Judgment of the General Court (First Chamber) of 16 September 2013 — Spain v Commission

(Case T‑3/07)

‛Cohesion fund — Regulation (EC) No 1164/94 — Environmental infrastructure projects under way in the territory of Andalucia (Spain) — Partial withdrawal of financial assistance — Public works and services contracts — Award criteria — Publicity — Eligibility of expenditure — Determination of the financial corrections — Article H(2) of Annex II of Regulation No 1164/94 — Proportionality’

1. EU law — Principles — Protection of legitimate expectations — Conditions (see para. 53)

2. EU law — Principles — Protection of legitimate expectations — Protection refused to any person committing a manifest infringement of the rules in force (see para. 54)

3. EU law — Principles — Legal certainty — Rules which may entail financial consequences (see para. 65)

4. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Compliance with principles of proportionality and conformity — Calculation of the amount of the reduction — Application of flat-rate financial corrections — Limits (Art. 5 EC; Council Regulation No 1164/94, Arts 8(1), and 12(1), and Annex II, Art. H(2) and (3); Commission Regulation No 1386/2002, Art. 17(1) and (2)) (see paras 71, 73, 83, 86-88, 90)

5. Acts of the institutions — Rules of administrative conduct of general scope — Measure designed to produce external effects — Autolimitation of the discretion of the institution adopting the measure — Obligation to comply with the principles of equal treatment, protection of legitimate expectations and legal certainty, and with higher rules of EU law (see para. 84)

6. Approximation of laws — Procedures for the award of public service contracts — Directive 92/50 — Derogations from common rules — Restrictive interpretation — Existence of exceptional circumstances — Burden of proof (Council Directive 92/50, Art. 11(3)(b) and (e)) (see paras 97, 99)

7. Approximation of laws — Public procurement procedures — Award of contracts — Qualitative selection criteria of the candidates taken into account as award criteria — Not permissible (Council Directive 93/37, Arts 26, 27 and 30(1)) (see paras 107-110)

8. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Inapplicability by analogy with the case-law on non-contractual liability — No breach of the principle of equal treatment (Charter of Fundamental Rights of the European Union, Art. 20; Council Regulation No 1164/94, Art. 8(1), and Annex II, Art. H(1) and (2)) (see paras 114-120)

Re:

APPLICATION for annulment of Commission Decision C(2006) 5103 of 20 October 2006 reducing the financial assistance from the Cohesion Fund for five projects being undertaken in the Autonomous Community of Andalucia (Spain).

Operative part

The Court:

1. Annuls Articles 2 to 6 Commission Decision C(2006) 5103 of 20 October 2006 reducing the financial assistance from the Cohesion Fund for five projects being undertaken in the Autonomous Community of Andalucia (Spain) in so far as they include an amount of EUR 476 460 by way of financial corrections concerning the projects bearing the references 2000.ES.16.C.PE.004, 2000.ES.16.C.PE.025, 2000.ES.16.C.PE.066 and 2000.ES.16.C.PE.0138;

2. Dismisses the remainder of the application;