—

The applicant claims, in that regard, that the contested decision is vitiated by failure to conduct an investigation, misrepresentation of the facts and a consequent error in law, in so far as the final sub-paragraph of Article 106(1) of Regulation No 966/2012 was not applied in the present case. In particular, the Commission erred in failing to recognise that, in the present case, the criteria under Article 106(1)(b) of Regulation No 966/2012 were satisfied, and in failing properly to take into account the documentary evidence submitted by Impresa Costruzioni Giuseppe Maltauro SpA during the investigation for the purpose of demonstrating that it had adopted ‘adequate measures’ against Dr Maltauro.

—

The applicant claims, in that regard, in the alternative, that the contested decision is vitiated as a result of misrepresentation of the facts and failure to state reasons, in so far as the applicant was held liable for grave professional misconduct within the meaning of Article 106(1)(c) of Regulation No 966/2012. The documents concerning the judicial problems involving Dr Maltauro do not show that Impresa Costruzioni Giuseppe Maltauro SpA failed to fulfil its duties of diligence and contractual good faith, or that that company benefitted from the unlawful conduct imputed to its former Managing Director. There was therefore no evidence to support the view that Impresa Costruzioni Giuseppe Maltauro SpA was guilty of grave professional misconduct as cited in the ground for exclusion.

—

The applicant claims, in that regard, also in the alternative, that the contested decision is also vitiated owing to infringement of the audi alteram partem rule, since it is based on information which was not referred to by the Commission in its letter initiating the procedure, with regard to which Impresa Costruzioni Giuseppe Maltauro SpA was never given the opportunity to submit its comments. Accordingly, the applicant could not defend itself properly in relation to the evidence which ultimately proved to be decisive for the purposes of its exclusion from all procedures for the award of contracts and grants financed by the general budget of the European Union and the European Development Fund.

—

The applicant claims, in that regard, once again in the alternative, that the exclusion decision was adopted in breach of the principle of proportionality, in particular in so far as it sets the exclusion period at two years and ten months. That period is wholly unjustified, contrary to the spirit and purpose of the rules laid down in Regulation No 966/2012 and Regulation No 1268/2012, which govern grounds for exclusion, and clearly disproportionate, since the factors which could have had negative effects on the professional conduct of Impresa Costruzioni Giuseppe Maltauro SpA were eliminated by that company and there was no further reason for the Commission to fear financial losses or reputational harm.