T-540/24

JUDGMENT OF THE GENERAL COURT (Second Chamber) 8 July 2026 (*) ( Instrument for Pre-Accession Assistance – OLAF investigation – Commission decision imposing an administrative penalty – Exclusion from procurement and grant award procedures under the Financial Regulation and the financial regulation applicable to the 11th EDF or from being selected for the implementation of funds governed by those regulations – Registration in the early detection and exclusion system database – Grave professional misconduct – Non-contractual liability ) In Case T‑540/24, RH, represented by L. Levi, lawyer, applicant, v European Commission, represented by A. Koričić and P. Rossi, acting as Agents, defendant, THE GENERAL COURT (Second Chamber), composed of N. Półtorak, President, G. Hesse (Rapporteur) and I. Dimitrakopoulos, Judges, Registrar: A. Audras-Hidelot, Administrator having regard to the written part of the procedure, further to the hearing on 22 January 2026, gives the following Judgment 1        By its action, the applicant, RH, seeks, first, on the basis of Article 263 TFEU, the annulment of the decision of the European Commission of 6 August 2024 by which it excluded the applicant, for a period of nine months, from participating in procurement and grant award procedures covered by the general budget of the European Union and by the 11th European Development Fund (EDF) and from participating in funds procedures under 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; ‘the Financial Regulation’), and in procedures for the award of funds under the EDF governed by Council Regulation (EU) 2018/1877 of 26 November 2018 on the financial regulation applicable to the 11th [EDF], and repealing Regulation (EU) 2015/323 (OJ 2018 L 307, p. 1), or from being selected for the implementation of funds governed by those regulations (‘the contested decision’); and, secondly, on the basis of Article 268 TFEU, compensation for the damage which it claims to have suffered as a result. Background to the dispute 2        On 10 October 2017, under the programme of pre-accession assistance for the Republic of Moldova to the European Union, the EU Delegation to Moldova (‘the contracting authority’) published a contract notice within the framework of the restricted procurement procedure ‘Rural Small and Medium Enterprises policy support window, Moldova’ (EuropeAid/138868/DH/SER/MD) (‘the procurement procedure’). The main beneficiary of the technical assistance project covered by that contract was the Moldovan Organisation for Small and Medium Enterprises (‘ODIMM’). The secondary beneficiaries of that project included the Moldovan Ministry of Economy and Infrastructure (‘the MEI’). 3        On 2 May 2018, the contracting authority, as part of the procurement procedure at issue, published the list of shortlisted candidates, which included the consortium represented and managed by the applicant (‘the consortium’). On 25 May 2018, the consortium submitted its tender. 4        On 31 August 2018, OLAF opened an investigation concerning the applicant on the basis of Article 3 of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1). 5        OLAF’s investigation consisted in ascertaining whether there was a conflict of interest or any influence in the award of the contract in question to the consortium. To that end, OLAF questioned, inter alia, A (consultant paid by the applicant) and B (State Secretary of the MEI). 6        In the course of its investigation, OLAF established that B was married to A and that their relationship had begun in 2016. According to OLAF, B worked as a senior official at ODIMM until September 2017 and subsequently held the post of State Secretary of the MEI from October 2017 to July 2019. It found that an undeclared conflict of interest existed between the applicant, through A, and one of the beneficiaries of the project in question, through B. 7        On 3 September 2018, the contracting authority informed the applicant, by letter bearing the reference Ares(2018)4512258, that it had decided to reject the consortium’s tender due to non-compliance with certain provisions of Section 2.3.3.2 of the 2016 Practical Guide for Procurement and Grants for European Union external actions (‘the PRAG 2016’) and Section 4.1 of the Instructions to tenderers. 8        On the basis, in particular, of the OLAF report following the investigation in question, the panel of the early detection and exclusion system, referred to in Article 143 of the Financial Regulation (‘the panel’), was asked to adopt a recommendation under Article 143(6) of that regulation. 9        By letter dated 15 June 2023 bearing the reference Ares(2023)4147925, the panel notified the applicant of the relevant facts, their preliminary classification in law and the administrative penalties envisaged, and invited it to submit its observations. It informed the applicant that it envisaged imposing administrative penalties on it, consisting, in particular, in excluding it from participating in award procedures for public procurement and grants under the Financial Regulation. A redacted version of the OLAF report following the investigation in question was enclosed with that letter, together with certain annexes thereto. 10      On 10 January 2024, the applicant made a number of observations on the panel’s letter of 15 June 2023, submitting inter alia that the concept of ‘conflict of interest’ used in that letter was incorrect. 11      On 28 May 2024, by letter bearing the reference Ares(2024)3822473, the panel sent its final recommendation to the Commission’s Directorate-General (DG) for Neighbourhood and Enlargement Negotiations, confirming the legal classification of the facts in question as ‘grave professional misconduct’ within the meaning of Article 106(1)(c) 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), as amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1) (‘the former Financial Regulation’). It recommended, inter alia, that the applicant should be excluded from participating in award procedures for public procurement and grants governed by the Financial Regulation for a period of 18 months. 12      By way of the contested decision, the Commission followed the panel’s recommendation whilst limiting the duration of the exclusion in question to nine months. It considered that the applicant was responsible for grave professional misconduct since, when submitting the consortium’s tender, it had not complied with the ethics clause contained in Section 13(b) of the Instructions to tenderers, failing to declare that one of its own consultants in Moldova was married to the State Secretary of the MEI, which was one of the beneficiaries of the project in question. That exclusion took effect from the date of notification of that decision, that is to say, 7 August 2024. Facts subsequent to the contested decision 13      On 20 August 2024, the applicant provided DG Neighbourhood and Enlargement Negotiations with a new set of information and documents concerning the remedial measures adopted prior to the notification of the contested decision and submitted new remedial measures. 14      On 21 October 2024, the Commission notified the applicant of its decision by which, following the recommendation of the panel of 15 October 2024 bearing the reference Ares(2024)7342539, it repealed the contested decision (‘the amending decision’). Form of order sought 15      The applicant claims that the Court should: –        annul the contested decision; –        order the Commission to pay compensation for the prejudice it has suffered as a result of the adoption of that decision; –        order the Commission to pay the costs. 16      The Commission contends that the Court should: –        dismiss the application; –        order the applicant to pay the costs. Law Admissibility 17      In the defence, the Commission submits that the application should be declared inadmissible in its entirety or in part. It argues that, since the amending decision, the applicant has lost its interest in bringing proceedings. In the Commission’s view, the applicant has not demonstrated that the annulment of the contested decision would procure an advantage for it since that decision ceased to produce its effects on 22 October 2024. Moreover, the applicant did not modify the application on the basis of Article 86 of the Rules of Procedure of the General Court in order to take account of that decision being repealed. Thus, it has not indicated which parts of the application may still be relevant. 18      The applicant contends that the application is admissible. 19      As regards an applicant’s interest in bringing proceedings, the Court of Justice has recognised that that interest does not necessarily disappear by reason of the fact that the act contested by the applicant has ceased to have effect in the course of the proceedings. An applicant may retain an interest in obtaining a declaration that the act in question is unlawful for the period during which it was applicable and had effect, and such a declaration continues to be at least of interest as a basis for a possible action for damages (see judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 41 and the case-law cited). 20      Under the sole article of the amending decision, the contested decision ceases to produce legal effects as from the notification of the amending decision, 21 October 2024, that is to say, with effect ex nunc. Therefore, it must be held that the contested decision produced its effects between 7 August and 21 October 2024 inclusive, before being repealed. 21      Thus, between 7 August and 21 October 2024 inclusive, the applicant was prevented, inter alia, from participating in procurement procedures. Therefore, in so far as it considers that that exclusion resulted in a loss of opportunity to win tenders and, by its second head of claim, it seeks an order that the Commission pay compensation for the prejudice it has suffered as a result of the adoption of the contested decision, it retains an interest in obtaining a declaration that that decision was unlawful for the period during which the decision was applicable and had effect, as a basis for its claim for compensation based on Article 340 TFEU. Thus, the applicant’s interest in bringing proceedings has not disappeared, in accordance with the case-law cited in paragraph 19 above. 22      The arguments put forward by the Commission cannot cast doubt on that conclusion. It is clear from the wording of Article 86 of the Rules of Procedure that, just as that provision does not require the applicant to modify the application following the adoption of a new decision replacing the contested decision, it does not require the applicant to make such a modification where the latter decision is only repealed. The Commission cannot therefore validly complain that the applicant did not modify the application in the present case. Moreover, the fact that the applicant itself requested a review of the contested decision and did not wait for the outcome before lodging the application has no bearing on the admissibility of the action. This does not alter the fact that the decision had legal effects for more than two months, which would not have changed had the applicant waited for that amending decision before lodging the application. 23      It follows that the application is admissible. The claim for annulment 24      In support of its application for annulment, the applicant raises four pleas in law, alleging, first, in essence, an error of law and a manifest error of assessment of the facts; secondly, breach of the duty of diligence and the principle of good administration as enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’); thirdly, infringement of Article 136(6) and (7) of the Financial Regulation; and, fourthly, breach of the principle of proportionality. The first plea in law, alleging an error of law relating to the legal classification of ‘grave professional misconduct’ and an error of assessment of the facts leading to the finding of grave professional misconduct 25      The applicant claims, in essence, that the Commission committed an error of law by failing to carry out a specific and individual assessment of its conduct before finding ‘grave professional misconduct’, and an error of assessment by classifying its conduct as ‘grave professional misconduct’ and by excluding it, in particular, from participating in procurement and grant award procedures funded by the general budget of the European Union and the EDF. 26      The applicant submits, in essence, that, in the present case, there was no ‘conflict of interest’ within the meaning of Section 2.3.6 of the PRAG 2016, since the person potentially involved, namely B, was not on the side of the contracting authority. In its view, the Commission was therefore wrong to criticise it for failing to disclose the marital relationship between A and B. 27      Moreover, according to the applicant, there was no ‘equivalent relation [to that of a conflict of interest]’ within the meaning of Section 13(b) of the Instructions to tenderers either. It is argued that the Commission incorrectly relied on an almost irrefutable presumption that the absence of information on a marriage necessarily entails an unfair advantage over competitors. Thus, by failing to take account of the context in which the call for tenders took place, the Commission failed to comply with the requirement incumbent upon it and deriving from the case-law to carry out a specific assessment. 28      The Commission disputes the applicant’s arguments. 29      First of all, as regards the applicable rules, it should be noted that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (see judgment of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraph 27 and the case-law cited; see also, to that effect, judgment of 27 June 2017, NC v Commission, T‑151/16, EU:T:2017:437, paragraphs 35 and 36). 30      It follows that, in the present case, the provisions relating to the procedure and the formal requirements in force on the date on which the contested decision was adopted, namely those laid down by the Financial Regulation, in this case Article 136 thereof, are applicable. By contrast, in order to ensure compliance with the principles of legal certainty and the protection of legitimate expectations, the substantive law applicable remains that in force at the time when the activities at issue took place, namely the provisions of the former Financial Regulation. 31      In the contested decision, the Commission considered that the conduct relied upon against the applicant had taken place between 26 October 2017 – the date on which the applicant confirmed its intention to submit a tender in the name and on behalf of the consortium – and 25 May 2018, the date on which the applicant submitted that tender. 32      The substantive rules applied by the Commission in the contested decision are those laid down in Article 106 of the former Financial Regulation, as confirmed by the applicant in response to a question put by the Court at the hearing. It follows from that provision that administrative penalties may be imposed on an economic operator which has been guilty of grave professional misconduct. 33      In accordance with Article 106(1)(c) and (2) of the former Financial Regulation applicable in the present case: ‘1.      The contracting authority shall exclude an economic operator from participating in procurement procedures governed by this Regulation where: … (c)      it has been established by a final judgment or a final administrative decision that the economic operator is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the economic operator belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibility where such conduct denotes wrongful intent or gross negligence … … 2.      In the absence of a final judgment or, where applicable, a final administrative decision in the cases referred to in points (c), (d) and (f) of paragraph 1, or in the case referred to in point (e) of paragraph 1, the contracting authority shall exclude an economic operator on the basis of a preliminary classification in law of a conduct referred to in those points, having regard to established facts or other findings contained in the recommendation of the panel referred to in Article 108. …’ 34      It is clear from the case-law that the conditions which must be met in order to determine whether there is grave professional misconduct are as follows. First, the economic operator concerned must have engaged in wrongful conduct which has an impact on its professional credibility. For example, the failure to abide by its contractual obligations can, in principle, be considered as such conduct. Secondly, such conduct must denote 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 and by analogy, judgment of 13 December 2012, Forposta and ABC Direct Contact, C‑465/11, EU:C:2012:801, paragraphs 27 to 31). 35      It must also be borne in mind that the Commission has discretion as regards the assessment of the breach of obligations which may lead to a finding of grave professional misconduct, for the purposes of Article 106(1)(c) of the former Financial Regulation. In that regard, the review carried out by the Court must be restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment or misuse of power (see judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 30 and the case-law cited). 36      Furthermore, in order to establish that, in the assessment of the facts, the Commission committed an error so obvious as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to render implausible the assessments made in the decision at issue. In other words, the plea alleging a manifest error must be rejected if, in spite of the evidence put forward by the applicant, the disputed assessment may be accepted as genuine or valid (see judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 31 and the case-law cited). 37      Next, as regards specifically the existence of a conflict of interest or an equivalent relation, it follows from the case-law that the contracting authority is required to ensure at each stage of a tendering procedure equal treatment and, thereby, equality of opportunity for all the tenderers. Thus, following the discovery of a conflict of interest or an equivalent relation, it must carry out a specific and objective assessment of the tenderer’s situation without taking into account its intentions, as the risk must actually be found to exist and not be merely hypothetical (see, to that effect, judgments of 17 March 2005, AFCon Management Consultants and Others v Commission, T‑160/03, EU:T:2005:107, paragraph 75; of 20 March 2013, Nexans France v Joint Undertaking Fusion for Energy, T‑415/10, EU:T:2013:141, paragraphs 114 to 116; and of 13 October 2015, Intrasoft International v Commission, T‑403/12, EU:T:2015:774, paragraph 80). 38      Lastly, the evidence relied on by the Commission as against the applicant, examined in the light of the matters adduced by the latter, must be sufficiently specific, convincing and concrete in order to establish clearly and unequivocally that the applicant engaged in wrongful conduct having an impact on its professional credibility which would denote wrongful intent or gross negligence within the meaning of Article 136(1)(c) of the Financial Regulation (see, to that effect, judgment of 15 February 2023, RH v Commission, T‑175/21, not published, EU:T:2023:77, paragraph 62). 39      The applicant’s arguments must be assessed in the light of those considerations. –       The condition relating to conduct having an impact on professional credibility 40      As regards the first condition established in the case-law cited in paragraph 34 above, the Commission criticises the applicant, in recitals 57 to 74 of the contested decision, for having engaged in conduct having an impact on its professional credibility in so far as it infringed point (b) of Section 13 of the Instructions to tenderers, entitled ‘Ethics clauses/Corruptive practices’, by not disclosing the marital relationship between A and B and, thus, finds that there is a conflict of interest or equivalent relation. It states that, as a result of that conduct, it was unable to assess whether that situation was likely to influence the procurement procedure in question. 41      In the first place, as regards the definition of the concepts of ‘conflict of interest’ and ‘equivalent relation’, it must be noted, as is clear from recitals 61 to 64 of the contested decision, that the Commission bases its classification of ‘equivalent relation [to that of a conflict of interest]’ on point (b) of Section 13 of the Instructions to tenderers, entitled ‘Ethics clauses/Corruptive practices’. Accordingly, the applicant’s arguments based on the definitions of the concept of ‘conflict of interest’ as set out in Section 2.3.6 of the PRAG 2016 and in Article 57 of the former Financial Regulation are ineffective. 42      Moreover, contrary to what the applicant maintains, it should be observed that the assumption that the contracting authority is not directly involved in the alleged conflict of interest does not mean, however, that the existence of a situation of an ‘equivalent relation [to that of a conflict of interest]’ within the meaning of Section 13(b) of the Instructions to tenderers is excluded. In accordance with that provision, the tenderer must not be affected by a conflict of interest or by an equivalent relation with other tenderers or parties involved in the project in question. 43      As regards, in the second place, the Instructions to tenderers, it was considered that these had a direct influence on the contractual relationship between the parties, in so far as they specifically concern the obligations incumbent on tenderers during the administrative phase of the public procurement procedure preceding the final conclusion of the contract, such that they determine the conditions of engagement of the parties in a relationship intended to fall within the contractual framework. 44      Thus, a breach of the Instructions to tenderers, as in the present case, can be treated as equivalent to a breach of contract. In accordance with the case-law cited in paragraph 34 above, such a breach may be regarded as conduct which has an impact on the professional credibility of an operator. 45      As regards, in the third place, the Commission’s assessment of the facts in the contested decision, the applicant did not dispute that A, who was married to B, carried out tasks for it in return for remuneration in connection with the performance of several public contracts, that it had been informed of that marriage, that, on 10 October 2017, the contract notice in question had been published, that one of the beneficiaries was the MEI, since, on 17 October 2017, B was appointed to the post of State Secretary of the MEI and that, on 25 May 2018, the applicant submitted the consortium’s tender without mentioning the marital relationship between A and B. However, the applicant takes the view that it was not in a situation of a conflict of interest or an equivalent relation with other tenderers or parties involved in the project in question. 46      It is therefore necessary to ascertain, in the light of the case-law cited in paragraph 37 above, whether the Commission carried out a specific and objective assessment of the applicant’s situation in order to find that the applicant was in fact involved in an ‘equivalent relation [to that of a conflict of interest]’ within the meaning of Section 13(b) of the Instructions to tenderers. In that regard, it is not disputed that A had a marital relationship with B, that A was active on behalf of the applicant and that B was a person with influence within one of the beneficiaries of the contract in question. Therefore, in accordance with that provision, it was for the applicant to inform the contracting authority of that relationship. The failure to inform the contracting authority of that relationship may be classified as conduct which has an impact on the professional credibility of the economic operator concerned within the meaning of the case-law referred to in paragraph 34 above. 47      In order to demonstrate B’s position of influence within the MEI, the Commission noted, in particular in recitals 57 and 70 of the contested decision, that B could have access to the terms of reference of the contract in question. In addition, it stated that, on 21 June 2018, the Head of Operations of the contracting authority had received an email signed by B asking the contracting authority to postpone a meeting of the tender evaluation committee because the member representing the MEI was unavailable. It stated that, on 26 June 2018, after having received a negative reply to that request, B wrote a second email to the contracting authority informing it that she would contact the latter’s head of delegation. 48      Such evidence relied on by the Commission is sufficiently specific, convincing and concrete as to establish clearly and unequivocally that the applicant was in fact involved in an ‘equivalent relation [to that of a conflict of interest]’ within the meaning of Section 13(b) of the Instructions to tenderers, particularly since the arguments put forward by the applicant are not sufficient to render implausible the assessments made in the contested decision. 49      The applicant claims that it had lawfully obtained the terms of reference before submitting its tender. In any event, it states that B had not had access to the full terms of reference, but only to an outline thereof. In the applicant’s view, the panel’s conclusion that B had the means, at the very least, to influence the calendar of meetings of the evaluation committee and the composition of the latter is unfounded. It submits that B merely requested the postponement of a meeting of the tender evaluation committee for scheduling reasons and was merely a signatory to the emails, since all the letters to the EU delegation had to be signed by the State Secretary or the minister concerned. The applicant maintains that it has not been proven that it had a competitive advantage as a result of the marital relationship between A and B, and therefore it was not obliged to declare that relationship. 50      However, it should be noted at the outset that the positions of A and B in the context of the procurement procedure in question were such that the applicant was required to inform the contracting authority of their marital relationship. In that regard, the facts relating to B’s access to the terms of reference before the applicant had them are not decisive. The same applies to the question of whether B actually consulted the terms of reference or an outline thereof and whether B sent A the content of those terms of reference. 51      Similarly, it was not for the Commission to prove that B had actually attempted to influence the contracting authority through documented contacts with the contracting authority during the period in which the latter was in the process of examining the tenders. 52      Lastly, although A was not connected with the applicant as an employee or legal representative, he worked for it in return for remuneration and maintained links with it. As is apparent from the OLAF report following the investigation in question, his task was to seek out EU-funded projects for the applicant in Moldova. Moreover, he represented it in Moldova in certain procedures since it had no office there. Consequently, he must be regarded as a ‘party involved in the project’ within the meaning of Section 13(b) of the Instructions to tenderers. 53      It follows that the Commission did not err in finding there to have been conduct, on the part of the applicant, having an impact on its professional credibility. –       The condition relating to conduct denoting wrongful intent or gross negligence 54      As regards the second condition laid down in the case-law cited in paragraph 34 above, the Commission maintains, in recitals 75 to 85 of the contested decision, that the applicant committed gross negligence by failing to disclose the marital relationship between A and B. In its view, even if the MEI should have informed the contracting authority of that relationship, the applicant should also have informed it. It states, in recitals 86 to 91 of that decision, that the gravity of the negligence was such that the conduct could be classified as ‘grave … misconduct’. Lastly, it emphasises the importance of equal treatment of all tenderers, as well as the negative impact on the reputation of the European Union and the potential disadvantage caused to the other tenderers. 55      The applicant submits, first, that A informed it of his marriage to B, indicating that this would not affect its competitive position in the context of the procurement procedure in question. Secondly, it takes the view that it was for B and the MEI to inform the contracting authority of that marriage. Thirdly, it states that B’s functions did not affect in any way the role played by the MEI or ODIMM in the context of that procedure. Furthermore, the MEI was merely a secondary beneficiary. 56      Having regard to the discretion available to the Commission pursuant to the case-law cited in paragraph 35 above, it must be held that the Commission did not commit a manifest error of assessment in finding that the applicant’s failure to provide information regarding the marital relationship between A and B constituted gross negligence. Equal opportunities for all tenderers is an essential principle in the context of a procurement procedure (see, to that effect, judgment of 7 October 2015, European Dynamics Luxembourg and Others v OHIM, T‑299/11, EU:T:2015:757, paragraph 44 and the case-law cited). It is therefore all the more important for each tenderer to disclose any conflict of interest or equivalent relation concerning them, so that the contracting authority may carry out a specific and objective assessment of the situation of the tenderer concerned and draw the necessary conclusions for the continuation of such a procedure. 57      It should be noted that the fact that A had informed the applicant of his marriage to B and had given assurances that he kept his private and professional life separate in no way detracts from the importance of declaring that marital relationship, given the objectively strong link created by that relationship, B’s high-level position and visibility as an official of a final beneficiary of the project in question and her links with the contracting authority, which gave her the ability to influence the process of awarding the contract. The fact that, where appropriate, the MEI should also have or could have informed the contracting authority of that relationship does not alter the applicant’s responsibility to inform the contracting authority. 58      As regards the third requirement set out in the case-law cited in paragraph 34 above, namely a specific and individual assessment of the conduct of the economic operator concerned, it is apparent from the examination of the first two conditions above that the Commission carried out such an assessment. 59      It follows that, in the present case, the Commission did not commit a manifest error of assessment in finding that the condition relating to conduct denoting wrongful intent or gross negligence was satisfied. Accordingly, since the conditions laid down by the case-law cited in paragraph 34 above are satisfied, the Commission was entitled to conclude that the applicant had committed ‘grave professional misconduct’ within the meaning of Article 106(1)(c) of the former Financial Regulation. 60      The applicant’s arguments and, accordingly, the first plea in law must be rejected. The second plea in law, alleging infringement of Article 41 of the Charter 61      The applicant submits that the Commission did not act diligently in so far as it based the contested decision on the OLAF report following the investigation in question which was not conducted with care and impartiality. It takes the view that the Commission has therefore infringed Article 41(1) of the Charter. 62      The Commission disputes the applicant’s arguments. 63      It should be noted that Article 41(1) of the Charter recognises the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. Thus, according to settled case-law on the principle of sound administration, compliance with the guarantees conferred by the EU legal order in administrative procedures is of fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, judgment of 26 July 2023, Luossavaara-Kiirunavaara v Commission, T‑244/21, not published, EU:T:2023:428, paragraph 144 and the case-law cited). 64      The applicant complains, inter alia, that OLAF did not conduct the investigation in question with care and impartiality. That said, as the Commission submits, the applicant does not put forward specific arguments concerning actual errors which were committed and which would render the contested decision unlawful. 65      Although the applicant claims that OLAF did not examine whether B had disclosed to the MEI her marital relationship with A and the context of the two emails to the contracting authority signed by B, that does not concern the applicant’s conduct. Next, the applicant’s complaint that OLAF did not investigate further the two emails signed by B seeking to postpone a meeting of the evaluation committee also cannot be accepted. Those emails were not decisive in establishing that the applicant had failed to declare the existence of an equivalent relation to that of a conflict of interest, as is also apparent from paragraph 50 above. 66      The second plea in law must therefore be rejected. The third plea in law, alleging infringement of Article 136(6) and (7) of the Financial Regulation 67      The applicant submits, in essence, that the Commission did not take sufficient account of the remedial measures which it had adopted within the meaning of Article 136(6)(a) and (7)(a) of the Financial Regulation. It points out that the objective of the early detection and exclusion system is to prevent and combat fraud. It adds that the adoption of remedial measures after the facts at issue were established should have prevented its exclusion. It claims to have implemented comprehensive personnel, organisational and technical measures as remedial and preventive measures to avoid any risk related to actual or potential conflicts of interest in the future. 68      In particular, the applicant criticises the Commission for not having correctly assessed in the contested decision the remedial measures which it had adopted. 69      It follows from Article 136(6)(a) of the Financial Regulation, which is applicable ratione temporis to remedial measures, that the authorising officer responsible is not to exclude a person or entity from participating in an award procedure or from being selected for implementing Union funds if the person or entity has taken remedial measures as specified in paragraph 7 of that article to an extent that is sufficient to demonstrate its reliability. 70      Moreover, where remedial measures or items of evidence are presented after the exclusion decision, Article 136(8) of the Financial Regulation provides that that decision will be reviewed without delay by the authorising officer responsible. Thus, it must be borne in mind that, in order to examine the applicant’s arguments challenging the assessment of its remedial measures, only the evidence communicated by it prior to the adoption of the contested decision will be considered, since the remedial measures and evidence presented thereafter were taken into account in the amending decision pursuant to Article 136(8) of the Financial Regulation, a decision which is not the subject of the present dispute. 71      As regards the extent of the review which the Court is required to carry out with regard to remedial measures, it has been held that, in so far as the institutions have a margin of discretion in assessing whether conduct can be classified as ‘grave professional misconduct’ (see the case-law cited in paragraphs 35 and 36 above) and where the assessment of remedial measures is an integral part of the assessment of such conduct, a margin of discretion must also be granted to them in assessing those remedial measures (see, to that effect, judgment of 2 October 2024, VC v EU-OSHA (Exclusion from participation in public procurement procedures on the basis of a national administrative decision which has been stayed), T‑126/23, under appeal, EU:T:2024:666, paragraph 59). 72      Moreover, by establishing that a person or entity will not be excluded if that person or entity has implemented sufficient remedial measures to demonstrate its reliability, Article 136(6)(a) of the Financial Regulation places the onus on the person or entity in question to establish that the remedial measures adopted are such as to prevent its exclusion. It follows that, unless the burden of proof imposed by those provisions is rendered ineffective, the operator concerned cannot be allowed, after the adoption of the exclusion decision, to adduce evidence that was not submitted during the exclusion procedure (see, to that effect, judgment of 2 October 2024, VC v EU-OSHA (Exclusion from participation in public procurement procedures on the basis of a national administrative decision which has been stayed), T‑126/23, under appeal, EU:T:2024:666, paragraph 65). 73      In the present case, the Commission examined, in recitals 95 to 110 of the contested decision, the remedial measures taken by the applicant. It considered that those measures were appropriate, but that they were not sufficiently substantiated to demonstrate the applicant’s reliability. 74      As regards, first, the ‘personnel measures’, the Commission maintained that the termination of the professional relationship between the applicant and A as of 1 November 2018 was not sufficient, given that that termination did not remedy the deliberate omission of information regarding the marital relationship between A and B at the time when the applicant submitted the consortium’s tender for the procurement procedure in question. It was for the applicant to ascertain how, in its organisational structure, it was possible that that information had not been disclosed to the contracting authority and who were the persons responsible for that failure to disclose. 75      In so far as concerns, secondly, the ‘technical and organisational measures’, the Commission noted that the applicant had put in place a compliance management system as of March 2021, the effectiveness of which was regularly verified by an external auditor. Moreover, it stated that the applicant had set up a unit for quality management and compliance in 2022. It considered, however, that the applicant had not submitted sufficient evidence that that system was sufficiently robust and effective to correct the conduct at issue and to prevent it from recurring in the future. 76      As regards, thirdly, the ‘capacity-building and coaching measures’, the Commission considered that they were also not supported by evidence. 77      As a preliminary point, it should be observed that the applicant did not provide the evidence intended to demonstrate that the remedial measures adopted are such as to prevent its exclusion until after the contested decision had been adopted and that, on the basis of that evidence and new remedial measures, the Commission adopted the amending decision. The applicant’s argument that the Commission’s DG for Neighbourhood and Enlargement Negotiations could have requested the missing documents cannot succeed. As is apparent from the case-law cited in paragraph 72 above, it was for the applicant to submit evidence demonstrating that the remedial measures adopted after the facts at issue and prior to the adoption of the contested decision were such as to prevent its exclusion. 78      In that context, the Commission rightly considered that the effectiveness of the measures concerning the creation of an entity responsible for monitoring compliance with the rules had not been sufficiently proven prior to the adoption of the contested decision. 79      Under Article 136(7)(a) of the Financial Regulation, remedial measures may include ‘measures to identify the origin of the situations giving rise to exclusion and concrete technical, organisational and personnel measures … appropriate to correct the conduct and prevent its further occurrence’. 80      Thus, the person or entity concerned cannot simply prove that new internal rules have been adopted or new entities set up, but must establish that they have been implemented and are effective, which alone is capable of ‘correcting’ conduct that has actually occurred, to the extent of justifying exclusion. Therefore, by requiring such evidence, the Commission cannot be criticised for imposing a disproportionate level of proof on the applicant. This is all the more true because it should be borne in mind that the reason for exclusion at issue is based on an essential element of the relationship between the successful tenderer in question and the contracting authority, namely the reliability of the successful tenderer, on which the contracting authority’s trust is founded (see, to that effect, judgment of 2 October 2024, VC v EU-OSHA (Exclusion from participation in public procurement procedures on the basis of a national administrative decision which has been stayed), T‑126/23, under appeal, EU:T:2024:666, paragraph 71 and the case-law cited). 81      In those circumstances, the Commission was right to require that the applicant submit not only audit certificates but also the detailed reports relating thereto, and to demonstrate also the experience and skills of the staff responsible for checking compliance. 82      Therefore, the third plea in law must be rejected. The fourth plea in law, alleging breach of the principle of proportionality 83      The applicant submits that the exclusion for a period of nine months imposed by the contested decision is disproportionate. First, it disputes the classification of ‘grave professional misconduct’. Secondly, it relies on its cooperation and the fact that it informed the various contracting authorities of that decision after its notification. Thirdly, it takes the view that the Commission cannot ignore the fact that it had already excluded it once before for 18 months, by a decision which was annulled by the Court in the judgment of 15 February 2023, RH v Commission (T‑175/21, not published, EU:T:2023:77). According to the applicant, that first exclusion had negative economic and social consequences for it, such that a further exclusion could threaten its existence. Moreover, the fact that the first exclusion was found to be unlawful by the Court imposes a duty of diligence on the Commission when assessing the present case. Fourthly, the applicant submits that the remedial measures should have been taken into account, in the light of the evidence which it submitted in order to demonstrate its compliance system and its reliability. 84      The Commission disputes the applicant’s arguments. 85      According to the case-law, the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 15 December 2010, E.ON Energie v Commission, T‑141/08, EU:T:2010:516, paragraph 286). 86      It follows that, in the present case, the penalty must not be disproportionate to the aim pursued, that is to say, to compliance with the rules governing procedures for the award of contracts financed by the EU budget. Under Article 136(3) of the Financial Regulation, the penalty imposed by the Commission must be established in compliance with the principle of proportionality, in particular taking into account the seriousness of the situation, including the impact on the financial interests and image of the Union, the time which has elapsed since the relevant conduct, the duration of the conduct and its recurrence, whether the conduct was intentional or the degree of negligence shown, or any other mitigating circumstances, such as the degree of collaboration of the economic operator with the relevant competent authority and its contribution to the investigation. 87      In that regard, it should be recalled that, under Article 139(1) of the Financial Regulation, the maximum duration of exclusion in the case of grave professional misconduct is three years. 88      In addition, it follows from Article 136(6)(a) of the Financial Regulation that the authorising officer responsible, having regard, where applicable, to the recommendation of the panel, is not to exclude a person or entity referred to in Article 135(2) of that regulation from participating in an award procedure or from being selected for implementing Union funds if the person or entity has taken remedial measures as specified in Article 136(7) of that regulation to an extent that is sufficient to demonstrate its reliability. 89      In the present case, the Commission carried out an assessment of the principle of proportionality, in recitals 124 to 138 of the contested decision, before concluding that a period of nine months was appropriate in respect of the applicant’s exclusion. In particular, first of all, it pointed out that the applicant’s misconduct had no financial impact on the Union budget. Nor could any damage to the image of the Union be established, in the absence of any evidence to suggest that the cancellation of the procurement procedure in question was the result of the applicant’s misconduct. Next, the Commission stated that no aggravating circumstances had been identified and that six years had elapsed since the events. Lastly, it took into account the remedial measures adopted by the applicant, in spite of their being insufficient to demonstrate the applicant’s reliability and the fact that the latter’s misconduct could not be characterised as ‘continuous’. 90      In that regard, in the first place, it should be noted that it follows from the examination of the first plea in law that the classification of the applicant’s conduct as grave professional misconduct is free from any manifest error of assessment. 91      In the second place, the applicant’s cooperation, in particular with OLAF, the panel and the Commission, in accordance with Article 136(3) of the Financial Regulation, is not amongst the factors taken into account by the Commission in its assessment of the principle of proportionality. In that context, it is necessary to determine whether the applicant merely complied with its legal obligation to cooperate with the on-the-spot investigation or whether that cooperation was of such a magnitude that it must be regarded as a mitigating circumstance. 92      In that regard, it is not apparent from the case file that the applicant cooperated with the various authorities beyond its legal obligation. Moreover, as part of its reasoning, the applicant does not put forward any evidence that would demonstrate cooperation on such a scale. Therefore, the Commission’s failure to mention that factor in its assessment of the proportionality of the exclusion is justified and cannot affect the proportionality of that exclusion. 93      In the third place, as regards the applicant’s argument that the Commission disregarded (i) the fact that it had already been excluded by a decision which had subsequently been annulled by the Court and (ii) the consequences that a further exclusion might have on its existence, that argument cannot succeed. In recitals 131 to 133 of the contested decision, the Commission examined the fact that an initial exclusion had been imposed on the applicant in another case. 94      In that regard, the Commission rightly considered that the decision to exclude an entity requires a case-by-case assessment. The other case of the applicant’s exclusion was based on entirely different facts and on a different OLAF report. Moreover, it should be noted that, in its assessment of the principle of proportionality, the Commission referred to the importance of striking a balance between, on the one hand, the economic interest of an entity in participating in public procurement procedures and, on the other hand, the public interest of safeguarding the financial interests of the European Union against the risk of dealing with unreliable economic operators where these are found to be in an exclusion situation. Consequently, the applicant is not justified in claiming that the Commission was required to take into account the first exclusion measure imposed on it in another case and on the basis of different facts, since the present case is separate and requires a fresh assessment by the Commission. 95      In the fourth place, as regards the applicant’s argument that the remedial measures ought to have been taken into account by the Commission, it must be held that it is apparent from recital 136 of the contested decision that the Commission did not fail to do so. The Commission examined the remedial measures adopted by the applicant and considered them insufficient to demonstrate the applicant’s reliability within the meaning of Article 136(6) and (7) of the Financial Regulation. However, it stated that it had taken them into account in order to determine the duration of the exclusion. 96      Moreover, it must be borne in mind that, as is evident from the examination of the third plea in law, the Commission was able to infer from the evidence available to it at the time of the adoption of the contested decision concerning the remedial measures taken by the applicant that those measures were insufficient to prove its reliability. In any event, further to the new evidence and additional remedial measures submitted by the applicant after the contested decision, the Commission adopted the amending decision. 97      It follows that, in view of the grave professional misconduct on the part of the applicant, the fact that that misconduct had no negative impact either on the budget or on the image of the European Union and that it cannot be characterised as ‘continuous’, the absence of aggravating circumstances, the time that had elapsed since the events and the remedial measures taken by the applicant, an exclusion for a period of nine months is not disproportionate. 98      The fourth plea in law and, consequently, the claim for annulment must therefore be rejected. The claim for compensation 99      In its claim for compensation, the applicant requests that the Court order the Commission to pay it compensation in the amount of [confidential]. (1) It considers that the conditions for the European Union to incur non-contractual liability, laid down in the second paragraph of Article 340 TFEU, are satisfied. 100    First, the applicant relies on a sufficiently serious breach of the duty of diligence and of the principles of proportionality and the presumption of innocence. It argues that the Commission manifestly exceeded the limits of its discretion in finding that the applicant was in a conflict-of-interest situation and by disregarding the remedial measures put in place by it. 101    Secondly, the applicant takes the view that it has suffered real and certain damage, consisting not only of the loss of an opportunity to win tenders during the exclusion period, but also of the loss of reputation which it would suffer over a longer period. The damage amounts, in the applicant’s submission, to [confidential], calculated over a nine-month exclusion period. 102    Thirdly, the applicant maintains that the damage sustained by it is directly caused by the contested decision. 103    The Commission disputes the applicant’s arguments. 104    It should be recalled that, according to settled case-law, the non-contractual liability of the Union, within the meaning of the second paragraph of Article 340 TFEU, for the unlawful conduct of its institutions is subject to the fulfilment of a number of conditions, namely the unlawfulness of the conduct of which the institutions are accused, the reality of the damage and the existence of a causal link between the alleged conduct and the damage claimed. If any of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions (see, to that effect, judgment of 12 September 2024, Nardi v ECB, C‑574/23 P, not published, EU:C:2024:746, paragraph 25 and the case-law cited). 105    Given that it is apparent from the application that the claim for compensation is closely related to the claim for annulment and that the unlawfulness of the contested decision has not been established in the context of the examination of the application for annulment of the contested decision, it must be held that at least one of the cumulative requirements referred to in the case-law cited in paragraph 104 above has not been met. 106    The claim for damages must therefore be rejected and, accordingly, the action must be dismissed in its entirety. Costs 107    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1.      Dismisses the action; 2.      Orders RH to pay the costs. Półtorak Hesse Dimitrakopoulos Delivered in open court in Luxembourg on 8 July 2026. V. Di Bucci M. van der Woude Registrar President *      Language of the case: English. 1      Confidential information redacted.