Judgment;Summary — ECLI:EU:C:2024:99
Date: 2024-01-30
Language of the case: Bulgarian
Court formation: Third Chamber
Subject matter: Economic, social and territorial cohesion;European Social Fund (ESF);European Regional Development Fund (ERDF);Fundamental rights;Cohesion Fund;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-471/22 – 1 
Case C-471/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged: 
13 July 2022 
Referring court: 
Administrativen sad Sofia grad (Bulgaria) 
Date of the decision to refer: 
4 July 2022 
Applicant: 
Agentsia ‘Patna infrastruktura’  
Defendant: 
Rakovoditel na upravlyavashtia organ na operativna programa 
‘Transport’ 2007-2013 i direktor na direktsia ‘Koordinatsia na 
programi i proekti’ v Ministerstvoto na transporta  
  
Subject matter of the main proceedings 
The Agentsia ‘Patna infrastrukura’ (‘Road Infrastructure’ Agency; ‘the applicant’) 
has challenged before the referring court an individual administrative act adopted 
by the Rakovoditel na upravlyavashtia organ na operativna programa ‘Transport’ 
2007-2013 i direktor na direktsia ‘Koordinatsia na programi i proekti’ v 
ministerstvoto na transporta (Head of the Managing Authority of the Operational 
Programme ‘Transport’ 2007-2013 and Director of the ‘Programme and Project 
Coordination’ Directorate at the Ministry of Transport; ‘Head of the Managing 
Authority’) on 29 December 2021. 
By the contested administrative act, a financial correction was imposed on the 
applicant in the amount of 5% of the value of a contract awarded to the ‘Struma 
Lot 2’ consortium on 27 February 2012. The contract was financed by a grant 
under the operational programme ‘Transport 2007-2013’. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/22 
 
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Subject matter and legal basis of the request 
The Head of the Managing Authority adopted the contested administrative act as a 
consequence of the Commission Decision C(2021) 5739 of 27 July 2021 
cancelling part of the Cohesion Fund contribution to the operational programme 
‘Transport 2007-2013’ under the ‘Convergence’ objective in Bulgaria, 
CCI2007BG161PO004 (‘the Commission Decision’). 
The referring court takes the view that the Head of the Managing Authority 
reproduced the facts and conclusions of the Commission Decision partly verbatim 
and partly in essence, without making any findings of his own. 
The referring court has doubts as to whether the Commission Decision is 
complete, well-founded and justified, and it therefore asks the Court to determine 
whether the decision is valid at all so as to enable it to rule on the dispute before 
it. 
In addition, the referring court asks the Court to interpret the provision of EU law 
in Article 100 of Regulation No 1083/2006, which governs the procedure for the 
adoption of decisions by the Commission. In particular, it seeks clarification as to 
whether it is lawful for the Commission to draw conclusions solely on the basis of 
alleged concerns and allegations made by the Member State concerned, without 
independently and comprehensively examining all the facts and circumstances 
relevant to the procedure. 
The question also arises as to whether, in the present case, the Head of the 
Administrative Authority and the referring court are bound by the findings in the 
Commission Decision. If that is the case, the referring court seeks a finding as to 
whether the rights to participate in the proceedings, to an effective remedy and to 
a fair trial under Articles 41 and 47 of the Charter are guaranteed to persons on 
whom a financial correction has been imposed. 
In the light of the foregoing, the referring court requests a preliminary ruling from 
the Court pursuant to point (b) of the first paragraph of Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Can European Commission Decision С(2021) 5739 of 27 July 2021 
cancelling part of the Cohesion Fund contribution to the operational programme 
‘Transport 2007-2013’ under the ‘Convergence’ objective in Bulgaria, 
CCI2007BG161PO004, be regarded as valid in the light of the requirements 
concerning the legal basis, the statement of reasons, the completeness and the 
objectivity of the examination carried out, in accordance with the third paragraph 
of Article 296 TFEU and the principle of good administration under Article 41 of 
the Charter? 
AGENTSIA ‘PATNA INFRASTRUKTURA’ 
 
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2. Must Article 100 of Council Regulation No 1083/2006 be interpreted as 
meaning that, for the purposes of the legality of its decisions, the European 
Commission is not required to establish, examine and qualify all the legally 
relevant facts in the proceedings, but is required to limit its conclusions to and 
base them solely on the communication with the Member State and the exchange 
of observations or notifications with that Member State? 
3. In a situation such as the present one, in which there is a final act of the 
European Commission imposing a financial correction on a Member State for an 
irregularity in the expenditure of European Union funds in three separate 
procurement procedures, are the competent national authorities under an 
obligation to conduct their own procedure for establishing irregularities in order 
lawfully to make a financial correction under Article 98 of Regulation 
No 1083/2006? 
4. If the previous question is answered in the negative, is it to be assumed that 
the right of persons to participate in the procedure in which Member States make 
financial corrections is guaranteed, in accordance with the right to good 
administration under Article 41 of the Charter? 
5. Must Article 47 of the Charter be interpreted as meaning that, in a situation 
such as the present one, in which there is a final act of the European Commission 
imposing a financial correction on a Member State for an irregularity in the 
expenditure of European Union funds in three separate procurement procedures, a 
national court is bound by the findings and conclusions of the European 
Commission where it is called upon to rule on an action against the imposition of 
a financial correction by the competent national authority in connection with one 
of those procurement procedures, or does it follow from that legal provision that 
the court must, in the context of a full judicial procedure and using all the means 
provided for by law, establish and examine the legally relevant facts and 
circumstances of the dispute, thereby providing the appropriate legal solution? 
6. If the previous question is answered to the effect that the national court is 
bound by the European Commission Decision, including its findings of fact, can it 
be assumed that persons on whom a financial correction has been imposed are 
guaranteed the rights to an effective remedy and to a fair hearing under Article 47 
of the Charter? 
Provisions of European Union law and case-law relied on 
Treaty on the Functioning of the European Union, Articles 290, 291 and 296 
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 41 
and 47 
Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 
17 December 2013 laying down common provisions on the European Regional 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/22 
 
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Development Fund, the European Social Fund, the Cohesion Fund, the European 
Agricultural Fund for Rural Development and the European Maritime and 
Fisheries Fund and laying down general provisions on the European Regional 
Development Fund, the European Social Fund, the Cohesion Fund and the 
European Maritime and Fisheries Fund and repealing Council Regulation (EC) 
No 1083/2006, Article 152 
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 
(‘Regulation No 1083/2006), Articles 98, 99 and 100 
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 (‘Directive 2004/18’), 
Articles 23, 44, 47 and 48 
Judgments of 23 April 1986, Les Verts v Parliament, C-294/83, EU:C:1986:166; 
of 7 April 1992, Compagnia Italiana v Commission, С-358/90, EU:C:1992:16; of 
29 February 1996, Belgium v Commission, С-56/93, EU:C:1996:64; of 28 April 
2010, Zwicky v Commission, T-457/05, EU:T:2010:168, paragraph 41; of 26 May 
2011, Commission v Spain, С-306/08, EU:C:2011:347; of 30 November 2011, 
Quinn Barlo and Others v Commission, T-208/06, EU:T:2011:701, 
paragraph 131; of 2 March 2012, Netherlands v Commission, T-29/10 and Т-
33/10, EU:T:2012:9, paragraphs 146, 156 and 160; of 10 October 2012, Ningbo 
Yonghong Fasteners v Council, T-150/09, EU:T:2016:317, paragraphs 114, 131 to 
137; of 10 October 2012, Shanghai Biaowu High-Tensile Fasteners and Shanghai 
Prime Machinery v Council, T-170/09, EU:T:2012:531, paragraphs 68 to 70; of 
10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council, 
T-172/09, EU:T:2016:315, paragraphs 105 to 107; of 10 October 2013, Swm 
Costruzioni 2 and Mannocchi Luigino, С-94/12, EU:C:2013:646, paragraph 36; of 
12 June 2015, Health Food Manufacturers4 Association and Others v 
Commission, T-296/12, EU:T:2015:375, paragraphs 61 to 63; of 7 April 2016, 
Partner Apelski Dariusz, С-324/14, EU:C:2016:214; of 2 June 2016, Pizzo, С-
27/15, EU:C:2016:404; of 28 March 2017, Rosneft, С-72/15, EU:C:2017:236, 
paragraph 122; of 5 April 2017, Borta, C-298/15, EU:C:2017:266; of 4 May 2017, 
Esaprojekt, С-387/14, EU:C:2017:338; of 16 May 2017, Berlioz Investment Fund, 
С-682/15, EU:C:2017:373, paragraph 84; of 9 November 2017, LS Customs 
Services, С-46/16, EU:C:2017:839, paragraph 40; of 24 June 2019, Popławski, С-
573/17, EU:C:2019:530, paragraph 57; of 24 November 2020, Minister van 
Buitenlandse Zaken, C-225/19 and C-226/19, EU:C:2020:951, paragraphs 34 and 
43; of 6 October 2021, Sumal, С-882/19, EU:C:2021:800, paragraph 70; and of 
31 March 2022, Smetna palata na Republika Bulgaria, С-195/21, EU:C:2022:239 
AGENTSIA ‘PATNA INFRASTRUKTURA’ 
 
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Provisions of national law relied on 
Zakon za upravlenie na sredstvata ot Evropeyskite strukturni i investitsionni 
fondove (Law on the management of resources from the European Structural and 
Investment Funds), Articles 69, 70, 71 and 73 
Zakon za obshtestvenite porachki (Law on public procurement), as amended and 
supplemented, in force since 26 February 2012, Darzhaven vestnik (State Gazette; 
‘DV’) No 93 of 2011, Article 25 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a beneficiary under Priority Axis 2 ‘Development of road 
infrastructure along the trans-European and major national transport axes’ of the 
operational programme ‘Transport 2007-2013’ by virtue of a grant contract 
concluded with the Ministry of Transport, Information Technology and 
Communications (now the Ministry of Transport and Communications) on 
1 December 2011. 
2 In performance of that contract, the applicant initiated and conducted a public 
procurement procedure for a contract having the subject ‘Appointment of a 
contractor for the design and construction of the “Struma Motorway”, Lot 2, 
Dupnitsa-Blagoevgrad section’, for the section running from kilometre 359 + 000. 
Following the conclusion of the procurement procedure, a contract was concluded 
with the selected contractor – the ‘Struma Lot 2’ consortium. 
3 The Commission Decision of 27 July 2021 found infringements of Articles 44(2) 
and 48(3) and (4) of Directive 2004/18/EC in relation to three public contracts, 
including the abovementioned contract for the design and construction of the 
Struma motorway. By the same decision, an amount of EUR 8 057 019.15, 
corresponding to 5% of the expenditure declared for the activities concerned, of 
the contribution from the Union budget to the ‘Transport’ operational programme 
was cancelled. 
4 On the basis of that Commission Decision, a procedure for making a financial 
correction was opened, by letter of the Head of the Managing Authority of 
8 November 2021, in respect of the applicant in connection with the award of the 
abovementioned public contract. The letter neither contains any findings of fact 
made by the Head of the Managing Authority himself nor provides for the 
initiation of a procedure for the determination of irregularities, but refers directly 
to the infringement found by the Commission. 
5 As a result of the national procedure, a financial correction in the amount of 5% of 
the value of the public contract awarded was imposed on the applicant by the 
contested administrative act. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/22 
 
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The essential arguments of the parties in the main proceedings 
6 In support of its action, the applicant relies on the following pleas in law: 
– absence of a legal basis for the correction, since the Commission Decision 
produces legal effect only vis-à-vis the Member State and, consequently, is not 
addressed to the applicant; 
– absence of a requirement which is disproportionate to the subject matter of the 
public contract. The applicant, relying on the case-law of the Court (in 
particular its judgments in Esaprojekt, С-387/14, and in Pizzo, С-27/15) 
submits, in essence, that there are works with special requirements 
necessitating a certain capacity which cannot be obtained by combining the 
capacities of more than one operator, which, individually, would be inadequate. 
In such circumstances, the contracting authority would be justified in requiring 
that the minimum capacity level concerned be achieved by a single economic 
operator or a limited number of economic operators, as long as that requirement 
is related and proportionate to the objective of the contract concerned; 
– absence of a restriction of competition and of restrictions on access to public 
contracts. 
7 The defendant refers to the correspondence that it exchanged with the Permanent 
Representation of the European Commission in Bulgaria in relation to the 
Commission Decision. On the basis of that correspondence, it initiated the 
procedure for making a financial correction. The defendant: 
– considers that the findings made in the Commission Decision are correct and 
adopts them in the main proceedings; 
– submits that the action is unfounded and that there have been infringements of 
Article 44(2) and Article 48(3) and (4) of Directive 2004/18 as well as of the 
national transposing provision of Article 25(5) of the Law on public 
procurement (in the version applicable to the dispute). 
Conditions for the admissibility of the request for a preliminary ruling 
8 First, in view of the subject matter of the dispute, the referring court has no doubt 
that the dispute is related to EU law. On the one hand, the legal basis of the 
contested administrative act is Article 98 of Regulation No 1083/2006 and its 
national transposing provision, and, on the other hand, the resolution of the 
dispute requires an examination of the validity of a Commission decision. 
9 Second, the Commission Decision is addressed to the Bulgarian State and the 
applicant does not have standing to challenge it. The applicant takes the view that 
the concern to it does not arise from the Commission Decision, either directly or 
indirectly, but from the national authority’s decision to make a financial 
AGENTSIA ‘PATNA INFRASTRUKTURA’ 
 
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correction. That is to say, the concern to the applicant results from the will and 
conduct of the national authorities and not from the declaration of will expressed 
by the Commission. Accordingly, the referring court considers that the two-month 
time limit laid down in Article 263 TFEU is not applicable in the present case. 
10 Third, acts or omissions of a State’s legal representative in connection with the 
bringing of an action for annulment of decisions of an EU institution should not be 
binding on the court nor preclude the full appreciation of the facts and 
circumstances on the merits which is required of the court, all the more so where 
the case concerns questions of law which relate to the legality, regularity and need 
for interpretation of the EU law applicable to the dispute before the court. 
11 In that sense, binding the court to the conduct of the administration representing 
the State before the Court of Justice would lead to the impossibility of full judicial 
review and would result in an infringement of the right to an effective remedy. 
Cooperation between national courts and the Court of Justice in matters relating to 
the correct and lawful application of EU law in the Member States would thereby 
be impaired. This would also have the effect of reducing the internal conviction 
and will of the court to an imaginary and purely formal procedure of replicating 
decisions of (national and EU) administrative authorities and it would give 
abnormal weight to the binding nature of final judicial decisions. As a 
consequence, this would call into question the rule of law and the principle of the 
rule of law and, respectively, the Union as a community of law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The Commission Decision found the following irregularity: ‘in case the tenderer 
is an association of natural and legal persons, each member of the consortium 
demonstrates the completion of one or more contract/s for the construction of 
motorway and/or roads with a load-bearing capacity of 11.5 tonnes per axis. The 
procurement documents did not contain a justification for this requirement based 
on exceptional circumstances’. That irregularity was classified as a 
disproportionate requirement which is in breach of Articles 44(2) and 48(3) and 
(4) of Directive 2004/18. 
13 Furthermore, the Commission Decision states that the Member State did not 
invoke exceptional geological conditions justifying the application of that 
selection criterion. However, that criterion was applied to all three contracts, 
which means that the contracting authority wanted to have a uniform level of 
load-bearing capacity for the road construction, regardless of the geological 
conditions. Thus, according to the Commission, the same criterion applies to three 
different contracts showing technical differences, since they concern works of a 
different nature, namely a motorway, a national road and a ring road, presenting 
various characteristics, including different infrastructures, such as bridges or 
tunnels or related studies of various nature. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/22 
 
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14 In that regard, the referring court takes the view that the Commission does not 
itself differentiate between the three contracts, their route or their subject matter, 
but considers that there was a single infringement. In that respect, the 
infringement was not classified as a criterion which had not been differentiated 
according to the different geological conditions, but as a disproportionate 
criterion. The referring court therefore finds a certain internal inconsistency, 
unfounded reasoning and incompleteness in the Commission’s examination. 
15 In its decision, the Commission repeatedly refers to the judgment of the Court in 
Borta, C-298/15, which, however, concerns the application of Directive 2004/17 
and not Directive 2004/18, which is applicable to the dispute in the main 
proceedings. The referring court takes the view that, since the subject matter, 
objectives and content of the two directives differ significantly, the fact that the 
Commission finds an infringement of Directive 2004/18 on the basis of arguments 
relating to the application of Directive 2004/17 raises doubts as to the legal 
relevance of those arguments and impairs the legal assessment made by the 
Commission. 
16 Moreover, the referring court takes the view that the Commission Decision does 
not carry out an ex officio examination of whether there are circumstances in the 
present case which, in accordance with the findings in the judgment of the Court 
in Partner Apelski Dariusz, С-324/14, might preclude the possibility of a 
restriction of the exercise of the right under Article 47(2) and Article 48(3) of 
Directive 2004/18. 
17 The Commission Decision did not take into account or verify the existence of a 
contradiction between the published notice and the tender documents. Whereas 
the notice contains a requirement relevant to the infringement found, the 
documents contain a condition that refutes the inference of an infringement. The 
referring court takes the view that this leads to the conclusion that the 
Commission Decision is based on an incomplete examination and is unfounded, 
and that the examination was carried out unilaterally with the aim of imposing a 
financial correction on the Member State. 
18 In the light of the foregoing, the referring court, by its first question referred, asks 
the Court to rule on the validity of the Commission Decision. 
19 In essence, the referring court doubts that even the provision governing the 
procedure for the adoption of the Commission’s decision, contained in Article 100 
of Regulation No 1083/2006, does not impose any obligation to verify, examine 
and substantiate the legally relevant facts independently and to take into account 
all the circumstances relevant to the procedure, but merely limits the procedure to 
an exchange of documents and observations between the Commission and the 
Member State concerned. In other words, the referring court is uncertain whether, 
in that procedure, the conclusions are drawn solely on the basis of the alleged 
concerns and the assertions of the Member State concerned (that is to say, its legal 
representation), but not of the actual contracting authority, which in fact assesses 
AGENTSIA ‘PATNA INFRASTRUKTURA’ 
 
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the real needs and specificities of the public contract in question when selecting 
the criteria. The second question referred therefore seeks an interpretation of 
Article 100 of Regulation No 1083/2006. 
20 In the present case, the Head of the Managing Authority clearly assumed, in the 
course of the procedure which he conducted at national level, that he was bound 
by the Commission’s findings, since he did not exercise any discretion in his 
assessment and did not examine or take into account the particularities of the 
specific contract. However, such a binding effect would deprive both the 
provisions of Articles 70, 98 et seq. of Regulation No 1083/2006 and, above all, 
the provision of Article 47 of the Charter of their practical effectiveness, since the 
right of access to the courts would then exist purely pro forma and would be 
neither effective nor genuine or substantial. In view of the above, the third 
question referred seeks to ascertain whether, in a case such as the present one, the 
competent national authorities must independently conduct a procedure under 
Article 98 of Regulation No 1083/2006. If the Court were to find that they are not 
required to conduct such a procedure, the fourth question referred seeks a finding 
as to whether the right of persons to participate in the proceedings is guaranteed in 
such a case. 
21 The referring court, which is required to rule on the substance of the dispute, is 
not certain whether it can itself determine whether, in relation to the contract at 
issue, there is a specific reason justifying a permissible exception to the provisions 
of Article 48(3) and (4) of Directive 2004/18. This could, as follows from the 
wording of the Commission Decision and from the case-law of the Court cited 
above (in particular the judgment in Smetna palata na Republika Bulgaria, 
C-195/21, paragraphs 49 to 51), justify both a finding that the criterion introduced 
by the contracting authority was proportionate and, accordingly, the annulment of 
the financial correction. 
22 By its fifth question referred, the referring court therefore asks whether, in the 
present case, it is bound by the findings and conclusions in the Commission 
Decision. If the Court answers that question in the affirmative, the referring court 
will not be in a position to establish and examine the legally relevant facts and 
circumstances of the dispute using all the means provided for by law. For that 
eventuality, the referring court seeks to ascertain, by its sixth question referred, 
whether the right to an effective remedy and to a fair trial can be regarded as being 
guaranteed to persons on whom a financial correction has been imposed.