# C_2005281EN.01003301.xml

| 12.11.2005 | EN | Official Journal of the European Union | C 281/33 |
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12.11.2005

EN

Official Journal of the European Union

C 281/33

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Action brought on 19 September 2005 — Generalitat Valenciana v Commission of the European Communities

(Case T-357/05)

(2005/C 281/60)

Language of the case: Spanish

Parties:

Applicant(s): Generalitat Valenciana (Valencia, Spain) (represented by José Vicente Sánchez-Tarazaga Marcelino, lawyer)

Applicant(s):

Defendant(s): Commission of the European Communities

Defendant(s):

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C (2005) 1867 concerning the reduction of the assistance granted from the Cohesion Fund to Project No 97/11/61/028. |
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annul Commission Decision C (2005) 1867 concerning the reduction of the assistance granted from the Cohesion Fund to Project No 97/11/61/028.

Pleas in law and main arguments

This action arises out of Commission Decision C (97) 3882 of 5 December 1997, by virtue of which assistance of EUR 75 011 715 was granted from the Cohesion Fund to Project No 97/11/61/028 in Spain, called the ‘Project for the collection and treatment of waste water on the Mediterranean coast of the Autonomous Community of Valencia’ (a general project consisting of 12 different schemes). The original amount was later increased to EUR 92 742 913.

After carrying out an audit mission, the Commission uncovered a series of irregularities in the award procedure followed, essentially the use of experience as a criterion for the award of contracts and the average price method as the procedure for evaluating the price tendered. In the contested decision, which reduces the total assistance granted by EUR 2 217 537, the defendant considers that there have been infringements of Articles 18 and 30 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, (1) and of Article 2 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities.

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In support of its claims, the applicant argues:

| — | that the Community legislation expressly refers to experience as a criterion for selection, whereas, although experience is not expressly mentioned in the list of possible implementing criteria, it may readily be observed that the listing of those criteria in the legislation is merely illustrative, and not exhaustive, and does not envisage excluding the possible use of experience as an additional criterion for the award of the contract. This conclusion is reinforced by Community case-law itself; |
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that the Community legislation expressly refers to experience as a criterion for selection, whereas, although experience is not expressly mentioned in the list of possible implementing criteria, it may readily be observed that the listing of those criteria in the legislation is merely illustrative, and not exhaustive, and does not envisage excluding the possible use of experience as an additional criterion for the award of the contract. This conclusion is reinforced by Community case-law itself;

| — | that, in any case, it is plainly impossible to consider that including experience as one of the award criteria in the contract documents constitutes a serious and obvious infringement, without which, in accordance with Community legislation and case-law, liability cannot be incurred; |
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that, in any case, it is plainly impossible to consider that including experience as one of the award criteria in the contract documents constitutes a serious and obvious infringement, without which, in accordance with Community legislation and case-law, liability cannot be incurred;

| — | that application of the ‘average price’ methodology as a means of evaluating the price criterion is not expressly forbidden by Community rules and that the case-law precludes it only when it is the only criterion used, but not where it is used together with others. |
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that application of the ‘average price’ methodology as a means of evaluating the price criterion is not expressly forbidden by Community rules and that the case-law precludes it only when it is the only criterion used, but not where it is used together with others.

The applicant also alleges breach of the principles of legal certainty, protection of legitimate expectations, non-retroactive effect and proportionality.

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(1)  OJ L 199 of 9 August 1993, p. 54.

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