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

(Case T‑2/07)

‛Cohesion fund — Regulation (EC) No 1164/94 — Projects concerning the clearance of the hydrographical basin of Júcar (Spain) — Partial withdrawal of financial assistance — Public works contracts — Award criteria — Economically most advantageous tender — Equal treatment — Transparency — Eligibility of expenditure — Determination of the financial corrections — Article H(2) of Annex II of Regulation No 1164/94 — Proportionality’

1. 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 51-53)

2. 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 58-64)

3. Approximation of laws — Public procurement procedures — Principle of equal treatment of tenderers — Obligation of transparency — Scope (Council Directive 93/37, Arts 22(4), 30(4), fourth para., and 31(1)) (see paras 71-73)

4. Approximation of laws — Public procurement procedures — Award of contracts — Most economically advantageous tender — Award criteria — Observance of the principle of equal treatment of tenderers and of the principle of transparency — Subsequent specification by the awarding authority of an award criterion for the contract previously brought to the attention of tenderers — Conditions — Application of the average price method — Not permissible (Council Directive 93/37, Art. 30(2)) (see paras 76-80)

5. Approximation of laws — Public procurement procedures — Award of contracts — Most economically advantageous tender — Concept (Council Directive 93/37, Art. 30(1)(b)) (see paras 82, 83)

6. EU law — Principles — Protection of legitimate expectations — Conditions (see para. 96)

7. 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. 101)

8. Economic, social and territorial cohesion — Structural assistance — EU financing — Reduction of financial assistance on account of irregularities — Compliance with principles of proportionality and conformity (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 111, 112, 114)

9. Approximation of laws — Procedures for the award of public works contracts — Directive 93/37 — Award of contracts — Application of award criteria only to variations validly taken into consideration by the awarding authority (Council Directive 93/37, Arts 19 and 30) (see para. 122)

Re:

APPLICATION for annulment of Commission Decision C(2006) 5102 of 20 October 2006, reducing the financial assistance from the Cohesion Fund to the group of projects bearing the reference 2001.ES.16.C.PE.050 and concerning the clearance of the hydrographical basin of Júcar (Spain).

Operative part

The Court:

1. Dismisses the application;