JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

28 January 2026 (*)

( Public service contracts – Supporting higher legal education in a third State – Performance of a service contract – Contractor’s grave professional misconduct and significant deficiencies in complying with main obligations – Protection of the European Union’s financial interests – OLAF investigation – Exclusion from public procurement procedures for a period of two years – Existence of a consortium – Error of fact – Error of law – Legal certainty – Limitation – Non-retroactivity )

In Case T‑1052/23,

UH, represented by A. Van der Hauwaert and R. Lindemans, lawyers,

applicant,

v

European Commission, represented by P. Rossi and F. Moro, acting as Agents,

defendant,

THE GENERAL COURT (Ninth Chamber),

composed, at the time of the deliberations, of L. Truchot (Rapporteur), President, H. Kanninen and T. Perišin, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 26 March 2025,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, UH, seeks, principally, the annulment of Decision Ares(2023) 5982056 of the European Commission of 1 September 2023 relating to a proceeding for its exclusion from procurement and grant 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 (OJ 2018 L 193, p. 1) or by Council Regulation (EU) 2018/1877 of 26 November 2018 on the financial regulation applicable to the 11th European Development Fund, and repealing Regulation (EU) 2015/323 (OJ 2018 L 307, p. 1) (‘the contested decision’) and, in the alternative, the annulment of Articles 2 and 3 of that decision.

I.      Background to the dispute

2        In August 2012, the Commission published a procurement notice for the award of a service contract to support higher legal education in a third State (‘the contract at issue’). The overall objective of the contract was to help reconnect that third State’s higher legal educational institutions with their EU counterparts in order to support the reinforcement of the rule of law.

3        On 27 September 2012, the applicant sent the Commission an expression of interest, as leader of a consortium which included two companies, A and B, and a university, C.

4        On 6 May 2013, the Commission and the applicant concluded the contract at issue, with a maximum contract value of EUR 1 834 000 and an implementation period of two years from that date, which was subsequently extended to 28 months.

5        On 8 May 2013, the European Anti-Fraud Office (OLAF) launched an investigation into the applicant and, in particular, the performance of the contract at issue (‘the investigation’).

6        In March 2015, OLAF informed the applicant that the investigation was ongoing.

7        On 5 September 2015, implementation of the contract at issue came to an end with a total budget spend of EUR 1 265 237.61.

8        On 12 November 2015, the applicant sent the Commission a final invoice for payment of EUR 253 762.85 (‘the final invoice’).

9        On 26 November 2015, the Commission decided to suspend payment of the final invoice.

10      On 14 January 2016, the Commission informed the applicant of its decision to engage an audit firm (‘the auditor’) to carry out an audit of the performance of the contract at issue.

11      By a letter received on 8 September 2016, OLAF informed the applicant of the completion of the investigation and invited it to submit comments on the facts relating to it.

12      On 22 September 2016, the applicant submitted its comments on the facts set out in the letter referred to in paragraph 11 above.

13      On 17 October 2016, the Commission informed the applicant of its decision to maintain the suspension of payment of the final invoice pending OLAF’s final investigation report concerning the performance of the contract at issue.

14      On 6 April 2017, the auditor issued its audit report (‘the audit report’).

15      On 14 November 2017, OLAF adopted its final investigation report (‘the OLAF report’), in which it concluded that the applicant had committed irregularities and carried out fraudulent activities in connection with the performance of the contract at issue.

16      On 9 March 2018, the Commission informed the applicant of the completion of the OLAF investigation and of the conclusions of its report.

17      On 30 March 2018, and subsequently on 2 May 2018, the applicant requested that the Commission communicate to it the OLAF report.

18      On 18 June 2018, the applicant brought proceedings before the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking), Belgium) for an order that the Commission be required to pay the final invoice. In those proceedings, the Commission filed a counterclaim requesting that the applicant be ordered to reimburse all the amounts paid under the contract at issue on grounds of substantial errors, irregularities or fraud within the meaning of the third subparagraph of Article 116(3) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

19      On 24 September 2018, the Commission sent the applicant a recovery order for EUR 1 011 474.76. On the same day, and subsequently on 29 January 2019, the Commission sent the applicant extracts from the OLAF report.

20      By judgment of 17 January 2020, the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking)) dismissed the applicant’s application for an order and, after upholding the Commission’s claims of substantial errors and irregularities, but not those of fraud, granted in part the Commission’s counterclaim, thus holding the applicant liable for payment of one half of the amounts invoiced under the contract at issue and ordering it to repay to the Commission the sum of EUR 378 855.96.

21      On 28 April 2020, the applicant brought an appeal before the hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) against the judgment of the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking)) of 17 January 2020 referred to in paragraph 20 above.

22      On 14 December 2022, the early-detection and exclusion system panel referred to in Article 143 of Regulation 2018/1046 (‘the Panel’) invited the applicant to submit comments on a draft recommendation that it be excluded, for a period of three years, from participating in award procedures governed by that regulation and Regulation 2018/1877, on account of (i) grave professional misconduct and (ii) significant deficiencies on the applicant’s part in complying with main obligations in the implementation of a legal commitment during the performance of the contract at issue. That draft recommendation also provided for the applicant’s registration in the early-detection and exclusion system database for the same period, publication of that exclusion on the Commission’s website and registration of its legal representative in that database.

23      On 1 February 2023, the applicant submitted its comments on the draft recommendation referred to in paragraph 22 above.

24      On 3 July 2023, the Panel sent its final recommendation to the Commission’s Directorate-General for International Partnerships.

25      On 1 September 2023, the Director of the ‘Middle East, Asia and Pacific’ Directorate of the Commission’s Directorate-General for International Partnerships adopted the contested decision, which provides (i) in Article 1, for the applicant to be excluded from participating in award procedures governed by the European Union’s Financial Regulation for a period of two years; (ii) in Article 2, for information related to that exclusion to be published on the Commission’s website; and (iii) in Article 3, for the applicant’s legal representative to be registered in the database of the early-detection and exclusion system. Furthermore, the contested decision is based on two grounds relating to the applicant’s conduct in connection with the contract at issue, the first alleging grave professional misconduct (‘the first ground’) and, the second, alleging significant deficiencies in complying with main obligations in the implementation of a legal commitment (‘the second ground’).

26      As regards the first ground, it is apparent from paragraphs 177 and 180 of the contested decision that the Commission found that the applicant was guilty of grave professional misconduct within the meaning of Article 136(1)(c) of Regulation 2018/1046, by having engaged in wrongful conduct which had an impact on its professional credibility and which denoted, at the very least, gross negligence on its part.

27      It is clear from the first indent of paragraph 178 of the contested decision that the Commission found that the applicant had misrepresented information required for the verification of the fulfilment of selection criteria and in the implementation of the contract at issue, by presenting itself as a leader of a consortium and maintaining that claim throughout the implementation of that contract, despite the non-existence of a signed agreement in this respect and the explicit statements of A, B and C that they had never been part of any consortium and had never participated in the implementation of the contract at issue.

28      In addition, it is apparent from the second indent of paragraph 178 of the contested decision that the Commission stated that the applicant had also misrepresented information required for the verification of the fulfilment of selection criteria and in the implementation of the contract at issue, first, by trying to obtain, after the implementation period of that contract, the signatures of A, B and C on a backdated consortium agreement and, second, having failed to obtain A’s signature on that draft agreement, by proposing that A sign a declaration to the effect that they had been members of a consortium, more than one year after implementation of the project envisaged by the contract at issue.

29      As regards the second ground, it is apparent from paragraphs 186 to 192 of the contested decision that the Commission found that the applicant had significantly failed to fulfil main obligations in the performance of the contract at issue by infringing, first, Article 13.3 of the general conditions of that contract, relating to the insurance obligation; second, Article 24 of those general conditions, relating to the obligation to keep accounts and records; and, third, Article 25 of those general conditions, relating to OLAF’s powers in the event of any verification or checks by OLAF.

II.    Forms of order sought

30      The applicant claims that the Court should:

–        principally, annul the contested decision;

–        in the alternative, annul Articles 2 and 3 of the contested decision;

–        order the Commission to pay the costs.

31      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

III. Law

A.      Principal claim for annulment of the contested decision

32      In support of the principal claim, the applicant relies, in essence, on the following six pleas in law:

–        first plea in law, alleging infringement of the rights of the defence;

–        second plea in law, directed against the first ground and alleging errors of fact and of law regarding the alleged grave professional misconduct;

–        third plea in law, directed against the first ground and alleging an inadequate statement of reasons and errors of law regarding the alleged grave professional misconduct;

–        fourth plea in law, directed against the first ground and alleging an error of law due to expiry of the limitation period in respect of the alleged grave professional misconduct;

–        fifth plea in law, directed against the second ground and alleging an error of fact regarding the alleged breach of certain main obligations;

–        sixth plea in law, directed against the second ground and alleging errors of law in the application of the limitation rules in respect of the alleged breach of certain main obligations.

33      The Court will examine first of all the second plea, directed against the first ground and alleging errors of fact and of law regarding the alleged grave professional misconduct, then the sixth plea, directed against the second ground and alleging errors of law in the application of the limitation rules in respect of the alleged breach of certain main obligations.

34      However, before considering whether those two pleas are well founded, it is appropriate to recall the legal basis of the contested decision.

1.      Legal basis of the contested decision

35      In this regard, it must be stated that, in the version in force at the time of the adoption of the contested decision, the first subparagraph of Article 135(1) of Regulation 2018/1046, concerning protection of the financial interests of the Union by means of detection of risks, exclusion and imposition of financial penalties, provided that, ‘in order to protect the financial interests of the Union, the Commission [was to] set up and operate an early-detection and exclusion system’.

36      According to the second subparagraph of Article 135(1) of Regulation 2018/1046, the purpose of the early-detection and exclusion system set up by the Commission was to facilitate the early detection of persons or entities referred to in Article 135(2) of that regulation which posed a risk to the financial interests of the Union, including participants, that is to say, candidates or tenderers in a procurement procedure. In addition, that system was also intended to facilitate the exclusion from participation in award procedures governed by that regulation or from selection for implementation of Union funds of the same persons or entities that were in one of the exclusion situations referred to in Article 136(1) of that regulation.

37      First, as regards the first ground of the contested decision, Article 136(1)(c)(i) of Regulation 2018/1046, concerning exclusion criteria and decisions on exclusions, listed among the situations capable of giving rise to a decision on exclusion by the authorising officer responsible the situation in which it had been established by a final judgment or a final administrative decision that the person or entity concerned was guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person or entity belonged, or by having engaged in any wrongful conduct which had an impact on its professional credibility where such conduct denoted wrongful intent or gross negligence. Such wrongful conduct included fraudulently or negligently misrepresenting 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.

38      Lastly, Article 136(2) of Regulation 2018/1046 provided that, in the absence of a final judgment or, where applicable, a final administrative decision in the cases referred to, inter alia, in Article 136(1)(c) of that regulation, the authorising officer responsible could exclude the person or entity concerned on the basis of a preliminary classification in law of a conduct as referred to, in particular, in that provision, having regard to established facts or other findings contained in the recommendation of the Panel.

39      Second, as regards the second ground of the contested decision, it follows from Article 136(1)(e)(iii) of Regulation 2018/1046, concerning exclusion criteria and decisions on exclusion, in the version in force on the date of adoption of the contested decision, that the authorising officer responsible is to exclude a person or entity referred to in Article 135(2) of that regulation from participating in award procedures governed by that regulation or from being selected for implementing Union funds where that person or entity has shown significant deficiencies in complying with main obligations in the implementation of a legal commitment financed by the Union budget which has been discovered by, inter alia, an authorising officer or by OLAF following checks, audits or investigations.

40      The Commission adopted the contested decision on the basis of the provisions referred to in paragraphs 35 to 39 above.

2.      Second plea in law, alleging errors of fact and of law regarding the alleged grave professional misconduct

41      The second plea consists, in essence, of three parts, alleging:

–        first, errors of law and of fact affecting the first ground of the contested decision, with regard to the alleged non-existence of the consortium involving the applicant and A, B and C;

–        second, an error of fact affecting the first ground of the contested decision, with regard to the applicant’s attempts to obtain a backdated consortium agreement or declaration;

–        third, an error of law in the light of the principle of impartiality and the principle of the presumption of innocence which is guaranteed in Article 9(1) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1).

42      The Commission disputes the applicant’s claims.

(a)    First part, alleging errors of law and of fact affecting the finding that the consortium involving the applicant and A, B and C did not exist

43      In support of the first part of the second plea, the applicant relies in essence on two complaints, alleging (i) an error of law, and (ii) errors of fact.

44      In support of the first complaint, the applicant submits that the Commission failed to explain how the absence of a written agreement signed by the consortium members is proof that no consortium existed, especially since the contract at issue did not require the signature of any such written agreement. It thus relies, in particular, on the joint project application signed by A, B and C, expressing their intention to submit the application together, and written communications that followed.

45      In support of the second complaint, the applicant claims that the consortium involving the applicant and A, B and C genuinely existed, as is shown by an examination of the communications and activities of the consortium members between 27 September 2012 and 5 September 2015.

46      In that regard, the applicant states that A, B and C distanced themselves from it after OLAF reported to them in early 2016 that a fraud investigation had been opened involving the applicant, and therefore the statements made by those companies and that university after that report no longer had probative value and ought to have been rejected by the Commission as having been produced in tempore suspecto.

47      Furthermore, the applicant claims that a number of documents demonstrate that A, B and C did participate in the implementation of the contract at issue, which calls into question the credibility of the evidence from A on which OLAF relied in its report.

48      The Commission disputes the merits of the applicant’s claims, which it maintains it rebutted in paragraphs 66 to 79 of the contested decision. Thus, it contends that the applicant has not seriously disputed the fact that no consortium agreement was drawn up in writing, or signed, which is proof that the consortium never existed.

49      Furthermore, the Commission relies on the conclusions and findings of fact contained in the OLAF report and the responses given to OLAF by A, B and C, as well as on certain documents produced by the applicant which contradict its claims that no consortium agreement could be signed for reasons beyond its control.

50      As a preliminary point, it is clear from the case-law that the conditions which must be met in order to determine whether there is grave professional misconduct within the meaning of Article 136(1)(c) of Regulation 2018/1046 are as follows. First, the operator must have engaged in conduct which has an impact on its professional credibility, the failure to abide by its contractual obligations being capable of being considered such conduct, and second, that conduct must denote a wrongful intent or gross negligence. In addition, in order to find whether grave misconduct exists, a specific and individual assessment of the conduct of the economic operator concerned must, in principle, be carried out (see, to that effect, judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 29 and the case-law cited).

51      It should also be recalled that any exclusion decision must be taken on a sufficiently solid factual basis, and the Courts of the European Union must then determine whether the facts alleged are made out in the light of the information or evidence provided and assess the probative value of that information or evidence in the circumstances of the particular case and in the light of any observations submitted in relation to them by, among others, the person concerned (see, by analogy, judgment of 13 March 2025, Shuvalov v Council, C‑271/24 P, EU:C:2025:180, paragraph 38 and the case-law cited).

52      If a plea alleging an error of fact is raised before them, the Courts of the European Union must check that the facts relied on by the institution which adopted that decision have been accurately stated (see, to that effect, judgments of 2 September 2021, EPSU v Commission, C‑928/19 P, EU:C:2021:656, paragraph 96 and the case-law cited, and of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 30 and the case-law cited).

53      In that context, the prevailing principle of EU law is that the evaluation of evidence should be unfettered, with the result that the parties may, in principle, in order to prove a particular fact, rely on evidence of any kind, without prejudice to the requirement emanating from the case-law that the evidence must be sufficiently cogent, consistent, reliable and factually accurate (see, to that effect, judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 99 and the case-law cited).

(1)    First complaint, alleging an error of law in that the Commission found that a consortium involving the applicant, A, B and C did not exist, on the basis that there was no signed consortium agreement between them

54      In that regard, it is apparent from the first indent of paragraph 178 of the contested decision that the Commission relied, for its finding that there was no consortium involving the applicant, A, B and C, in particular, on the non-existence of a signed consortium agreement between the applicant and A, B and C.

55      The applicant invokes an error of law on the ground that the absence of a signed consortium agreement is not proof of the non-existence of the consortium of which it claims to have been a member along with A, B and C, since there was no requirement in the contract at issue for the signature of such an agreement.

56      In that regard, it is common ground that no consortium agreement between the applicant, A, B and C was signed, whether before the signature of the contract at issue, during the implementation of that contract or after its completion.

57      It is apparent from the applicant’s written submissions and the documents in the file that the applicant drew up two versions of a draft consortium agreement which it communicated to A, B and C on 30 April 2013 and 18 July 2013, but that that draft was not signed by A, B or C, despite an emailed reminder from the applicant dated 30 January 2014. Finally, the applicant sent them a third version of the draft consortium agreement on 18 February 2016.

58      As it is, in the first place, item 11 of the procurement notice relating to the contract at issue indicated that participation in the procedure for the award of that contract was open to all legal persons established, inter alia, in a Member State of the European Union participating either individually or in a grouping of candidates in the form of a consortium.

59      In particular, item 12 of the procurement notice relating to the contract at issue, concerning the candidature procedure, provided that all natural and legal persons as referred to in item 11 of that notice or groupings of such persons (consortia) could apply, and that a consortium could be either a permanent, legally established grouping or a grouping which had been constituted informally for a specific tender procedure. Lastly, that provision stated that all members of a consortium, that is to say, the leader and all other members, were jointly and severally liable to the contracting authority.

60      Accordingly, it is apparent from item 12 of the procurement notice relating to the contract at issue that a ‘consortium’, as defined for the purposes of concluding that contract, was either a permanent, legally established grouping of natural or legal persons, or a grouping of such persons which had been constituted informally for a specific tender procedure, and that, in the latter case, there was no requirement under that provision for the signature of a consortium agreement.

61      In the second place, the contract at issue did not include a clause requiring the applicant to formalise, after signing that contract, the existence of the consortium of which it claimed to have been the leader by signing an agreement with A, B and C.

62      In fact, the only clauses of the contract at issue relating to the concept of a ‘consortium’ provided, first, in Article 7.5 of the general conditions, that consortium members were to be jointly and severally bound to fulfil the terms of that contract and that the person designated by the consortium to act on its behalf for the purposes of that contract was to have the authority to bind the consortium and, second, in Article 7.6 of the general conditions, that any alteration of the composition of the consortium without the prior written consent of the contracting authority was to be considered to be a breach of the contract at issue.

63      In the third place, it should be noted that although, in paragraph 180 of the contested decision, the first ground of that decision is based on a finding of wrongful conduct on the part of the applicant which had an impact on its professional credibility, because the applicant had circumvented the rules about providing accurate and true information regarding its technical and professional capacity, the Commission did not refer to any infringement by the applicant of contractual provisions, laws or regulations or ethical standards of the applicant’s profession that would have required it to sign a consortium agreement with A, B and C.

64      In the absence of any rule requiring that a consortium agreement between members of an informally constituted grouping be signed, the absence of a signature on such an agreement may well be indicative of a lack of effective cooperation between those persons or entities, but it is not decisive, since those persons or entities may in fact have cooperated, to varying degrees, for the purpose of achieving the aim in respect of which that consortium was formed, without actually having concluded an agreement between themselves.

65      Consequently, while it is common ground that the alleged members of the consortium of which the applicant claimed to have been the leader did not sign a consortium agreement, the applicant is justified in maintaining that that in itself did not permit the Commission to find that the consortium did not exist, in so far as neither it nor its alleged partners were required by any legislative, regulatory or contractual rule to sign such an agreement.

66      In those circumstances, the applicant is justified in maintaining that the Commission made an error of law by inferring the non-existence of a consortium from the fact that there was no signed consortium agreement between the applicant, A, B and C, and, accordingly, the first complaint of this part of the plea must be upheld.

(2)    Second complaint, alleging errors of fact in respect of the finding that there was no consortium involving the applicant, A, B and C

67      In this regard, it is apparent from the first indent of paragraph 178 of the contested decision that the Commission relied, for its finding that there was no consortium involving the applicant, A, B and C, inter alia, on the statements of A, B and C to the effect that they had never been part of the consortium of which the applicant claimed to have been the leader and had never participated in the implementation of the contract at issue.

68      The applicant submits, in essence, that, in determining whether the consortium of which it claimed to have been the leader existed, the Commission was not entitled to rely solely on the statements made by A, B and C after the investigation opened by OLAF led A, B and C to distance themselves from the applicant. It adds that the onus was on OLAF to assess the evidence available in respect of the communications and activities of its alleged partners during the tendering and performance phases of the contract at issue, from 27 September 2012 to 5 September 2015.

69      In accordance with the case-law cited in paragraphs 51 to 53 above, the Court must examine the evidence on which the Commission relied in order to adopt the contested decision, that is to say, the statements of A, B and C to the effect that they were never part of the consortium of which the applicant claimed to have been the leader and never participated in the implementation of the contract at issue.

70      In that regard, it is apparent from paragraphs 15, 71, 73 and 77 of the contested decision and the information in footnote 30 to that decision that the formal statements of A, B and C, to which the Commission refers in the first indent of paragraph 178 of that decision, and according to which A, B and C were never part of the consortium of which the applicant claimed to have been the leader and never participated in the implementation of the contract at issue, correspond to the statements referred to in the OLAF report which are attached to that report in Annexes 19 to 21.

71      It is true that, in paragraph 9 of the contested decision, the Commission also referred to the findings of the audit report according to which, in essence, first, the applicant had not signed a consortium agreement, contrary to assurances to that effect given by the applicant at the stage of the submission of its tender for the award of the contract at issue; second, it had only provided copies of its email correspondence with A, B and C; and, third, there was no other documentation to suggest that any of the latter had contributed to the project envisaged by that contract or undertaken any active role in its implementation.

72      Nevertheless, it appears from the audit report that that report was not drawn up following interviews conducted by the auditor with A, B and C, or on the basis of statements by those three entities, but following interviews conducted by the auditor with the applicant or the Commission.

73      Above all, it is apparent from the audit report that the auditor concluded, in the light of the absence of a consortium agreement and after analysing the email correspondence between the applicant and A, B and C between May and August 2013 and in January 2014, that there had been no ‘active participation’ by the members of the consortium of which the applicant claimed to have been the leader. Consequently, according to the auditor, the applicant had infringed Articles 7.5 and 7.6 of the general conditions of the contract at issue and, moreover, had misrepresented the resources and capacities actually available to it to implement the project envisaged by that contract.

74      Thus, it follows from the audit report that the auditor’s finding was not that the consortium of which the applicant claimed to have been the leader did not exist, but that there was no ‘active participation’ by A, B and C in the implementation of the project envisaged by the contract at issue.

75      That finding having been made, it is necessary to determine whether the statements of A, B and C referred to in the OLAF report and attached to that report in Annexes 19 to 21 thereto constitute evidence that is sufficiently cogent, consistent, reliable and factually accurate.

(i)    C’s statements in Annex 19 to the OLAF report

76      In that regard, it appears that Annex 19 to the OLAF report, on which the Commission relied for its finding of C’s non-participation in the consortium of which the applicant claimed to have been the leader, consists of an email from a representative of that university, which was sent to OLAF on 21 March 2016 (‘the email of 21 March 2016’). By that email, C stated to OLAF, on the one hand, that it was a member of a consortium for the implementation of the project envisaged by the contract at issue and, on the other, that, as at the date of that email, no agreement had been signed by the members of the consortium, that it was expecting a final proposal in that regard and that it had not received any payment pursuant to the contract at issue.

77      Thus, in the first place, it must be noted, first, that in so far as C confirmed, by the email of 21 March 2016, that it was a member of the consortium of which the applicant claimed to have been the leader, C’s statement contained in Annex 19 to the OLAF report does not constitute consistent evidence that may substantiate the first ground of the contested decision; rather, it is evidence that is capable of supporting the applicant’s contrary claims.

78      Second, as regards C’s statement in the email of 21 March 2016 concerning the lack of a signed consortium agreement between the applicant, A, B and C itself, it follows from paragraphs 56 to 65 above that the absence of such a signed agreement did not constitute sufficiently cogent and reliable evidence which, in itself, enabled the Commission to conclude that the consortium of which the applicant claimed to have been the leader did not exist.

79      In addition, it must be noted that C’s statement that, as at 21 March 2016, it was expecting a proposed consortium agreement from the applicant was capable of supporting the applicant’s claims relating to the actual participation of that university in the implementation of the project envisaged by the contract at issue as part of an informal grouping of which the applicant had been the leader.

80      Consequently, C’s statement regarding the absence of a signed consortium agreement could not constitute, in the particular circumstances of this case, sufficiently cogent and reliable evidence to support the finding of the non-existence of the consortium of which the applicant claimed to have been the leader.

81      Third, it must be noted that C’s statement, also contained in the email of 21 March 2016, regarding the absence of any payment pursuant to the contract at issue also could not be interpreted as meaning that that university had not participated in the performance of the contract at issue, since, in the same email, C indicated that it was expecting a proposed consortium agreement from the applicant.

82      It is apparent from the first version of the draft consortium agreement communicated to A, B and C by the applicant on 30 April 2013 that that agreement was intended, inter alia, in Article 6.1 on ‘profit sharing’, definitively to set the rate of compensation for each consortium member’s participation in the implementation of the project envisaged by the contract at issue, and therefore that, after signature of that agreement, the applicant would have proceeded to make those compensation payments.

83      Furthermore, the non-payment by the applicant of compensation to A, B and C during the implementation of the contract may also be attributable to Article 3.4 of the technical proposal which the applicant sent to the Commission when it submitted its tender for the award of the contract at issue. According to that article, ex ante sharing of income between the members of the consortium was ruled out; each member was to receive its total remuneration depending on its contribution to the implementation of the project envisaged by the contract at issue.

84      Thus, it is apparent from the email of 18 February 2016, by which the applicant sent the third version of the draft consortium agreement to A, B and C, that signature of that document was to regulate those three entities’ compensation for their actual participation in the implementation of the project envisaged by the contract at issue.

85      In those circumstances, it cannot be held that C’s statement in the email of 21 March 2016 that it had received no payment pursuant to the contract at issue constitutes, in the circumstances described in paragraphs 81 to 84 above, reliable evidence of the non-existence of the consortium of which the applicant claimed to have been the leader and in which C confirmed it had been involved.

86      In the second place, it is necessary to examine the objections raised by the Commission with regard to the evidence connected with C’s statements.

87      First, the Commission recalls that, in paragraph 71 of the contested decision, it also relied on C’s statements to the effect that, first, there had been no meetings between the applicant and its alleged partners and, second, the applicant had taken all the roles required in order to perform the contract at issue upon itself.

88      The Commission relies on an email of 6 March 2016 from C to the applicant, which shows that C complained to the applicant, in essence, about the lack of formal consortium meetings throughout the project, meetings at which the consortium as a whole could have addressed, and possibly resolved, certain difficulties, as well as the fact that the applicant had taken all roles upon itself.

89      However, it must be noted that the applicant disputed the Commission’s assessment of the email of 6 March 2016 referred to in paragraph 88 above on the basis that A, B and C had not felt the need to participate in in-person meetings when the applicant had suggested them.

90      Thus, it is apparent from the email of 30 April 2013, by which the applicant sent the first version of the draft consortium agreement to A, B and C, and the email of 30 January 2014, by which the applicant again suggested that they sign the second version of that draft agreement, that, at least on those two occasions, it had suggested to them that they attend an in-person meeting.

91      Moreover, as regards the Commission’s claims that the applicant took all the roles required under the contract at issue upon itself, these are contradicted by a number of items of evidence produced by the applicant.

92      First of all, it is apparent from the file that, by an email of 4 January 2013, the applicant invited A, B and C to indicate what role they wished to play in connection with the performance of the contract at issue. It is also apparent that they were informed of the dates by which they could submit curricula vitae of experts for the implementation of the project envisaged by that contract, both for the selection of key experts and for the selection of experts for short-term missions.

93      Next, the applicant produces a number of email exchanges – between 9 and 23 January 2013 with A, and between 2 January and 14 May 2013 with B – which show that the applicant recommended the name of the director of the project envisaged by the contract at issue, while the name of the team leader was recommended by C, that of the deputy team leader, by B, and that of the primary expert for IT network development, by A.

94      Therefore, it must be noted that the applicant, A, B and C each designated one of the four key experts who participated in the implementation of the project envisaged by the contract at issue.

95      Lastly, it is apparent from an email dated 30 January 2014 from the applicant to A, B and C that the applicant designated experts for short-term missions for the implementation of the contract at issue after consulting A, B and C.

96      Consequently, the statement by C in the email of 6 March 2016, referred to in paragraph 88 above, that the applicant had taken upon itself all tasks required for the implementation of the project envisaged by the contract at issue cannot be considered to be reliable evidence capable of establishing the non-existence of a consortium involving the applicant, A, B and C.

97      It must, moreover, be noted that, by the email of 6 March 2016 referred to in paragraph 88 above on which the Commission relies, C contacted the applicant to complain about the amount of its fee, which was set at EUR 5 000 in a version of the draft consortium agreement that had been sent to it by the applicant in February 2016, and claimed that that fee had been set at EUR 30 000.

98      As it is, such claims as C put to the applicant are capable of supporting the applicant’s contentions regarding that university’s actual participation in the delivery of the project envisaged by the contract at issue and, therefore, of casting doubt on the Commission’s finding that that university was not part of the consortium of which the applicant claimed to have been the leader.

99      Second, it is apparent from paragraph 72 of the contested decision, to which the Commission also refers in its written submissions, that the Commission disputed the conclusive nature of a statement of 12 December 2016 on which the applicant relied, and according to which C confirmed that it had participated in the implementation of the project envisaged by the contract at issue in the context of a consortium involving C and the applicant as well as A and B (‘the statement of 12 December 2016’). In that regard, the Commission found that, given the absence of the official logo of C on that document, that statement looked less like proof of that university’s participation in the performance of that contract than a statement that bound only the university professor who authored it.

100    In that respect, it must be noted that the university professor who authored the statement of 12 December 2016 confirmed in it that C had participated in a consortium involving C and the applicant as well as A and B for the purpose of performing the contract at issue.

101    First of all, it appears that, in so far as the statement of 12 December 2016 indicates that C participated in the performance of the contract at issue as part of a consortium led by the applicant, that statement is supported by the expression of interest submitted by the applicant with a view to being awarded that contract. That expression of interest expressly referred to the consortium formed by the applicant with A, B and C. Sections 5 and 6 of that document specified the fields of specialisation and examples of projects carried out by the applicant and those entities. Furthermore, that expression of interest was accompanied by declarations signed by representatives of those four entities, in which they indicated that they were candidates for the award of the contract as part of a consortium coordinated by the applicant.

102    In particular, it is apparent from the declaration by C that was annexed to the expression of interest referred to in paragraph 101 above that that declaration was not signed by the signatory of the statement of 12 December 2016, but by another member of that university, which would contradict the Commission’s finding that that statement bound only its author.

103    In addition, the signatory of the statement of 12 December 2016 was closely associated with the implementation of the contract by the applicant since, by an email dated 21 July 2013, that university professor had confirmed C’s agreement on the second version of the consortium agreement put forward by the applicant on 18 July 2013 and, moreover, he was the recipient of a number of emails which the applicant sent to C in connection with the implementation of the contract at issue, including emails of 4 January and 6 February 2013 and an email of 30 January 2014.

104    Lastly, the content of the statement of 12 December 2016 also supports the evidence referred to in paragraphs 92, 93 and 95 above, as well as the email of 6 March 2016 by which C, through someone other than the signatory of that statement, contacted the applicant to complain about the amount of its fee, and the email of 21 March 2016 by which C confirmed to OLAF that it was a member of the consortium of which the applicant claimed to have been the leader.

105    It follows from the foregoing that the email of 21 March 2016 which is contained in Annex 19 to the OLAF report does not constitute cogent, consistent, reliable and factually accurate evidence that is capable of demonstrating the lack of actual participation by C in the implementation of the project envisaged by the contract at issue in the context of an informally established consortium of which the applicant claimed to have been the leader. Accordingly, by relying on the content of that email in concluding that that consortium had not existed, the Commission vitiated the first ground of the contested decision by an error of fact.

(ii) A’s statements in Annex 20 to the OLAF report

106    In this regard, it follows from paragraphs 15 and 73 of the contested decision that, in order to find that A had not participated in the consortium of which the applicant claimed to have been the leader, the Commission relied on Annex 20 to the OLAF report, which contains an email sent to OLAF by a representative of A on 18 January 2016 (‘the email of 18 January 2016’).

107    It is apparent from the statements made by A in the email of 18 January 2016 that that company and the applicant had agreed to work as part of a consortium by contributing to the recruitment of experts for short-term missions and providing for a profit share of 13.24%. According to the same email, the applicant sent a draft consortium agreement to A that was never signed, and therefore A was not able to contribute to the implementation of the project. It is also apparent from that email that communications with the applicant were not fluid, as evidenced by the fact that the applicant answered emails from A from time to time and with vague answers, and failed to share progress reports, financial reports or any other kind of project documentation provided for by the contract at issue, so that A had been unable to contribute to the recruitment of a short-term expert, and that their last communication was in November 2014, when A had helped the applicant to recruit a new team leader. Lastly, the email of 18 January 2016 shows that A did not receive any payment for carrying out the contract at issue.

108    In the first place, it should be noted that the claims in the email of 18 January 2016, by which A confirmed to OLAF, first, that it had envisaged cooperating with the applicant in a consortium with a view to participating in the performance of the contract at issue, notably by contributing to the designation of experts for short-term missions, in return for a profit share of 13.24%; second, that the applicant had sent it a draft consortium agreement; third, that it had been in contact with the applicant during the period of implementation of that contract, although communications with the applicant were not fluid; and, fourth, that in November 2014 it had helped the applicant to recruit a new team leader, constitute evidence that is capable of casting doubt on the Commission’s finding as to the lack of actual participation by A in the performance of the contract at issue in a consortium led by the applicant.

109    In addition, it must also be noted that the email of 18 January 2016 is contradictory in that A indicated, on the one hand, that it was not able to contribute to the implementation of the project envisaged by the contract at issue and, therefore, that it had not received any compensation from the applicant and, on the other hand, that it had nevertheless helped the applicant to recruit a new team leader in November 2014.

110    It follows that the statements contained in the email of 18 January 2016 cannot be considered to be consistent and reliable, and therefore that email could not, by itself, constitute cogent and factually accurate evidence that is capable of establishing A’s non-participation in the consortium of which the applicant claimed to have been the leader.

111    In the second place, it should be noted that, for the same reasons as those stated in paragraphs 78 and 82 to 85 above, A’s claims in the email of 18 January 2016 that no consortium agreement had ever been signed and that it had not received any payment for carrying out the contract at issue do not constitute, in the particular circumstances of the present case, sufficiently cogent evidence to establish that company’s lack of actual participation in the consortium of which the applicant claimed to have been the leader.

112    In the third place, it appears that A’s claims in the email of 18 January 2016 according to which that company did not participate in the implementation of the project envisaged by the contract at issue as part of a consortium of which the applicant claimed to have been the leader are contradicted by the evidence produced by the applicant.

113    The applicant produced email correspondence with A, dating from 14 November to 2 December 2014, which shows that A provided it with assistance in relation to the steps taken during that period to recruit a new team leader.

114    The applicant also produced an extract from A’s website, dated 19 March 2018, from which it is apparent that A publicly relied on its status as a member of the consortium responsible for carrying out the project envisaged by the contract at issue.

115    In the fourth place, it is necessary to examine the objections raised by the Commission with respect to the evidence produced by the applicant that seeks to substantiate A’s actual participation in the implementation of the project envisaged by the contract at issue as part of the consortium of which the applicant claimed to have been the leader.

116    First, the Commission relies on an exchange of emails between the applicant and A dating from 14 November 2014 to 20 October 2015 and, in particular, an email of 16 March 2015, in which A complained about the lack of information from the applicant about the implementation of the project envisaged by the contract at issue and signature of the draft consortium agreement.

117    However, the exchange of emails referred to in paragraph 116 above bears out the applicant’s claims concerning the contribution made by A in helping the applicant to take steps during that period to recruit a new team leader, as noted in paragraph 113 above, and, therefore, constitutes evidence capable of casting doubt on the Commission’s finding as to A’s non-participation in the implementation of the project envisaged by the contract at issue in the context of the consortium of which the applicant claimed to have been the leader.

118    Moreover, the emails of 24 November 2014 and 5 January, 5 June and 20 October 2015 by which A requested that the applicant provide the final version of the draft consortium agreement along with the profit share clause are capable of supporting the applicant’s claims regarding A’s actual participation in the implementation of the project envisaged by the contract at issue and, therefore, are capable of casting doubt on the Commission’s finding that that company was not part of the consortium of which the applicant claimed to have been the leader.

119    Second, the Commission relies on another exchange of emails between the applicant and A dating from 18 February to 2 December 2016, in particular emails of 29 and 30 November and 1 December 2016.

120    In that regard, it must be noted that, in the absence of A’s signature on the third version of the draft consortium agreement transmitted by the applicant on 18 February 2016, the applicant, by email of 27 November 2016, suggested that that company sign a declaration confirming its participation in the implementation of the project envisaged by the contract at issue as a member of the consortium involving A and the applicant as well as B and C.

121    Nevertheless, by email of 28 November 2016, A informed the applicant of its refusal to sign the declaration referred to in paragraph 120 above, on the grounds that it had not been involved in the implementation of the project envisaged by the contract at issue, no consortium agreement had been signed and no payment had been made; therefore, the content of that declaration was factually inaccurate.

122    It is in the context described in paragraphs 120 and 121 above that the emails of 29 and 30 November and 1 December 2016 on which the Commission relies were sent.

123    First, by the emails of 29 and 30 November 2016, the applicant tried to convince A to sign the declaration referred to in paragraph 120 above. In particular, the email of 29 November 2016 contains a precise chronology of events attesting to A’s actual participation in the implementation of the project envisaged by the contract at issue. Accordingly, those emails are capable of casting doubt on the Commission’s finding as to that company’s lack of involvement in the consortium of which the applicant claimed to have been the leader.

124    Second, by the email of 1 December 2016, A replied to the applicant that it did not consider itself to have participated in the implementation of the project envisaged by the contract at issue as part of the consortium of which the applicant claimed to have been the leader. However, by the same email, A confirmed that it had demonstrated its good will with regard to participating in the implementation of that project, that it regarded its requests for project information and documentation and for signature of a draft consortium agreement as having been constantly ignored by the applicant and that that consortium had not worked as initially envisaged.

125    Thus, the email of 28 November 2016 and that of 1 December 2016 referred to, respectively, in paragraph 121 and in paragraph 124 above, attest to a change of position on the part of A with regard to its participation in the implementation of the project envisaged by the contract at issue. That change of position is at odds with its emails of 24 November 2014 and 5 January, 5 June and 20 October 2015, by which that company had requested that the applicant provide the final version of the draft consortium agreement along with the profit share clause.

126    It follows that the information contained in the email of 1 December 2016 cannot be considered to be sufficiently reliable to support the Commission’s finding regarding A’s non-participation in the consortium of which the applicant claimed to have been the leader.

127    Therefore, it follows from the above that, by relying for its finding that A did not participate in the implementation of the project envisaged by the contract at issue as part of a consortium of which the applicant claimed to have been the leader on the emails of 18 January, 29 and 30 November and 1 December 2016, when those emails did not constitute cogent, consistent, reliable and factually accurate evidence, the Commission vitiated the first ground of the contested decision by an error of fact.

(iii) B’s statements in Annex 21 to the OLAF report

128    It follows from paragraphs 15 and 77 of the contested decision that, in order to find that B had not participated in the implementation of the project envisaged by the contract at issue as part of a consortium of which the applicant claimed to have been the leader, the Commission relied on Annex 21 to the OLAF report, which contains a letter from a representative of B dated 6 April 2016 (‘the letter of 6 April 2016’).

129    The statements of B in the letter of 6 April 2016 show that that company indicated to OLAF that, first, it had been sought out for the expression of interest and the response to the call for tenders in relation to the contract at issue, but that it had never participated in any way in its implementation; second, no consortium agreement had been signed with the applicant, which had never provided information about the conduct of the project envisaged by that contract; and, third, the applicant had contacted B a few days after B was interviewed by OLAF to request that it sign a consortium agreement and regularise the situation, a request to which B had not responded.

130    In the first place, it must be noted that, in so far as the letter of 6 April 2016 confirms the contact between B and the applicant while the expression of interest and the response to the call for tenders for the award of the contract at issue were being drawn up, that letter bears out the information in the file referred to in paragraph 101 above, from which it is apparent that B signed a declaration that was annexed to that expression of interest and by which it became a candidate for the award of that contract as part of a consortium coordinated by the applicant. To that extent, the letter of 6 April 2016 is capable of casting doubt on the Commission’s finding of B’s non-participation in the consortium of which the applicant claimed to have been the leader.

131    In the second place, it must be noted that, in so far as the letter of 6 April 2016 indicates that B did not participate in the performance of the contract at issue, that letter is contradicted by the information on the file referred to in paragraphs 92 to 95 above, from which it is apparent that B designated one of the four key experts who participated in the implementation of the project envisaged by the contract at issue.

132    In the third place, it should be noted that, for the same reasons as those stated in paragraphs 78 and 82 to 85 above, B’s claims in the letter of 6 April 2016 that no consortium agreement had ever been signed and that it had never received any payment for carrying out the contract at issue do not constitute, in the particular circumstances of the present case, sufficiently cogent evidence to establish that company’s lack of actual participation in the consortium of which the applicant claimed to have been the leader.

133    Therefore, it follows from the above that, by relying for its finding that B did not participate in the implementation of the project envisaged by the contract at issue as part of a consortium of which the applicant claimed to have been the leader on the letter of 6 April 2016, when that letter did not constitute cogent, consistent, reliable and factually accurate evidence, the Commission vitiated the first ground of the contested decision by an error of fact.

134    Accordingly, it follows from paragraphs 105, 127 and 133 above that the Commission’s finding in support of the first ground of the contested decision relating to the non-existence of the consortium of which the applicant claimed to have been the leader is based on statements of A, B and C which are vitiated by factual inaccuracies and which were not capable of substantiating such a finding.

135    Consequently, the second complaint of the first part must be upheld, as, therefore, must the first part in its entirety.

(b)    Second part, alleging an error of fact vitiating the first ground of the contested decision, as regards the applicant’s attempts to obtain a backdated consortium agreement or declaration

136    It must be recalled that it is apparent from the second indent of paragraph 178 of the contested decision that the first ground of that decision is based on the finding that the applicant had misrepresented information required for the verification of the fulfilment of selection criteria and in the implementation of the contract at issue by trying to obtain the signature of the alleged members of the consortium on a backdated consortium agreement after the implementation period of the contract, and, having failed to obtain A’s signature on that draft agreement, by drawing up a declaration to the effect that that company and the applicant had been members of the consortium, more than one year after the implementation of the project envisaged by that contract.

137    In support of this part of its case, the applicant disputes that it asked the other members of the consortium of which it was the leader to sign a retroactive or backdated agreement after the implementation period of the contract at issue. It asserts in this regard that its emails of 18 February and 27 November 2016 do not substantiate the Commission’s accusations to that effect and that the Commission has therefore failed to prove when the applicant tried to obtain the signature of a retroactive or backdated consortium agreement.

138    The Commission challenges the merits of the applicant’s claims, arguing that the applicant’s emails of 18 February and 27 November 2016 show that the applicant asked A to sign the consortium agreement after the contract at issue had been carried out.

139    In the first place, it should be noted that, first, by an email of 18 February 2016, the applicant sent the third version of a draft consortium agreement to A, B and C for signature in order to clarify internal procedures regulating payments that were due to them for their participation and their actual contribution to the implementation of the project envisaged by the contract at issue.

140    It must be noted that that draft agreement was dated 17 February 2016 and that its final clause stated that it would enter into force on 5 May 2013.

141    Thus, while it is not apparent from that document, or from the email of 18 February 2016 referred to in paragraph 139 above, that the applicant asked A, B and C to backdate that draft agreement, that is to say, to sign it and to insert a date earlier than that on which it was signed, the fact remains that it was the applicant’s intention, as the Commission correctly noted, to ensure that that draft agreement had retroactive effect.

142    Second, the same applies to the email of 27 November 2016 by which the applicant sent a draft declaration to A that was similar to that which it had sent to C, with the intention that that company acknowledge having been a member of a consortium which was led by the applicant, and which included B and C, for the implementation of the project envisaged by the contract at issue.

143    Paragraph 2 of that draft declaration stated that, notwithstanding the fact that a consortium agreement was never signed, the signatory of the declaration did, prior to, during and after the completion of the project, consider itself to be a member of a consortium together with the other members of that consortium, that is to say, the applicant, A, B and C.

144    Thus, in the same way as for the third version of the draft agreement disseminated on 18 February 2016, while it is not apparent from the email of 27 November 2016 that the applicant asked A to backdate the draft declaration when signing it, the fact remains that that document, once signed, would have been retroactive in nature more than one year after the contract had been carried out.

145    In the second place, however, it follows from the examination of the first part of the first plea that the Commission’s finding of the non-participation of A, B and C in the implementation of the project envisaged by the contract at issue, in the context of the consortium of which the applicant claimed to have been the leader, is based on an error of law and on statements that are vitiated by factual inaccuracies; and therefore that finding is wrong in law and in fact.

146    It is also apparent, in particular, from the emails of 18 February and 27 November 2016 which the applicant sent to A that the applicant’s attempts to have A, B and C sign the third version of the draft agreement after the contract at issue had been implemented, and then to sign a declaration, were intended to complete the legal formalisation of the consortium of which it claimed to have been the leader, in order to demonstrate the reality of that cooperation at a time when that issue was the subject of an investigation by OLAF, and, moreover, to regulate definitively certain financial and administrative matters relating to that consortium.

147    As it is, since the Commission’s finding that A, B and C did not participate in the performance of the contract at issue as part of the consortium of which the applicant claimed to have been the leader is incorrect, including in fact, it follows that the Commission also vitiated the contested decision by an error of fact when it concluded, in consequence of that finding, that the applicant’s attempts to have A, B and C sign a draft agreement and then a declaration with retroactive effect were intended to conceal the lack of a working relationship between them and the applicant and, therefore, to provide false information in the context of the verification of the fulfilment of selection criteria and in the implementation of that contract.

148    In so far as it is apparent from paragraphs 134 and 147 above that the Commission’s findings in support of the first ground of the contested decision are vitiated by an error of law and by errors of fact, and the consequence of those errors is the annulment of that decision, the second part of the second plea must be upheld, and there is no need to examine the merits of the third part of the present plea.

3.      Sixth plea in law, directed against the second ground and alleging errors of law in the application of the limitation rules in respect of the alleged breach of certain main obligations

149    In support of the sixth plea in law, the applicant puts forward its argument in four parts, alleging:

–        first, an error of law in the light of Article 145(1) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation No 966/2012 (OJ 2012 L 362, p. 1);

–        second, breach of the principle of legal certainty on account of the inapplicability of the five-year limitation period laid down in Article 106(15) of Regulation No 966/2012;

–        third, submitted in the alternative to the first part, an error of law in the light of Article 133a(2)(b) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2022 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1);

–        fourth, submitted in the alternative to the first three parts, breach of the principle of legal certainty and of the legality principle on account of the inapplicability of the rules on the interruption of the five-year limitation period laid down in Article 106(15) of Regulation No 966/2012.

150    In support of the first part, alleging an error of law in the light of Article 145(1) of Delegated Regulation No 1268/2012, the applicant asserts that, under that provision, the Commission was no longer able to impose a penalty based on alleged deficiencies in complying with its main obligations once a period of five years after those deficiencies were established by OLAF on 9 October 2017 had expired, that is to say, on 9 October 2022.

151    In particular, the applicant takes issue with the Commission’s interpretation that that provision does not lay down a limitation period but only the duration of the exclusion measure that may be adopted, since such an interpretation would infringe the fundamental principle of legal certainty, which requires the Commission to take in due time the actions it deems necessary to protect the financial interests of the European Union.

152    Next, in support of the second part, the applicant maintains, in essence, that the Commission infringed the principle of legal certainty by basing the contested decision on Article 106(15) of Regulation No 966/2012, as amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 amending Regulation No 966/2012 (OJ 2015 L 286, p. 1), since that provision entered into force on 1 January 2016 and the alleged deficiencies occurred during the period from 6 May 2013 to October 2015.

153    In addition, in support of the third part, the applicant submits that, in so far as Article 145(1) of Delegated Regulation No 1268/2012 was not to be applied, the Commission should have relied, in conformity with the principle of legal certainty, on Article 133a(2)(b) of Regulation No 2342/2002, in which case any exclusion measures should have been imposed at the latest by October 2020.

154    Lastly, in support of the fourth part, the applicant states that even if the five-year limitation period provided for in Article 106(15) of Regulation No 966/2012 was applicable, the rule on the interruption of that period could not be applied to it without infringing the principle of legal certainty and the legality principle. It relies in this regard on paragraph 22 of the judgment of 15 February 2023, RH v Commission (T‑175/21, not published, EU:T:2023:77).

155    The Commission disputes the applicant’s claims.

156    First, it contends that Article 145(1) of Delegated Regulation No 1268/2012 sets the maximum duration of an applicable exclusion under Article 109(1)(b) of Regulation No 966/2012, and not the time limit for carrying out exclusion proceedings. It maintains that that interpretation is confirmed by Article 106(4) of Regulation No 966/2012, which provides the legal basis for Delegated Regulation No 1268/2012, as well as by the different language versions and the purpose of Article 145(1) of the latter regulation.

157    Second, the Commission maintains that the principle of legal certainty required that Article 106(15) of Regulation No 966/2012, as amended by Regulation 2015/1929, be applied, in the absence of any limitation period under the original version of Regulation No 966/2102. It also asserts that it did not err in law by applying Article 139(2) of Regulation 2018/1046, which was the procedural rule in force at the time of the adoption of the contested decision, and the provisions of which are equivalent to those laid down in Article 106(15) of Regulation No 966/2012.

158    Third, the Commission contends that the contested decision cannot be based on Article 133a(2) of Regulation No 2342/2002 because that provision was not in force at the time when the misconduct covered by the second ground of that decision ceased.

159    Fourth, the Commission maintains that the rules governing limitation periods are procedural in nature, with the result that it did not infringe the principle of legal certainty in the present case by applying the limitation period of five years provided for in Article 106(15) of Regulation No 966/2012, as amended by Regulation 2015/1929, and in Article 139(2) of Regulation 2018/1046, which was in force when the contested decision was adopted.

160    In order to examine the merits of the present plea, it is necessary to identify the limitation rules that were applied by the Commission with regard to the second ground of the contested decision.

161    As indicated in paragraph 29 above, it is apparent from paragraphs 186 to 192 of the contested decision that the second ground of that decision is based on significant deficiencies on the applicant’s part in complying with main obligations in the implementation of the contract at issue, namely, first, Article 13.3 of the general conditions of that contract, relating to the insurance obligation; second, Article 24 of those general conditions, relating to the obligation to keep accounts and records; and, third, Article 25 of those general conditions, relating to OLAF’s powers in the event of any verification or checks by OLAF.

162    In particular, it is apparent from paragraph 194 of the contested decision that the Commission found that that misconduct had ceased at the end of the period of implementation of the contract at issue, that is, as of 5 September 2015.

163    Next, it follows from paragraph 194 of the contested decision that, with regard to the second ground of that decision, the Commission applied the limitation rules provided for in Article 106(15) of Regulation No 966/2012 and in Article 139 of Regulation 2018/1046.

164    In support of the second part of the present plea, the applicant submits, in essence, that the Commission infringed the principle of legal certainty by basing the contested decision on Article 106(15) of Regulation No 966/2012, as amended by Regulation 2015/1929, since that provision entered into force on 1 January 2016 and the alleged deficiencies occurred in the period between 6 May 2013 and October 2015.

165    In that regard, according to settled case-law, the principle of legal certainty precludes a new legal rule from applying retroactively, namely to a situation established prior to its entry into force, and requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained (see judgment of 29 July 2024, Twenty First Capital, C‑174/23, EU:C:2024:654, paragraph 59 and the case-law cited).

166    Thus, the principles governing the temporal application of the law and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of the substantive rules in force at the date of the facts in issue even if those rules are no longer in force when an EU institution adopts an act, provided that the provision which forms the legal basis of an act and empowers that institution to adopt the act in question is in force when the act is adopted. Similarly, the procedure for adopting that act must be carried out in accordance with the rules in force at the time of adoption (see judgment of 11 January 2024, Eurobolt and Others v Commission and Stafa Group, C‑517/22 P, EU:C:2024:9, paragraph 82 and the case-law cited).

167    In the first place, it follows from paragraph 162 above that the factual situation underpinning the second ground of the contested decision is a situation that was established and definitive as at 5 September 2015.

168    In addition, it should be recalled that, according to settled case-law, in contrast to procedural time limits, the limitation period, by resulting in the extinction of the legal action, is a matter of substantive law since it affects the enforceability of a subjective right which the person concerned can no longer effectively assert before the courts (see judgment of 22 June 2022, Volvo and DAF Trucks, C‑267/20, EU:C:2022:494, paragraph 46 and the case-law cited).

169    Thus, in accordance with the case-law cited in paragraphs 165 and 166 above, the principle of legal certainty required that the Commission apply the limitation rules that were in force at the date of the facts at issue, that is, 5 September 2015, since such rules are substantive in nature according to the case-law cited in paragraph 168 above.

170    In the second place, Article 106(15) of Regulation No 966/2012, as amended by Regulation 2015/1929, provided that the limitation period to exclude or impose financial penalties on an economic operator was to be five years calculated from the date of the conduct giving rise to exclusion or, in the case of continued or repeated acts, the date on which the conduct ceased, in the case referred to, in particular, in Article 106(1)(e) of that regulation, concerning an exclusion situation in which the economic operator had shown significant deficiencies in complying with main obligations in the performance of a contract financed by the budget of the European Union.

171    However, it is apparent from Article 2 of Regulation 2015/1929 that that regulation, which amended Article 106 of Regulation No 966/2012 by adding paragraph 15 to it, was to apply from 1 January 2016, which is after 5 September 2015.

172    Consequently, Article 106(15) of Regulation No 966/2012, as amended by Regulation 2015/1929, did not constitute a substantive rule applicable ratione temporis to the deficiencies covered by the second ground of the contested decision.

173    In the third place, Article 139(2) of Regulation 2018/1046, concerning the duration of exclusion and the limitation period, also provided that the limitation period for excluding or imposing financial penalties on a person or entity referred to in Article 135(2) of that regulation was to be five years calculated from the date of the conduct giving rise to exclusion or, in the case of continued or repeated acts, the date on which the conduct ceased, in the case referred to in Article 136(1)(e) of that regulation.

174    Nevertheless, Article 282(2) of Regulation 2018/1046 provided that that regulation was to apply, subject to the derogations provided for in Article 282(3) of that regulation, from 2 August 2018. In addition, it is apparent from Article 282(3)(c) of that regulation that Article 139 thereof was to apply from 1 January 2019 as regards the implementation of the administrative appropriations of EU institutions.

175    Therefore, Article 139 of Regulation 2018/1046 also did not constitute a substantive rule applicable to the deficiencies covered by the second ground of the contested decision, which represented an established and definitive situation as at 5 September 2015.

176    In the fourth place, it is also apparent from paragraphs 44 and 193 of the contested decision, which did not concern the applicable limitation rules, but the duration of the exclusion to which the applicant might be subject, that the Commission considered that Article 139 of Regulation 2018/1046 was a provision more favourable than or at least equivalent to the provision contained in Article 145(1) of Delegated Regulation No 1268/2012.

177    In that regard, it is true that, according to the case-law, an error that is of a purely formal nature in respect of the legal basis of an act cannot result in the annulment of the act adopted on that legal basis, whether for breach of the principle of legal certainty or for infringement of the obligation to state reasons, in so far as such an error has not made it impossible for the addressee of that act to determine the obligations which the addressee has been accused of infringing (see, to that effect, judgments of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 98, and of 19 December 2019, Greece v Commission, T‑295/18, not published, EU:T:2019:880, paragraphs 148 and 150).

178    Thus, it falls to this Court to examine whether Article 145(1) of Delegated Regulation No 1268/2012 lays down the limitation periods that would have been applicable in this case, with the result that the error as to the legal basis in the form of the Commission’s reliance on Article 106(15) of Regulation No 966/2012 and on Article 139 of Regulation 2018/1046 might be considered to be purely formal.

179    In that regard, Article 145(1) of Delegated Regulation No 1268/2012, in the version in force as at 5 September 2015, provided as follows:

‘Without prejudice to the application of penalties laid down in the contract, candidates or tenderers and contractors who have made false declarations, have made substantial errors or committed irregularities or fraud, or have been found in serious breach of their contractual obligations may be excluded from all contracts and grants financed by the Union budget for a maximum of five years from the date on which the infringement is established as confirmed following a contradictory procedure with the candidate, tenderer or the contractor.

That period may be extended to 10 years in the event of a repeated offence within five years of the date referred to in the first subparagraph.’

180    Accordingly, it is apparent from the version of Article 145(1) of Delegated Regulation No 1268/2012 applicable to the dispute that that provision set a maximum exclusion period of five years from the date on which the infringement was established; it did not lay down a rule on limitation periods.

181    Consequently, in the absence of any reference, in the contested decision, to the limitation rules applicable to the facts on which the second ground of the contested decision is based, the Court is not in a position to find that the error of law vitiating that ground is purely formal and could not result in the annulment of that decision, notably on the ground of breach of the principle of legal certainty.

182    It should be noted that, in the context of proceedings in respect of an irregularity that is detrimental to the European Union’s financial interests and leads to an administrative measure such as the contested decision, the principle of legal certainty requires in particular that the situation of the operator who committed that irregularity, having regard to the operator’s rights and obligations, not be open to challenge indefinitely; consequently, a limitation period must be applicable to proceedings in respect of such an irregularity and, in order to fulfil its function of ensuring legal certainty, that period must be fixed in advance (see judgment of 5 May 2011, Ze Fu Fleischhandel and Vion Trading, C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 32 and the case-law cited).

183    It follows from the above that the second part of the sixth plea must be upheld, and there is no need to examine the other parts of that plea or the other pleas raised in the application.

184    Since it follows from paragraphs 148 and 183 above that the applicant is justified in maintaining that the first ground of the contested decision is vitiated by errors of fact and an error of law, and that the second ground is wrong in law, that decision must be annulled in its entirety.

B.      Alternative claim for annulment of Articles 2 and 3 of the contested decision

185    Since it follows from paragraph 184 above that the contested decision must be annulled in its entirety, there is no need to examine the claim put forward in the alternative, seeking its annulment in part.

IV.    Costs

186    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

187    In the present case, since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Annuls Decision Ares(2023) 5982056 of the European Commission of 1 September 2023 relating to a proceeding for the exclusion of UH from procurement and grant 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, or by Council Regulation (EU) 2018/1877 of 26 November 2018 on the financial regulation applicable to the 11th European Development Fund, and repealing Regulation (EU) 2015/323;

2.      Orders the Commission to pay the costs.

Delivered in open court in Luxembourg on 28 January 2026.

Table of contents

I. Background to the dispute

II. Forms of order sought

III. Law

A. Principal claim for annulment of the contested decision

1. Legal basis of the contested decision

2. Second plea in law, alleging errors of fact and of law regarding the alleged grave professional misconduct

(a) First part, alleging errors of law and of fact affecting the finding that the consortium involving the applicant and A, B and C did not exist

(1) First complaint, alleging an error of law in that the Commission found that a consortium involving the applicant, A, B and C did not exist, on the basis that there was no signed consortium agreement between them

(2) Second complaint, alleging errors of fact in respect of the finding that there was no consortium involving the applicant, A, B and C

(i) C’s statements in Annex 19 to the OLAF report

(ii) A’s statements in Annex 20 to the OLAF report

(iii) B’s statements in Annex 21 to the OLAF report

(b) Second part, alleging an error of fact vitiating the first ground of the contested decision, as regards the applicant’s attempts to obtain a backdated consortium agreement or declaration

3. Sixth plea in law, directed against the second ground and alleging errors of law in the application of the limitation rules in respect of the alleged breach of certain main obligations

B. Alternative claim for annulment of Articles 2 and 3 of the contested decision

IV. Costs

*      Language of the case: English.