# C_2018052EN.01000901.xml

| 12.2.2018 | EN | Official Journal of the European Union | C 52/9 |
| --- | --- | --- | --- |

12.2.2018

EN

Official Journal of the European Union

C 52/9

---

Judgment of the Court (Eighth Chamber) of 6 December 2017 (request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Compania Naţională de Administrare a Infrastructurii Rutiere SA, formerly Compania Naţională de Autostrăzi şi Drumuri Naţionale din România SA v Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe

(Case C-408/16) (1)

1

((Reference for a preliminary ruling - Public procurement - Directive 2004/18/EC - Scope - Regulation (EC) No 1083/2006 - European Regional Development Fund, European Social Fund and Cohesion Fund - Finance agreement for the construction of a motorway concluded with the European Investment Bank before the accession of the Member State to the European Union - Concept of ‘irregularity’ within the meaning of Regulation No 1083/2006))

(2018/C 052/11)

Language of the case: Romanian

Referring court

Referring court

Curtea de Apel Bucureşti

Parties to the main proceedings

Parties to the main proceedings

Applicant: Compania Naţională de Administrare a Infrastructurii Rutiere SA, formerly Compania Naţională de Autostrăzi şi Drumuri Naţionale din România SA

Applicant:

Defendant: Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, and in particular Article 15(c) thereof, must be interpreted as meaning that it precludes a Member State’s legislation that provides, for the purposes of a public procurement procedure initiated after the date of its accession to the European Union in order to complete a project started on the basis of a finance agreement concluded with the European Investment Bank prior to that accession, the application of the specific criteria laid down by the provisions of the European Investment Bank’s public procurement guide which do not comply with the provisions of that directive; |
| --- | --- |

1.

Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, and in particular Article 15(c) thereof, must be interpreted as meaning that it precludes a Member State’s legislation that provides, for the purposes of a public procurement procedure initiated after the date of its accession to the European Union in order to complete a project started on the basis of a finance agreement concluded with the European Investment Bank prior to that accession, the application of the specific criteria laid down by the provisions of the European Investment Bank’s public procurement guide which do not comply with the provisions of that directive;

| 2. | Articles 9(5) and 60(a) of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 must be interpreted as meaning that a public procurement procedure such as that at issue in the case in the main proceedings, in which criteria more restrictive than those laid down in Directive 2004/18 have been applied, cannot be considered as having been conducted in complete conformity with EU law and is not eligible for non-reimbursable European funding, granted retrospectively.
  Article 2(7) of Regulation No 1083/2006 must be interpreted as meaning that the use of pre-selection criteria for tenderers that are more restrictive than those provided for by Directive 2004/18 constitutes an ‘irregularity’, within the meaning of that article, justifying the application of a financial correction pursuant to Article 98 of that regulation, provided that it cannot be ruled out that such use had an impact on the budget of the Funds at issue, which it is for the national court to determine. |
| --- | --- |

2.

Articles 9(5) and 60(a) of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 must be interpreted as meaning that a public procurement procedure such as that at issue in the case in the main proceedings, in which criteria more restrictive than those laid down in Directive 2004/18 have been applied, cannot be considered as having been conducted in complete conformity with EU law and is not eligible for non-reimbursable European funding, granted retrospectively.

Article 2(7) of Regulation No 1083/2006 must be interpreted as meaning that the use of pre-selection criteria for tenderers that are more restrictive than those provided for by Directive 2004/18 constitutes an ‘irregularity’, within the meaning of that article, justifying the application of a financial correction pursuant to Article 98 of that regulation, provided that it cannot be ruled out that such use had an impact on the budget of the Funds at issue, which it is for the national court to determine.

---

(1)  OJ C 383, 17.10.2016.

1

---