Case T-357/05: Action brought on 19 September 2005 — Generalitat Valenciana v Commission of the European Communities
Date: 2005-11-12
Institutions: Court of First Instance
Subjects: Cohesion Fund, EU financing arrangements, European Commission, Spain, action for annulment (EU)

12.11.2005

EN

Official Journal of the European Union

C 281/33

Commission alleges that Mrs Kubanski's educational qualifica-
tion (diploma di Addetto agli Uffici Turistici — Tourist Agency
diploma of accreditation) does not qualify her for classification
in Category B*4, step 2, which was allocated to her in the
contract.

In support of her claims, the applicant submits:

— that the requirements laid down in notice of competition
COM/2004/5352/R, which is the basis of the procedure
under which the applicant was engaged and which has
given rise to these proceedings, did not state that it was
necessary for the applicant to possess a specific educational
qualification;

— infringement and misapplication of Article 5(3)(a)(i) and (ii)
of the Staff Regulations. She alleges in this respect, on the
one hand, that her diploma is a qualification which attests
that she has completed a three-year course of secondary
studies conferring a vocational qualification giving access to
post-secondary education and, on the other hand,
that
between 1 May 2001 and 30 April 2004 the applicant
performed duties with the Joint Research Centre in Ispra
which are absolutely identical to those required for the post
announced in the notice of competition in the present case.

— Infringement of Articles 14 and 47 to 50(a) of the condi-
tions of employment of other servants of the European
Communities.

— Infringement of the principle of protection of legitimate

expectations.

— Unlawful conduct on the part of the Administration in that
it breached the principles of legal certainty and equal treat-
ment.

Action brought on 19 September 2005 — Generalitat
Valenciana v Commission of the European Communities

(Case T-357/05)

(2005/C 281/60)

Language of the case: Spanish

Parties:

— annul Commission Decision C (2005) 1867 concerning the
reduction of the assistance granted from the Cohesion Fund
to Project No 97/11/61/028.

Pleas in law and main arguments

This action arises out of Commission Decision C (97) 3882 of
5 December 1997, by
virtue of which assistance of
EUR 75 011 715 was granted from the Cohesion Fund to
Project No 97/11/61/028 in Spain, called the ‘Project for the
collection and treatment of waste water on the Mediterranean
coast of the Autonomous Community of Valencia’ (a general
project consisting of 12 different
schemes). The original
amount was later increased to EUR 92 742 913.

After carrying out an audit mission, the Commission uncovered
a series of irregularities in the award procedure followed, essen-
tially the use of experience as a criterion for the award of
contracts and the average price method as the procedure for
evaluating the price tendered. In the contested decision, which
reduces the total assistance granted by EUR 2 217 537, the
defendant considers that there have been infringements of Arti-
cles 18 and 30 of Council Directive 93/37/EEC of 14 June
1993 concerning the coordination of procedures for the award
of public works contracts, (1) and of Article 2 of the Financial
Regulation of 21 December 1977 applicable to the general
budget of the European Communities.

In support of its claims, the applicant argues:

— that the Community legislation expressly refers to experi-
ence as a criterion for selection, whereas, although experi-
ence is not expressly mentioned in the list of possible
implementing criteria, it may readily be observed that the
listing of those criteria in the legislation is merely illustra-
tive, and not exhaustive, and does not envisage excluding
the possible use of experience as an additional criterion for
the award of the contract. This conclusion is reinforced by
Community case-law itself;

— that, in any case, it is plainly impossible to consider that
including experience as one of the award criteria in the
contract documents constitutes a serious and obvious
infringement, without which,
in accordance with Com-
munity legislation and case-law, liability cannot be incurred;

— that application of the ‘average price’ methodology as a
means of evaluating the price criterion is not expressly
forbidden by Community rules and that
the case-law
precludes it only when it is the only criterion used, but not
where it is used together with others.

Applicant(s): Generalitat Valenciana (Valencia, Spain)
sented by José Vicente Sánchez-Tarazaga Marcelino, lawyer)

(repre-

The applicant also alleges breach of the principles of legal
certainty, protection of legitimate expectations, non-retroactive
effect and proportionality.

Defendant(s): Commission of the European Communities

(1) OJ L 199 of 9 August 1993, p. 54.

Form of order sought

The applicant claims that the Court should: