Case C-170/25 P: Appeal brought on 28 February 2025 by European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 18 December 2024 in Case T-776/22, TP v Commission
Date: 2025-02-28
Institutions: Court of Justice
Subjects: EU financing, European Development Fund, award of contract, consortium, contract terms, contractual liability, financial regulation, public procurement, tendering








C_202503863EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/3863


21.7.2025






Appeal brought on 28 February 2025 by European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 18 December 2024 in Case T-776/22, TP v Commission


(Case C-170/25 P)

(C/2025/3863)
Language of the case: English

Parties


Appellant: European Commission (represented by: P. Rossi, F. Moro and A. Koričić, acting as Agents)

Other party to the proceedings: TP

Form of order sought

The appellant claims that the Court should:






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set aside the judgment under appeal;










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rule itself by dismissing the action for the annulment of the decision of the European Commission of 1 October 2022 by which TP was excluded, first, from participating in award procedures governed by 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 (1) (‘the 2018 Financial Regulation’), or funded by the 11th European Development Fund and, secondly, from being selected for implementing EU Funds (‘the contested decision’) on the basis of the Commission’s defence; or










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in the alternative, refer the case back to the General Court for the examination of the remaining two pleas of the action for the annulment of the contested decision;










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order TP to bear the entirety of the costs of these proceedings and of the proceedings before the General Court.





Pleas in law and main arguments

The appellant relies on two grounds of appeal.
First, the General Court erred in holding that, in applying Article 136(1)(e) of the 2018 Financial Regulation, there can be no automatic link between the failure to comply with contractual obligations and an exclusion measure, meaning that an exclusion measure cannot not be based on the sole finding of non-compliance with a contract, where two co-contractors are jointly liable of the execution, as established by arbitral rulings requested by the parties of the contract to resolve a dispute.
Namely, the Commission considers that the reasoning followed by the General Court leads to wrongly interpreting Article 136(1)(e) of the 2018 Financial Regulation, in a sense that it effectively prevents an authorising officer responsible from giving due weight to an arbitral tribunal ruling contractually foreseen in order to establish that two co-contractors were jointly and severally responsible of serious deficiencies in the execution of that contract.
Second, the General Court distorted the evidence presented by the Commission to show that the authorising officer responsible for the adoption of the contested decision made an individual assessment of the conduct of the addressee of the decision as co-contractor jointly liable of the execution of the contract, in the light of all the facts and circumstances of the case.
Namely, the Commission considers that the judgment under appeal incorrectly established that the authorising officer responsible had merely relied on the joint and several liability of TP as member of the consortium, without distinguishing the individual liability of this member in respect of its individual failures to comply with the contractual obligations. In so doing, the judgment under appeal erred in not considering that the authorising officer responsible had correctly determined the individual responsibility of the decision addressee relative to its own failures to comply with the contractual obligations to the requisite legal standard, as resulting from the arbitration tribunal rulings rendered in the case containing the facts and circumstances applicable.


(1)  
            OJ 2018 L 193, p. 1.


ELI: http://data.europa.eu/eli/C/2025/3863/oj
ISSN 1977-091X (electronic edition)