EN Official Journal of the European Union C 42/35

Action brought on 27 December 2006 — Spain v Commission

(Case T-402/06)

(2007/C 42/62)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo)

Defendant: Commission of the European Communities

Form of order sought

— annulment of Commission decision C(2006) 5105 of 20 October 2006 reducing the assistance granted by the Cohesion Fund for eight projects under way in the territory of the Autonomous Community of Catalonia;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

This action challenges Commission decision C(2006) 5105 of 20 October 2006 reducing the assistance granted by the Cohesion Fund for the eight projects under way in the territory of the Autonomous Community of Catalonia (‘the contested decision’), viz:.

— No 2001.ES.16.C.PE.058 (project for extension of biological treatment at the Besos treatment station)

— No 2003.ES.16.C.PE.005 (project for waste-water disposal infrastructures in small towns in Catalonia)

— No 2001.ES.16.C.PE.054 (project for treatment of sludge and reuse of urban waste water in Catalonia)

— No 2000.ES.16.C.PE.112 (project for drainage and water treatment in the Ebro Basin: Monzón, Caspe and inland river basins of Catalonia)

— No 2002.ES.16.C.PE.006 (project for a desalination [of sea-water] plant in the Tordera delta)

— No 2001.ES.16.C.PE.055 (project for construction and improvement of the infrastructures for treating municipal solid waste in Catalonia)

— No 2001.ES.16.C.PE.057 (project for municipal waste-treatment plants in the districts of Urgell, Pallars Jussa and Conca de Barberá)

— No 2002.ES.16.C.PE.041 (project for the establishment and improvement of the network of infrastructures for the treatment of municipal waste in Catalonia).

In the contested decision the defendant made a correction of 2 % of the Community assistance (85 %) granted for the project 2001.ES.16.C.PE.058, because the management company had charged ineligible expenditure.

So far as concerns the other projects, the Commission, having regard to the use of the ‘average prices’ system and the ‘experience of previous works’ criterion, has decided to apply a financial correction to 100 % of the Community difference in terms of Community assistance between the tenders selected and those recalculated contract by contract.

In support of its claims, the applicant State alleges, principally, misinterpretation of Article 30(1) of Directive 93/37/EEC (1) and of Article 36(1) and (2) of Directive 92/50/EEC (2), in so far as the contested decision concludes that application of the average prices system used in the analysis of ‘the most economically advantageous tender’ in the projects awarded infringes the principle of equal treatment, by discriminating against tenders which are too low compared with other more costly tenders.

In the alternative, the applicant alleges infringement of Article H(2) of Annex II to Regulation (EC) 1164/94 (3), by reason of breach of the principles of proportionality and sound administration.

With specific regard to the project for the Besos treatment station, the applicant also alleges infringement of Article 17 of Regulation (EC) No 1386/2002 (4), on the ground that there are no real irregularities or, alternatively, on the ground of the principle of subsidiarity laid down in that act.

(1) 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. 115).

(2) 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).

(3) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p. 1).

(4) Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) 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).