Opinion of the Advocate General — ECLI:EU:C:2022:998
Date: 2022-12-15
Language of the case: Italian
Subject matter: Economic, social and territorial cohesion;Right of establishment;Financial provisions;Approximation of laws;Freedom to provide services;Judicial cooperation in criminal matters;European Regional Development Fund (ERDF);Area of freedom, security and justice;Own resources;Cohesion Fund
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-545/21 – 1 
Case C-545/21 
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: 
31 August 2021 
Referring court: 
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer: 
4 August 2021 
Applicant: 
Azienda Nazionale Autonoma Strade SpA (ANAS) 
Defendant: 
Ministero delle Infrastrutture e dei Trasporti 
  
Subject matter of the main proceedings 
Action brought by Azienda Nazionale Autonoma Strade SpA (‘ANAS’) seeking 
the annulment of the recovery order issued by the Ministero delle infrastrutture e 
dei trasporti (Italian Ministry of Infrastructure and Transport; ‘the Ministry’) 
requiring ANAS to repay funds that it received unduly, and other measures not 
directly related to the questions referred for a preliminary ruling. 
Subject matter and legal basis of the request 
Article 267 TFEU; interpretation of Regulations (EC) No 1083/2006, (EC) 
No 1828/2006 and (EC, Euratom) No 2988/95, the Convention drawn up on the 
basis of Article K.3 of the Treaty on European Union, on the protection of the 
European Communities’ financial interests (Council Act of 26 July 1995 drawing 
up the Convention on the protection of the European Communities’ financial 
interests (95/C 316/03)) and Directive (EU) 2017/1371, to establish whether the 
concepts of ‘irregularity’ and ‘fraud’ include conduct which is likely, in the 
abstract, to favour one of the participants in a tendering procedure, even in the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-545/21 
 
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absence of complete proof of the conduct and of the effects of such conduct on the 
selection of the successful bidder (question 1); compatibility of Article 38(1)(f) of 
decreto legislativo n. 163/2006 (Legislative Decree No 163/2006) with 
Article 45(2)(d) of Directive 2004/187/EC (question 2); interpretation of the 
abovementioned EU legislation in relation to the recovery of aid disbursed by the 
Member State, where it was used in accordance with its intended purpose for a 
project eligible for EU funding and actually implemented (questions 3 and 4). 
Questions referred for a preliminary ruling 
1. Must Article 70(1)(b) of Council Regulation (EC) No 1083/2006, Article 27(c) 
of Commission Regulation (EC) No 1828/2006, Article 1 of the PFI Convention 
referred to in the Council Act of 26 July 1995, Article 1(2) of Council Regulation 
(EC, Euratom) No 2988/95 and Article (3)(2)(b) of Directive (EU) 2017/1371 be 
interpreted as meaning that conduct which is likely, in the abstract, to favour an 
economic operator during a contract award procedure is always categorised as an 
‘irregularity’ or as ‘fraud’, thus constituting a legal basis for the recovery of the 
aid, even when there is no complete proof that such conduct has actually taken 
place, or there is no complete proof that it was decisive in the selection of the 
beneficiary? 
2. Does Article 45(2)(d) of Directive 2004/18/EC preclude a legal provision such 
as Article 38(1)(f) of Legislative Decree No 163/2006, which does not allow the 
exclusion from a tender of an economic operator who has attempted to influence 
the decision-making process of the contracting authority, particularly when the 
attempt consisted of bribing certain members of the tender evaluation committee? 
3. If the answer to one or both of the above questions is in the affirmative, must 
the rules referred to always be interpreted as requiring the Member State to 
recover the aid and the Commission to make a 100% financial correction, despite 
the fact that the aid was used for its intended purpose, for a project eligible for EU 
funding and which was actually implemented? 
4. If the answer to question 3 is negative, or that no recovery of the aid or 100% 
financial correction is necessary, do the provisions referred to in question 1, and 
compliance with the principle of proportionality, make it possible to establish the 
recovery of the aid and the financial correction taking into account the financial 
damage actually caused to the general budget of the European Union? More 
specifically, in a situation such as the one at issue in these proceedings, can the 
‘financial implications’, within the meaning of Article 98(3) of Regulation (EC) 
No 1083/2006, be established on a flat-rate basis, by applying the criteria set out 
in the table under paragraph 2 of Commission Decision No 9527 of 19 December 
2013? 
ANAS 
 
3 
Provisions of European Union law relied on 
Convention drawn up on the basis of Article K.3 of the Treaty on European 
Union, on the protection of the European Communities’ financial interests, in 
particular Article 1; 
Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the 
protection of the European Communities’ financial interests, in particular 
Article 1(2); 
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, in particular Article 45(2)(d);  
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, in 
particular Article 70(1)(b); 
Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules 
for the implementation of Council Regulation (EC) No 1083/2006 laying down 
general provisions on the European Regional Development Fund, the European 
Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the 
European Parliament and of the Council on the European Regional Development 
Fund, in particular Article 27(c); 
Commission document COCOF 07/0037/03-EN of 29 November 2007, which sets 
out guidelines for determining financial corrections to be made to expenditure co-
financed by the Structural Funds or the Cohesion Fund for non-compliance with 
the rules on public procurement; 
Commission Decision C(2013) 9527 final on the setting out and approval of the 
guidelines for determining financial corrections to be made by the Commission to 
expenditure financed by the Union under shared management, for non-compliance 
with the rules on public procurement; 
Directive (EU) 2017/1371 of the European Parliament and of the Council of 
5 July 2017 on the fight against fraud to the Union’s financial interests by means 
of criminal law, in particular Article 3(2)(b).  
Provisions of national law and case-law relied on 
Decreto legislativo 12 aprile 2006, n. 163, Codice dei contratti pubblici relativi a 
lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE 
(Legislative Decree No 163 of 12 April 2006 establishing the Code on public 
works contracts, public service contracts and public supply contracts pursuant to 
Directives 2004/17/EC and 2004/18/EC), repealed following the entry into force 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-545/21 
 
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of decreto legislativo 18 aprile 2016, n. 50 (Codice dei contratti pubblici) 
(Legislative Decree No 50 of 18 April 2016 (Public Procurement Code)), and 
applicable to the tendering procedure in question as it was published in 2012, in 
particular: Article 38(1), in the version in force at the material time, which 
provided as follows:  
‘1. The following persons shall be excluded from participation in procedures for 
the award of concessions and public works contracts, public service contracts and 
public supply contracts, and shall be prohibited from taking part as subcontractors 
or from concluding any related contract:  
…  
(c) any person who has been the subject of a conviction that has the force of res 
judicata or a criminal order against which no appeal lies, or who has been the 
subject of a judgment implementing a sentence resulting from a negotiated plea, 
as provided for in Article 444 of the Code of Criminal Procedure, in respect of the 
commission of grave professional conduct offences to the detriment of the State or 
the Community; the following constitute, in any event, grounds for exclusion: a 
conviction set out in a judgment which has the force of res judicata for one or 
more offences relating to participation in a criminal organisation, corruption, fraud 
or money laundering, as defined by the Community measures cited in 
Article 45(1) of Directive 2004/18;  
…  
(f) any person who, in the reasoned assessment of the contracting authority, has 
been guilty of serious negligence or bad faith in the performance of any contract 
awarded to that person by the contracting authority which published the contract 
notice; or any person who has been found guilty of grave professional misconduct 
on the basis of any evidence which the contracting authority may establish.’ 
Legge 29 settembre 2000, n. 300 (Law No 300 of 29 September 2000) ratifying 
and implementing the following international instruments drawn up on the basis 
of Article K.3 of the Treaty on European Union: Convention on the protection of 
the European Communities’ financial interests, done at Brussels on 26 July 1995 
[and other international instruments on the prevention of corruption]. 
The Italian courts have held that the mere existence of criminal proceedings 
against the representatives of an undertaking participating in a tender does not 
constitute ‘grave professional misconduct’ liable to result in exclusion from the 
tender pursuant to Article 38(1)(f) of Legislative Decree No 163/2006.  
Succinct presentation of the facts and procedure in the main proceedings 
1 By Decision C(2007) 6318 of 7 December 2007, the European Commission 
ratified the National Operational Programme ‘Networks and Mobility’ for the 
ANAS 
 
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period 2007-2013 (‘the NOP’). ANAS was granted funding under that programme 
for the costs of roadworks carried out on the Strada Statale 96 (‘the SS 96’). The 
total amount of funding came to EUR 29 995 508.22, of which the EU 
contribution was EUR 22 496 631.17 (European Regional Development Fund 
(ERDF)) and the national contribution was EUR 7 498 877.06. The Italian 
Ministry of Infrastructure and Transport is the Managing Authority for this 
funding, which has already been partially paid to ANAS.  
2 To carry out the works on the SS 96, in 2012 ANAS published an invitation to 
tender for a contract which was awarded in the same year to a temporary 
association of undertakings involving the company Aleandri SpA (‘the Aleandri 
Consortium’). 
3 By the decision contested by this action (‘the contested decision’), the Italian 
Ministry of Infrastructure and Transport decided not to pay ANAS the remainder 
of the funding for the SS 96 and to proceed with the recovery of 100% of the 
amount already paid to that company, on the grounds that the award of the 
contract was vitiated by irregularities of a fraudulent nature within the meaning of, 
inter alia, Article 2(7) of Regulation (EC) No 1083/2006 and Articles 4 and 5 of 
Regulation (EC, Euratom) No 2988/95. Those irregularities were uncovered 
during criminal investigations, resulting in three ANAS officials being charged 
with corruption for having accepted money from Aleandri SpA to unlawfully 
influence the tender in question. Subsequently, two of the officials secured a 
negotiated sentence, handed down by the judge in charge of preliminary 
investigations at the Tribunale di Roma (District Court, Rome, Italy) in a ruling on 
28 November 2018. Those events are currently the subject of criminal 
proceedings, initiated against the legal representative of Aleandri SpA and against 
Aleandri SpA itself, charged with an administrative offence since it failed to have 
the appropriate organisational and management models in place to prevent such 
offences. In particular, the criminal investigations revealed that one of the ANAS 
officials charged had asked his colleagues on the tender evaluation committee to 
recommend the Aleandri Consortium. However, it had not been proven that those 
committee members had actually influenced the award or that other economic 
operators would have won the contract had the corruption offences not taken 
place.  
4 ANAS challenged the Ministry’s decision, seeking the annulment of same before 
the TAR del Lazio (Regional Administrative Court, Lazio, Italy), the referring 
court.  
5 The Ministry appeared in court seeking the dismissal of the action. 
The essential arguments of the parties in the main proceedings 
6 By its first plea in law, ANAS alleges the infringement and misapplication of 
Article 1(2) of Regulation (EC) No 2988/95, Article 1 of the PFI Convention of 
1995 and Article 27(c) of Regulation (EC) No 1828/2006, and misuse of powers 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-545/21 
 
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for failure to state reasons and failure to carry out a proper inquiry. In that respect, 
the applicant claims that:  
(a) in the first place, the applicant has not been convicted as such and there is no 
evidence that the Aleandri Consortium was wrongfully awarded the contract 
in question. As no undue expenditure has been made from the general 
budget of the EU, no damage has occurred; 
(b) in the second place, fraud cannot be established in the present case because 
neither Article 1 of the PFI Convention nor Regulation (EC) No 2988/95 
specify the conditions necessary to establish that an irregularity or fraud 
exists. Indeed, it was Directive (EU) 2017/1371 that first categorised fraud 
committed in relation to expenditure for public contracts as ‘fraud affecting 
the Union’s … interests’;  
(c) in the third place, in the contested decision, the Ministry incorrectly relied 
on Commission Decision C(2013) 9527, whereas the guidelines contained in 
the Commission document COCOF 07/0037/03-EN were applicable in the 
present case. In addition, the defendant applied the 100% financial 
correction automatically, without carrying out a specific assessment of the 
case.  
7 By its second plea, ANAS submits that the Ministry based the contested measure 
on a ‘sentence negotiated between the parties’, which does not amount to a 
conviction and cannot be used in civil proceedings or administrative procedures. 
8 By its third plea, ANAS alleges the infringement of Article 2(1)(7) of Regulation 
(EC) No 1083/2006, Article 98(2) of Regulation (EC) No 1083/2006 and 
Article 135 of Regulation (EU, Euratom) No 966/2012, as well as the 
infringement of the principle of proportionality and misuse of powers for failure to 
carry out a proper inquiry, in so far as the contested decision does not indicate any 
damage for the EU budget resulting from the events in question. In particular, the 
infrastructure involved in the works financed has been completed and is usable, 
and the regularity of the works carried out has not been contested. Furthermore, 
the EU funds were used for their intended purpose, and there is no evidence of 
undue expenditure being charged to the general budget of the EU. The applicant 
submits that, given the circumstances of the case, the Ministry at least could have 
applied a lower percentage than the financial correction contained in the contested 
measure, in accordance with the Commission’s guidelines on financial 
corrections. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 In the view of the referring court, the evidence at its disposal does not allow it to 
say with certainty that the contract in question was unlawfully awarded to the 
Aleandri Consortium; conversely, it has been partially proven that Aleandri SpA 
acted with a view to influencing the outcome of the tendering procedure. 
ANAS 
 
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Nevertheless, the court points out that the tender in question, having been 
published in 2012, is governed by Legislative Decree No 163/2006, currently 
repealed, which did not expressly provide for the exclusion of an economic 
operator who attempts to influence the decisions of the contracting authority, 
whereas that exclusion is explicitly provided for in Article 57(4)(i) of the current 
Directive 2014/24/EU. Consequently, the award cannot be deemed unlawful on 
the basis of the conduct of the legal representative of Aleandri SpA. 
10 According to the referring court, the Court of Justice must clarify whether, in a 
case such as the one at issue in the present action, an ‘irregularity’ in the form of 
‘fraud’ may be held to exist within the meaning of Regulation (EC) No 2006/1083 
and, if so, whether the 100% financial correction may be applied. The referring 
court finds that there was no damage to the general budget of the European Union 
in the present case, because the funding was used for its intended purpose. Indeed, 
the project in question was included in the 2007-2013 NOP, was eligible for 
funding from the EU budget without objection and was duly completed. 
According to the referring court, there is insufficient evidence to establish 
interference in the tendering procedure, first because the sentence negotiated 
between the parties and handed down to the ANAS officials does not determine 
the liability of the legal representative of Aleandri SpA, and second because the 
legal representative is still the subject of criminal proceedings for those events and 
might even be acquitted. In the opinion of the referring court, even if there were 
sufficient evidence to establish that the legal representative of Aleandri SpA had 
bribed certain ANAS officials in order to be awarded the contract, it would have 
been impossible to exclude the economic operator who had attempted to influence 
the outcome of the tender, given that Article 38 of Legislative Decree 
No 163/2006, applicable to the tendering procedure in question, did not provide 
for such exclusion. 
11 The referring court has doubts as to the consistency of the national legislation 
applicable in the present case with Directive 2004/18/EC, which was in force at 
the material time, if Article 45(2)(d) of that directive is interpreted as meaning that 
the concept of ‘grave professional misconduct’ implicitly includes conduct 
intended to influence the award. However, the same court doubts that this is the 
correct interpretation, since Article 57(4)(i) of Directive 2014/24/EU explicitly 
mentioned in the grounds for exclusion of competitors conduct aimed at 
influencing tendering procedures. Moreover, that express provision of 
Article 57(4)(i) might simply confirm a principle that was already implicit in 
procurement law when Directive 2004/18/EC was still in force. 
12 The referring court also takes the view that damage to the budget of the European 
Union has not been established, which might have occurred had the tender 
submitted by the successful economic operator (the Aleandri Consortium) not 
represented the best value for money. 
13 According to the same court, the concepts of ‘irregularity’ and ‘fraud’ which can 
be inferred from the provisions of EU law presuppose that the existence of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-545/21 
 
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damage to the EU budget has been proven, at least potentially, consisting of the 
allocation of undue expenditure to that budget, or the use of funding for purposes 
other than those for which it was granted. In that respect, the referring court refers 
to Commission Decision No 9527 of 19 December 2013, which provides for the 
possibility of applying a 100% financial correction in cases of irregularities 
committed in favour of certain participants in the tendering procedure: the 
referring court holds that the decision includes among those irregularities cases 
where EU funding was used for its intended purpose, but was allocated to a person 
who was not eligible to receive it, for example because that person did not meet 
the contract award criteria.  
14 The referring court has doubts as to whether the concept of irregularity contained 
in Commission Decision No 9527 of 19 December 2013 is entirely consistent with 
EU law for the following reasons: 
(a) In the first place, the provisions referred to do not expressly mention cases 
where the funds are allocated to a party who is not eligible to receive them. 
(b) In the second place, the referring court assumes that irregularities, including 
fraud, presuppose the payment of expenditure from the general budget of the 
EU which would not have been made had those irregularities not been 
committed; if that assumption proved to be correct, the 100% financial 
correction applied to an eligible and duly completed project would be 
unjustified. 
(c) In the third place, Articles 98 and 99 of Regulation (EC) No 1083/2006 
provide that the Commission, when determining the extent of financial 
corrections, must take into account the nature and gravity of the 
irregularities as well as other factors, while Regulation (EC) No 1303/2013 
provides that corrections must be applied in accordance with the principle of 
proportionality. The referring court questions whether the principle whereby 
the financial correction is intended to remedy actual damage can be inferred 
from the abovementioned provisions, such that, in cases of irregularities 
consisting of unduly favouring an economic operator, the amount of funding 
to be repaid should correspond to the damage actually caused to the 
European Union. That principle is also reflected in the abovementioned 
Decision No 9527 of 19 December 2013, which provides for a maximum 
correction of 25% in the event of non-compliance with the award criteria set 
out in the contract notice.  
(d) In the fourth place, Decision No 9527 of 19 December 2013, in so far as it 
allows a 100% correction rate to be applied in cases of conduct intended to 
favour an economic operator, even in the absence of proof of the actual 
existence of such conduct and the actual advantage conferred on the 
economic operator, implies that the decision to recover the funding has a 
punitive function, which is, however, contrary to Regulation (EC) 
ANAS 
 
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No 2988/1995, which makes a clear distinction between the recovery of 
funding and the penalties to be imposed on fraudsters. 
15 The referring court maintains that the questions referred are relevant to the 
decision, since they serve to establish whether the concepts of irregularity and 
fraud also extend to situations in which there is no complete proof of the conduct 
that led to the allocation of the aid to a person who was not eligible to receive it 
(question 1). Furthermore, for the purposes of the decision, it is necessary to 
clarify whether the conduct of the legal representative of Aleandri SpA, who is 
accused of having bribed certain ANAS officials, is in itself capable of rendering 
unlawful the award of the contract in question (question 2). Questions 1 and 2 
relate to the arguments raised by ANAS, which contests that the contract was 
unlawfully awarded to the Aleandri Consortium. Question 3 seeks to establish 
whether damage to the EU budget can be considered to exist in relation to an 
eligible project which was included in the NOP and duly completed, and – if such 
damage is deemed to exist – whether recovery of 100% of the funding is 
necessary. If question 3 is answered in the negative, this would mean that the 
action brought by ANAS would be upheld. Question 4 concerns the argument put 
forward by ANAS that the Ministry could and should apply a correction rate of 
less than 100% to the recovery of the funding. If question 4 is answered in the 
affirmative, this would also mean that the action brought by ANAS would be 
upheld.