COMMISSION STAFF WORKING DOCUMENT Early-Detection and Exclusion System (EDES) - Panel referred to in Article 143 of the Financial Regulation Accompanying the document REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 35th Annual Report on the protection of the European Union's fiancial interests and the fight against fraud - 2023
Date: 2024-07-25
Institutions: European Anti-Fraud Office, European Commission
Subjects: EU Member State, EU budget, EU strategy, activity report, corruption, digitisation, fight against crime, financial control, fraud, fraud against the EU

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 25.7.2024  SWD(2024) 189 final  COMMISSION STAFF WORKING DOCUMENT Early-Detection and Exclusion System (EDES) - Panel referred to in Article 143 of the Financial Regulation Accompanying the document REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT 35th Annual Report on the protection of the European Union's fiancial interests and the fight against fraud - 2023 {COM(2024) 318 final} - {SWD(2024) 187 final} - {SWD(2024) 188 final} - {SWD(2024) 190 final} - {SWD(2024) 191 final} - {SWD(2024) 192 final} - {SWD(2024) 193 final}  
 
 
TABLE OF CONTENTS 

1. 

INTRODUCTION ....................................................................................................... 2 

2.  THE PANEL ............................................................................................................... 3 

2.1.  Composition of the Panel .................................................................................. 3 

2.2.  Role of the Panel ............................................................................................... 5 

2.3.  Recommendation of the Panel ........................................................................... 7 

3.  COOPERATION WITH OLAF .................................................................................. 8 

4.  THE WORK OF THE CURRENT PANEL ................................................................ 9 

5.  ASSESSMENT OF REMEDIAL MEASURES ....................................................... 10 

6.  OVERVIEW OF CASES REFERRED TO THE PANEL ........................................ 11 

 
 
 
 
 
 
SWD REPORT ACTIVITY 2023 

1. 

INTRODUCTION 

The Early Detection and Exclusion System (EDES) was established by the Commission 
to strengthen the protection of the EU’s financial interests and to ensure compliance with 
the  principle  of  sound  financial  management  when  implementing  the  budget,  in 
accordance with Article 317 of the Treaty on the Functioning of the European Union. In 
particular,  the  EDES  enables  authorising  officers  to  exclude  unreliable  operators  from 
EU funding for a limited number of years. 

More specifically, EDES covers: 

➢  the early detection of persons and entities presenting a risk to the EU’s financial 

interests; 

➢  the exclusion of persons and entities from participating in award procedures or 

from being selected to implement EU funds; 

➢  the imposition of a financial penalty; 

➢  the  publication  on  the  Commission’s  internet  site  of  information  related  to  the 
exclusion and, where applicable, the financial penalty, in order to reinforce their 
deterrent effect, in the most severe cases. 

The  EDES  rules  are  set  out  in  Regulation  (EU,  Euratom)  2018/1046  (the  ‘Financial 
Regulation’) (1)  and the  Rules of Procedure of the Panel (2). They provide for a robust 
structure which includes the setting-up of a panel (the ‘EDES Panel’ or the ‘Panel’) and 
the creation of a central database. 

EDES,  which  currently  applies  to  direct  and  indirect  management,  ensures  an 
independent  and  centralised  assessment  of  exclusion  situations,  and  respect  for  the 
fundamental rights of the person and entities concerned (3). 

(1)  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  EU,  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 L 193 of 30.7.2018, p. 1. 

(2)  Commission  Decision  (EU)  2018/1220  of  6 September  2018  on  the  rules  of  procedure  of  the  panel 
referred to in Article 143 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of 
the Council (OJ L 226, 7.9.2018, p. 7). 

(3)  Protection  of  the  EU  financial  interest  has  been  strengthened  by  the  political  agreement  on  the 
Financial Regulation recast of 7 December 2023. The co-legislators agreed to extend the scope of the 
system,  for  the  most  serious offences  (e.g. fraud,  corruption,  money-laundering  activities),  to  shared 
management  funds  and  funds  disbursed  under  direct  management  with  Member  States.  The 
amendment will be in force for programmes adopted or financed as from 1 January 2028. 

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In this respect, it constitutes a key instrument for ensuring the effective protection of the 
EU’s financial interests through the adoption of administrative measures, while national 
authorities remain responsible for adopting sanctions, including criminal sanctions (4). 

This Staff Working Document presents the activity of the EDES Panel in 2023 and the 
first months of 2024. 

2.  THE PANEL 

The  key  responsibility  of  the  Panel  is  to  issue  recommendations  on  the  adoption  of 
administrative  measures  (i.e.  exclusion  and/or  financial  penalty  and,  where  applicable, 
the  publication  of  information  related  to  these  actions),  following  a  request  from  a 
competent  authorising  officer from  any  of  the  EU  institutions,  agencies,  offices  and 
bodies.  After  assessment  of  the  case,  the  Panel  addresses  its  recommendation  to  the 
requesting authorising officer. 

In addition, under Article 93 of the Financial Regulation, the Panel is also responsible for 
giving an opinion or making a recommendation where financial irregularities may have 
been committed by a member of staff of an EU institution or body. 

The  Panel  centralises  the  requests  from  authorising  officers,  ensures  the  coherent 
operation of the system, carries out a preliminary classification in law of the misconduct 
and  upholds  the  right  of  defence  for  persons  or  entities  involved  in  an  adversarial 
procedure. In addition, the Panel assesses the remedial measures submitted by a person or 
entity to demonstrate its reliability. 

2.1.  Composition of the Panel 

As laid down in Article 143 of the Financial Regulation, the Panel is composed of: 

- 

- 

a standing high-level independent Chair; 

two  permanent  members  representing  the  Commission  as  owner  of  EDES,  who 
express a joint position on each case submitted to the Panel; and 

- 

one representative of the requesting authorising officer. 

The  chair  of  the  Panel  and  their  deputy  are  appointed  by  the  Commission (5)  and  are 
independent in the performance of their duties (6). They are chosen from among former 

(4)  Contrary  to  what  had  been  the  norm  with  previous  versions  of  the  Financial  Regulation,  which 
provided  for  the  imposition  of  administrative  sanctions  on  unreliable  economic  operators,  in  the 
current Financial Regulation, adopted in 2018, the purpose of  EDES is not punitive but aims solely to 
protect the EU’s financial interests, by stopping unreliable entities from accessing EU funds, albeit for 
a  limited  period  and,  at  the  same  time,  deterring  them  from  misbehaving  once  they  are  allowed  to 
benefit from those funds again. 

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members of the Court of Justice of the EU, the Court of Auditors or former officials who 
have  held  the  rank  of  Director-General  or  higher  in  an  EU  institution  other  than  the 
Commission.  Their  independence  is  guaranteed  by  the  fact  that  their  term  of  office  is 
limited and non-renewable. 

The current  chair of the  Panel,  Ms  Maria  Isabel  Rofes  i  Pujol, is  a former judge at  the 
European  Union  Civil  Service  Tribunal,  and  was  appointed  in  November  2021.  Her 
deputy is Mr Igors Ludboržs, a former Member of the European Court of Auditors. 

The two permanent members of the Panel representing the Commission in 2023 were Mr 
Hubert Szlaszewski, Principal Adviser in the Secretariat General of the Commission, and 
Mr Olivier Waelbroeck, currently Principal Adviser for Legal and Financial Issues, Rule 
of Law,  Fraud Prevention and EDES  and, previously,  Director of the Central  Financial 
Service  in  DG  BUDGET  (7).  In  March  2023,  Mr  Kristian  Vangrieken,  a  senior  staff 
member  of  the  Commission  DG  BUDGET  took  over  the  mandate  of  Mr  Hubert 
Szlaszewski who had retired. 

For each case, the l member representing the requesting authorising officer is designated 
according  to  the  internal  administrative  rules  of  the  institution,  agency,  office  or  body 
concerned. 

When  dealing  with  cases  of  internal  financial  irregularities  by  EU  staff  pursuant  to 
Article 93 of the Financial Regulation, the Panel  includes the Chair, the two permanent 
members representing the Commission, and three additional members: 

- 

- 

- 

a representative of the competent appointing authority; 

a member appointed by the competent staff committee; and 

a member of the legal service of the EU institution concerned. 

The  Panel  is  assisted  by  observers,  who  take  part  in  the  Panel’s  deliberations  without 
voting  rights.  The  Commission’s  Legal  Service  is  a  permanent  observer  to  the  Panel’s 
meetings.  Where  a  referral  to  the  Panel  stems  from  an  investigation  by  the  European 
Anti-fraud  Office  (OLAF)  by  the  European  Public  Prosecutor’s  Office  (EPPO), 
representatives  of  OLAF  and  EPPO  participate  in  the  Panel’s  meetings  as  observers. 
Their attendance enables the Panel to be informed first-hand of: (i) the facts and findings 
resulting  from  an  OLAF/EPPO  investigation;  (ii)  the  estimated  financial  impact  of  the 

(5)  The rules applicable to the Deputies are to be found in the Rules of Procedure of the Panel. The Rules 
of Procedure regulate, i.a. the appointment, termination of appointment and dismissal of the Chair and 
deputy. 

(6)  Article 144(3) of the Financial Regulation. 

(7)  Deputies of the Permanent Members are Mr Rene Slootjes, Head of Unit in the Secretariat-General of 
the  Commission  designated  ad  personam  and  Mr  Alessandro  Nucara,  Head  of  Unit  in  the  Central 
Financial Service in the Directorate-General for Budget. 

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misconduct;  (iii)  the  procedural  guarantees  accorded  to  the  persons  and  entities 
concerned;  (iv)  actions  taken  by  national  judicial  authorities,  if  any.  The  active 
participation of the Commission’s Legal Service, OLAF and EPPO in the Panel’s work is 
key  to  ensuring  that  the  Panel  delivers  high-quality  recommendations.  In  addition, 
authorising  officers  (other  than  the  referring  authority)  who  are  concerned  by  the  case 
referred to the Panel may participate in its meetings as observers. 

The  Panel  is  supported  by  a  permanent  secretariat  provided  by  the  Directorate-General 
for Budget of the European Commission. 

The Panel operates under its own set of procedural rules, which serve to implement and 
complement  Article 143  of  the  Financial  Regulation  (8).  These  rules  are  designed  to 
achieve  two  main  objectives:  (i)  regulate  the  internal  functioning  of  the  Panel;  and  (ii) 
provide  all  parties  involved,  including  persons  or  entities  subject  to  an  exclusion 
procedure, with clear guidance on their rights and obligations. 

2.2.  Role of the Panel 

Under  the  Financial  Regulation (9),  in  the  absence  of  a  final  judgment  –  or,  where 
applicable,  a  final  administrative  decision  –  the  authorising  officer  who  intends  to 
exclude  and/or  fine  unreliable  persons  or  entities  must  first  request  a  recommendation 
from the Panel. The grounds for exclusion that require a Panel recommendation are the 
following (10): 

- 

- 

- 

grave professional misconduct resulting from: (i) the violation of applicable laws or 
regulations  or  ethical  standards  of  the  profession  to  which  the  economic  operator 
concerned  belongs,  or  (ii)  the  engagement  in  any  wrongful  conduct  which  has  an 
impact  on  professional  credibility  where  such  conduct  denotes  wrongful  intent  or 
gross negligence; 

fraud,  corruption,  participation  in  a  criminal  organisation,  money  laundering  or 
terrorist financing, terrorist-related offences or offences linked to terrorist activities, 
and child labour or other forms of trafficking in human beings; 

significant deficiencies in complying with main obligations in performing a contract 
financed by the budget (‘serious breach of obligations’), which: (i) has led to early 
termination  of  the  contract  or  to  the  application  of  liquidated  damages  or  other 
contractual  penalties;  or  (ii)  has  been  discovered  following  checks,  audits  or 
investigations by an authorising officer, OLAF or the Court of Auditors; 

(8)  Commission  Decision  (EU)  2018/1220  of  6 September  2018  on  the  rules  of  procedure  of  the  panel 
referred to in Article 143 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of 
the Council (OJ L 226, 7.9.2018, p. 7). 

(9)  See Article 136 of the Financial Regulation. 

(10)  See Article 136(2) of the Financial Regulation. 

5 

 
 
SWD REPORT ACTIVITY 2023 

- 

- 

irregularity within the meaning of Article 1(2) of Council Regulation (EC, Euratom) 
No 2988/95 (11) and; 

the creation or use of a shell company in a different jurisdiction from the one of the 
registered office, central administration or principal place of business, with the intent 
to circumvent fiscal, social or any other legal obligations. 

In general, each case is assessed by the Panel in two phases. Firstly, the Panel reviews the 
facts  established,  performs  an  initial  legal  qualification,  and  opens  an  adversarial 
procedure  with  the  person  or  entity  concerned.  Secondly,  the  Panel  examines  written 
observations  and  adopts  a  recommendation,  addressed  to  the  requesting  authorising 
officer. 

In principle, the Panel must adopt its recommendation within 3 months from the opening 
of the case. A case is opened when the chair verifies that the file is complete because it 
contains all the necessary documents and information, and the Panel  is  in a position to 
establish a preliminary classification in law, with a view to notifying the person or entity 
concerned thereof and starting the adversarial procedure. 

To  ensure  the  right  to  be  heard  of  the  person  or  entity  concerned,  the  Panel  sends  an 
adversarial  letter  inviting  them  to  submit  written  observations  within  3  weeks.  In 
response to a duly warranted request, the deadline may be extended by no more than half 
the period initially granted. Where the nature or the circumstances of the case require that 
it is given priority (e.g. ongoing award procedures; risk of time-barring of the facts), the 
Panel  strives  to  act  swiftly,  without  prejudice  to  the  right  of  defence  of  the  person  or 
entity concerned. 

The Panel has no investigative powers. Therefore, when assessing the facts and findings 
established against the person or entity, the Panel relies, among other things, on: 

a) 

facts  established  through  audits  or  investigations  carried  out  by:  (i)  EPPO;  (ii)  the 
European Court of Auditors; (iii) OLAF; (iv) internal audits; or (v) any other check, 
audit or control performed under the responsibility of the authorising officer; 

b)  non-final  administrative  decisions,  which  may  include  disciplinary  measures  taken 
by  the  competent  supervisory  body  responsible  for  verifying  the  application  of 
professional ethical standards; 

c) 

facts  referred to  in  decisions  of persons and entities implementing  EU funds under 
indirect management (12); 

(11)  Council  Regulation  (EC,  Euratom)  No 2988/95  of  18 December  1995  on  the  protection  of  the 
European Communities financial interests (OJ L 312, 23.12.1995, p. 1) which defines irregularity as: 
‘any infringement of a provision of Community law resulting from an act or omission by an economic 
operator, which has, or would have, the effect of prejudicing the general budget of the Communities or 
budgets managed by them, either by reducing or losing revenue accruing from own resources collected 
directly on behalf of the Communities, or by an unjustified item of expenditure.’ 

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d) 

information sent by entities implementing EU funds under shared management with 
Member States; and 

e)  decisions  of:  (i)  the  Commission  relating  to  the  infringement  of  the  EU’s 
competition rules; or (ii) a national competent authority relating to the infringement 
of EU or national competition law. 

The relevant documents and evidence pertaining to the relevant case, whether inculpatory 
or exculpatory, are then disclosed to the person or entity concerned in the context of the 
adversarial  procedure,  together  with  the  preliminary  classification  in  law  of  the  facts 
established and the envisaged measure to be recommended. 

2.3.  Recommendation of the Panel 

The outcome of the adversarial procedure is a recommendation issued by the Panel to the 
referring  authorising  officer  on the need  (or not)  to  adopt  an  administrative measure in 
the case at issue. 

Where the Panel finds that a person or entity should be excluded, or a financial penalty 
imposed,  the  recommendation  outlines  the  facts  warranting  the  measure,  their 
preliminary classification in  law, as  well as the outcome of the adversarial  proceedings 
led by the Panel. 

The Panel’s recommendation typically includes the following: 

a)  a comprehensive description of the facts and findings established against the person 

or entity concerned; 

b)  a summary of the observations put forward by the person or entity concerned; 

c)  an all-circumstances analysis of misconduct, including its seriousness, the degree of 

intention, the financial impact on the EU’s budget; 

d)  where applicable, an analysis of remedial measures adopted by the person or entity 

concerned; 

e) 

recommended duration of the exclusion and/or amount of the financial penalty; 

f)  an  evaluation  of  whether  publication  of  the  measure  is  necessary  to  reinforce  its 

deterrent effect. 

(12)  For example, by the European Central Bank; the European Investment Bank; the European Investment 
Fund; international organisations; non-EU countries, or the bodies designated by non-EU countries and 
Member States. 

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SWD REPORT ACTIVITY 2023 

The  Panel  has  the  authority  to  recommend  an  exclusion  from  participating  in  award 
procedures  or  from  being  selected  for  implementing  EU  funds  for  up  to  3 or  5  years, 
depending on the type of misconduct (13). 

Additionally, the Panel may recommend a financial penalty, capped at 10% of the total 
value of the legal commitment. This penalty may serve as an alternative to exclusion in 
cases  where  exclusion  would  be  deemed  disproportionate,  or  it  may  be  imposed  in 
addition  to  the  exclusion  in  cases  of  systemic  or  recurrent  misconduct.  However,  a 
financial  penalty  cannot  be  imposed  on  a  recipient  who  has  voluntarily  disclosed  that 
they have been excluded. 

Finally,  the  Panel  may  recommend  the  publication  of  the  measure  on  the  European 
Commission  website (14) of the administrative measure eventually  adopted,  to  reinforce 
its deterrent effect (15). 

The  Panel’s  recommendation  is  not  binding  and  the  referring  authorising  officer  can 
deviate  from  it.  In  such  cases,  the  authorising  officer  must  justify  their  decision  to  the 
Panel.  Furthermore,  under  Article 143  of  the  Financial  Regulation,  if  the  authorising 
officer intends to take more severe administrative action than that recommended by the 
Panel they must make sure that their decision is taken with due respect for the person or 
entity’s right to be heard. To date, such a situation has never occurred. 

3.  COOPERATION WITH OLAF 

Since the Panel lacks investigative powers, the use of information stemming from OLAF 
investigations and Final Reports is key to the success and effectiveness of the exclusion 
system and the protection of the financial interests of the EU. 

In accordance with  the OLAF Regulation (16), the Financial Regulation  and the  Panel’s 
Rules  of  Procedure,  authorising  officers  may  use  the  information  stemming  from  or 

(13)  A maximum duration of 3 years is provided for the following grounds: grave professional misconduct, 
significant  deficiencies  in  complying  with  main  obligations  in  the  implementation  of  a  legal 
commitment,  irregularity,  or  intentional  circumvention  of  fiscal,  social,  or  other  legal  obligations.  A 
maximum duration of 5 years is provided for the most serious misconducts: fraud, corruption, conduct 
related  to  a  criminal  organisation,  money  laundering  or  terrorist  financing,  terrorist  offences  or 
offences linked to terrorist activities, child labour or trafficking of human beings. 

(14)  https://commission.europa.eu/strategy-and-policy/eu-budget/how-it-works/annual-

lifecycle/implementation/anti-fraud-measures/edes/edes-database_en. 

(15)  The  time  frame  the  publication  of  the  measure  is  strictly  limited  to  the  duration  of  the  exclusion. 
Information on the measure cannot be published in any of the following circumstances: (i) where it is 
necessary  to  preserve  the  confidentiality  of  an  investigation  or  of  national  judicial  proceedings;  (ii) 
where publication would cause disproportionate damage to the economic operator concerned or would 
otherwise be disproportionate on the basis of the proportionality criteria set out and to the amount of 
the financial penalty; and (iii) where a natural person is concerned, unless the publication of personal 
data is exceptionally justified,  among other things by the seriousness of the conduct or its impact on 
the EU’s financial interests. 

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SWD REPORT ACTIVITY 2023 

relating to OLAF investigations to request  a recommendation from the EDES Panel. In 
fact, OLAF reports are the source of information for most Panel referrals (17). 

If the information collected by OLAF as part of its investigation is subject to strict rules 
of confidentiality and protection of personal data, as stipulated in Article 10 of the OLAF 
Regulation, the information communicated to the person or entity during the adversarial 
proceedings must often be redacted before it is submitted to the Panel (18). 

Only  in  exceptional  circumstances,  where  there  are  compelling  legitimate  grounds  to 
preserve the confidentiality of an investigation, of national judicial or EPPO proceedings, 
can the right to be heard be deferred. 

This rule applies mutatis mutandis to information stemming from the EPPO in order to 
protect the investigative and prosecutorial tasks assigned to it, as well as to all documents 
used by the Panel, in particular audit reports. 

During the reporting period, the Panel, its Secretariat and OLAF have sought to enhance 
their cooperation on the matter and to further clarify how information stemming from or 
relating to OLAF investigations may be used by the authorising officer in the context of 
Panel proceedings. 

4.  THE WORK OF THE CURRENT PANEL 

The Panel chaired by Ms Rofes i Pujol has continued to develop its practice and delved 
deeper into several significant fields of interest by: 

- 

- 

- 

interpreting and clarifying the set of rules on exclusion enshrined in the  successive 
versions of the Financial Regulation; 

taking into account other applicable legal rules and general principles of law which 
lie  at  the  intersection  of  EU  administrative  and  budget  law,  competition  law, 
contractual law, criminal law, as well as national law; 

establishing  a  set  of  precedents and  drawing  out  principles  for  the  coherent  and 
effective  application  of  the  system  of  administrative  measures  to  be  adopted  with 
regard to unreliable persons and entities. 

(16)  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 L 248 18.9.2013, p. 1). 

(17)  OLAF reports represent 54% of the referral sources of the Panel cases. 

(18)  In practice, most OLAF reports and their annexes must be redacted. 

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A notable example of the Panel’s work in 2023 was its role in the treatment of financial 
irregularities on the part of a member of staff (19). The case was referred for an opinion 
by  the  appointing  authority  in  charge  of  disciplinary  matters,  on  the  basis  of  an  OLAF 
investigation,  which  unveiled  a  breach  of  ethical  standards  and  non-disclosure  of 
conflicts of interest during an award procedure. The analysis of the facts led the Panel to 
identify  a  systemic  problem  in  the  interpretation  of  the  applicable  rules,  in  particular  
whether the obligation for members of staff to declare a risk of a conflict of interest had 
to be fulfilled in writing or an oral declaration to the hierarchy sufficed. Consequently, a 
recommendation  was  addressed  to  the  authorising  officers  of  the  Commission  urging 
clarity in interpreting and enforcing the relevant rules and procedures. 

Throughout  the  reporting  period,  the  complexity  of  cases  referred  to  the  Panel  by 
authorising  officers  dramatically  increased.  These  cases  often  required  exhaustive  and 
protracted  deliberations  to  ensure  fair  and  just  recommendations.  Such  complexity 
stemmed  from  various  factors,  including  the  extended  duration  of  misconduct,  its  legal 
qualification, and occasionally, the complex assessment of the available evidence. 

A point of attention in the work of the Panel is the reliability of the sources underpinning 
the  facts  and  findings  which  ground  the  preliminary  classification  in  law  of  a  case  of 
misconduct. Since the Panel has no investigative powers, it relies heavily on the checks 
and investigations carried out by other EU bodies (e.g. OLAF, EPPO), as well as on the 
adversarial phase of the EDES procedure run with the person or entity concerned. 

It  is  important  to  note  a  recent  judgment  delivered  by  the  General  Court  (20),  which 
annulled an exclusion decision  taken by an Commission authorising officer  acting on a 
Panel recommendation. The Court considered that the facts  and findings resulting from 
an OLAF investigation were not conclusive enough to demonstrate a grave professional 
misconduct.  Accordingly,  they  did  not  allow  the  authorising  officer  to  exclude  the 
applicant from participating in procedures for the award of EU funds (21). 

This  ruling  underscores  the  importance  of  robust  legal  scrutiny  and  serves  as  a  critical 
reminder  to  the  Panel  and  the  authorising  officers  of  the  need  for  attention  to  legal 
principles and the safeguarding of procedural rights in administrative proceedings. 

5.  ASSESSMENT OF REMEDIAL MEASURES 

Under  the  Financial  Regulation (22),  the  authorising  officer,  having  regard,  where 
applicable, to the Panel’s recommendation, may not exclude a person or entity that has 
taken remedial measures to an extent sufficient to demonstrate its reliability. 

(19)  Article 93 of the Financial Regulation. 

(20)  Judgement of 15.2.2023, Case T-175/21, RH v Commission. 

(21)  Ibidem, par. 114. 

(22)  Articles 136(6)(a) and 136(7) of the Financial Regulation. 

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Where  such  measures  are  submitted  by  a  person  or  entity  as  part  of  the  adversarial 
procedure  led  by  the  Panel,  the  latter  must  assess  them  thoroughly  before  adopting  its 
recommendation. 

Conversely, where an exclusion has been adopted, the authorising officer or the person or 
entity  concerned  may  request  the  Panel  to  revise  its  recommendation  on  the  basis  of 
(new) remedial measures taken (23). 

Remedial  measures  are  assessed  in  two  main  stages:  (i)  evaluation  of  the  measures, 
which  are  scrutinised  against  the  criteria  outlined  in  Article 136(7)  of  the  Financial 
Regulation;  and  (ii)  assessment  of  whether  they  have  been  taken  to  an  extent  that  is 
sufficient to demonstrate the entity’s reliability. This case-by-case assessment, which is 
inherently  contingent  upon  the  circumstances  of  the  misconduct  at  issue,  considers 
various factors, including the evidence on the implementation of the measures, whether a 
tangible change in the corporate culture has occurred, the management structure, as well 
as any independent evaluation performed on the measures and provided to the Panel for 
evaluation. 

If  the  measures  are  deemed  sufficient  to  demonstrate  reliability,  exclusion  is  ruled  out, 
and the recommendation states the reasons for reaching this conclusion (24). However, if 
the  Panel  or  the  authorising  officer  finds  that  the  proposed  remedial  measures  do  not 
meet the requirements of the Financial Regulation, they might still be considered in the 
proportionality assessment (25). 

6.  OVERVIEW OF CASES REFERRED TO THE PANEL 

In  2023,  13  referrals  by  authorising  officers  reached  the  Panel  through  its  permanent 
secretariat. In addition, 6 referrals have already been submitted in the first five months of 
2024.  Out  of  these  referrals,  1  case  concerned  a  member  of  staff (26)  and  1  case 
concerned the revision of a prior recommendation. 

In 2023 and the first 5 months of 2024, the Panel issued 7 recommendations, 2 of which 
concerned  cases  filed  and  opened  in  2022  and  2 opinions  regarding  a  member  of  staff 
under Article 93 of the Financial Regulation. 

Concerning the decisions of (non-) exclusion adopted so far, all have been taken by the 
authorising officers, acting on a recommendation from the Panel. 

The following table gives an overview of the above-referenced recommendations with a 
summary of: (i) facts and findings; (ii) where applicable, the preliminary classification in 

(23)  Article 136(8) of the Financial Regulation. 

(24) Article 143(6)(e) of the Financial Regulation. 

(25)  Article 136(3) of the Financial Regulation. 

(26)  Article 93 of the Financial Regulation. 

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SWD REPORT ACTIVITY 2023 

law of these facts and findings; (iii) the recommended measure to be adopted and the date 
that  it  took  effect;  and  (iv)  information  on  whether  publication  on  the  website  of  the 
Commission was recommended. The cases have been anonymised. 

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SWD REPORT ACTIVITY 2023 

Annex 1 - Summary of anonymised cases referred to the Panel under Article 143 of the Financial Regulation (27) 

Recommendation 
number 

Facts 

Classification in 
law (exclusion 
grounds) 

Date of the Panel 
recommendation 
or opinion 

Recommended 
actions 

Recommended 
publication 

Date of decision of the 
authorising officer 
responsible 

Opinion No 2023/1 

Opinion No 2023/2 

Rec No 2023/01 

Rec No 2023/02 

Financial irregularity: non-
disclosure of a conflict of 
interest. 
Financial irregularity: non-
disclosure of a conflict of 
interest. 
The entity manipulated the 
tender procedure through 
unlawful access to tender 
confidential information and 
conflict of interest. 
The entity set up a system of 
manipulation of costs and 
creation of false invoices 

Member of staff, financial 
irregularity 

25/01/2023 

Member of staff, financial 
irregularity 

30/06/2023 

Grave professional 
misconduct. 

06/01/2023 

Serious breach of contract.  22/05/2023 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

(27)  Only finalised cases are included. 

 
 
 
SWD REPORT ACTIVITY 2023 

The entity has been engaged in 
wrongful conduct, which has an 
impact on its professional 
credibility. The entity 
fraudulently misrepresented 
information  
required for the verification of 
the absence of grounds for 
exclusion or the fulfilment of 
eligibility or selection criteria 
or in the implementation of the 
legal commitment. 
The entity failed to inform the 
contracting authority of the fact 
that their expert was engaged in 
parallel employment and not 
complying with the provisions 
applicable to staff. 
Failure to abide by the 
contractual obligations, 
disclosing and making use of 
confidential information. 
Wrongful conduct such as 
fraudulently misrepresenting 
information required for the  
fulfilment of selection criteria 
and performance of a contract. 
The entity failed to inform the 
Contracting Authority about an 
existing conflict of interest of 
which they were aware. 

The entity entered into 
agreement with other economic 
operators with the aim of 
distorting competition. 

Rec No 2023/03 

Rec No 2023/04 

Rec No 2023/05 

Rec No 2024/01 

Rec No 2024/02 

Rec No 2024/03 

Grave professional 
misconduct. 

30/06/2023 

Exclusion for a 2-
year period, 
registration as 
person of interest 

Yes 

08/09/2023 

Serious breach of contract.  
Grave professional 
misconduct. 

21/08/2023 

N/A 

N/A 

N/A 

Serious breach of contract.  15/12/2023 

Exclusion for an 18-
month period 

N/A 

04/03/2024 

Grave professional 
misconduct. 

19/01/2024 

N/A 

N/A 

Grave professional 
misconduct. 

28/05/2024 

Exclusion for a 9-
month period 

N/A 

N/A 

N/A 

Grave professional 
misconduct. 

07/06/2024 

N/A 

N/A 

N/A 

14