EN Official Journal of the European Union C 9/12

Judgment of the Court (Fourth Chamber) of 14 November 2013 (request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Comune di Ancona v Regione Marche

(Case C-388/12) (1)

(Structural Funds - European Regional Development Fund (ERDF) - Financial contribution from a Structural Fund - Criteria for the eligibility of expenditure - Regulation (EC) No 1260/1999 - Article 30(4) - Principle of durability of the operation - ‘Substantial modification’ of an operation - Award of a concession contract without advertisement or a competitive tendering procedure)

2014/C 9/17

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per le Marche

Parties to the main proceedings

Applicant: Comune di Ancona

Defendant: Regione Marche

Re:

Request for a preliminary ruling — Tribunale amministrativo regionale per le Marche — Interpretation of Article 30(4) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1) — Withdrawal and recovery of Community financial aid — Concept of ‘Substantial modification’ — Relationship between, first, the condition for modifying the use of the operation or detailed rules for its exercise and, second, the condition for modifying the condition of lack of undue advantage on the part of an undertaking or public body — Functional modification — Condition of compliance of the financed operations with European Union provisions concerning public works contracts — Partial change of use of the works financed and concession of the management thereof to a private operator outside a procedure for awarding public works contracts

Operative part of the judgment

1. Article 30(4) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds must be interpreted as meaning that the modifications referred to in that provision include, not only those that take place during the performance of a project, but also those that take place afterwards, in particular in the course of the project’s management, provided that those modifications take place within the five-year period specified in that provision.

2. Article 30(4) of Regulation No 1260/1999 must be interpreted as meaning that in order to undertake an assessment as to whether the grant of the concession generates substantial revenue for the contracting authority or undue advantage for the concessionaire, it is not first necessary to establish whether the works under concession have undergone a substantial modification.

3. Article 30(4) of Regulation No 1260/1999 must be interpreted as referring both to physical modifications — where the works carried out are not as specified in the project approved for funding — and to modifications affecting function, it being understood that, in the case of a modification consisting in the use of works for activities other than those originally envisaged in the project submitted for funding, such a modification must be capable of significantly reducing the capacity of the operation in question to attain its designated objective.

4. In circumstances such as those of the case before the referring court, EU law does not preclude the award, without a call for tenders, of a public service concession relating to works, provided that that award is consistent with the principle of transparency, observance of which, without necessarily entailing an obligation to call for tenders, must make it possible for an undertaking located in the territory of a Member State other than that of the contracting authority to have access to appropriate information regarding that concession before it is awarded, so that, if that undertaking so wishes, it would be in a position to express its interest in obtaining that concession — it being for the referring court to determine whether that was the position in the case before it.

(1) OJ C 295, 29.9.2012.