Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the Normal Court docket (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
Judgment of the Normal Court docket (Third Chamber, Prolonged Composition) 18 December 2024,
Case T-776/22 TP v Fee
Public procurement – Monetary Regulation – Exclusion from the proceedings of awarding of public contracts and the concession of grants financed by the Union’s price range and by the European Improvement Fund (EDF) for a interval of two years – Vital deficiencies in complying with most important obligations within the implementation of a previous contract – Article 136 (1)(e) of the Monetary Regulation – No computerized hyperlink between a discovering of a failure to adjust to contractual obligations by the courtroom having jurisdiction over the contract and the adoption of an exclusion measure by the authorising officer accountable – Obligation to conduct a selected and particular person evaluation of the conduct of the individual involved – Prior contract awarded to a gaggle of financial operators – Joint and a number of other contractual legal responsibility
Information
The Normal Court docket (henceforth “GC”), ruling in prolonged composition, dominated, for the primary time, on the query of whether or not article 136(1)(e) of Regulation 2018/1046[1] (henceforth “Regulation”) imposes on the authorising officer accountable, as a way to apply contractual sanctions, the duty to conduct a selected and particular person evaluation of the behaviour of the individual involved earlier than deciding to exclude from collaborating in award procedures.
The European Fee (henceforth “Fee”) organized a procurement process for the award of a public works contract in regards to the upgrading of a facility. The contract was awarded in 5 October 2009 to the consortium composed by the corporate TP, the applicant, and its associate firm. The works started in November 2009 and have been concluded two years later.
On February 2012, defects have been detected within the facility, which have been repaired by the associate firm on behalf of the consortium. Nonetheless, the Fee deemed the repairs carried out inadequate. After sending the consortium its anticipated discover of termination of the contract, the events agreed to submit their dispute concerning the termination of the contract to a dispute adjudication board.
On 17 July 2017, the Fee initiated an arbitration continuing below the foundations of the Worldwide Chamber of Commerce, which appointed an arbitral tribunal for that objective. In July 2022, the arbitral tribunal discovered that the applicant and its associate firm have been collectively and severally liable to pay the European Union an quantity equivalent to the prices essential to restore the ability.
On February 2021, the Fee referred the matter to an interinstitutional panel created pursuant to the Regulation, which is answerable for assessing requests and issuing of suggestions on the necessity to take choices on the applying of administrative sanctions of exclusion or of economic penalties in instances referred to it by the Fee or different EU establishments or our bodies.
On 1 October 2022, following the advice of the interinstitutional panel, the Fee adopted the choice (henceforth “contested resolution”) of excluding TP, on the one hand, of collaborating in award procedures below the Regulation or financed by the European Improvement Fund and, alternatively, of being chosen for implementing EU Funds.
Consequently, TP launched an motion for annulment towards the contested resolution below article 263 of the Treaty on the Functioning of the European Union.
Regulation
Addressing the plea of legislation raised by the applicant, that’s, the alleged infringement of article 136(1)(e) of the Regulation, the GC interpreted this provison, concerning the exclusion of participation in award procedures as a consequence of failure to adjust to important obligations, in keeping with a literal, contextual, historic and teleological interpretation. The GC discovered that there was no computerized hyperlink between the discovering of a failure to adjust to contractual obligations by the decide and the adoption of an exclusion measure by the authorising officer accountable.
On this regard, firstly, within the context of a literal interpretation, the GC noticed that this provision refers to a failure to adjust to obligations within the implementation of a authorized dedication, in order that it’s relevant in case of a failure to adjust to contractual obligations. Nonetheless, the supply doesn’t foresee that any failure to adjust to a contractual obligation leads mechanically to the adoption of a measure of exclusion, since reference is made to the necessity to present “important deficiencies” in “complying with most important obligations within the implementation”. As such, the GC discovered that these are extra situations are particularly imposed by the Regulation for the adoption of an exclusion measure. Moreover, the phrases used are sufficiently imprecise to permit a margin of discretion to the authorising officer answerable for the authorized classification of the information, which confirms that, earlier than adopting an exclusion measure, he ought to carry out an autonomous authorized classification thereof.
Secondly, in keeping with a contextual interpretation, the GC noticed that, since article 136(2) of the Regulation doesn’t foresee that the existence of a definitive judgment or resolution adopted by an authority completely different from the authorising officer is to have an effect on its evaluation below article 136(1)(e) of the Regulation, any computerized hyperlink between a discovering by the courtroom having jurisdiction over the contract of a failure to conform, by the individual involved, with its contractual obligations and the adoption by the authorising officer of an exclusion measure is excluded. Quite the opposite, concerning particularly to this provision, the authorising officer accountable ought to carry out an autonomous authorized classification of the conduct of the individual involved.
Thirdly, in keeping with an historic and teleological interpretation, the GC observes that, within the state of affairs foreseen in article 136(1)(e) of the Regulation, the absence of an computerized hyperlink is supplied for in recital 76 of the Regulation. This recital establishes that the potential of adopting exclusion measures or imposing monetary penalties is unbiased from the potential of making use of contractual penalties, similar to damages. Moreover, the autonomous sanctions regime laid down by the Regulation pursues particular goals of public curiosity, that are completely different from the right efficiency of the contract or the safety and compensation of the contractual events {that a} system of contractual legal responsibility seeks to make sure. The distinction between the goals pursued by the sanctions regime established by the Regulation and people pursued by a regime of contractual legal responsibility affirm the absence of an computerized hyperlink.
The GC thus held that it follows from the literal, contextual, historic and teleological interpretation of Article 136(1)(e) of the Regulation that there is no such thing as a direct hyperlink between the declaration of non-compliance with contractual obligations made by discovering by the courtroom having jurisdiction over the contract and the adoption of an exclusion measure by the authorising officer accountable. The GC then examined whether or not Article 136(1)(e) of the Regulation needs to be interpreted as imposing an obligation on the authorising officer accountable to look at the behaviour of the individual involved individually when deciding to use that provision.
On this matter, the GC notes, on the one hand, that in keeping with a literal interpretation of the wording of the supply, it’s the “individual” or “entity” which did not adjust to its contractual obligations that’s excluded by the authorising officer accountable. This presupposes, in precept, that the creator of the behaviour and the addressee of the penalty are the identical and, subsequently, a person failure to adjust to its contractual obligations on the a part of the addressee of the penalty.
Then again, concerning the contextual interpretation of article 136(1)(e) of the Regulation, the GC specified that such an interpretation could be based mostly on the evaluation of provisions pertaining to texts completely different from the one which the interpreted provision refers to. That is the case particularly when the provisions are analogous or when the texts through which they seem share the identical goals. On this regard, there’s a provision in Directive 2014/24[2] (henceforth “Directive”) that’s analogous to article 136(1)(e), which is article 57(4)(g). The truth is, that provision gives for the potential of excluding any financial operator from collaborating in a procurement process as a consequence of important or persistent deficiencies by the financial operator. Moreover, the Union legislature sought to determine a coherence between the Regulation and the Directive, because it outcomes from a number of recitals of the previous. Subsequently, making use of, by analogy, the case legislation of the Court docket of Justice concerning the Directive, the GC discovered that it falls no the authorising officer accountable to conduct a selected and particular person evaluation of the behaviour of the individual involved when making use of article 136(1)(e) of the Regulation.
Lastly, concerning the character of the examination that the Fee carried out within the contested resolution, the GC observes that, for the needs of the applying of article 136(1)(e) of the Regulation, the Fee based mostly itself on the joint and a number of other legal responsibility of the applicant, as member of the consortium, with out bearing in mind its particular person behaviour.
Subsequently, because the authorising officer accountable, earlier than adopting an exclusion measure of an individual or entity, ought to conduct a selected and particular person evaluation of the behaviour of that individual or entity, in mild of all of the related components and that, within the current case, the Fee solely invoked the joint and a number of other legal responsibility of the applicant, as a member of the consortium, with out bearing in mind its particular person behaviour, the GC annulled the contested resolution.
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Judgment of the Normal Court docket (First Chamber Prolonged Composition) of 8 January 2025,
Case T-354/22 – Bindl v Fee
Processing of private information – Safety of pure individuals with regard to the processing of private information by the Union establishments, our bodies, places of work and businesses – Regulation (EU) 2018/1725 – Idea of ‘switch of private information to a 3rd nation’ – Switch of information when visiting an internet site – EU Login – Motion for annulment – Act not open to problem – Inadmissibility – Motion for failure to behave – Place taken ending the inaction – No have to adjudicate – Motion for damages – Sufficiently critical breach of a rule of legislation conferring rights on people – Causal hyperlink – Non-material injury
Information
A citizen residing in Germany complained that the Fee had infringed his proper to the safety of his private information when, in 2021 and 2022, he visited the web site of the Convention on the Way forward for Europe, which is managed by the Fee. Particularly, he had registered for the ‘GoGreen’ occasion by way of that web site utilizing the Fee’s EU Login authentication service, having chosen the choice of signing in utilizing his Fb account.
In accordance with the person involved, throughout his visits to that web site his private information, together with his IP handle and details about his browser and terminal, have been transferred to recipients established in the USA. The information have been, he claims, transferred to the US endeavor Amazon Internet Providers, in its capability as operator of the content material supply community Amazon CloudFront, which was utilized by the web site in query. Furthermore, when he registered for the ‘GoGreen’ occasion utilizing his Fb account, his private information have been transferred to the US endeavor Meta Platforms, Inc. Nonetheless, in keeping with the person involved, the USA would not have an enough stage of safety.
He maintains that these transfers gave rise to a threat of his information being accessed by the US safety and intelligence companies. The Fee had not indicated any of the suitable safeguards which may justify these transfers.
On that foundation, he seeks cost of €400 in compensation for the non-material injury which he claims to have sustained due to the transfers at concern.
He additionally seeks annulment of the transfers of his private information, a declaration that the Fee unlawfully did not outline its place on a request for info and an order that the Fee pay him €800 in compensation for the non-material injury which he claims to have sustained because of the infringement of his proper of entry to info.
Choice
The Normal Court docket dismisses the applying for annulment as inadmissible and finds that there is no such thing as a longer any have to adjudicate on the declare for a declaration of failure to behave.
The Normal Court docket additionally dismisses the declare for damages based mostly on infringement of the best of entry to info, discovering that there is no such thing as a non-material injury as alleged.
As regards the declare for damages based mostly on the disputed transfers of information, the Normal Court docket dismisses that declare in relation to the transfers of information through Amazon CloudFront. Communications Directorate Press and Info Unit curia.europa.eu The Normal Court docket finds that, throughout one of many connections at concern, information have been transferred, in keeping with the precept of proximity, to a server situated in Munich in Germany, reasonably than to the USA. In accordance with the contract concluded between the Fee and the Luxembourg endeavor, Amazon Internet Providers, which manages Amazon CloudFront, Amazon Internet Providers was required to make sure that information stay, at relaxation and in transit, in Europe.
Within the case of one other connection, it was the person involved who was answerable for its redirection, through the Amazon CloudFront routing mechanism, to servers in the USA. On account of a technical adjustment, he gave the impression to be situated in the USA.
Nonetheless, as regards that individual’s registration for the ‘GoGreen’ occasion, the Normal Court docket finds that, via the ‘Check in with Fb’ hyperlink displayed on the EU Login webpage, the Fee created the situations for the transmission of his IP handle to Fb. That IP handle constitutes private information which, via that hyperlink, have been transmitted to Meta Platforms, an endeavor established in the USA. That switch should be imputed to the Fee.
On the time of that switch, on 30 March 2022, there was no Fee resolution discovering that the USA ensured an enough stage of safety for the non-public information of EU residents. Moreover, the Fee has neither demonstrated nor claimed that there was an applicable safeguard, specifically an ordinary information safety clause or contractual clause.
The airing of the ‘Check in with Fb’ hyperlink on the EU Login web site was completely ruled by the final phrases and situations of the Fb platform. The Fee didn’t, subsequently, adjust to the situations set by EU legislation for the switch by an EU establishment, physique, workplace or company of private information to a 3rd nation.
The Normal Court docket finds that the Fee dedicated a sufficiently critical breach of a rule of legislation that’s supposed to confer rights on people.
The person involved suffered non-material injury, in that he discovered himself ready of some uncertainty as regards the processing of his private information, specifically of his IP handle.
There may be, furthermore, a sufficiently direct causal hyperlink between the Fee’s infringement and the non materials injury sustained by the person involved.
Because the situations for establishing the European Union’s non-contractual legal responsibility are happy, the Normal Court docket orders the Fee to pay the person involved the sum of €400 claimed.
[1] Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018, on the monetary guidelines relevant to the final price range of the Union.
[2] Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014, on public procurement.
