# C_2015406EN.01002501.xml

| 7.12.2015 | EN | Official Journal of the European Union | C 406/25 |
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7.12.2015

EN

Official Journal of the European Union

C 406/25

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Action brought on 29 September 2015 — Kingdom of Spain v Council of the European Union

(Case C-521/15)

(2015/C 406/25)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision (EU) 2015/1289 (1) of 13 July 2015 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia, or |
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annul Council Decision (EU) 2015/1289 (1) of 13 July 2015 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia, or

| — | alternatively, reduce the fine by limiting it only to those periods after 13 December 2011, the date on which Regulation 1173/2011 (2) entered into force, and |
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alternatively, reduce the fine by limiting it only to those periods after 13 December 2011, the date on which Regulation 1173/2011 (2) entered into force, and

| — | in any event, order the Council of the European Union to pay the costs. |
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in any event, order the Council of the European Union to pay the costs.

Pleas in law and main arguments

| 1. | Infringement of Article 8(3) of Regulation 1173/2011 and Article 2(1) and (3) of Decision 2012/678/EU (3) and breach of the rights of the defence of the Kingdom of Spain. Prior to opening the file, an investigation was initiated outside of the procedure laid down in Decision 2012/678/EU. Thus, evidence obtained in visits which did not fulfill the requirements of Article 2.3 of that decision was used, to the detriment of the rights of the defence of Spain. |
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1.

Infringement of Article 8(3) of Regulation 1173/2011 and Article 2(1) and (3) of Decision 2012/678/EU (3) and breach of the rights of the defence of the Kingdom of Spain. Prior to opening the file, an investigation was initiated outside of the procedure laid down in Decision 2012/678/EU. Thus, evidence obtained in visits which did not fulfill the requirements of Article 2.3 of that decision was used, to the detriment of the rights of the defence of Spain.

| 2. | Infringement of the right to good administration with respect to the composition of the investigation team. It is not consistent with the requirement of objective impartiality that the same people were mandated to conduct both investigations. The team presented a risk of a confirmatory bias and of a retrospective bias with respect to the assessment of the strong indications that were evaluated prior to the start of the investigation. The investigation team was conditioned in such a way that its impartiality was objectively compromised. |
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2.

Infringement of the right to good administration with respect to the composition of the investigation team. It is not consistent with the requirement of objective impartiality that the same people were mandated to conduct both investigations. The team presented a risk of a confirmatory bias and of a retrospective bias with respect to the assessment of the strong indications that were evaluated prior to the start of the investigation. The investigation team was conditioned in such a way that its impartiality was objectively compromised.

| 3. | Infringement of Article 8(1) of Regulation 1173/2011, since the facts do not constitute a manipulation or misrepresentation of the relevant debt and deficit data attributable to gross negligence or wilfulness of the Member State. First, the facts do not constitute a statistical manipulation or misrepresentation, but rather a mere revision of the data on debt and deficits, explained clearly and adequately. Secondly, the data which are the subject of the alleged manipulation are in no way relevant to the exercise of the regulatory oversight which, under Articles 121 and 126 TFEU, is incumbent on the institutions of the European Union. Finally, it cannot be held that the conduct of Spain amounts to gross negligence since the Spanish authorities themselves detected the error, brought it to the Commission’s attention and acted with the utmost diligence and speed. |
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3.

Infringement of Article 8(1) of Regulation 1173/2011, since the facts do not constitute a manipulation or misrepresentation of the relevant debt and deficit data attributable to gross negligence or wilfulness of the Member State. First, the facts do not constitute a statistical manipulation or misrepresentation, but rather a mere revision of the data on debt and deficits, explained clearly and adequately. Secondly, the data which are the subject of the alleged manipulation are in no way relevant to the exercise of the regulatory oversight which, under Articles 121 and 126 TFEU, is incumbent on the institutions of the European Union. Finally, it cannot be held that the conduct of Spain amounts to gross negligence since the Spanish authorities themselves detected the error, brought it to the Commission’s attention and acted with the utmost diligence and speed.

| 4. | Lack of proportionality of the sanction having regard to the timeframe of reference for the calculation thereof. The period which is the subject of the sanction is limited to the data included in notifications from 2012 onwards, where those notifications relate to events from 11 December 2011 onwards, the date of the entry into force of Regulation 1173/2011. Therefore, the reference amount must be restricted to the data for the invoices entered into the accounts in 2011. |
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4.

Lack of proportionality of the sanction having regard to the timeframe of reference for the calculation thereof. The period which is the subject of the sanction is limited to the data included in notifications from 2012 onwards, where those notifications relate to events from 11 December 2011 onwards, the date of the entry into force of Regulation 1173/2011. Therefore, the reference amount must be restricted to the data for the invoices entered into the accounts in 2011.

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(1)  
  OJ 2015 L 198, p. 19

(2)  Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area (OJ 2011 L 306, p. 1)

(3)  Commission Delegated Decision of 29 June 2012 on investigations and fines related to the manipulation of statistics as referred to in Regulation (EU) No 1173/2011 of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (OJ 2012 L 306, p. 21)

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