62010TJ0384_EN
Parties
Grounds
Operative part
Parties
In case T-384/10,
Kingdom of Spain,
represented initially by J.M. Rodríguez Cárcamo, and subsequently by A. Rubio González, abogados del Estado,
applicant,
v
European Commission,
represented by A. Steiblytė, D. Kukovec and B. Conte, acting as Agents, assisted initially by J. Rivas Andrés, X. García García, avocats, and M. Vilarasau Slade, solicitor, and subsequently by J. Rivas Andrés and X. García García,
defendant,
APPLICATION for annulment of Commission Decision C(2010) 4147 of 30 June 2010, reducing the financial assistance granted from the Cohesion Fund to the following (groups of) projects: ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (2000.ES.16.C.PE.133), ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (2000.16.C.PE.066) and ‘Water supply to multi-municipal systems in the provinces of Granada and Malaga’ (2002.ES.16.C.PE.061),
THE GENERAL COURT (First Chamber)
composed of J. Azizi, President, S. Frimodt Nielsen and M. Kancheva (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 12 November 2012,
gives the following
Judgment
Grounds
Legal context
Provisions relating to the Cohesion Fund
1. Article 158 EC (now, after amendment, Article 174 TFEU) provides:
‘In order to promote its overall harmonious development, the Community shall develop and pursue its actions leading to the strengthening of its economic and social cohesion.
In particular, the Community shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands, including rural areas.’
2. Pursuant to the second paragraph of Article 161 EC (now, after amendment, the second paragraph of Article 177 TFEU):
‘A Cohesion Fund set up by the Council … shall provide a financial contribution to projects in the fields of environment and trans-European networks in the area of transport infrastructure.’
3. The Cohesion Fund was created by Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p. 1).
4. Article 4 of Regulation No 1164/94, as amended, sets out the total amount of financial resources which may be allocated to projects eligible for assistance from the Cohesion Fund for the period 2000 to 2006.
5. Article 7(1) of Regulation No 1164/1994, as amended, provides that the rate of Community assistance granted by the Cohesion Fund shall be 80 to 85% of public or equivalent expenditure.
6. Under Article 8(1) of Regulation No 1164/94, as amended:
‘Projects financed by the Fund shall be in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Community policies, including those concerning environmental protection, transport, trans-European networks, competition and the award of public contracts.’
7. Article 12(1)(c) of Regulation No 1164/94, as amended, provides:
‘1. Without prejudice to the Commission’s responsibility for implementing the Community budget, Member States shall take responsibility in the first instance for the financial control of projects. To that end, the measures they take shall include:
…
(c) ensuring that projects are managed in accordance with all the applicable Community rules and that the funds placed at their disposal are used in accordance with the principles of sound financial management;
…’
8. The rules on the management of the Cohesion Fund are detailed in Annex II to Regulation No 1164/94, as amended.
9. Article H of Annex II to Regulation No 1164/94, as amended, states:
‘Financial corrections
1. If, after completing the necessary verifications, the Commission concludes that:
(a) the implementation of a project does not justify either part or the whole of the assistance granted to it, including a failure to comply with one of the conditions in the decision to grant assistance and in particular any significant change affecting the nature or conditions of implementation of the project for which the Commission’s approval has not been sought, or
(b) there is an irregularity with regard to assistance from the Fund and that the Member State concerned has not taken the necessary corrective measures, the Commission shall suspend the assistance in respect of the project concerned and stating its reason, request that the Member State submits its comments within a specified period of time.
If the Member State objects to the observations made by the Commission, the Member State shall be invited to a hearing by the Commission, in which both sides make efforts to reach an agreement about the observations and the conclusions to be drawn from them.
2. At the end of the period set by the Commission, the Commission shall, subject to the respect of due procedure, if no agreement has been reached within three months, taking into account any comments made by the Member State, decide to:
(a) reduce the payment on account referred to in Article D(2), or
(b) make the financial corrections required. This shall mean cancelling all or part of the assistance granted to the project.
These decisions shall respect the principle of proportionality. The Commission shall, when deciding the amount of a correction, take account of the type of irregularity or change and the extent of the potential financial impact of any shortcomings in the management or control systems. Any reduction or cancellation shall give rise to recovery of the sums paid.
3. Any sum received unduly and to be recovered shall be paid to the Commission. Interest on account of late repayment shall be charged in accordance with the rules to be adopted by the Commission.
4. The Commission shall lay down the detailed rules for implementing paragraphs 1 to 3 and shall inform the Member States and the European Parliament thereof.’
10. Articles 17 to 21 of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Regulation No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections (OJ 2002 L 201, p. 5) specify the subject-matter and scope of the regulation and contain detailed provisions on the procedure to be followed for correcting assistance received from the Cohesion Fund as from 1 January 2000.
11. Article 17(1) and (2) of Regulation No 1386/2002 provides:
‘1. The amount of financial corrections made by the Commission under Article H(2) of Annex II to [Regulation No 1164/94] for individual or systemic irregularities shall be assessed, wherever this is possible and practicable, on the basis of individual files and shall be equal to the amount of expenditure wrongly charged to the Fund, having regard to the principle of proportionality.
2. When it is not possible or practicable to quantify the amount of irregular expenditure precisely, or when it would be disproportionate to cancel entirely the expenditure in question, and the Commission therefore bases its financial corrections on extrapolation or a flat rate, it shall proceed as follows:
(a) in the case of extrapolation, it shall use a representative sample of transactions with like characteristics;
(b) in the case of a flat rate, it shall assess the importance of the infringement of rules and the extent and financial implications of any shortcomings in the management and control system that have led to the irregularity established.
…’
12. The guidelines on the principles, criteria and indicative scales to be applied by Commission departments in determining financial corrections under Article H(2) of Annex II to Regulation No 1164/94 establishing a Cohesion Fund (C(2002) 2871) (‘the 2002 guidelines’) set out the general principles and criteria used by the European Commission in practice to determine those financial corrections. In addition, the 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 (‘the 2007 guidelines’) lay down the amounts and scales to be applied specifically to irregularities detected in the application of the Union’s regulations on public procurement to contracts co-financed by the Cohesion Fund.
Provisions relating to public contracts
13. In accordance with Article 8(1) of Regulation No 1164/94 (see paragraph 6 above), the relevant legislation on public contracts comprises, in particular, Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1).
Directive 93/37
14. In accordance with the provisions of its preamble and recital two, Directive 93/37 aims to abolish restrictions on freedom of establishment and the free movement of services as regards public procurement with a view to opening up the contracts concerned to effective competition. Recital ten of that directive states that to ensure development of effective competition, it is necessary that ‘contract notices drawn up by the contracting authorities of Member States be advertised throughout the Community’.
15. As set out in Article 1(c), (e), (f) and (g) of Directive 93/37:
‘For the purposes of this Directive:
…
(c) a “work” means the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfil an economic and technical function;
…
(e) “open procedures” are those national procedures whereby all interested contractors may submit tenders;
(f) “restricted procedures” are those national procedures whereby only those contractors invited by the contracting authority may submit tenders;
(g) “negotiated procedures” are those national procedures whereby contracting authorities consult contractors of their choice and negotiate the terms of the contract with one or more of them;
…’
16. Article 2(1) of Directive 93/37 provides:
‘Member States shall take the necessary measures to ensure that the contracting authorities comply or ensure compliance with this Directive where they subsidise directly by more than 50% a works contract awarded by an entity other than themselves.’
17. Article 6(1), (4) and (6) of Directive 93/37 state:
‘1. This Directive shall apply to:
(a) public works contracts whose estimated value net of value-added tax (VAT) is not less than the equivalent in [EUR] of 5 000 000 special drawing rights (SDRs);
(b) public works contracts referred to in Article 2(1) whose estimated value net of VAT is not less than [EUR] 5 000 000.
…
4. No work or contract may be split up with the intention of avoiding the application of this Directive.
…
6. Contracting authorities shall ensure that there is no discrimination between the various contractors.’
18. Article 7 of Directive 93/37 provides that, when awarding public works contracts, the contracting authorities must apply open and restricted procedures, except in the cases envisaged in paragraphs 2 and 3 of that article, when the negotiated procedure may be used. In particular, under Article 7(3)(d) of the directive:
‘The contracting authorities may award their public works contracts by negotiated procedure without prior publication of a contract notice, in the following cases:
…
(d) for additional works not included in the project initially considered or in the contract first concluded but which have, through unforeseen circumstances, become necessary for the carrying out of the work described therein, on condition that the award is made to the contractor carrying out such work:
– when such works cannot be technically or economically separated from the main contract without great inconvenience to the contracting authorities,
or
– when such works, although separable from the execution of the original contract, are strictly necessary to its later stages.
However, the aggregate amount of contracts awarded for additional works may not exceed 50% of the amount of the main contract.’
19. Article 11(1) of Directive 93/37 provides:
‘Contracting authorities shall make known, by means of an indicative notice, the essential characteristi cs of the works contracts which they intend to award and the estimated value of which is not less than the threshold laid down in Article 6(1).’
20. Article 30 of Directive 93/37 sets out the criteria for the award of works contracts falling within the scope of that directive. In particular, according to Article 30(1), (2) and (4):
‘1. The criteria on which the contracting authorities shall base the award of contracts shall be:
(a) either the lowest price only;
(b) or, when the award is made to the most economically advantageous tender, various criteria according to the contract: e.g. price, period for completion, running costs, profitability, technical merit.
2. In the case referred to in paragraph 1(b), the contracting authority shall state in the contract documents or in the contract notice all the criteria it intends to apply to the award, where possible in descending order of importance.
…
4. If, for a given contract, tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.’
Directive 92/50
21. Article 3(2) and (3) of Directive 92/50 provide:
‘2. Contracting authorities shall ensure that there is no discrimination between different service providers.
3. Member States shall take the necessary measures to ensure that the contracting authorities comply or ensure compliance with this Directive where they subsidise directly by more than 50% a service contract awarded by an entity other than themselves in connection with a works contract within the meaning of Article 1a(2) of Directive 71/305/EEC.’
22. Article 7(1) and (3) of Directive 92/50 state:
‘1. (a) This Directive shall apply to:
– public service contracts referred to in Article 3(3), public service contracts concerning the services referred to in Annex I B, the services in category 8 in Annex I A and the telecommunications services in category 5 of Annex I A under CPC references 7524, 7525 and 7526, awarded by the contracting authorities referred to in Article 1(b), where the estimated net value of value-added tax (VAT) is not less than [EUR] 200 000,
…
3. The selection of the valuation method shall not be used with the intention of avoiding the application of this Directive, nor shall any procurement requirement for a given amount of services be split up with the intention of avoiding the application of this Article.’
23. Article 15(2) of Directive 92/50 provides:
‘Contracting authorities who wish to award a public service contract by open, restricted or, under the conditions laid down in Article 11, negotiated procedure, shall make known their intention by means of a notice.’
24. Under Article 17(4) of Directive 92/50:
‘The notices referred to in Article 15(2) and (3) shall be published in full in the Official Journal of the European Communities
and in the TED data bank in their original language. A summary of the important elements of each notice shall be published in the official languages of the Communities, the text in the original language alone being authentic.’
25. Article 18(1) of Directive 92/50 provides:
‘In open procedures the time limit for the receipt of tenders shall be fixed by the contracting authorities at not less than 52 days from the date of dispatch of the notice.’
26. Chapter 3 of Directive 92/50 sets out the criteria for the award of service contracts falling within the scope of that directive. According to Article 36 thereof:
‘1. Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteria on which the contracting authority shall base the award of contracts may be:
(a) where the award is made to the economically most advantageous tender, various criteria relating to the contract: for example, quality, technical merit, aesthetic and functional characteristics, technical assistance and after-sales service, delivery date, delivery period or period of completion, price; or
(b) the lowest price only.
2. Where the contract is to be awarded to the economically most advantageous tender, the contracting authority shall state in the contract documents or in the tender notice the award criteria which it intends to apply, where possible in descending order of importance.’
27. As set out in Article 37 of Directive 92/50:
‘If, for a given contract, tenders appear to be abnormally low in relation to the service to be provided, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations which are justified on objective grounds including the economy of the method by which the service is provided, or the technical solutions chosen, or the exceptionally favourable conditions available to the tenderer for the provision of the service, or the originality of the service proposed by the tenderer.
If the documents relating to the contract provide for its award at the lowest price tendered, the contracting authority must communicate to the Commission the rejection of tenders which it considers to be too low.’
Background to the dispute
Projects and groups of projects involved
Andévalo project
28. By decision C(2001) 4113 of 18 December 2001, subsequently amended by decision C(2006) 3835 of 21 August 2006, the Commission granted aid from the Cohesion Fund to the project with reference number 2000.ES.16.C.PE.133 entitled ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (‘the Andévalo project’). The aim of the project was to improve the conditions for the supply and provision of water to the municipalities located along the Guadiana river. The eligible total or equivalent public cost for this project was set at EUR 11 419 216 and the contribution from the Cohesion Fund was EUR 9 135 373.
29. The Spanish authorities implemented the Andévalo project by means of the following works contracts:
– Contract No 1: works contract C6 concerning western Andévalo, published in the Official Journal of the European Union
and awarded on 5 December 2000 in the amount of EUR 6 729 606.04, including VAT. The estimated value net of VAT of that contract was EUR 6 393 693.58;
– Contract No 2: works contract C7 concerning eastern Andévalo, tranches I, IV and VI, not published in the Official Journal and awarded on 2 February 2000 in the amount of EUR 2 286 142.95, including VAT.
– Contract No 3: works contract C8 concerning eastern Andévalo, tranches II, III and V, not published in the Official Journal and awarded on 1 December 2000 in the amount of EUR 2 461 997, including VAT. The estimated value net of VAT of that contract was EUR 2 491 978.77. It was amended by way of an addendum concluded directly with the tenderer in the amount of EUR 172 867.02, including VAT.
30. The body responsible for carrying out the Andévalo project was the Dirección General de Obras Hidráulicas de la Junta de Andalucía (Directorate-General for Hydraulic Works of the Government of Andalusia). It delegated that task to the company GIASA.
Guadalquivir group of projects
31. By decision C(2000) 4316 of 29 December 2000, subsequently amended by decision C(2006) 3417 of 1 December 2006, the Commission granted aid from the Cohesion Fund to the group of projects with reference number 2000.16.C.PE.066 entitled ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (‘the Guadalquivir group of projects’). The aim of this group of projects was to improve the treatment of waste water along the Guadalquivir river in accordance with Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40). The eligible total or equivalent public cost for this group of projects was set at EUR 40 430 000 and the contribution from the Cohesion Fund was EUR 32 079 293.
32. The Guadalquivir group of projects comprised six projects, No 1 of which involved the construction of waste water and sewage treatment plants in the communes of Morón de la Frontera (Spain), Arahal (Spain) and Mairena-El Viso del Alcor (Spain), and No 2 of which involved the construction of a sewer along the Guadalquivir in the area of El Aljarafe.
33. The Spanish authorities implemented project No 1 by means of the following works contracts:
– Contract No 1: works contract C9 concerning the Arahal waste water treatment plant, not published in the Official Journal and awarded on 30 January 2001 in the amount of EUR 2 695 754.97, including VAT;
– Contract No 2: works contract C10 concerning the works to complete the sewers at the Arahal waste water treatment plant, not published in the Official Journal and awarded on 5 July 2002 in the amount of EUR 1 489 645.75, including VAT;
– Contract No 3: works contract C11 concerning the projects and works at Morón waste water treatment plant, not published in the Official Journal and awarded on 15 December 2000 in the amount of EUR 4 223 345.28, including VAT;
– Contract No 4: works contract C12 concerning the works on the sewers in Morón de la Frontera, not published in the Official Journal and awarded on 15 December 2000 in the amount of EUR 1 731 763.63, including VAT;
– Contract No 5: works contract C13 concerning the sewers in Mairena and El Viso del Alcor, not published in the Official Journal and awarded on 18 December 2000 in the amount of EUR 1 839 563.07, including VAT.
34. The Spanish authorities implemented project No 2 by means of the following works contracts:
– Contract No 6: works contract C14 concerning drainage in El Aljarafe and the sewers on the right bank of the Guadalquivir river, tranche I, published in the Official Journal and awarded on 10 December 2001 in the amount of EUR 9 406 625.91, including VAT. The estimated value net of VAT of that contract was EUR 8 118 902.97;
– Contract No 7: works contract C15 concerning drainage in El Aljarafe and the sewers on the right bank of the Guadalquivir river, tranche III, published in the Official Journal and awarded on 25 October 2002 in the amount of EUR 8 759 174.44, including VAT. The estimated value net of VAT of that contract was EUR 7 360 382.98;
– Contract No 8: works contract C16 concerning drainage in El Aljarafe and the sewers on the right bank of the Guadalquivir river, tranche IV, not published in the Official Journal and awarded on 20 November 2002 in the amount of EUR 3 091 893.55, including VAT. The estimated value net of VAT of that contract was EUR 2 273 420.82.
35. The body responsible for carrying out the Guadalquivir group of projects was the Agencia Andaluza del Agua de la Consejería de Medio Ambiente de la Junta de Andalucía (Andalusian Water Agency of the Government of Andalusia’s Environment Department). It delegated that task to the company GIASA.
Granada and Malaga group of projects
36. By decision C(2001) 4689 of 24 December 2002, subsequently amended by decision C(2006) 3784 of 16 August 2006, the Commission granted aid from the Cohesion Fund to the group of projects with reference number 2002.ES.16.C.PE.061 entitled ‘Water supply to multi-municipal systems in the provinces of Granada and Malaga’ (‘the Granada and Malaga group of projects’). The aim of this group of projects was to improve conditions for the supply and provision of water to the municipalities located in the provinces of Granada and Malaga. The eligible total or equivalent public cost for this project was set at EUR 22 406 817 and the contribution from the Cohesion Fund was EUR 17 925 453.
37. The Granada and Malaga group of projects comprised six projects, Nos 3 and 4 of which involved, respectively, the construction of a bypass ring and a regulating reservoir to supply water to the municipality of Antequera (Spain), and No 5 of which involved the construction of a regulating reservoir and a chain link fence for the supply of water to the area of Axarquía.
38. The Spanish authorities implemented projects Nos 3 and 4 by means of the following works and service contracts:
– Contract No 1: works contract C1 concerning the execution of the works on the bypass ring to supply water to Antequera, not published in the Official Journal and awarded on 26 December 2002 in the amount of EUR 5 100 083.94, including VAT. The estimated value net of VAT of that contract was EUR 4 922 173.86;
– Contract No 2: service contract C2 concerning the establishment of the project and management of the works on the construction of the bypass ring and regulating reservoir to supply water to Antequera, not published in the Official Journal and awarded on 1 July 2002 in the amount of EUR 349 708.28, including VAT. The estimated value net of VAT of that contract was EUR 347 136.30;
– Contract No 3: works contract C3 concerning the execution of the works on the bypass ring to supply water to Antequera, not published in the Official Journal and awarded on 19 May 2003 in the amount of EUR 3 632 124.71, including VAT. The estimated value net of VAT of that contract was EUR 3 514 731.79.
39. The Spanish authorities implemented project No 5 by means of the following works and service contracts:
– Contract No 4: works contract C4 concerning the execution of the works under the project relating to reservoir No 1 of the system for the supply of water to Axarquía and to the chain link fence in Velez-Malaga (Spain), not published in the Official Journal and awarded on 20 November 2003 in the amount of EUR 10 959 270, including VAT. The estimated value net of VAT of that contract was EUR 9 605 655.66;
– Contract No 5: service contract C5 concerning the establishment of the project and management of the works relating to the construction of reservoir No 1 of the system for the supply of water to Axarquía and of the chain link fence in Velez-Malaga (Spain), not published in the Official Journal and awarded on 18 November 2003 in the amount of EUR 341 043.97, including VAT. The estimated value net of VAT of that contract was EUR 383 922.38, that is, EUR 180 821.74 for the establishment of the project and EUR 203 100.64 for the management of the works.
40. The body responsible for carrying out the group of projects was the Dirección General de Obras Hidráulicas de la Junta de Andalucía. It delegated that task to the company GIASA.
Administrative procedure
41. From 13 to 17 September 2004, 13 to 17 December 2004 and 25 to 29 April 2005, the Commission conducted an audit mission in Spain relating to, respectively, the Andévalo project, the Guadalquivir group of projects, and the Granada and Malaga group of projects.
42. By letters of 13 May 2005, 15 December 2005 and 20 January 2006, the Commission sent the Spanish authorities three reports identifying irregularities that had been established in the project and the groups of projects under audit, concerning an infringement of the rules on the award of public contracts. The Spanish authorities replied to those reports by letters of 26 July 2005, 3 March 2006 and 19 April 2006.
43. By letter of 9 February 2009, the Commission informed the Spanish authorities that the irregularities established were considered to be proven and notified them of its intention to launch the procedure for the suspension of interim payments and the making of financial corrections in conformity with Article H of Annex II to Regulation No 1164/1994. The Spanish authorities replied to the Commission by letters of 11 and 18 May and 29 October 2009.
44. On 10 November 2009, the Commission organised a hearing with the Spanish authorities with a view to reaching an agreement on the issues in dispute. During that hearing, the Spanish authorities asked for an additional period of 15 days in order to submit further evidence concerning the matter. On 2 December 2009, the Spanish authorities forwarded the documentation in question.
45. By letter of 11 February 2010, the Commission sent the Spanish authorities the final version of the minutes of the hearing.
Contested decision
46. On 30 June 2010, the Commission adopted Decision C(2010) 4147 reducing the financial assistance granted from the Cohesion Fund to the following (groups of) projects: ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (2000.ES.16.C.PE.133); ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (2000.16.C.PE.066); and ‘Water supply to multi-municipal systems in the provinces of Granada and Malaga’ (2002.ES.16.C.PE.061), (‘the contested decision’), which was notified to the Kingdom of Spain on 1 July 2010.
47. In the contested decision, the Commission claimed that during its on-the-spot audit missions in Spain, it identified irregularities regarding the Spanish authorities’ failure to comply with the rules on the award of public contracts. In particular, it took the view that some of the contracts published by the company GIASA, relating to the Andévalo project, the Guadalquivir group of projects, and the Granada and Malaga group of projects, had been awarded in breach of Articles 6, 7, 11 and 30 of Directive 93/37, Articles 7, 15, 18, 36 and 37 of Directive 92/50 and the principles of equal treatment and non-discrimination on the ground of nationality.
48. First, the Commission stated that the Spanish authorities had artificially split some public contracts involving a single work in order to avoid the scope of Directive 93/37 and thereby circumvent the obligation to publish a contract notice in the Official Journal. According to the Commission, that irregularity concerned, in particular, contracts Nos 1 and 3 relating to the Andévalo project, contracts Nos 6, 7 and 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 3 relating to the Granada and Malaga group of projects. It also found that, in view of the amounts awarded under contracts Nos 2 and 5 relating to the Granada and Malaga group of projects, each contract should have been published separately in the Official Journal.
49. Secondly, the Commission pointed out that the contracting authority had included the criterion of experience in Spain, in Andalusia and with the company GIASA among the award criteria for all of the contracts in question. It considered that the inclusion of such a criterion was not in accordance with EU legislation as it related to the capacity of tenderers and not to the subject-matter of the contract, with the result that it was capable of infringing the principle of equal treatment. The Commission also found that the requirement for experience in Spain, in Andalusia and with the company GIASA was at odds with the principle of non-discrimination on the ground of nationality. Moreover, it questioned the use of the ‘average price’ method to award points in the economic evaluation carried out at the award stage of most of the contracts in question. In the Commission’s view, that method was not in accordance with EU legislation in so far as its use was liable to favour, on the same footing as the other criteria, higher bids that were closer to the ‘average price’ over other lower bids.
50. Thirdly, the Commission criticised the Spanish authorities for having used the negotiated procedure set out in Directive 93/37 to award additional works to a public contract that had already been awarded without prior publication of a contract notice. It also found that the Spanish authorities had failed to prove the existence of unforeseen circumstances enabling them to have recourse to such a procedure in conformity with the exceptions laid down in EU legislation, so that they ought to have used the open procedure. The Commission restricted that irregularity to the addendum inserted by the Spanish authorities in contract No 3 relating to the Andévalo project after it was awarded.
51. Fourthly, the Commission criticised the Spanish authorities for having provided for a ‘pre-award’ procedure in the tender specifications for the contracts awarded in the Granada and Malaga group of projects, involving the possibility of negotiating the terms and conditions of those contracts with the tenderer, even after their award. It found that procedure to be in breach of EU legislation and capable of depriving the open procedure leading to the contract award of its effectiveness.
52. Fifthly, the Commission took the view that the Spanish authorities had not provided sufficient time for the lodging of tenders concerning contracts Nos 2 and 5 relating to the Granada and Malaga group of projects, contrary to the requirements of Directive 92/50.
53. In light of the irregularities established, the Commission considered it appropriate to make a financial correction in this case. However, it was of the opinion that a correction involving the cancellation of the entire expenditure of the projects in question would be disproportionate having regard to the seriousness of the irregularities detected. In addition, it stated that as it was not possible or practicable to quantify the amount of irregular expenditure precisely, it was appropriate for the corrections to be made on a flat-rate basis.
54. In particular, as regards the Andévalo project, the Commission decided that the total amount of assistance should be reduced by EUR 1 642 572.60, in accordance with the following percentages:
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contract No 3, due to the improper splitting of that contract and the lack of publication in the Official Journal;
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 1 and 3, due to the use of irregular and discriminatory award criteria. However, in respect of contract No 3, this financial correction was covered by the correction described in the previous indent;
– 10% of the Cohesion Fund contribution to the amount of certified expenditure declared for contract No 2, whose value fell below the threshold for the application of Directive 93/37, due to the use of irregular and discriminatory award criteria;
– 25% of the certified value of the addendum to contract No 3, due to the irregular direct award of the contract.
55. As regards the Guadalquivir group of projects, the Commission decided that the total amount of assistance should be reduced by EUR 3 837 074.52, in accordance with the following percentages:
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contract No 8, due to the improper splitting of that contract and the lack of publication in the Official Journal;
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 6, 7 and 8, due to the use of irregular and discriminatory award criteria. However, in respect of contract No 8, this financial correction was covered by the correction described in the previous indent;
– 10% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 1, 2, 4 and 5, whose value fell below the threshold for the application of Directive 93/37, due to the use of irregular and discriminatory award criteria.
56. As regards the Granada and Malaga group of projects, the Commission decided that the total amount of assistance should be reduced by EUR 2 295 581.47, in accordance with the following percentages:
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 1 and 3, due to the improper splitting of those contracts and the lack of publication in the Official Journal;
– 10% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 1, 3 and 4, due to the use of irregular and discriminatory award criteria, given that, even though the irregular criterion of ‘average price’ was used for those contracts, the irregular and discriminatory criterion of experience was not. However, in respect of contracts Nos 1 and 3, this financial correction was covered by the correction described in the previous indent;
– 10% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 1, 3 and 4, due to the provision made in the respective tender specifications for an irregular ‘pre-award’ procedure. However, this financial correction was covered by the corrections described in the previous indents;
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 2 and 5, due to the use of irregular and discriminatory award criteria;
– 25% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 2 and 5, due to the lack of publication in the Official Journal of the contracts in question and the provision made in the respective tender specifications for an irregular ‘pre-award’ procedure. However, this financial correction was covered by the correction described in the previous indent;
– 10% of the Cohesion Fund contribution to the amount of certified expenditure declared for contracts Nos 2 and 5, due to the failure to provide sufficient time for the lodging of tenders for the contracts in question. However, this financial correction was covered by the corrections described in the previous indents.
57. The maximum amount of assistance granted under the Cohesion Fund was set at EUR 7 260 394.79 for the Andévalo project, EUR 28 242 218.48 for the Guadalquivir group of projects and EUR 15 629 871.53 for the Granada and Malaga group of projects.
Procedure and forms of order sought by the parties
58. The Kingdom of Spain brought this action by application lodged at the Registry of the General Court on 8 September 2010.
59. By letter of 21 September 2012, the General Court requested the Kingdom of Spain, in the context of measures of organisation of procedure under Article 64(3) of its Rules of Procedure, to produce a list specifying, for each public contract in question, its estimated value net of VAT, the amount for which it was awarded inclusive of VAT and the amount for which it was awarded net of VAT. The Kingdom of Spain complied with that request within the prescribed period.
60. The Kingdom of Spain claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
61. The Commission contends that the Court should:
– dismiss the action;
– order the Kingdom of Spain to pay the costs.
Law
Summary of the pleas for annulment
62. In support of its action, the Kingdom of Spain puts forward three pleas in law, the last of which is submitted in the alternative.
63. In its first plea in law, the Kingdom of Spain essentially argues that, in its contested decision, the Commission was wrong to make financial corrections based on infringements of Directive 93/37, as none of the contracts concerned were subject to that directive. In its second plea in law, it disputes the assertion that some of the contracts relating to projects financed out of the Cohesion Fund were split in breach of Article 6(4) of Directive 93/37 in order to avoid the application of that directive. In its third plea in law, it claims that the Commission lacked transparency when it determined the financial corrections and infringed the principle of proportionality.
64. In its first plea in law, the Kingdom of Spain essentially disputes the Commission’s conclusion that some of the contracts implementing the projects affected by the contested decision were awarded in breach of the provisions of Directive 93/37. According to the Kingdom of Spain, those contracts fell outside the scope of the directive because of their value. The Commission counters that argument by claiming that the contracts were artificially split by the Spanish authorities in order to circumvent the requirements laid down in EU legislation. Since the reply to that last question forms the subject-matter of the second plea in law put forward by the Kingdom of Spain and, therefore, prejudges the assessment of the first plea in law, the second plea should be examined first, followed by the first plea and then the third plea.
The second plea in law alleging that the public contracts were not split
65. The Kingdom of Spain disputes the Commission’s conclusion that contracts Nos 1 and 3 relating to the Andévalo project, contracts Nos 6, 7 and 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 3 relating to the Granada and Malaga group of projects were artificially split by the Spanish authorities in breach of Article 6(4) of Directive 93/37. It also submits that for the purpose of proving an infringement of that provision, the Commission should have shown that, by splitting the contracts, the Spanish authorities intended to circumvent the application of the directive to the public contracts concerned.
66. As a preliminary point, it should be recalled that Article 6(4) of Directive 93/37 provides that no work or contract may be split up with the intention of avoiding the application of the directive. Moreover, Article 1(c) of that directive defines a ‘work’ as the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfil an economic and technical function. Therefore, in order to determine whether the Kingdom of Spain infringed Article 6(4) of Directive 93/37, it must be established whether the subject-matter of the contracts in question constituted a single work as referred to in Article 1(c) thereof.
67. According to the case-law, the existence of a work within the meaning of Article 1(c) of Directive 93/37 must be assessed in the light of the economic and technical function of the outcome of the works covered by the public contracts concerned (Case C-16/98 Commission v France
[2000] ECR I-8315, paragraphs 36, 38 and 47; judgment of 27 October 2005 in Joined Cases C-187/04 and C-188/04 Commission
v Italy, not published in the ECR, paragraph 27; Case C-220/05 Auroux and Others
[2007] ECR I-385, paragraph 41; and judgment of 15 March 2012 in Case C-574/10 Commission v Germany, not published in the ECR, paragraph 37).
68. In addition, the Court of Justice has made it clear that, in order for the outcome of separate works to be treated as a work within the meaning of Article 1(c) of Directive 93/37, it is sufficient for those works to fulfil the same economic function or the same technical function ( Commission v Italy, paragraph 67 above, paragraph 29). A finding of economic identicalness and technical identicalness is therefore alternative and not cumulative, as the Kingdom of Spain claims.
69. Finally, it should be noted that according to the case-law, the simultaneous issuance of invitations to tender for contested contracts, similarities between contract notices, the initiation of contracts within a single geographical area and the existence of a single contracting authority provide additional evidence militating in favour of the view that, in actual fact, the separate works contracts relate to a single work (see, to this effect, Commission
v France, paragraph 67 above, paragraph 65).
70. In the present case, the Commission took the view in its contested decision that the contracts relating to the Andévalo project, to the Guadalquivir group of projects and to the Granada and Malaga group of projects fulfilled the same technical or economic function and, therefore, constituted a single work which could not be split into separate public contracts (paragraphs 66, 97 and 122 of the contested decision). Furthermore, it found that in all three cases, the proximity in time of the contract notices, the similarities between them and the existence of a single contracting authority provided additional evidence in support of the view that the subject-matter of the contracts at issue related to a single work (paragraphs 67, 98, 123 and 124 of the contested decision).
71. The objections of the Kingdom of Spain cannot cast doubt on the Commission’s assessment.
72. As regards the Andévalo project, the Kingdom of Spain essentially claims that it was made up of separate ‘tranches’, which were not interdependent, designed to supply water to different geographical areas. Accordingly, the works covered by the three public contracts implementing this project cannot be considered the same in technical or economic terms.
73. That argument by the Kingdom of Spain cannot be accepted.
74. First, it is noteworthy that even though the Andévalo project comprised separate ‘tranches’, the project description contained in decision C(2001) 4113 — which was not called into question by the Kingdom of Spain — indicates that the project envisaged the construction of a single network of pipelines that would be connected to the same ‘Nudo Norte’ central reservoir. Thus, the different project ‘tranches’ were intended to fulfil, as a whole, the same economic and technical function, that is, the distribution of drinking water to the same residential area from a single point of supply. That conclusion is borne out by the fact that the purpose of the three public contracts implementing the Andévalo project (see paragraph 29 above) was the construction of a single network of pipelines.
75. Secondly, the Kingdom of Spain’s argument based on the judgment in Commission
v France
(paragraph 67 above) should also be dismissed. In that judgment, the Court of Justice held that an electricity supply network located in the French département of the Vendée, when considered as a whole, fulfilled the same economic and technical function, namely the transmission and sale of electricity to consumers. On that basis, the Court concluded that the works covered by the public contracts at issue in that case formed part of a single work ( Commission
v France, paragraph 67 above, paragraphs 64 and 66).
76. That reasoning can be applied to a network of pipelines, as in the present case. The function of the works covered by the public contracts in question, as in Commission v France
(paragraph 67 above), was to supply a public utility to a specific geographical area. The fact that this distribution network was intended to supply water to several municipalities does not preclude a finding that, as a whole, it fulfilled the same economic and technical function. The Court adopted a similar approach in Commission v Italy
(paragraph 67 above), concerning the construction of two motorway links. According to the Court, the civil engineering works in relation to this construction project, taken as a whole, had to be regarded as forming part of the same work in so far as they were intended, as a whole, to connect different areas affected by serious road access problems ( Commission
v Italy, paragraph 67 above, paragraph 27).
77. Thirdly, as the Commission found in paragraph 67 of the contested decision, it should be recalled that there was a clear proximity in time between the award of contract No 1 relating to the Andévalo project and that of contract No 3 relating to the same project, with a difference of only four days between the awards. Furthermore, the contracts related to the same area, namely Andévalo, with the result that the division of that area into two parts — eastern Andévalo and western Andévalo — cannot be considered sufficient to conclude that two geographically separate areas were involved. Both contracts were awarded by the same contracting authority, that is, the company GIASA. Although those factors are not, in themselves, decisive proof of the existence of a single work, in terms of the case-law cited in paragraph 69 above, they constitute additional evidence which warrants the finding that a single work exists in this case.
78. Consequently, it must be concluded that the works covered by contracts Nos 1 and 3 relating to the Andévalo project formed part of a single work as referred to in Article 1(c) of Directive 93/37.
79. As regards the Guadalquivir group of projects, the Kingdom of Spain argues, in particular, that the works covered by contracts Nos 6, 7 and 8 relating to that group of projects do not amount to a work within the meaning of EU legislation, on the ground that those works were managed by different entities and concerned geographically distant communities.
80. In this connection, it should first be noted that, as discussed in relation to the Andévalo project, it follows from the description of project No 2 set out in decision C(2000) 4316 that the project involved the construction of different ‘tranches’ of a single waste water network, which were connected to the same treatment plant or sewer. The works contracts relating to this project thus referred to the same network, the ‘tranches’ of which were not independent of each other. Therefore, as the Commission found in paragraph 97 of the contested decision, those ‘tranches’, taken as a whole, were intended to fulfil the same technical or economic function, namely to treat and purify waste water at a single treatment plant so that the water could subsequently be released into the Guadalquivir.
81. Secondly, although the Kingdom of Spain argues that the public contracts in question related to different communities, it is none the less clear that the works covered by those contracts had to be carried out in a single geographical area, namely El Aljarafe. Although those contracts may refer to operations carried out in different places, the possibility of them being considered a single work cannot be dismissed. That is the case when such operations are carried out in the same geographical area (see, to this effect, the opinion of Advocate General Jacobs in Commission
v France, paragraph 67 above, point 72 of the Opinion).
82. Thirdly, as established with respect to the Andévalo project at paragraph 77 above, the proximity in time of contracts Nos 6, 7 and 8 relating to the Guadalquivir group of projects and the existence of a single contracting authority for all contracts provide additional evidence in support of the view that the contracts concerned a single work.
83. Consequently, it must be concluded that the works covered by contracts Nos 6, 7 and 8 relating to the Guadalquivir group of projects formed part of a single work as referred to in Article 1(c) of Directive 93/37.
84. As regards the Granada and Malaga group of projects, the Kingdom of Spain claims that contracts Nos 1 and 3 relating to that group of projects concerned different projects in accordance with the decision approving the grant of assistance from the Cohesion Fund.
85. First, it is noteworthy that contracts Nos 1 and 3 relating to the Granada and Malaga group of projects concerned the construction of a bypass ring for the supply of water to Antequera and a reservoir supplying that ring. The Kingdom of Spain’s argument that those works were independent cannot, therefore, succeed. On the contrary, the works in question fulfilled the same economic and technical function, namely the provision of drinking water to a single geographical area.
86. Secondly, as the Commission found in paragraph 123 of the contested decision, works contracts Nos 1 and 3 relating to the Granada and Malaga group of projects were completed by contract No 2, the subject-matter of which was services for the establishment of the project and for the management of the works on the bypass ring and on the regulating reservoir to supply Antequera (see paragraph 38 above). This shows that both contracts were part of the same set of works.
87. Thirdly, the short interval between the publication of the contract notices for contracts Nos 1 and 3 (the first was published on 29 June 2002 and the second on 16 July 2002), as well as the existence of a single contracting authority, provide additional evidence that the works covered by those contracts concerned a single work.
88. Consequently, it must be concluded that the works covered by contracts Nos 1 and 3 relating to the Granada and Malaga group of projects formed part of a single work as referred to in Article 1(c) of Directive 93/37.
89. It should also be observed that, in addition to the arguments examined in paragraphs 72 to 88 above, the Kingdom of Spain submits that the assessments contained in the technical report annexed to the application show that the contracts in question did not cover works forming part of a work within the meaning of Article 1(c) of Directive 93/37.
90. Those assessments are not capable of affecting the conclusions set out in paragraphs 78, 83 and 88 above.
91. First, it should be recalled that the report analyses purely technical aspects and does not include a detailed examination of other factors which are equally relevant for the purpose of determining whether or not a work exists. As the Commission pointed out, the report only deals with the technical function of the public contracts in question and does not take account of their economic function.
92. Secondly, the technical report is clearly limited to describing the technical differences between each section of the works considered individually, concluding that they have different functions. That does not affect the findings made in paragraphs 72 to 88 above, in terms of which the different sections of the public contracts in question are interdependent and, when viewed as a whole, fulfil the same technical and economic function.
93. Therefore, the technical report does not show that the works covered by the contested contracts related to different matters.
94. Finally, the Kingdom of Spain submits that for the purpose of establishing an infringement of Article 6(4) of Directive 93/37, the Commission should have proven the existence of a subjective element, namely that the Spanish authorities intended to split the contracts in question in order to avoid the obligations set out in the directive. That argument cannot be upheld.
95. In that connection, it is sufficient to point out that a finding that a contract has been split in breach of European Union procurement legislation does not require proof of a subjective intention to circumvent the application of the provisions contained therein (see, to this effect, Commission
v Germany, paragraph 67 above, paragraph 49). Where such a finding has been made, as in the present case, it is irrelevant whether the infringement is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it (see, to this effect, Case C-71/97 Commission v Spain
[1998] ECR I-5991, paragraph 15). Furthermore, it should be recalled that in both Commission v France
and Auroux and Others
(paragraph 67 above), the Court considered that for the purpose of finding that Article 6(4) of Directive 93/37 had been infringed, it was not necessary for the Commission to show beforehand that the Member State concerned intended to circumvent the obligations set forth in that directive by splitting the contract.
96. It follows that the Commission did not commit any error of assessment in finding in the contested decision that the works covered by contracts Nos 1 and 3 relating to the Andévalo projects, those covered by contracts Nos 6, 7 and 8 relating to the Guadalquivir group of projects and those covered by contracts Nos 1 and 3 relating to the Granada and Malaga group of projects amounted to, respectively, a single work. Accordingly, the fact that those contracts were awarded separately constitutes an infringement of Article 6(4) of Directive 93/37.
97. The second plea in law must therefore be dismissed.
The first plea in law, alleging that the financial corrections for infringements of Directive 93/37 were made to contracts that were not governed by that directive and that the relevant principles and provisions were observed
98. The Kingdom of Spain submits that the Commission was wrong to find that the public contracts in question infringed the provisions of Directive 93/37, since they were not subject to the obligations stemming from that directive. The relevant contracts would be contract No 3 relating to the Andévalo project, contracts Nos 1, 2, 4, 5 and 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 3 relating to the Granada and Malaga group of projects. The Kingdom of Spain also states that, in contrast to the Commission’s findings in the contested decision, the public contracts which were not subject to Directive 93/37 observed the general principles applicable to the award of public contracts.
99. As a preliminary point, it should be noted that Article 6(1)(b) of Directive 93/37 provides that the directive applies to public works contracts whose estimated value net of VAT is not less than the equivalent in EUR of 5 000 000 special drawing rights. Only public works contracts whose estimated value net of VAT is not less than that amount are therefore caught by the directive.
100. In the present case, it must be established whether the estimated value net of VAT of the public contracts in question reached the threshold set out in Directive 93/37.
101. First, it should be observed that, as is apparent from paragraph 96 above, the Commission did not commit any error of assessment in finding that the Spanish authorities had artificially split the award of contract No 3 from that of contract No 1 in the Andévalo project, the award of contract No 8 from that of contracts Nos 6 and 7 in the Guadalquivir group of projects, and the award of contracts Nos 1 and 3 in the Granada and Malaga group of projects. It follows that those contracts constituted, respectively, a single work, so that for the purpose of determining whether they fell within the scope of Directive 93/37, it is necessary to add together — in accordance with Article 6(1) of the directive and based on the data provided by the Kingdom of Spain in the context of measures of organisation of procedure (see paragraph 59 above) — the estimated value net of VAT of each contract to establish whether the final amounts are not less than EUR 5 000 000.
102. As regards, first, the public works contract that was split into two separate contracts in the Andévalo project, namely contracts Nos 1 and 3, the estimated value net of VAT of those two contracts (EUR 6 393 639.58 and EUR 2 491 978.77, respectively) was EUR 8 885 618.35. Since the estimated value net of VAT of the public works contract to be awarded exceeded EUR 5 000 000, the contract in question was therefore caught by Directive 93/37.
103. As regards, second, the public works contract that was split into three separate contracts in the Guadalquivir group of projects, namely contracts Nos 6, 7 and 8, the estimated value net of VAT of those three contracts (EUR 8 118 902.97, EUR 7 360 382.98 and EUR 2 273 420.82, respectively) was EUR 17 752 706.77. Since the estimated value net of VAT of the public works contract to be awarded exceeded EUR 5 000 000, the contract in question was therefore caught by Directive 93/37.
104. As regards, third, the public works contract that was split into two separate contracts in the Granada and Malaga group of projects, namely contracts Nos 1 and 3, the estimated value net of VAT of those two contracts (EUR 4 922 173.86 and 3 514 731.79, respectively) was EUR 8 436 905.65. Since the estimated value net of VAT of the public works contract to be awarded exceeded EUR 5 000 000, the contract in question was therefore caught by Directive 93/37.
105. It follows that the argument of the Kingdom of Spain to the effect that contract No 3 relating to the Andévalo project, contract No 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 3 relating to the Granada and Malaga group of projects did not reach the threshold set out in Directive 93/37 and, consequently, were not caught by it, cannot succeed.
106. Consequently, the first plea in law must be dismissed in so far as it concerns contract No 3 relating to the Andévalo project, contract No 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 3 relating to the Granada and Malaga group of projects.
107. Secondly, with respect to the contracts that did not fall within the scope of Directive 93/37, namely contract No 2 relating to the Andévalo project and contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects, and, in particular, to whether those contracts observed the applicable principles and provisions, it should be recalled as a preliminary point that under Article H(1)(b) of Annex II of Regulation No 1164/94, the Commission may adopt measures of financial correction if it identifies an irregularity with regard to assistance from the Cohesion Fund and the Member State concerned has not taken the necessary corrective measures.
108. Furthermore, Article 8(1) of Regulation No 1164/94 essentially provides that projects financed by the Cohesion Fund must be in keeping with the provisions of the Treaties and the instruments adopted pursuant thereto.
109. According to the case-law, the strict special procedures prescribed by the directives coordinating public procurement procedures apply only to contracts whose value exceeds a threshold expressly laid down in each of those directives (order in Case C-59/00 Vestergaard
[2001] ECR I-9505, paragraph 19). Thus, the rules in those directives do not apply to contracts whose value falls below the threshold set by those directives (see, to that effect, Case C-412/04 Commission v Italy
[2008] ECR I-619, paragraph 65).
110. That does not mean that such contracts are excluded from the scope of EU law (order in Vestergaard, paragrap h 109 above, paragraph 19). In accordance with the Court of Justice’s settled case-law, as regards the award of contracts which, because of their value, are not subject to the procedures set out in EU legislation on the award of public contracts, the contracting entities are none the less bound to comply with the fundamental rules and general principles of the Treaty, in particular, the principle of non-discrimination on the ground of nationality (Case C-324/98 Telaustria and Telefonadress
[2000] ECR I-10745, paragraph 60; order in Vestergaard, paragraph 109 above, paragraphs 20 and 21; Case C-264/03 Commission
v France
[2005] ECR I-8831, paragraph 32; and Case C-6/05 Medipac-Kazantzidis
[2007] I-4557, paragraph 33).
111. However, in terms of the case-law, the application of the general principles of the Treaties to procedures for the award of contracts whose value falls below the threshold for the application of the directives is based on the premiss that the contracts in question are of a certain cross-border interest (see, to this effect, Case C-507/03 Commission v Ireland
[2007] ECR I-9777, paragraph 29, and Commission v Italy, cited in paragraph 109 above, paragraphs 66 and 67).
112. In the present case, it is necessary to determine, first, whether the projects at issue are of a certain cross-border interest and, secondly, if the answer is yes, whether the contracts implementing those projects complied with the general principles of the Treaty.
113. The Kingdom of Spain has not put forward any arguments in relation to the first question as to whether the projects at issue are of cross-border interest.
114. In any event, contract No 2 relating to the Andévalo project and contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects must be considered to be of a certain cross-border interest. It should be recalled that, according to the case-law, objective criteria such as the fact that the contract in question is for a significant amount, in conjunction with the place where the works are to be carried out, may indicate the existence of such an interest. However, it is also possible to exclude the existence of that interest in a case, for example, where the economic interest at stake in the contract in question is very modest (see, to this effect, Case C-231/03 Coname
[2005] ECR I-7287, paragraph 20, and Joined Cases C-147/06 and C-148/06 SECAP and Santorso
[2008] ECR I-3565).
115. In the present case, having regard to the estimated value net of VAT of contract No 2 relating to the Andévalo project and of each of contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects (see paragraph 29 and 33 above), as well as the proximity of the works to the Portuguese border, all of those contracts were likely to attract the interest of operators throughout the European Union, especially those established in Portugal given the place of performance of the works, and not only the interest of local operators.
116. Therefore, the procedure for the award of the contracts referred to in paragraph 115 above had to comply, in accordance with the case-law cited in paragraph 110, with the general principles of the Treaty in order to ensure fair competition conditions for all economic operators interested in the contracts.
117. In relation, second, to the question whether the Spanish authorities fulfilled their obligations with respect to the contracts referred to in paragraph 115 above, it should be noted that, in the contested decision, the Commission found that they had infringed the principle of non-discrimination on account of having used — as an award criterion — experience in Spain, in Andalusia and with the company GIASA. The Kingdom of Spain submits that the Commission’s assessment in that regard is misconceived.
118. It should be recalled from the outset that, as is apparent from paragraphs 40 and 94 of the contested decision, the criteria the lawfulness of which is open to question in the present case are, for contract No 2 relating to the Andévalo project, ‘experience in Spain, in Andalusia and with the company GIASA’ and, for contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects, ‘the quality of, and period for, execution of works during the last five years in Spain, in Andalusia and for GIASA’. Since the content of both criteria is identical, they can be examined together.
119. Moreover, according to settled case-law, the principle of non-discrimination flowing from the TFEU and, in particular, from fundamental freedoms, requires not only the elimination of all discrimination against work or service providers on the ground of their nationality, but also the abolition of any restriction, even if it applies without distinction to national providers and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider established in another Member State where he lawfully provides similar services (see, to this effect, Case C-76/90 Säger
[1991] ECR I-4221, paragraph 12).
120. In the instant case, the criteria used for the award of contract No 2 relating to the Andévalo project and contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects, which take account of the tenderer’s experience only in Spain, in Andalusia or with the company GIASA, are likely to give some tenderers an advantage over others and therefore infringe the principle of non-discrimination. Clearly, if an undertaking has not worked in Spain or in Andalusia, or has not collaborated with the company designated by the Spanish authorities, its experience in the areas covered by the public contracts in question will not be taken into account when its bid is evaluated. Accordingly, the effect of those award criteria is to give an advantage to bids from local tenderers and to penalise bids from operators established in other Member States, for whom it is more difficult to demonstrate the required experience, even though there is no direct discrimination, as the Kingdom of Spain claims.
121. It should therefore be concluded that, by using the criterion of experience in Spain, in Andalusia and with the company GIASA to award contract No 2 relating to the Andévalo project and contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects, the Spanish authorities infringed the principle of non-discrimination. Accordingly, the Commission was fully entitled to find that they had failed to observe the general European principles applicable to the award of those public contracts.
122. The first plea in law must therefore be dismissed.
The third plea in law, alleging a lack of transparency when determining the financial corrections and an infringement of the principle of proportionality
123. The Kingdom of Spain claims that the Commission failed to determine the amount of each financial correction in a transparent manner and, in that determination, infringed the principle of proportionality set out in Article H(2) of Annex II to Regulation No 1164/94. In particular, as regards the principle of proportionality, it submits that the Commission failed to observe the 2002 guidelines, since it cumulated some of the corrections made. Furthermore, the Kingdom of Spain considers that the Commission should have taken account of the fact that the Spanish authorities withdrew the award criteria in dispute from subsequent public contracts as soon as it became aware that they were irregular.
124. As a preliminary point, it should be noted that, first, as is apparent from paragraph 96 above, the Commission did not commit any error of assessment in finding that the Spanish authorities had artificially split contracts Nos 1 and 3 of the Andévalo project, contracts Nos 6, 7 and 8 of the Guadalquivir group of projects, and contracts Nos 1 and 3 of the Granada and Malaga group of projects. The argument put forward by the Kingdom of Spain in this plea in law to the effect that it succeeded in proving that the opposite was true must therefore be rejected. In addition, since contract No 3 relating to the Andévalo project, contract No 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 3 relating to the Granada and Malaga group of projects fell within the scope of Directive 93/37, they should have been published in the Official Journal.
125. Secondly, as is apparent from paragraph 121 above, the Commission was fully entitled to conclude that the use of the criterion of experience acquired in Spain, in Andalusia and with the company GIASA as an award criterion for contract No 2 relating to the Andévalo project and for contracts Nos 1, 2, 4 and 5 relating to the Guadalquivir group of projects was irregular and discriminatory.
126. Thirdly, the Kingdom of Spain does not dispute the Commission’s conclusions in the contested decision that the criteria of experience and average price were irregular and discriminatory, thereby invalidating the award of the public contracts at issue. That irregularity concerned the award of contracts Nos 1 and 3 relating to the Andévalo project, contracts Nos 6, 7 and 8 relating to the Guadalquivir group of projects and contracts Nos 1 and 4 relating to the Granada and Malaga group of projects.
127. Fourthly, in its action the Kingdom of Spain does not challenge the legality of the contested decision as regards the other infringements of Union rules established by the Commission. In particular, in respect of the award of contracts Nos 2 and 5 relating to the Granada and Malaga group of projects, it does not dispute the claims concerning the improper splitting of the contracts, the lack of publication in the Official Journal and the failure to provide sufficient time for the lodging of tenders. Moreover, in the case of the award of contracts Nos 1, 3 and 4 relating to the Granada and Malaga group of projects, the Kingdom of Spain does not deny that provision was made for an irregular ‘pre-award’ procedure at the contract award stage.
128. Accordingly, in order to ascertain whether the Commission infringed the principles of transparency and proportionality when determining the financial corrections, account should be taken of all of the irregularities established in the contested decision (paragraphs 33, 34 and 36 thereof). The infringements in question are described below.
129. As regards the Andévalo project, the Commission found that the following had been infringed:
– Articles 6(6) and 30 of Directive 93/37 in the award of contract No 1 relating to that project, on the ground that the contract provided for discriminatory and irregular criteria;
– the general principles of equal treatment and non-discrimination in the award of contract No 2 relating to that project, on the ground that the contract, which fell below the threshold for the application of Directive 93/37, provided for discriminatory and irregular criteria;
– Articles 6(4), 11(1), 7(3)(d), 6(6) and 30 of Directive 93/37 in the award of contract No 3 relating to the same project, on the ground that the contract was improperly split from contract No 1, was not published in the Official Journal, was amended using a negotiated award procedure and provided for discriminatory and irregular criteria.
130. As regards the Guadalquivir group of projects, the Commission found that the following had been infringed:
– the general principles of equal treatment and non-discrimination in the award of contracts Nos 1, 2, 4 and 5 relating to that group of projects, on the ground that the contracts, which fell below the threshold for the application of Directive 93/37, provided for discriminatory and irregular criteria;
– Articles 6(6) and 30 of Directive 93/37 in the award of contracts Nos 6 and 7 relating to that group of projects, on the ground that the contracts provided for discriminatory and irregular criteria;
– Articles 6(4), 11(1), 6(6) and 30 of Directive 93/37 in the award of contract No 8 relating to the same group of projects, on the ground that the contract was improperly split from contracts Nos 6 and 7, was not published in the Official Journal and provided for discriminatory and irregular criteria.
131. As regards the Granada and Malaga group of projects, the Commission found that the following had been infringed:
– Articles 6(4), 11(1), 7(4), 6(6) and 30 of Directive 93/37 in the award of contracts Nos 1 and 3 relating to that group of projects, on the ground that the contracts were artificially created divisions of a public contract that had been improperly split, were not published in the Official Journal and provided for an irregular ‘pre-award’ procedure as well as discriminatory and irregular criteria;
– Articles 7(4), 6(6) and 30 of Directive 93/37 in the award of contract No 4 relating to that group of projects, on the ground that the contract provided for an irregular ‘pre-award’ procedure as well as discriminatory and irregular criteria;
– Articles 7(3), 15(2), 18(1), 36 and 37 of Directive 92/50 in the award of contracts Nos 2 and 5 relating to the same group of projects, on the ground that the contracts were not published in the Official Journal and provided for discriminatory and irregular criteria.
132. Under Article H(2)(b), second subparagraph, and (3) of Annex II to Regulation No 1164/94, decisions of the Commission imposing financial corrections must respect the principle of proportionality. When determining the amount of a correction, the Commission must take account of the type of irregularity or change and the extent of the potential financial impact of any shortcomings in the management or control systems.
133. In that connection, it should be noted that the principle of proportionality is one of the general principles of EU law. It requires that measures adopted by Union institutions must not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to this effect, Case T-308/05 Italy
v Commission
[2007] ECR II-5089, paragraph 153 and the case-law cited).
134. In particular, in the light of the principle of proportionality, the infringement of obligations the observance of which is of fundamental importance to the proper functioning of a Union system may be penalised by forfeiture of a right conferred by Union legislation, such as the entitlement to financial assistance (see, to this effect, Case T-199/99 Sgaravatti Mediterranea v Commission
[2002] ECR II-3731, paragraphs 134 and 135, and judgment of 19 November 2008 in Case T-404/05 Greece v Commission, not published in the ECR, paragraph 89 and the case-law cited).
135. As regards the Cohesion Fund, Article 12(1) and (2) of Regulation No 1164/94 provides that it is Member States who are responsible, in the first instance, for the financial control of projects and who are, inter alia, required to take the measures necessary to safeguard the proper use of European funds, to ensure that projects are managed in accordance with all the applicable Union rules, to prevent and detect irregularities and to secure the existence and smooth functioning in Member States of management and control systems so that European funds are efficiently and correctly used.
136. Moreover, in accordance with the principle that projects in receipt of funding must be in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Union policies — as set forth in Article 8(1) of Regulation No 1164/94 — only expenditure incurred in accordance with Union rules and the instruments adopted pursuant thereto are chargeable to the Union’s budget. Consequently, once the Commission discovers the existence of an infringement of Union provisions in payments effected by a Member State, it is required to correct the accounts presented by that Member State (see, to this effect, judgment of 13 July 2011 in Case T-81/09 Greece
v Commission, not published in the ECR, paragraph 63 and the case-law cited).
137. As provided in Article 17(1) of Regulation No 1386/2002, the amount of financial corrections made by the Commission under Article H(2) of Annex II to Regulation No 1164/94 for individual or systematic irregularities will be assessed, wherever this is possible and practicable, on the basis of individual files and will be equal to the amount of expenditure wrongly charged to the Cohesion Fund, having regard to the principle of proportionality. Article 17(2) of Regulation No 1386/2002 states that when it is not possible or practicable to quantify the amount of irregular expenditure precisely, or when it would be disproportionate to cancel entirely the expenditure in question, the Commission can base its financial corrections on extrapolation or a flat rate.
138. It must again be noted that, as is apparent from paragraph 1 of the 2002 guidelines (see paragraph 12 above), the purpose of financial corrections is to restore a situation where 100% of the expenditure declared for co-financing from the Cohesion Fund is in line with the applicable Union rules.
139. In the examination of the first plea in law, it was established that the Commission had identified, without erring, irregularities involving an infringement by the Spanish authorities of the rules on the award of public contracts in the Andévalo project, the Guadalquivir group of projects and the Granada and Malaga group of projects at issue in this case (see paragraphs 98 and 121 above). Clearly, those irregularities had a decisive impact on the award procedure for the public contracts relating to the project and groups of projects in question.
140. In those circumstances, having discovered that Union provisions on the award of public contracts had been infringed, the Commission was required to impose the necessary financial corrections to restore a situation where 100% of the expenditure declared for co-financing from the Cohesion Fund was in line with Union rules on public contracts, having regard to the principle of proportionality.
141. As regards the manner in which the financial corrections were calculated, it is apparent from paragraph 137 of the contested decision that the Commission first considered that, in the circumstances of this case, a correction entailing the cancellation of the entire expenditure of the projects in question would be disproportionate in view of the seriousness of the irregularities detected. Second, it found that, as it was not possible or practicable to quantify the amount of irregular expenditure precisely, it was appropriate for the corrections to be made on a flat-rate basis.
142. First of all, it should be noted that the 2007 guidelines (see paragraph 12 above) set out the following specific scales — for contracts covered by the European public procurement directives — which apply depending on the type of irregularity involved:
– a financial correction of 25% of the value of the contract in question for failing to comply with advertising procedures;
– a financial correction of 25% of the value of the contract in question for applying unlawful award criteria. This amount may be reduced to 10% or 5% depending on seriousness;
– a financial correction of 25% of the value of the contract in question if it was awarded by open or restricted procedure but the contracting authority negotiated with the bidders during the award procedure. This amount may be reduced to 10% or 5% depending on seriousness.
143. Secondly, the 2007 guidelines set out the following scales — for contracts not covered by the European public procurement directives — which apply depending on the type of irregularity involved:
– a financial correction of 25% of the value of the contract in question for failing to comply with the requirement for an adequate degree of advertising and transparency;
– a financial correction of 25% of the value of the contract if it was awarded without adequate competition;
– a financial correction of 10% of the value of the contract for applying unlawful award criteria. This amount may be reduced to 5% depending on seriousness;
– a financial correction of 10% for infringing the principle of equal treatment. This amount may be reduced to 5% depending on seriousness.
144. It should be recalled that, by adopting rules of administrative conduct designed to produce external effects and announcing by publishing them that it will henceforth apply them to the cases to which they relate, the institution in question imposes a limit on the exercise of its own discretion and cannot depart from those rules if it is not to be found, in some circumstances, to be in breach of general principles of law, such as the principles of equal treatment, of legal certainty or of the protection of legitimate expectations. It cannot therefore be ruled out that, on certain conditions and depending on their content, such rules of conduct of general application may produce legal effects and that, in particular, the administration may not depart from them in an individual case without giving reasons that are compatible with the general principles of law, such as the principles of equal treatment or of the protection of legitimate expectations, provided that such an approach is not contrary to other superior rules of Union law (see, to this effect and by analogy, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I-5425, paragraphs 209 to 211, and Case T-374/04 Germany v Commission
[2007] ECR II-4431, paragraph 111 and the case-law cited).
145. In this case, it is clear that the amounts of financial corrections made by the Commission (see paragraphs 54 to 56 above) are in line with those set out in the 2007 guidelines and that, therefore, contrary to the Kingdom of Spain’s claim, the Commission cannot be said to have lacked transparency as it observed the scales that it itself imposed.
146. Furthermore, the argument of the Kingdom of Spain that the Commission infringed the principle of proportionality by making cumulated corrections contrary to the provisions of the 2002 guidelines must also be dismissed.
147. It should be observed from the outset that, as the Kingdom of Spain rightly pointed out, the third subparagraph of paragraph 2.5 of the 2002 guidelines provides that, when several flat-rate financial corrections are made, they must not be cumulated. That paragraph essentially provides that the financial correction concerning the most serious irregularity involving a given public contract must be the only correction made, since that irregularity is indicative of the risks presented by the contract as a whole.
148. As is apparent from the only annex to the contested decision entitled ‘Summary of financial corrections/repayments for the groups of projects’ (also see paragraphs 54 to 56 above), the Commission did not cumulate the financial corrections arising from different infringements affecting the same public contract. In contrast, for each public contract in question, it took the most costly financial correction as a reference and included the financial corrections concerning the contract therein. That led to a reduction in the final amount of the financial corrections made to the public contracts at issue and, therefore, benefited the Spanish authorities. Accordingly, the Kingdom of Spain’s argument that the Commission infringed the principle of proportionality by applying cumulated corrections contrary to the 2002 guidelines has no factual basis.
149. Finally, the Kingdom of Spain contends that the Commission infringed the principle of proportionality as it failed to take into account — in accordance with paragraph 2.4 of the 2002 guidelines — of the fact that the Spanish authorities, after being informed of the irregularities, changed their approach in subsequent contracts. First, it must be pointed out that the Kingdom of Spain did not adduce any evidence in support of its contention. Secondly, even if that change of approach were proven, it would not alter the fact that the contracts in question had already been awarded on the basis of an improper application of the rules on the award of public contracts, so that it was necessary to make financial corrections to remedy the irregularity. Consequently, that subsequent change of approach could not have had any effect on the contracts for which co-financing was sought from the Cohesion Fund.
150. In light of the foregoing, the third plea in law must be dismissed, as must the action in its entirety.
Costs
151. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
152. Since the Kingdom of Spain has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action.
2. Orders the Kingdom of Spain to pay the costs.