Judgment_paragraph 58 · NC v European Commission (T-151/16)

58In that regard, as explained in paragraph 9 above, not only did the Commission expressly refer, in the contested decision, to the provisions of the Financial Regulation and the Implementing Regulation relating to the penalties applicable at the time when the alleged facts occurred, but it also appears to have failed to take account of Article 106(7)(a) of the Financial Regulation in the version applicable from 1 January 2016, which establishes that an operator that has taken certain remedial measures demonstrating its reliability cannot be excluded from the contracts and grants of the Union. Although the contested decision shows that the remedial measures taken by the applicant were taken into account to determine the duration of the exclusion imposed, no reason is given in that decision as to why those measures were insufficient to satisfy the conditions laid down in the abovementioned provision. It must be concluded that the Commission failed to examine whether or not it should apply that provision. It should be pointed out in that regard that the argument put forward in the Commission’s defence, that the applicant failed to recognise, in the course of the adversarial procedure, its intention to arrange the fake tenders criticised in the OLAF report demonstrated that its reliability had not been restored, cannot be accepted. An economic operator subject to a penalty procedure always has the right to defend itself against complaints made against it and the exercise of that right does not prejudice the assessment of its reliability subsequent to the facts alleged against it, taking into account the remedial measures it may have adopted. This confirms that taking into account Article 106(7)(a) of the Financial Regulation, in the version applicable from 1 January 2016, was likely to have led to a more lenient decision for the applicant.