.
79      In the third place, the applicant submits that, given that the information at issue remains accessible on the Commission’s public website for four and a half years and that not only its competitors, but also its current and potential clients and business partners can access it, it is impossible to quantify in monetary terms the damage which the applicant will suffer as a result of that publication, both terms of its reputation and the loss of contracts and business opportunities.
80      EUSPA disputes the applicant’s arguments.
81      According to EUSPA, the applicant has not established to the requisite legal standard the risk of serious and irreparable damage. The application for interim measures merely contains general statements to the effect that the publication of information on the exclusion of the applicant would damage its reputation and business. However, those allegations are unsubstantiated and not based on any evidence.
82      First, EUSPA claims that the applicant entirely omits the fact that it has undergone a demerger by which all of its relevant activities and assets were transferred to newly established companies. The applicant only exercises a residual activity and no longer pursues any new business. Thus, Article 3 of the contested decision cannot cause any harm to an entity which no longer pursues any activity.
83      Second, EUSPA submits that the circumstances of the case-law relied on by the applicant in the field of competition law were very different from those of the present case. The order of 10 September 2013, Commission v Pilkington Group (C‑278/13 P(R), EU:C:2013:558), for example, concerned the publication of the entirety of a decision finding that the applicant in that case had infringed the competition rules and included commercially sensitive information containing business secrets. By contrast, the publication of an exclusion or financial penalty under Regulation 2024/2509 does not grant third parties any access to the content of the decision imposing an exclusion or a financial penalty.
84      Third, EUSPA submits that the applicant presents examples of the consequences of the OLAF investigation and its rapid registration in the Early-Detection and Exclusion System (EDES) database, namely that several EU framework contracts in which the applicant acted as contractor were terminated and that, in several cases, the applicant was replaced as a subcontractor. However, all those examples concern contracts with EUSPA. The measures referred to were taken in the past and are in no way related to the publication of the applicant’s exclusion.
85      In that regard, in the first place, as regards the applicant’s argument that the publication provided for in Article 3 of the contested decision would have a disastrous impact on its reputation and that of the persons who have worked or are working with it, it must be stated that the publication at issue does not correspond to a communication limited to the sphere of the institutions of the European Union, but to a publication accessible to the public in general. Accordingly, if the present application for interim measures is dismissed, when such publication takes place, it will be likely to have a significant impact on the applicant’s reputation and, consequently, on the opportunities for the applicant to carry on its economic activities.
86      That situation is all the more harmful since the information at issue remains available on the internet for the entire duration of the exclusion, that is to say, for four and a half years. It is of little importance, in that regard, that the contested decision is not disclosed to the public, given that the absence of any justification concerning the errors committed by the applicant is likely to pave the way for speculation on the part of the public.
87      In that context, it should be noted that, contrary to EUSPA’s submissions, publication causes damage even if the applicant’s assets and activities have been partially transferred to various companies and those new entities are in no way affected by the publication of information on the applicant’s exclusion. The publication ordered by the contested decision will nevertheless produce effects for the applicant, in so far as it has not ceased to exist in law and continues to carry on economic activities, even though they are residual at that stage.
88      In the second place, as regards the applicant’s argument that it is impossible to quantify in monetary terms the damage which it would suffer as a result of the publication at issue, both in terms of its reputation and the loss of contracts and business opportunities, it must be borne in mind in that regard that, admittedly, damage of a financial nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage. That is however not the case, and such damage can then be deemed to be irreparable, if it cannot be quantified (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 92 and the case-law cited).
89      In the present case, it must be held that the damage resulting from such publication would not be capable of being entirely erased by pecuniary compensation or of being removed a posteriori in the event of annulment of the decision contested in the main proceedings, with the result that it must be regarded as irreparable.
90      Lastly, such damage is, a priori, irreversible since, once the information has been made available, its non-public nature can no longer be restored, even if the applicant’s main action is ultimately upheld.
91      Accordingly, the damage that the applicant is likely to suffer in the event of disclosure of that information cannot be quantified adequately.
92      In view of the foregoing considerations, it must be found that the condition relating to urgency is satisfied in the present case, since the likelihood of the applicant suffering serious and irreparable damage has been established to the requisite legal standard.
Balancing of interests
93      According to the case-law, in weighing up the different interests involved, the judge hearing the application for interim relief has to determine, in particular, whether or not the interest of the party seeking suspension of operation of the contested measure in securing that suspension outweighs the interest in the immediate application of the measure, by examining, more specifically, whether the possible annulment of the measure by the Court when ruling on the main application would allow the situation that would be brought about by its immediate implementation to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main action being dismissed (see order of 11 March 2013, Iranian Offshore Engineering & Construction v Council, T‑110/12 R, EU:T:2013:118, paragraph 33 and the case-law cited).
94      It is therefore necessary to examine whether the applicant’s interests in obtaining the immediate suspension of Article 3 of the contested decision, in so far as that decision provides for the publication on the Commission’s website of certain information relating to its exclusion from participation in award procedures, outweigh those pursued by EUSPA in adopting that decision.
95      As regards the interests it pursues, the applicant claims that the publication of information relating to its exclusion on the Commission’s public website during the period of exclusion would cause serious and irreparable damage to its reputation and economic activities.
96      As regards EUSPA’s interest, it submits that the seriousness of the applicant’s misconduct and its impact on the essential security interests of the European Union justify the need to adopt preventive measures to mitigate loss to the EU budget resulting from contracting with unreliable entities and to ensure deterrent effect to the widest extent. That preventive effect would be considerably limited if publication only took place after the adoption by the General Court of a decision on the merits, which is likely to occur more than one year from the present date.
97      In the first place, it must be borne in mind that, as stated in paragraph 85 above, what is at issue is, in the present case, the publication of information outside the bodies of the European Union which is likely to have a significant impact on the applicant’s reputation and, consequently, on the possibilities of carrying on its economic activities.
98      In addition, the effects of the publication of the information at issue on the Commission’s website are likely to exceed significantly the financial burden resulting from a financial penalty.
99      In addition, it should be noted that the objective pursued by the publication is to achieve a deterrent effect on the applicant and that publication does not in itself constitute direct and immediate protection against the risks of financial loss for the European Union.
100    The financial interests of the European Union are protected, according to recital 105 of Regulation 2024/2509, by EDES. In the present case, in accordance with paragraph 116 of the contested decision, the applicant must be entered in the EDES database for the entire duration of the exclusion. Furthermore, it should be borne in mind that the applicant does not request the suspension of either Article 1 of the contested decision, which imposes that exclusion, or Article 2 thereof, which imposes the financial penalty on it.
101    In the second place, it should be noted that, in the absence of suspension of the operation of Article 3 of the contested decision, the fundamental right to effective judicial protection and the applicant’s right to an effective remedy will only be illusory, since, once the information has been made available, its non-public nature could no longer be restored, even if the applicant’s main action were ultimately upheld.
102    The General Court will be called upon to rule, in the main proceedings, on whether the contested decision, by which EUSPA ordered, inter alia, the publication of the information at issue, must be annulled. If the operation of the publication of the information in question were not suspended, any judgment annulling the decision would be deprived of any practical effect as regards the damage caused to the applicant as a result of that publication.
103    In the light of the foregoing, it must be concluded that the interest defended by the applicant must prevail over the interest in the dismissal of the application for interim measures, especially since the grant of the suspension of operation sought would amount only to maintaining the status quo for a limited period.
Conclusion
104    It follows from all the foregoing that the application for interim measures must be granted.
105    Since the present order closes the proceedings for interim measures, it is appropriate to set aside the order of 5 May 2025, JB v EUSPA (T‑281/25 R, not published), adopted on the basis of Article 157(2) of the Rules of Procedure, under which suspension of operation of Article 3 of the contested decision was ordered, until the date of the order terminating the present proceedings for interim measures.
Costs
106    Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      Article 3 of Decision No 310882/2025 of the European Union Agency for the Space Programme (EUSPA) of 21 February 2025 on the exclusion of [confidential] from award procedures governed by Regulation (EU, Euratom) 2024/2509 and from being selected to implement Union funds and the imposition of a financial penalty is suspended.
2.      The order of 5 May 2025, JB v EUSPA (T‑281/25 R) is set aside.
3.      The costs are reserved.
Luxembourg, 7 August 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.
1      Confidential information redacted.