Consequently, in so far as the awarding authority wishes to ensure that there is no misrepresentation by candidates under Article 94(b) of the Financial Regulation, and not under Article 93(1) of that regulation, it is not required to comply with Article 134(5) of Regulation No 2342/2002.

Even though Article 134(5) of Regulation No 2342/2002 laying down detailed rules for the implementation of the Financial Regulation refers in general to the situations of exclusion referred to in Article 93(1)(a), (b), (d) and (e) of the Financial Regulation, it is clear from the reference made in that paragraph to paragraph 3 of the same article and from the statement that ‘contracting authorities may themselves apply to the competent authorities’ referred to in paragraph 3 that paragraph 5 concerns the case where, as candidates are not obliged to provide the certificates specified in paragraph 3 relating to the situations of exclusion referred to in Article 93(1)(a), (b), (d) and (e) of the Financial Regulation, the contracting authority wishes all the same to ensure that those candidates are not in one of those situations of exclusion.

A decision to exclude a candidate from a contract based on Article 94(b) of Financial Regulation No 1605/2002 on the ground that it has made false statements is in the nature of an administrative penalty, even if no information concerning it is stored in the database referred to in Article 95 of that regulation. In any event, even assuming that such a decision may not be regarded as having imposed a penalty on the addressees, the general principle of respect for the rights of the defence must be applied by the awarding authority.

The principle of respect for the rights of the defence is of general application and applies, quite apart from cases where an institution plans to impose a penalty, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person. In that regard, a decision of immediate exclusion constitutes at the very least a measure adversely affecting the addressees, that is to say that it significantly affects their interests, since it has serious financial consequences, or, more generally, it has serious consequences on their situation. Thus, a decision rejecting a candidature on the ground, in particular, of misrepresentation pursuant to Article 94(b) of the Financial Regulation is liable, at the very least, adversely to affect the reputation of the candidates concerned and to have consequences which go beyond the contract in question. In that regard, if the exclusion decision follows a request for information sent to the national authorities owing to the Commission’s doubts as to the veracity of a candidate’s statements, the Commission must be regarded as having intensified its examination of an aspect of the applicants’ application and, by that request for information, taken an action aimed at checking the applicant’s statements which led to the adoption of the exclusion decision.

Moreover, the fact that no provision of the Financial Regulation or of the Implementing Rules requires observance of the rights of the defence in such a case does not, in itself, preclude such a guarantee based on the general principle of respect for the rights of the defence.

In any event, it is for the court to verify, where it considers that an irregularity affecting defence rights has occurred, whether, in the light of the specific factual and legal circumstances of the case, the procedure at issue could have resulted in a different outcome if the applicants had been better able to defend themselves in the absence of that irregularity.

(see paras 55, 63-67, 72)