ECLI:EU:C:2026:571

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OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 9 July 2026 (1)

Case C‑170/25 P

European Commission

( Appeal – Public procurement – Protection of the financial interests of the Union – Exclusion of the applicant, for a period of two years, from participating in award procedures governed by the 2018 Financial Regulation, from being selected for implementing EU funds and from participating in award procedures financed under the 11th European Development Fund – Article 136(1)(e) of the 2018 Financial Regulation – Obligation to conduct a specific and individual assessment of the conduct of the person concerned – Legal classification of the exclusion decision – Action for annulment and for damages )

Introduction

1. By the present appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 18 December 2024, TP v Commission (T‑776/22, ‘the judgment under appeal’, EU:T:2024:908), by which the General Court annulled its decision of 1 October 2022 excluding TP from participating in award procedures governed by Regulation (EU, Euratom) 2018/1046 (2) or funded by Regulation (EU) 2018/1877 (3) and from being selected for implementing EU funds (‘the decision at issue’).

2. In accordance with the Court’s request, I shall confine my analysis to the first ground of appeal. I will examine, in the first place, whether or not the authorising officer responsible (in the present case, the Commission), when adopting such an exclusion decision, is automatically bound by the findings of the court having jurisdiction over the contract before which the matter was previously brought. In the second place, I will analyse whether, as the General Court held, in order to take the exclusion decision, the authorising officer responsible must carry out an individual assessment, including in the case of a consortium composed of undertakings jointly and severally liable, which will give me the opportunity to address the legal nature of the exclusion measure.

Legal framework

The 2018 Financial Regulation

3. Article 135 of the 2018 Financial Regulation, entitled ‘Protection of the financial interests of the Union by means of detection of risks, exclusion and imposition of financial penalties’, provides:

‘1. In order to protect the financial interests of the Union, the Commission shall set up and operate an early detection and exclusion system.

The purpose of such a system shall be to facilitate:

(a) the early detection of persons or entities referred to in paragraph 2, which pose a risk to the financial interests of the Union;

(b) the exclusion of persons or entities referred to in paragraph 2, which are in one of the exclusion situations referred to in Article 136(1);

2. The early detection and exclusion system shall apply to:

(a) participants and recipients;

(b) entities on whose capacity the candidate or tenderer intends to rely or subcontractors of a contractor;

…

4. The decision to exclude persons or entities referred to in paragraph 2 of this Article or to impose financial penalties on a recipient shall be based on a final judgment or, in the exclusion situations referred to in Article 136(1), on a final administrative decision, or on a preliminary classification in law by the panel referred to in Article 143 in the situations referred to in Article 136(2) in order to ensure a centralised assessment of those situations. …’

4. Article 136 of the 2018 Financial Regulation, entitled ‘Exclusion criteria and decisions on exclusions’, provides:

‘1. The authorising officer responsible shall exclude a person or entity referred to in Article 135(2) from participating in award procedures governed by this Regulation or from being selected for implementing Union funds where that person or entity is in one or more of the following exclusion situations:

…

(e) the person or entity has shown significant deficiencies in complying with main obligations in the implementation of a legal commitment financed by the budget which has:

(i) led to the early termination of a legal commitment;

(ii) led to the application of liquidated damages or other contractual penalties; or

(iii) been discovered by an authorising officer, [the European Anti-Fraud Office (OLAF)] or the Court of Auditors following checks, audits or investigations;

…

2. In the absence of a final judgment or, where applicable, a final administrative decision in the cases referred to in points (c), (d), (f), (g) and (h) of paragraph 1 of this Article, or in the case referred to in point (e) of paragraph 1 of this Article, the authorising officer responsible shall exclude a person or entity referred to in Article 135(2) on the basis of a preliminary classification in law of a conduct as referred to in those points, having regard to established facts or other findings contained in the recommendation of the panel referred to in Article 143.

…

The facts and findings referred to in the first subparagraph shall include, in particular:

(a) facts established in the context of audits or investigations carried out by [the European Public Prosecutor’s Office (EPPO)] in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, [(4)] the Court of Auditors, OLAF or the internal auditor, or any other check, audit or control performed under the responsibility of the authorising officer;

(b) non-final administrative decisions which may include disciplinary measures taken by the competent supervisory body responsible for the verification of the application of standards of professional ethics;

(c) facts referred to in decisions of persons and entities implementing Union funds pursuant to point (c) of the first subparagraph of Article 62(1);

(d) information transmitted in accordance with point (d) of Article 142(2) by entities implementing Union funds pursuant to point (b) of the first subparagraph of Article 62(1);

(e) decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law.

…’

Directive 2014/24/EU

5. Under Article 57(4)(g) of Directive 2014/24/EU: (5)

‘Contracting authorities may exclude or may be required by Member States to exclude from participation in a procurement procedure any economic operator in any of the following situations:

…

(g) where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity or a prior concession contract which led to early termination of that prior contract, damages or other comparable sanctions’.

Background to the dispute

6. The background to the dispute, as set out in the judgment under appeal, is summarised below.

7. On 26 June 2009, the applicant at first instance, TP, concluded a consortium agreement with another partner company in order to participate in a procedure for the award of a public works contract launched by the Commission, concerning the upgrading of a facility.

8. The Commission decided to award the contract to the consortium formed by TP and the partner company. A contract was concluded for that purpose on 5 October 2009. The works commenced in November 2009 and were completed in November 2011.

9. In February 2012, defects were detected in the facility. On the basis of a survey conducted by the engineer responsible for the works, the partner company carried out repairs on behalf of the consortium. Since it was not satisfied with the repairs carried out, on 17 December 2013 the Commission issued the consortium with notice of early termination of the contract. On 14 January 2014, the consortium in turn sent a notice of termination of the contract.

10. The Commission and the consortium referred their dispute to a dispute settlement board. On 3 July 2014, that board concluded that the defects at the facility had been caused by a combination of design and implementation failures, responsibility for which was attributable to both the Commission and the consortium. The Commission asked for a new survey of the facility, which gave rise to the communication of a report on 17 July 2017. On the basis, inter alia, of that report, on 15 September 2017 the Commission initiated arbitration proceedings under the arbitration rules of the International Chamber of Commerce (ICC).

11. On 11 February 2020, an arbitral tribunal established under the auspices of the ICC (‘the arbitral tribunal’) issued a partial award in which it was found that there were 6 757 defects resulting from the work carried out under the contract at issue, falling under the shared responsibility of the Commission, in the amount of 60%, and the consortium, in the amount of 40%. By final award of 19 July 2022, the arbitral tribunal described the conduct of the consortium as grossly negligent, and held that TP and the partner company were jointly and severally liable to pay to the European Union an amount corresponding to the costs necessary to repair the facility. Both awards of the arbitral tribunal were the subject of appeal actions.

12. In February 2021, the Commission referred the matter to the interinstitutional panel established pursuant to Article 143 of the 2018 Financial Regulation, which was set up, inter alia, to issue recommendations on the need to take decisions on exclusion or the imposition of financial penalties in cases referred to it by the Commission or other EU institutions and bodies.

13. On 1 October 2022, following the recommendation of that body, the Commission adopted the decision at issue.

The decision at issue

14. By that decision, first of all, the Commission reiterated, with reference to the consortium, the context and the facts established on the basis of the partial and final arbitral awards, namely that the contracting authority (in the present case, the Commission) bore 60% of the responsibility and that the contracting party (in the present case, the consortium) bore 40% of the responsibility and that, in view of the significant magnitude of defective actions by the consortium, TP’s conduct as part of the consortium was grossly negligent. Next, in the decision at issue, the Commission examined TP’s arguments and rejected them one by one. Lastly, it carried out an assessment of the factual situation and found that, ‘as part of the consortium’, TP had failed to fulfil the various contractual obligations referred to.

15. The Commission, as authorising officer responsible, thus decided, in the light of both the mitigating and aggravating circumstances applicable to TP, to exclude TP for a period of two years from participating in award procedures governed by the 2018 Financial Regulation and from being selected for implementing EU funds, as well as from award procedures funded by the 11th European Development Fund on the basis of Regulation 2018/1877, for having shown significant deficiencies in complying with the main obligations in the implementation of a contract financed by the budget of the European Union, which led to the early termination of that contract.

The judgment under appeal

16. By application lodged at the Registry of the General Court on 13 December 2022, TP brought an action for annulment of the decision at issue, compensation for the loss it had suffered and an order that the Commission should pay the costs. TP put forward three pleas in law in support of its claim. By the judgment under appeal, the General Court upheld TP’s first plea in law and annulled the decision at issue, taking the view that it was not necessary to examine the other two pleas in law in the action.

17. More specifically, in its first plea, the applicant claimed that Article 136(1)(e) of the 2018 Financial Regulation required the authorising officer responsible to carry out an individual assessment of the conduct of the person or entity concerned, which, it argued, the Commission had failed to do in the present case.

18. The General Court first of all announced its two-stage approach to responding to that argument. (6) Next, in the first stage, it carried out a literal, contextual and teleological interpretation of Article 136(1)(e) and held that there was no automatic link between, on the one hand, a finding of failure to comply with contractual obligations by the court having jurisdiction over the contract (in the present case, the arbitral tribunal) and, on the other hand, the adoption of an exclusion decision by the authorising officer responsible (in the present case, the Commission). (7) Lastly, in the second stage, it examined whether there was an obligation to carry out an individual assessment of the conduct of the person concerned prior to the adoption of an exclusion decision, and concluded that there was. (8) In the present case, the General Court held that the Commission, as it had admitted at the hearing, merely relied, in the decision at issue, on the joint and several liability of the applicant as a member of the consortium, without taking into account its individual conduct and without examining the individual liability of each of the co-contractors. (9)

Procedure before the Court of Justice and forms of order sought

19. By document lodged at the Registry of the Court of Justice on 28 February 2025, the Commission brought an appeal against the judgment under appeal. It asks the Court to set aside the judgment under appeal and to rule itself on the dispute by dismissing the action for annulment brought against the decision at issue on the basis of its defence. In the alternative, it asks the Court to refer the case back to the General Court for the examination of the remaining two pleas in the action for annulment. It also asks that TP be ordered to bear the entirety of the costs of the present proceedings and of the proceedings before the General Court.

20. TP asks the Court to dismiss the appeal and to order the Commission to bear the entirety of the costs of the present proceedings.

Analysis

21. The Commission advances two grounds in support of its appeal. (10) In the context of its first ground of appeal, which is the only one analysed in the present Opinion, the Commission submits that the General Court’s two-stage reasoning, apparent from the judgment under appeal, led it to err in law in interpreting Article 136(1)(e) of the 2018 Financial Regulation. It submits, first, that that article does not prevent its exclusion decision from being based primarily, or even exclusively, on the findings of the arbitral tribunal (first stage). Second, it disputes that the authorising officer responsible is obliged to carry out an individual assessment of the conduct of the entity concerned before adopting an exclusion decision where there is joint and several liability within the contracting consortium (second stage).

22. I shall analyse those two arguments of the Commission in turn.

The effects of the findings of the court having jurisdiction over the contract on the exclusion decision: absence of an automatic link

23. As a preliminary point, it is useful to recall that the rules applicable to public procurement contracts awarded by the institutions, bodies, offices or agencies of the European Union derive not only from the contractual framework, resulting from the contract concluded between the contracting authority and the economic operator, but also from the administrative framework constituted by the provisions of the 2018 Financial Regulation.

24. Thus, alongside the contractual relationship between the contracting institution (in the present case, the Commission) and its co-contractor, the authorising officer responsible acting for that institution may, under the 2018 Financial Regulation, in certain circumstances, adopt an exclusion decision in respect of a person or entity which constitutes a risk to the financial interests of the European Union. That person or entity is then included in the list of persons or entities excluded from contracts financed by the EU budget. (11)

25. The Commission’s line of argument concerns the relationship between, on the one hand, the contractual framework and, on the other hand, the administrative framework arising from the 2018 Financial Regulation which governs the exclusion decision.

26. Even though the Commission appears to accept that the authorising officer responsible must carry out a legal characterisation of the facts, it essentially maintains that, contrary to the General Court’s ruling, that characterisation may follow automatically from the decision of the court having jurisdiction over the contract.

27. That line of argument, in so far as it would allow the authorising officer responsible to refrain from carrying out an individual assessment of the deficiencies at issue, must, in my view, be rejected.

28. It is true that the two legal frameworks – contractual and administrative – are not independent of each other, since an exclusion decision is adopted, inter alia, when the person or entity concerned is in the situation provided for in Article 136(1)(e) of the 2018 Financial Regulation, namely having ‘shown significant deficiencies in complying with main obligations in the implementation of a legal commitment financed by the budget’. In that context, the findings of fact concerning breaches of contractual obligations, made by the court having jurisdiction over the contract, are such as to lead to the adoption by the authorising officer responsible of an exclusion decision based on the 2018 Financial Regulation. (12) To that extent, there is a close link between breach of contract and the administrative measure of exclusion. That fact, moreover, is not disputed.

29. However, such a link does not mean that the findings of the court having jurisdiction over the contract automatically lead to the exclusion decision, for the following reasons.

30. First, the text of Article 136(1)(e) of the 2018 Financial Regulation refers to ‘significant’ deficiencies in complying with ‘main’ obligations of the contracting party concerned. It follows that not all breaches of contract, even if they have led to the early termination of a contract or the application of liquidated or contractual damages, necessarily meet the conditions for the application of an exclusion decision. It cannot be denied that the authorising officer responsible has discretion when adopting an exclusion decision, and that such discretion applies not only to the extent to which the contractual obligation concerned is a ‘main’ obligation, but also to how ‘significant’ the contractual breach in question is. (13)

31. In that regard, I would emphasise that contractual penalties (early termination of the contract and/or payment of damages) and exclusion, which is of an administrative nature, do not pursue the same aim, since the contractual penalties seek to penalise a breach of contract by the economic operator in respect of its obligations towards the other party to the contract, whereas exclusion pursues the separate aim of protecting the financial interests of the European Union. In the event of a dispute, the legal bases of the actions and the grounds of appeal that may be relied on before the court having jurisdiction over the contract, on the one hand, and before the court reviewing the legality of the exclusion, on the other, are different. (14) That difference in legal nature and objectives between the two measures implies that the authorising officer responsible must depart from contractual considerations when carrying out his or her own assessment in the light of the objective of protecting the EU budget.

32. Thus, as the General Court stated in paragraph 41 of the judgment under appeal, the conditions resulting from the 2018 Financial Regulation, which differ from those of the contract, form the basis of the discretion of the authorising officer responsible in assessing the facts at issue, distinct from that carried out by the court having jurisdiction over the contract.

33. Second, the absence of an automatic link between a finding of breach of contractual obligations by the court having jurisdiction over the contract and the adoption of an exclusion decision by the authorising officer responsible also follows from the context of Article 136(1) of the 2018 Financial Regulation.

34. Recital 76 of that regulation provides that ‘the possibility to take decisions on exclusion or to impose financial penalties is independent from the possibility to apply contractual penalties, such as liquidated damages.’ (15)

35. In addition, pursuant to Article 136(2) of the 2018 Financial Regulation, in the absence of a final judgment, as in the present case, the authorising officer responsible is to assess the situation ‘having regard to’ established facts or other findings contained in the recommendation of the panel referred to in Article 143 of that regulation.

36. Moreover, as the General Court pointed out in paragraph 46 of the judgment under appeal, the wording of Article 136(1)(e) of the 2018 Financial Regulation differs from that of points (b), (c), (d), (f), (g) and (h) of that provision, in that point (e) refers directly to the conduct at issue, and not to the judgment or administrative decision by which an authority distinct from the authorising officer responsible, for example the court having jurisdiction over the contract, has previously classified that conduct.

37. That difference in approach confirms that although the classification made in the contractual context is one of the factors to be taken into account, it cannot automatically bind the authorising officer responsible, who retains his or her discretion when adopting the exclusion decision.

38. I would add that, pursuant to Article 136(3) of the 2018 Financial Regulation, any exclusion decision made by the authorising officer responsible is to be made in compliance with the principle of proportionality, in particular taking into account aggravating or mitigating circumstances, linked, for example, to the seriousness of the situation, the time which has elapsed since the relevant conduct, its duration, its recurrence, whether it was intentional or not, the amounts in question and the degree of collaboration of the person concerned. The discretion of the authorising officer responsible is thus necessarily exercised in accordance with the principle of proportionality, which precludes the existence of the automatic link alleged by the Commission. (16)

39. Similarly, other paragraphs of Article 136 of the 2018 Financial Regulation imply a degree of discretion on the part of the authorising officer responsible. Thus, paragraph 5 of that provision provides that in the event of a ‘serious and imminent threat to the financial interests of the Union’, provisional exclusion may be ordered without a recommendation from the panel referred to in Article 143 of that regulation, which implies an assessment of that threat. Similarly, paragraphs 6 and 7 of the provision set out cases in which exclusion is not ordered, in particular in cases where the person or entity concerned has taken remedial measures, which implies that the authorising officer responsible exercises his or her discretion in that regard.

40. It follows that the context of Article 136(1)(e) of the 2018 Financial Regulation supports the existence of a degree of discretion on the part of the authorising officer responsible and the absence of an automatic link between the findings by the court having jurisdiction over the contract and the exclusion decision.

41. I consider that that conclusion is not called into question by the Commission’s argument that the examination of the contractual conduct of the parties to the contract is essential and that the authorising officer responsible is always required to state reasons for his or her exclusion decision, whether the ground relied on is a breach of contractual obligations or another ground provided for in Article 136(1) of the 2018 Financial Regulation. Indeed, in my view, those elements are in no way incompatible with the discretion of the authorising officer responsible in the matter, in particular to determine whether the deficiency is ‘significant’ and whether it relates to ‘main’ obligations. The requirement to state reasons for the exclusion decision in that regard is precisely in line with that discretion, which must be exercised in a reasoned manner so as to allow for a possible appeal. In particular, we cannot rule out that the authorising officer responsible may consider that contractual breaches identified by the court having jurisdiction over the contract are not such as to warrant exclusion, or that they are time-barred, or that they are attributable to another entity, or even that the entity responsible has in the meantime taken measures which make it possible to consider that it does not present or no longer presents a risk to the EU budget. Lastly, such an interpretation is also consistent with the principle of good administration, referred to by the Commission, which entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

42. In that context, although the findings of fact of the court having jurisdiction over the contract may, or indeed must, be taken into account by the authorising officer responsible when determining the legal characterisation of the conduct referred to in Article 136(1)(e) of the 2018 Financial Regulation, it is nevertheless for the authorising officer responsible to assess the conduct in question, in the light of the particular context of that regulation and its specific objectives. I do not see how that would impose, as the Commission submits, an ‘inappropriately high standard’ for the ‘evidence’ on the authorising officer responsible, since it is not a question of the burden of proof but of carrying out an independent assessment on the basis of the findings or facts previously established.

43. Third, as regards the teleological and historical interpretation of Article 136(1)(e) of the 2018 Financial Regulation, the Commission submits, in the alternative, that the General Court’s erroneous interpretation, concerning the absence of an automatic link between the finding of a breach of contract and the adoption by the authorising officer responsible of an exclusion decision, also results from the incorrect finding that the EU legislature intended to establish an autonomous system of penalties and therefore considered that situations of exclusion were equivalent to penalties.

44. I would point out that, within the context of its historical and teleological interpretation of the provision at issue, the General Court held that the EU legislature intended to establish, from the outset, an autonomous regime of penalties, which was maintained and detailed over time and, in particular, when the 2018 Financial Regulation was adopted. (17) According to the General Court, ‘an automatic link between, on the one hand, the finding by an authority distinct from the authorising officer responsible of fault the existence of which is provided for by national or EU legislation and, on the other, the adoption by the authorising officer responsible of an exclusion measure covered by an autonomous regime of penalties established by the Financial Regulation cannot be presumed.’ (18) It adds that the autonomous regime of penalties laid down by the 2018 Financial Regulation has, since its establishment, pursued specific objectives in the public interest, which are distinct from the proper performance of the contract or from the protection and compensation of the parties to the contract which a system of contractual liability seeks to ensure. The General Court concludes that that difference between the objectives pursued by the system of penalties established by the 2018 Financial Regulation and those pursued by a system of contractual liability confirms that there is no automatic link. (19)

45. It seems to me that even if one were to express reservations about the wording used by the General Court and contested by the Commission, the General Court’s reasoning must still be endorsed.

46. Indeed, it is open to debate whether the EU legislature intended, through the 2018 Financial Regulation, to retain the characterisation of ‘penalty’ applied to exclusion decisions under Regulation (EU, Euratom) No 966/2012, (20) as amended by Regulation (EU, Euratom) 2015/1929. (21) In that regard, I note that, as the Commission points out, Regulation No 966/2012, as amended by Regulation 2015/1929, used the expression ‘administrative sanctions’ in respect of exclusion decisions. (22) However, that is no longer the case in the 2018 Financial Regulation, which updates and simplifies the rules for the establishment and implementation of the EU budget. (23)

47. However, the reasoning of the General Court seeks to show that the exclusion regime laid down by the 2018 Financial Regulation has, since its establishment, pursued specific objectives in the public interest, which are distinct from the proper performance of the contract or from the protection and compensation of the parties to the contract which a system of contractual liability seeks to ensure. In my view, that reasoning should be endorsed.

48. Therefore, the error alleged by the Commission in the classification of exclusion decisions as an autonomous system of ‘penalties’ does not, in my view, constitute an effective argument for establishing that the General Court erred in finding that there was no automatic link between the findings of the court having jurisdiction over the contract and the exclusion decision.

49. It follows from the foregoing that, even if there are certain links between the exclusion regime arising from the 2018 Financial Regulation and the contractual framework, they cannot be said to establish an automatic link between the findings of the court having jurisdiction over the contract and the exclusion decision.

The obligation to carry out an individual assessment of the conduct of the person concerned

50. In the second stage of its reasoning, the General Court interpreted Article 136(1)(e) of the 2018 Financial Regulation by concluding that the assessment carried out by the authorising officer responsible must be individual and specific. It based itself, first, on an analogy with the judgment in HSC Baltic and Others, (24) delivered in the context of Directive 2014/24, ruling that the obligation to carry out a specific and individual assessment of the conduct of the person in question applies a fortiori in the context of the application of the 2018 Financial Regulation by the EU institutions and bodies. (25) Second, in paragraphs 72 and 73 of the judgment under appeal, the General Court held that that obligation was all the more necessary in view of the general principle that penalties should be applied only to the offender, since the Court of Justice had held that the exclusion penalty was primarily punitive in the judgment in Vialto Consulting v Commission. (26) Third, it added that the institution or body concerned could identify the services provided by each of the participants in order to determine the individual liability of each of them in the light of the regime of penalties established by the 2018 Financial Regulation, which is distinct from their possible joint and several contractual liability. (27)

51. The Commission challenges that second stage of the General Court’s reasoning in three respects. First, it disputes the relevance of the analogy with the judgment in HSC Baltic. Second, it submits that joint and several liability is intended to protect the interests of the contracting authority, that it does not exclude TP’s individual liability and that the General Court’s interpretation prevents the authorising officer responsible from taking due account of the liability of the co-contractors. Third, it claims that the General Court wrongly classified the exclusion decision as a criminal penalty.

The relevance of the analogy with the judgment in HSC Baltic

52. In the first place, the Commission challenges paragraphs 64 to 71 of the judgment under appeal, in which the General Court interpreted Article 136(1)(e) of the 2018 Financial Regulation by analogy with Article 57(4)(g) of Directive 2014/24. According to the Commission, the legal and factual contexts of the present case and the case which gave rise to the judgment in HSC Baltic are different. It emphasises the distinction between the criteria used by the authorising officer responsible for the application of Article 136(1)(e) of the 2018 Financial Regulation and those followed by the national authorities, under the relevant national rules transposing Article 57(4)(g) of Directive 2014/24, since that directive provides only for a framework regulation which must be transposed into national legislation.

53. I am not persuaded by that argument.

54. It is true that the legal and factual context of the present appeal is distinct from that at issue in the case which gave rise to the judgment in HSC Baltic. In particular, the rules applicable to exclusion from procedures for the award of public contracts by the authorities of the Member States derive from the directives, and in particular from Directive 2014/24, applicable in the case which gave rise to the judgment in HSC Baltic, (28) which require transposition, unlike the 2018 Financial Regulation, which governs public contracts awarded by the EU institutions.

55. That said, both are legal frameworks applicable to public procurement and to the rules on exclusion from procurement procedures. Moreover, the two provisions at issue are similar and refer to the same concepts. (29) Their common purpose is to enable contracting authorities to exclude any economic operator from participating in a procurement procedure where they are unreliable. Moreover, certain recitals of the 2018 Financial Regulation refer explicitly to Directive 2014/24. (30)

56. It is therefore necessary, in my view, to endorse the analogy made by the General Court, when interpreting Article 136(1)(e) of the 2018 Financial Regulation, with the case-law relating to the analogous provisions of Article 57(4)(g) of Directive 2014/24, in order to ensure the consistency of EU law and compliance with the objectives pursued by the EU legislature in that area. (31)

57. In the judgment in HSC Baltic, the Court of Justice held that the transposition into national law of Directive 2014/24 must take account of the fact that an economic operator, in the event of early termination of a contract on account of significant or persistent deficiencies in the performance of that contract, could not automatically be categorised as unreliable and temporarily excluded without a ‘specific and individual’ assessment first being made of its conduct, taking into account all the relevant factors, in particular those adduced by that operator to refute such a classification. (32)

58. Consequently, I consider that the General Court was correct in concluding that ‘that obligation to conduct a specific and individual assessment of the conduct of the person concerned, in the light of all the relevant factors which a Member State must provide in its legislation despite the margin of discretion available to it in order to transpose Directive 2014/24 applies a fortiori in the context of the application of the 2018 Financial Regulation by the EU institutions and bodies’. (33)

59. I would add that, irrespective of the analogy drawn by the General Court, the principle of proportionality applies to exclusion (34) and requires the authorising officer responsible, when adopting such a decision, to carry out a specific and individual assessment of the conduct of the economic operator or entity concerned, on the basis of all the relevant factors. (35)

60. In the light of the foregoing considerations, I consider that the General Court did not err in law in drawing an analogy with the judgment in HSC Baltic and concluding that the authorising officer responsible must carry out a specific and individual assessment of the conduct of the person concerned before excluding him or her under Article 136(1)(e) of the 2018 Financial Regulation, a conclusion which also follows from the principle of proportionality.

The effect of the joint and several legal liability of the members of a contracting group

61. In the second place, the Commission submits, in essence, that Article 136(1)(e) of the 2018 Financial Regulation applies to situations in which co-contractors are jointly and severally liable for the performance of the contract, without the authorising officer responsible being required to distinguish between the legal commitments of each of the partners in the consortium with which the contract is concluded. (36) The Commission emphasises that that joint and several liability is intended to protect the interests of the contracting authority and does not exclude TP’s individual liability. It also states that determining the individual responsibility of the two contract partners would involve drawing a specific distinction between their respective tasks, which falls within the scope of the internal organisation of those partners and is not a matter for the authorising officer responsible.

62. In my view, that argument must be rejected.

63. As the Commission emphasises, Article 136(1)(e) of the 2018 Financial Regulation applies to situations in which co-contractors are jointly and severally liable for the performance of the contract, and that joint and several liability does not exclude the individual liability of a member of the group.

64. However, the joint and several liability applicable in the contractual context, which may be intended to protect the interests of the contracting authority, cannot, in the administrative context of an exclusion adopted by an authorising officer responsible on the basis of the 2018 Financial Regulation, have the effect of exempting that authorising officer from carrying out an individual assessment of the conduct of the person subject to the exclusion.

65. Indeed, joint and several liability at the contractual level is distinct from the individual liability of each of the operators forming a group, in the present case a consortium, which may lead to the adoption of an exclusion decision. In particular, the respective functions and obligations of the operators forming a group are not necessarily identical. The consortium agreement in the present case bears witness to this. Similarly, one cannot rule out the existence of more serious deficiencies on the part of an economic operator that justify greater individual liability, or a chain of individual liabilities that vary in gravity. Therefore, the authorising officer responsible must verify that the legal conditions laid down in Article 136(1)(e) of the 2018 Financial Regulation are individually met in respect of each of the operators concerned before adopting an exclusion decision.

66. In that regard, as noted by the General Court in paragraphs 76 and 77 of the judgment under appeal, the authorising officer responsible is, in principle, in a position to ask the entities concerned to forward the necessary documentation capable of enabling him or her to assess the individual conduct of each of the members of a group and to require that it be possible to identify the services provided by each of the participants in order to determine, where appropriate, the individual liability of each of them. Those considerations are supported by Article 136(1)(e)(iii) of the 2018 Financial Regulation, which provides that non-compliances may have been discovered ‘by an authorising officer … following … investigations’.

67. The Court’s case-law on public contracts awarded by contracting authorities of the Member States confirms, mutatis mutandis, that approach.

68. As recalled in paragraph 67 of the judgment under appeal, in the judgment in HSC Baltic, the Court had indeed held that it was permissible for the Member States, within the margin of discretion available to them in order to transpose Directive 2014/24, to provide for a presumption that any economic operator legally responsible for the proper performance of a public contract was deemed to have contributed, in the performance of that contract, to the significant or persistent deficiencies which resulted in the early termination of that contract having arisen or having continued. However, the Court clarified that, where the public contract had been awarded to a group of economic operators, whose individual contributions to the deficiencies and any efforts to remedy them were not necessarily identical, any presumption established in national law would have to be rebuttable, if it were not adversely to affect the essential characteristics of that ground for exclusion and the principle of proportionality. According to the Court, ‘irrespective of the joint and several liability of the members of such a group, the application of the optional ground for exclusion laid down in Article 57(4)(g) of Directive 2014/24 must be based on the wrongful or negligent nature of that individual conduct.’ (37)

69. Similarly, the Court has held that where an economic operator which is a member of a group of economic operators has been guilty of serious misrepresentation in supplying the information required for the verification, as regards that group, of the absence of grounds for exclusion or the fulfilment of the selection criteria, without the other members of that group having been aware of that misrepresentation, it was not permissible for all of the members of that group to be excluded from participation in any public procurement procedure. (38) In the judgment in Klaipėdos, the Court added that, in accordance with the principle of proportionality, the exclusion decision must be subject to ‘even greater [attention] where the exclusion … is imposed on the tenderer not for a failure attributable to it, but for a failure on the part of an entity on whose capacities the tenderer intends to rely and over which it has no control’. (39)

70. Such an individualised approach, even in the case of a group or joint and several liability, is further confirmed by Article 136(6)(a) of the 2018 Financial Regulation, which provides that the authorising officer responsible is to take account of remedial measures taken by a person or entity to an extent sufficient to demonstrate its reliability. (40) However, it cannot be ruled out that, in the case of a group or consortium, remedial measures might be taken by just one person, and that, as a result, that person alone might demonstrate its reliability, whereas this would not be the case for the other members of the group. (41)

71. Thus, only an individual assessment of the exclusion measure can ensure compliance with the principle of proportionality, notwithstanding contractual solidarity within a consortium such as that in the present case. The judgment under appeal must therefore, in my view, be upheld in that regard.

The legal nature of exclusion

72. In the third place, to reinforce its reasoning relating to the obligation to carry out a specific and individual assessment of the conduct of the person concerned, the General Court referred to the ‘punitive’ nature of the ‘exclusion penalty’ and to the ‘general principle that penalties should be applied only to the offender’. (42)

73. The Commission submits that the exclusion measure cannot be regarded as a punitive measure or even as a penalty.

74. Since the terms used by the General Court in paragraphs 72 and 73 of the judgment under appeal refer to the existence of a penalty of a criminal nature, it is necessary to examine, first, whether an error of law must be found in that regard and, second, the consequences of such a finding.

– Legal classification of exclusion

75. First, contrary to what the Commission claims, I consider that exclusion measures may be classified as ‘penalties’.

76. Admittedly, as the Commission emphasises, relying in particular on the history of the various versions of the 2018 Financial Regulation, Article 136(1) of that regulation identifies the various exclusion criteria without classifying the exclusion measure as a penalty. However, Article 138 of that regulation uses the term ‘financial penalties’ which may be imposed as an alternative to an exclusion decision where that decision is disproportionate in the light of the criteria in Article 136(3) of the regulation. A measure explicitly described as a ‘penalty’ is thus capable of being used as an alternative to the exclusion measure. I therefore take the view that it cannot be ruled out that the latter may itself be classified as a ‘penalty’.

77. In addition, while an exclusion measure aims to protect the financial interests of the European Union, it deprives the person concerned of the right to take part in a procedure for the award of an EU public contract and may, in that sense, be classified as a penalty. (43)

78. I would add that the administrative nature of exclusion (44) does not preclude it from being a penalty. In my view, that measure falls within the category of administrative sanctions, which, although not clearly defined, (45) have developed considerably in EU law as the European Union has developed its own rules. (46) The effectiveness of administrative action requires a range of measures (fines, confiscation, exclusions from aid schemes, disqualification from pursuing activities, freezing of assets, withdrawal of authorisation, blacklisting, and so on), the purpose of which varies (to punish, compensate, prevent, deter, rectify, and so forth).

79. Second, the question of whether an exclusion measure, thus classified as a penalty, is criminal in nature may seem difficult. Indeed, the blurred line between administrative and criminal sanctions has often been underlined. (47) That said, the analysis in the light of the three criteria identified by the European Court of Human Rights (ECtHR) in its judgment of 8 June 1976, Engel and Others v. the Netherlands (48) – adopted by the Court of Justice (49) – allows, in my view, for the conclusion that the measure in question is not a criminal sanction.

80. Although the legal classification of the measure at issue is not explicitly set out in the 2018 Financial Regulation, an analysis of the other criteria allows the exclusion measure in question to be classified as a non-criminal penalty.

81. As regards the nature of the alleged infringement, the rule infringed is not of general application and applies only to economic operators who have freely chosen to participate in an EU public procurement procedure. In that context, in which the possibility of participating in an EU public procurement procedure is subject to the condition that the person concerned offer all guarantees of trustworthiness, the penalty imposed in the event of non-compliance with such a requirement constitutes a specific administrative instrument forming an integral part of the applicable early detection and exclusion system. (50)

82. In addition, the early detection and exclusion system was put in place in order to protect the financial interests of the Union. (51) Its objective is to facilitate the early detection of persons or entities which constitute a risk to the financial interests of the Union and to facilitate their exclusion from participation in the procedures governed by the 2018 Financial Regulation. Exclusion decisions are thus intended to enable information concerning a situation of risk to the EU budget to be entered in the database referred to in Article 142 of that regulation. Therefore, the objective of exclusion is preventive, or even prudential, rather than punitive.

83. Lastly, I take the view that a temporary exclusion, imposed for a maximum period of three years on the economic operator concerned, which prevents it from tendering for European public contracts without prohibiting it from carrying on its economic activity elsewhere, is not so severe as to allow it to be classified as criminal. (52)

84. Thus, I consider that the exclusion decision at issue constitutes a penalty of an administrative rather than a criminal nature. Admittedly, as the General Court pointed out, in the judgment in Vialto, the Court of Justice, when comparing the penalty of exclusion and the measure requiring publication of that exclusion, held that the former was ‘primarily punitive’, whereas the latter pursued more of an ‘objective of deterrence and prevention’, it being noted that they nevertheless remained complementary because they were directed towards the same objective of ensuring that all persons concerned refrained from breaching the rules. (53) Although the Court’s reference to the ‘punitive’ nature of the penalty of exclusion may be misleading, I nevertheless consider that, particularly in the context of a comparison with the measure of publishing the exclusion, it does not in itself mean that the penalty is of a criminal nature within the meaning of the Court’s case-law.

85. Consequently, like the Commission, I consider that an error of law may be found in so far as, by referring to the ‘punitive’ nature of exclusion and to the general principle that ‘penalties’ should be applied only to the offender, the General Court intended to classify the exclusion decision as a criminal penalty.

– Consequences for the scope of the applicable safeguards

86. Even if the Court of Justice agrees with me in finding that the General Court erred in law as regards the classification of the exclusion penalty as ‘criminal’, I am nevertheless of the opinion that such a finding cannot lead to the judgment under appeal being set aside.

87. Indeed, I note that, in so far as the judgment under appeal refers to the criminal nature of the exclusion measure by using the term ‘punitive’, (54) it is only to reinforce (‘all the more’) the conclusion, resulting from all the relevant factors set out above, that the authorising officer responsible is under an obligation to carry out a specific and individual assessment of the conduct of the person concerned, in the light of all the relevant factors. Similarly, in paragraph 73 of the judgment under appeal, compliance with the general principle that penalties should be applied only to the offender, which refers to the criminal nature of exclusion, is also mentioned in order to justify the obligation to examine the individual conduct of the person concerned before the adoption of such an exclusion measure against him or her.

88. Even if, in the absence of the penalty being criminal in nature, the safeguards associated with criminal law do not apply, the obligation to examine the individual conduct of the person concerned nevertheless remains. An administrative sanction such as the exclusion at issue in the present case, although not falling within the scope of criminal law, is nevertheless subject to safeguards, in particular the requirement that it be imposed following an assessment of the individual conduct of the person concerned, which follows in particular from the application of the principle of proportionality. (55)

89. It follows that the reference to the criminal nature of the penalty of exclusion, although erroneous in law, does not vitiate the General Court’s finding regarding the obligation to carry out a specific and individual assessment of the conduct of the person concerned.

90. Consequently, I consider that the first ground of appeal must be rejected.

Conclusion

91. Having regard to the foregoing considerations, and without prejudging the merits of the second ground of appeal, I propose that the Court reject the first ground of appeal as unfounded.

1 Original language: French.

2 Regulation 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 2018 Financial Regulation’).

3 Council Regulation 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).

4 Council Regulation of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1).

5 Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

6 See paragraphs 29 to 32 of the judgment under appeal.

7 See paragraph 60 of the judgment under appeal.

8 See paragraphs 61 to 78 of the judgment under appeal.

9 See paragraphs 80, 82 and 83 of the judgment under appeal.

10 By its second ground of appeal, the Commission submits that the General Court erred in law in finding that the authorising officer responsible had not examined the individual responsibility of TP in respect of its breaches of contractual obligations.

11 The early warning system was succeeded by a central database and then, under the 2018 Financial Regulation, the ‘early detection and exclusion system’ (EDES), established in 2016 (see Bernard-Glanz, C. and Levi, L., ‘Du système d’alerte précoce au système de détection rapide et d’exclusion: les droits fondamentaux vont mieux mais …’, L’Observateur de Bruxelles, Vol. 4, No 106, 2016, pp. 35 to 41).

12 See, by analogy, judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias (C‑66/22, EU:C:2023:1016, paragraph 78).

13 See, by analogy, with regard to ‘grave’ professional misconduct, judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801, paragraphs 30 and 31). Under that judgment, ‘any incorrect, imprecise or defective performance of a contract or a part thereof could potentially demonstrate the limited professional competence of the economic operator at issue, but does not automatically amount to grave misconduct’, which requires, in principle, a ‘specific and individual assessment of the conduct of the economic operator concerned’. See also, with regard to grave professional misconduct within the meaning of Article 136(1)(c) of the 2018 Financial Regulation, judgment of 28 January 2026, UH v Commission (T‑1052/23, EU:T:2026:52, paragraph 50 and the case-law cited). See also, on that concept, Hamer, C.R., ‘The possibility to exclude an economic operator that cannot be trusted’, EPPPL, Vol. 15, No 1, 2020, pp. 42 to 52.

14 The EU judicature may thus, on the one hand, act as the court having jurisdiction over the contract in response to an action based on Article 272 TFEU brought on the basis of the arbitration clause contained in the contract and, on the other hand, act as the court ruling on legality in response to an action for annulment based on Article 263 TFEU containing pleas of illegality directed at the exclusion decision, which produces its effects outside the contractual relationship.

15 Emphasis added.

16 See, in that regard, by analogy with public contracts awarded by national contracting authorities, De la Rosa, S., ‘Chapitre 2 – La passation des marchés’, in De la Rosa, S., Droit européen de la commande publique, 3rd ed., Bruylant, Brussels, 2024, pp. 474 to 568, in particular p. 488, paragraph 587.

17 See paragraph 56 of the judgment under appeal.

18 See paragraph 57 of the judgment under appeal.

19 See paragraph 59 of the judgment under appeal.

20 Regulation 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).

21 Regulation of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1). On the legal classification of exclusion as a penalty, see points 75 to 85 of the present Opinion.

22 See Articles 105a and 106 of Regulation No 966/2012, as amended by Regulation 2015/1929.

23 I note, however, that Article 231(2) of the 2018 Financial Regulation is worded as follows: ‘administrative and financial penalties which are effective, proportionate and dissuasive may be applied by the authorising officer responsible, in accordance with Articles 136 and 137 of this Regulation …’.

24 Judgment of 26 January 2023 (C‑682/21, ‘the judgment in HSC Baltic’, EU:C:2023:48).

25 See paragraphs 64 to 71 of the judgment under appeal.

26 Judgment of 30 May 2024 (C‑130/23 P, ‘the judgment in Vialto’, EU:C:2024:439, paragraph 31).

27 See paragraphs 75 to 77 of the judgment under appeal.

28 For an analysis of the extent of the discretion enjoyed by the Member States with regard in particular to the optional grounds for exclusion, see Coutron, L., ‘L’étendue du pouvoir d’exclusion d’une candidature dans la jurisprudence récente de la Cour de justice de l’Union européenne’, in Bouhier, V. (ed.), L’exclusion de la procédure de passation de la commande publique. L’examen des candidatures et des offres, ‘Colloques & Essais’ collection, Institut francophone pour la justice et la démocratie, Vol. 166, 2023, pp. 79 to 117.

29 Article 57(4)(g) of Directive 2014/24 provides for exclusion in the event of a finding applicable to an ‘economic operator’ of ‘significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract’ on the part of the economic operator. Article 136(1)(e) of the 2018 Financial Regulation refers to significant deficiencies in complying with main obligations in the implementation of a previous legal commitment.

30 Recital 96 of the 2018 Financial Regulation provides that ‘procurement rules and principles applicable to public contracts awarded by Union institutions on their own account should be based on the rules set out in Directive … [2014/24]’. Similarly, with regard more specifically to exclusions, recital 77 of that regulation provides that ‘the duration of an exclusion should be limited in time, as is the case under Directive [2014/24], and should be in accordance with the principle of proportionality’, which shows that the legislature’s requirement for consistency applies to exclusion measures. See also recital 105 of that regulation, which states, inter alia, that, ‘in accordance with Directive [2014/24], it should be possible to verify whether an economic operator is excluded, to apply the selection and award criteria, as well as to verify compliance with the procurement documents in any order.’

31 See, to that effect, Opinion of Advocate General Jääskinen in Commission v United Kingdom (C‑582/08, EU:C:2010:286, point 44). See also, in the field of consumer law, judgment of 8 May 2025, Pielatak (C‑410/23, EU:C:2025:325, paragraph 38).

32 The judgment in HSC Baltic (paragraphs 46 and 47). See also judgment of 13 December 2012, Forposta and ABC Direct Contact (C‑465/11, EU:C:2012:801, paragraph 31).

33 See paragraph 68 of the judgment under appeal. Emphasis added.

34 Article 136(3) of the 2018 Financial Regulation provides that ‘any decision of the authorising officer responsible … shall be made in compliance with the principle of proportionality …’. See also recital 71 of that regulation, which states that ‘when taking a decision on the exclusion of a person or entity, or the imposition of a financial penalty on a person or entity, and on the publication of the related information, the authorising officer responsible should ensure compliance with the principle of proportionality …’.

35 See, inter alia, by analogy, judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias (C‑66/22, EU:C:2023:1016, paragraphs 77 to 83).

36 In so far as the Commission submits that, contrary to the General Court’s finding, the authorising officer responsible did not adopt the decision to exclude TP on the basis of a legal presumption of liability but relied on factual inferences that could be drawn from the arbitral awards, I consider that that line of argument falls within the scope of the second ground of appeal, which is not examined in the present Opinion.

37 The judgment in HSC Baltic (paragraphs 48 and 49). Emphasis added.

38 See judgment of 7 September 2021, Klaipėdos regiono atliekų tvarkymo centras (C‑927/19, ‘the judgment in Klaipėdos’, EU:C:2021:700, paragraph 158).

39 See the judgment in Klaipėdos (paragraphs 156 and 157). See also judgment of 26 September 2024, Luxone and Sofein (C‑403/23 and C‑404/23, EU:C:2024:805, paragraphs 65 and 66), concerning the exclusion affecting ‘the entire group of economic operators not for a failure attributable to all its members, but for a failure merely on the part of one or more of them, where the lead undertaking of that group does not have any control over the economic operator or operators with which it intended to form such a group’.

40 On compliance measures (‘self-cleaning’) in the context of Directive 2014/24, see, inter alia, van Garsse, S. and de Mars, S., ‘Exclusion and self-cleaning in the 2014 Public Sector Directive’, in Marique, Y. and Wauters, K. (eds), EU Directive 2014/24 on public procurement: A new turn for competition in public markets?, Larcier, Brussels, 2016, pp. 121 to 138. See also Hjelmeng, E. and Søreide, T., ‘Debarment in public procurement: Rationales and realization’, in Racca, G.M. and Yukins, C. (eds), Integrity and Efficiency in Sustainable Public Contracts, Bruylant, Brussels, 2014, pp. 215 to 232.

41 See, by analogy, with regard to compliance measures, judgments of 11 June 2020, Vert Marine (C‑472/19, EU:C:2020:468, paragraphs 16 and 17), and of 14 January 2021, RTS infra and Aannemingsbedrijf Norré-Behaegel (C‑387/19, EU:C:2021:13, paragraphs 26 to 28). See also the judgment in Klaipėdos, paragraph 153 and the case-law cited).

42 I refer to paragraphs 72 and 73 of the judgment under appeal.

43 See, to that effect, judgments of 18 November 1987, Maizena and Others (137/85, EU:C:1987:493, paragraph 13), and of 27 October 1992, Germany v Commission (C‑240/90, EU:C:1992:408, paragraph 25), which concerned, respectively, penalties laid down by regulations under the common agricultural policy, such as the forfeiture of a security, imposed at a flat rate and independent of any culpability on the part of the economic operator concerned, and the temporary exclusion of an economic operator from the benefit of an agricultural income aid scheme. The Court concluded that such penalties were not criminal in nature.

44 Exclusion is imposed by an administrative body (the authorising officer responsible), following a recommendation from a body which is also administrative in nature. See, in that regard, Potteau, A., ‘Chronique Finances publiques de l’UE – Les bases de négociation du cadre financier pluriannuel post-Brexit (2021-2027)’, RTDEur., No 2, 2019, pp. 527 to 536.

45 See Moderne, F., ‘Le pouvoir de sanction administrative au confluent du droit interne et des droits européens’, RFDA, No 1, 1997, pp. 1 to 26; Degoffe, M., ‘L’ambiguïté de la sanction administrative’, AJDA, No HS, 2001, pp. 27 to 33; Hardy, G., ‘Chapitre 2. – Sanction administrative’, in Feilhès, L. (ed.), Un droit « administratif » européen, 1st ed., Bruylant, Brussels, 2022, pp. 51 to 65, in particular p. 53, paragraph 97; de Moor-van Vugt, A., ‘Administrative sanctions in EU law’, in Jansen, O. (ed.), Administrative Sanctions in the European Union, Larcier, Brussels, 2013, pp. 607 to 639 (see, in relation to that book, Hofmann, H.C.H., ‘Book review: Administrative sanctions in the European Union’, Common Market Law Review, Vol. 52, No 5, 2015, pp. 1420 to 1421); Jansen, O., ‘Chapitre II. Pouvoirs de contrôle et de sanction de la mise en œuvre du droit de l’Union’, in Auby, J.-B. and Dutheil de la Rochère, J., Traité de droit administratif européen, 3rd ed., Bruylant, Brussels, 2022, pp. 753 to 797, in particular p. 761.

46 One might think here in particular of competition law, the protection of financial interests, banking law, transport or the common agricultural policy.

47 See Caeiro, P., ‘The influence of the EU on the “blurring” between administrative and criminal law’, Galli, F. and Weyembergh, A. (eds), Do labels still matter? Blurring boundaries between administrative and criminal law. The influence of the EU, Éditions de l’Université Libre de Bruxelles, Brussels, 2014, pp. 171 to 190; Weyembergh, A. and Joncheray, N., ‘Punitive administrative sanctions and procedural safeguards: A blurred picture that needs to be addressed’, New Journal of European Criminal Law, Vol. 7, No 2, 2016, pp.. 190 to 209; Hardy, G., ‘Chapitre 2. – Sanction administrative’, op. cit., pp. 51 to 65; Kärner, M., ‘Procedural rights in the outskirts of criminal law: European Union administrative fines’, Human Rights Law Review, No 4, 2022, pp. 1 to 24.

48 CE:ECHR:1976:0608JUD000510071, § 82. Namely, first, the legal classification of the offence under national law (here, EU law, which must, in the present case, be equated to ‘national law’ within the meaning of the case-law of the ECtHR), second, the very nature of the offence and, third, the degree of severity of the penalty that the person concerned risks incurring.

49 See judgment of 5 June 2012, Bonda (C‑489/10, EU:C:2012:319, paragraph 37 et seq.), in which a measure excluding a farmer from receiving aid for the year in which he had submitted a false declaration of the eligible area was not classified as a criminal penalty.

50 See, by analogy, in relation to an agricultural aid scheme, judgment of 11 July 2002, Käserei Champignon Hofmeister (C‑210/00, EU:C:2002:440, paragraph 41 and the case-law cited).

51 See heading of Article 135 of the 2018 Financial Regulation.

52 See also, by analogy, judgment of 5 June 2012, Bonda (C‑489/10, EU:C:2012:319, paragraph 37 et seq.).

53 The judgment in Vialto (paragraph 31).

54 See paragraph 72 of the judgment under appeal.

55 See points 59 and 71 of the present Opinion.

Opinion of Advocate General Spielmann delivered on 9 July 2026.###

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