Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 31 August 2021 — ANAS SpA v Ministero delle Infrastrutture e dei Trasporti

(Case C-545/21)

(2021/C 452/15)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: ANAS SpA

Defendant: Ministero delle Infrastrutture e dei Trasporti

Questions referred

1. Must Article 70(1)(b) of Council Regulation (EC) No 1083/2006, (1) Article 27(c) of Commission Regulation (EC) No 1828/2006, (2) Article 1 of the PFI Convention referred to in the Council Act of 26 July 1995, Article 1(2) of Council Regulation (EC, Euratom) No 2988/95 (3) and Article (3)(2)(b) of Directive (EU) 2017/1371 (4) be interpreted as meaning that conduct which is likely, in the abstract, to favour an economic operator during a contract award procedure is always categorised as an ‘irregularity’ or as ‘fraud’, thus constituting a legal basis for the recovery of the aid, even when there is no complete proof that such conduct has actually taken place, or there is no complete proof that it was decisive in the selection of the beneficiary?

2. Does Article 45(2)(d) of Directive 2004/18/EC (5) preclude a legal provision such as Article 38(1)(f) of Legislative Decree No 163/2006, which does not allow the exclusion from a tender of an economic operator who has attempted to influence the decision-making process of the contracting authority, particularly when the attempt consisted of bribing certain members of the tender evaluation committee?

3. If the answer to one or both of the above questions is in the affirmative, must the rules referred to always be interpreted as requiring the Member State to recover the aid and the Commission to make a 100 % financial correction, despite the fact that the aid was used for its intended purpose, for a project eligible for EU funding and which was actually implemented?

4. If the answer to question 3 is negative, or that no recovery of the aid or 100 % financial correction is necessary, do the provisions referred to in question 1, and compliance with the principle of proportionality, make it possible to establish the recovery of the aid and the financial correction taking into account the financial damage actually caused to the general budget of the European Union? More specifically, in a situation such as the one at issue in these proceedings, can the ‘financial implications’, within the meaning of Article 98(3) of Regulation (EC) No 1083/2006, be established on a flat-rate basis, by applying the criteria set out in the table under paragraph 2 of Commission Decision No 9527 of 19 December 2013? (6)

(1) Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

(2) Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJ 2006 L 371, p. 1).

(3) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

(4) Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ 2017 L 198, p. 29).

(5) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

(6) Commission Decision of 19 December 2013 on the setting out and approval of the guidelines for determining financial corrections to be made by the Commission to expenditure financed by the Union under shared management, for non-compliance with the rules on public procurement.