Case T-3/07: Action brought on 2 January 2007 — Spain v Commission
Date: 2007-01-02
Institutions: Court of First Instance
Subjects: Andalusia, Cohesion Fund, European Commission, Spain, action for annulment (EU), decontamination, hydrology, project management, waste management

10.3.2007

EN

Official Journal of the European Union

C 56/31

Second, the applicants claim that the Council, by refusing to
take into account certain additional key information, violated its
obligation of due diligence and proper administration, and
consequently made a manifest error of appraisal.

Third, the applicants contend that the Council by refusing to
exclude children's footwear from the scope of the measures at
the stage of the definitive regulation, violated Article 21 of the
Basic Regulation, its obligation of motivation under Article 253
EC and made a manifest error of appraisal.

(1) OJ L 275, 2006, p. 1.

Regarding the inclusion of the ‘criterion of experience’ as one of
the criteria for the contract award, while that criterion is not
expressly provided for in the applicable rules,
it is submitted
that Community case-law allows for that possibility, and that
the use of that criterion can in no way constitute a grave and
manifest infringement of the Community rules, or, in any event,
can only amount to an excusable error of law on account of
lack of clarity of the applicable rule.

On the other hand, the applicant disputes that the use of the
system of average prices, used during the analysis of the most
economically advantageous tender
in the projects awarded,
infringes the principle of equal treatment, by discriminating in
favour of excessively low tenders compared with other more
expensive tenders.

the

alternative,

In the
also alleges breach of
applicant
Article H (2) of Annex II to Regulation (EC) No 1164/94, (2) on
legitimate
the ground of
expectations and legal certainty; and,
in respect of Contract
No 2000/GV/2005, breach of the principle of proportionality,
as well as breach of Article 19 of the Directive No 93/37, cited
above.

the principles of

infringement of

(1) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ L
199, 9.8.1993, p. 54).

(2) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund (OJ L 130, 25.5.1994, p. 1).

Action brought on 2 February 2007 — Kingdom of Spain
v Commission of the European Communities

(Case T-2/07)

(2007/C 56/61)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J.M. Rodríguez

Defendant: Commission of the European Communities

Action brought on 2 January 2007 — Spain v Commission

Form of order sought

— Annul Decision C(2006) 5102 of 20 October 2006, in that
it reduces the assistance from the Cohesion Fund to the
group of projects No 2001 ES 16 C PE 050 (Clearance of
the hydrographical basin of the Júcar 2001-Group2)

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is directed at Commission Decision C(2006)
5103 of 20 October 2006, which reduced the assistance from
the Cohesion Fund to the group of projects No 2001 ES 16 C
PE 050, performed in Spain and designated as ‘Clearance of the
hydrographical basin of the Júcar 2001-Group 2’.

It concerns a comprehensive group of three different projects
which received assistance of EUR 11 266 701, which was
reduced by virtue of the impugned decision by EUR 1 900 281.

In support of its claims, the applicant alleges incorrect and inco-
herent interpretation of Directive 92/17/EEC (1), in so far as it
relates to the criterion of experience (Article 30(1) and (2)) and
to the use of the system of average prices (Article 30(1)).

(Case T-3/07)

(2007/C 56/62)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J.M. Rodríguez

Defendant: Commission of the European Communities

Form of order sought

— Annul Decision C(2006) 5103 in full, which seeks to apply
financial corrections to five projects carried out in Anda-
lucia:

— when the Court considers the first of the pleas alleged, it
must annul the decision in part, reducing the amount of
the corrections by 1 136 320 EUR,

C 56/32

EN

Official Journal of the European Union

10.3.2007

— when the Court considers the second of

the pleas
alleged, it must annul the decision in part, reducing the
amount of the corrections by 267 746 EUR, or, in the
alternative and because of an error of calculation, by
90 186 EUR

— when the Court considers the third of the pleas alleged,
it must annul the decision in part, reducing the amount
of the corrections by 76,369 EUR,

— when the Court considers the fourth of the pleas alleged,
it must annul the decision in part, reducing the amount
of the corrections by 3 264 849 EUR.

— Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is directed at Commission Decision C(2006)
in that it reduces the assistance
5103 of 20 October 2006,
from the Cohesion Fund to five projects carried out in the
Comunidad Autónoma de Andalucia, and namely:

— N. 2000.ES.16.C.PE.012 (Measures to be undertaken for the
management of waste by the Comunidad Autónoma de
Andalucia).

— N. 2000.ES.16.C.PE.066 (Clearance and treatment measures

in the Guadalquivir basin).

— N. 2001.ES.16.C.PE.004 (Clerance and treatment measures

in the Southern basin: Phase I).

— N. 2000.ES-16.C.PE.025 (Enlargement of municipal solid
in the Comunidad

facilities

(MSW)

waste
treatment
Autónoma de Andalucia).

detected in the direct award of two service contracts. As
part of that plea, in the alternative, error of calculation.

the ‘criterion of experience’ as one of

— Breach of the directives on public contracts regarding the
inclusion of
the
criteria for the contract award. It is submitted in this regard
that, while that criterion is not expressly provided for in the
applicable rules, Community case-law allows for this possibi-
lity, and the use of that criterion can in no way constitute a
grave and manifest infringement of the Community rules,
or, in any event, can only amount to an excusable error of
law on account of lack of clarity of the applicable rule.

— Lack of grave and manifest breach, and, therefore, of a suffi-
ciently serious breach of Community law in relation to the
irregularities stemming from the failure to publish certain
contracts.

(1) Council Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts (OJ L
209, 24.7.1992, p. 1).

Action brought on 5 January 2007 — Belgium v Commis-
sion

(Case T-5/07)

(2007/C 56/63)

Language of the case: French

— N. 2000.ES.16.C.PE.138 (Measures to be undertaken for the
management of waste by the Comunidad Autónoma de
Andalucia).

Parties

In the contested decision, whose primary purpose was to
examine project 012, the Commission applies a correction of
EUR 4 735 284, on the basis of considerations relating to the
sufficiency of controls in respect of the eligibility of expenditure
and observance of certain rules on tendering procedures (direct
award of two contracts, use of experience as a criterion of the
award and alleged irregularities in the publication of certain
contracts).

Applicant: Kingdom of Belgium (represented by: L. Van den
Broeck, Agent, J.-P. Buyle and C. Steyaert, avocats)

Defendant: Commission of the European Communities

In support of its claims, the applicant alleges:

Forms of order sought

— Infringement of the principles of

legitimate expectations,
legal certainty and proportionality in relation to the elig-
ibility of certain expenditure inasmuch as the impugned
measure was adopted even before expiry of the prescribed
period requested in order to disqualify non-eligible expendi-
ture and replace it with other eligible expenditure.

— Incorrect interpretation of Article 11(3)(b) and (e) of Direc-
in relation to the alleged irregularities

tive 92/50/EEC (1)

The applicant claims that the Court should:

— declare that the application is admissible and well founded;

— annul the Commission's decision of 18 October 2006 in so
far as that decision considers that the ‘old ESF debts’ —
which the Kingdom of Belgium paid voluntarily, but without
prejudice, on 21 December 2004 — are not subject to a
limitation period;