# C_2016383EN.01000301.xml

| 17.10.2016 | EN | Official Journal of the European Union | C 383/3 |
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17.10.2016

EN

Official Journal of the European Union

C 383/3

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Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 21 July 2016 — Compania Națională de Autostrăzi și Drumuri Naționale din România SA v Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe

(Case C-408/16)

(2016/C 383/04)

Language of the case: Romanian

Referring court

Referring court

Curtea de Apel București

Parties to the main proceedings

Parties to the main proceedings

Applicant: Compania Națională de Autostrăzi și Drumuri Naționale din România SA

Applicant:

Defendants: Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe

Defendants:

Questions referred

Questions referred

| 1. | Is Article 15(c) of Directive 2004/18 (1) to be interpreted as permitting a Member State not to apply the directive, following its accession to the European Union, if it has the benefit of a finance agreement concluded with the European Investment Bank which was signed before the accession and under which specific requirements imposed by the lending institution, such as those at issue in the present case, which are more restrictive than those laid down by the directive, are applied to public contracts to be awarded? |
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1.

Is Article 15(c) of Directive 2004/18 (1) to be interpreted as permitting a Member State not to apply the directive, following its accession to the European Union, if it has the benefit of a finance agreement concluded with the European Investment Bank which was signed before the accession and under which specific requirements imposed by the lending institution, such as those at issue in the present case, which are more restrictive than those laid down by the directive, are applied to public contracts to be awarded?

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| 2. | Is Directive 2004/18 to be interpreted as precluding a legislative measure under national law, such as O.U.G. No 72/2007 (Decree Law No 72/2007), which provides for the application of the European Investment Bank Guide to Procurement, by way of derogation from the legislative measure by which the directive was transposed into national law, namely, in the present case, O.U.G. No 34/2006 (Decree Law No 34/2006), on grounds such as those set out in the explanatory memorandum, for the purpose of compliance with the finance agreement concluded prior to accession? |
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2.

Is Directive 2004/18 to be interpreted as precluding a legislative measure under national law, such as O.U.G. No 72/2007 (Decree Law No 72/2007), which provides for the application of the European Investment Bank Guide to Procurement, by way of derogation from the legislative measure by which the directive was transposed into national law, namely, in the present case, O.U.G. No 34/2006 (Decree Law No 34/2006), on grounds such as those set out in the explanatory memorandum, for the purpose of compliance with the finance agreement concluded prior to accession?

| 3. | On a proper interpretation of Article 9(5) and Article 60(a) of Regulation No 1083/2006, (2) may such a public contract, concluded in compliance with the European Investment Bank Guide to Procurement and with national law, be regarded as consistent with EU law and eligible for European non-reimbursable financial support, granted retrospectively? |
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3.

On a proper interpretation of Article 9(5) and Article 60(a) of Regulation No 1083/2006, (2) may such a public contract, concluded in compliance with the European Investment Bank Guide to Procurement and with national law, be regarded as consistent with EU law and eligible for European non-reimbursable financial support, granted retrospectively?

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| 4. | In the event that Question 3 is answered in the negative, if such a public contract was nonetheless considered to be consistent with EU law at the time the check was carried out to verify compliance with the qualification requirements for the Programului operațional sectorial ‘Transport’ 2007-2013 (Sectoral Operational Programme ‘Transport’ 2007 2013), does such an alleged breach of EU public procurement law (determination of certain pre-selection criteria for the tenderers which are similar to those set out in the European Investment Bank Guide to Procurement and more restrictive than those laid down in Directive 2004/18 — as set out in paragraphs 12 to 14 of the present order for reference) constitute an ‘irregularity’ within the meaning of Article 2(7) of Regulation No 1083/2006, giving rise to an obligation on the part of the Member State concerned to make a financial correction/percentage reduction pursuant to Article 98(2) of the regulation? |
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4.

In the event that Question 3 is answered in the negative, if such a public contract was nonetheless considered to be consistent with EU law at the time the check was carried out to verify compliance with the qualification requirements for the Programului operațional sectorial ‘Transport’ 2007-2013 (Sectoral Operational Programme ‘Transport’ 2007 2013), does such an alleged breach of EU public procurement law (determination of certain pre-selection criteria for the tenderers which are similar to those set out in the European Investment Bank Guide to Procurement and more restrictive than those laid down in Directive 2004/18 — as set out in paragraphs 12 to 14 of the present order for reference) constitute an ‘irregularity’ within the meaning of Article 2(7) of Regulation No 1083/2006, giving rise to an obligation on the part of the Member State concerned to make a financial correction/percentage reduction pursuant to Article 98(2) of the regulation?

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(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 (OJ 2004 L 134, p. 114).

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(2)  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 (OJ 2006 L 210, p. 25).

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