Case T-359/08: Action brought on 3 September 2008 — Spain v Commission
Date: 2008-09-03
Institutions: Court of First Instance
Subjects: Cohesion Fund, EU financing, European Commission, Spain, Structural Funds, action for annulment (EU), waste management

25.10.2008

EN

Official Journal of the European Union

C 272/45

that

there is no proof

marks and that
the applicant acted
without due cause when adopting the registered Community
trade mark subject of the application for a declaration of inva-
infringement of Article 73 of Council Regulation
lidity;
No 40/94 as the contested decision does not state the reasons
on which it is based.

Action brought on 3 September 2008 — Spain v
Commission

(Case T-358/08)

(2008/C 272/88)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J. Rodríquez

Defendant: Commission of the European Communities

Form of order sought

— annul Decision C(2008) 3249 of 25 June 2008 relating to
the reduction of assistance granted the Cohesion Fund to
Project No 96/11/61/018 — ‘Saneamiento de Zaragoza’.

— order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against the decision to reduce the finan-
cial assistance initially granted by the Commission to various
projects in the three phases of the ‘Proyecto de saneamiento de
Zaragoza’. That decision results in a financial correction of
25 % of the co-financed expenditure with respect to the second
and third phases of the project, which gives rise to an obligation
to repay EUR 3 106 966. The Commission take the view that
the Municipality of Zaragoza failed to comply with Community
rules on public contracts by artificially splitting the works and
failing to publish the contracts in the O.J.E.C,
in accordance
with the provisions of Council Directive 93/38/EEC of 14 June
1993 coordinating the procurement procedures of entities oper-
ating in the water, energy, transport and telecommunications
sectors, publishing it only in the Boletín Oficial de Aragón.

to the basic definition of ‘works’ by denying the existence of
technical or economic differences between the various
projects since, it argues, the description of the works to be
undertaken was similar and pursued the same economic
function: the overall improvement of the network for the
benefit of its users. To the contrary, the contracts concerned
are technically distinct works, with clearly distinct functions
and which require the performance of a variety of tasks.

— infringement of the principle of the protection of legitimate
expectations and the principle patere quam ipse legem fecisti, in
so far as the Commission approved the projects as they were
submitted and that, both the original application in 1996
and the
application in 1997 contain a
description of each and every one of the projects included in
each phase, together with the express mention of the fact
that it was no necessary to publish the tender notices in the
O.J.E.C.

subsequent

— inadequacy of the reasons set out in the contested decision.

— expiry of the limitation period for the Commission to bring
proceedings in accordance with the provisions of Article 3
of Council Regulation (EC, Euratom) No 2988/95 of
18 December 1995 on the protection of
the European
Communities financial interests

— expiry of

of

18

the period prescribed,

in accordance with the
provisions in Article H.2 of Annex II to Regulation 1164/94
and Article
(EC)
No 1386/2002 of 29 July 2002 laying down detailed rules
implementation of Council Regulation (EC)
for
No 1164/94 as
the management and control
systems for assistance granted from the Cohesion Fund and
the procedure for making financial corrections.

Commission

Regulation

regards

the

In the alternative, the applicant alleges infringement of the prin-
ciple of proportionality.

Action brought on 3 September 2008 — Spain v
Commission

(Case T-359/08)

(2008/C 272/89)

Language of the case: Spanish

In support of its form of order the applicant claims:

Parties

— infringement of Article H of Annex II to Council Regulation
(EC) No 1164/94 of 16 May 1994 establishing a Cohesion
Fund and Article 14(13) of Directive 93/38/EEC. In that
connection, the applicant takes the view that the defendant
has committed a manifest error of assessment with respect

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J. Rodríguez

Defendant: Commission of the European Communities

C 272/46

EN

Official Journal of the European Union

25.10.2008

Form of order sought

The 2007 Guidelines also infringe:

— disapply the Guidelines for

the assessment of

financial
corrections to be applied to expenditure co-financed by the
Structural Funds and the Cohesion Fund in cases of non-
compliance with the rules on public contracts, final version
of 29 November 2007 COCOF 07/0037/03-ES;

— annul Commission Decision C(2008) 3243 of 25 June 2008
reducing the assistance from the Cohesion Fund to the
group of projects No 2001.ES.16.C.P.E.045 (Waste Manage-
ment in Galicia — 2001) (Group II); and

— order the Commission of the European Communities to pay

the costs.

Pleas in law and main arguments

This dispute concerns four sub-groups of projects relating to the
Solid Urban Waste Management Plan for Galicia. The Com-
munity financing initially granted for
the whole group of
projects was 80 % of the costs eligible for public funding.

sent by the Commission to the applicant

In a letter
in
April 2006, the Commission proposed corrections in respect of
irregularities discovered in an earlier audit. In the concluding
part of that document contained two proposals for financial
corrections. The first, relating to an irregularity penalised by the
decision concerned arises from a difference in the criteria for
classifying certain contracts. The proposed financial correction
with respect to that ground is EUR 59 652,48.

The entry into force at the end of 2007 of the new ‘Guidelines
for the assessment of financial corrections to be applied to
expenditure co-financed by the Structural Funds and the Cohe-
sion Fund in cases of non-compliance with the rules on public
contracts’ provides for an increase in the corrections finally
imposed, since the criteria contained in it require corrections
which are more substantial than those resulting from the appli-
cation of the Guidelines in force at the material time.

— the general principle of transparency in Article 255 of the
EC Treaty and Regulation (EC) No 1049/2001 of the Euro-
pean Parliament and of
the Council of 30 May 2001
regarding public access to European Parliament, Council and
Commission: the Guidelines were not widely publicised on
account of the form in which they were adopted and their
limited access.

— the general principle of legal certainty on account of the fact
that it applies retroactively to projects approved from 2000,
and

— the duty to give a statement of reasons.

As regards Decision C(2008) 3243 of 25 June 2008, the appli-
it
cant submits that, as well as being based on illegal rules,
infringes Article 7(1) of Regulation No 1164/94 and Article 17
of Regulation No 1386/2002 in so far as the basic amount for
calculating the correction is the contract tender value and not
the certified expenditure or,
the
contract.

the value of

failing that,

Action brought on 3 September 2008 — Spain v
Commission

(Case T-360/08)

(2008/C 272/90)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J. Rodríguez

Defendant: Commission of the European Communities

Form of order sought

In support of
first and in
its claims the applicant submits,
accordance with the provisions of Article 241 of the EC Treaty,
that the 2007 Guidelines are unlawful on the ground that they
are contrary to Article 7(1) of Council Regulation (EC)
No 1164/94 of 16 May 1994 establishing a Cohesion Fund and
Article 17 of Regulation (EC) No 1386/2002 laying down
detailed rules for the implementation of Council Regulation (EC)
No 1164/94, in so far as, first, they fail to set accurate financial
corrections, that is to say financial corrections which reflect the
amount of expenditure wrongly charged to the Fund and,
second, because by setting the corrections at that amount they
take the base for calculating the correction as the contract
tender value and not the certified expenditure or, failing that,
the price of the contract.

— Disapply the Guidelines for determining the financial correc-
tions applicable to expenses co-financed by the Structural
Funds and the Cohesion Fund in the event of failure to
comply with the public procurement rules, final version of
29 November 2007, COCOF 07/0037/03-ES,

— annul the Decision of the Commission of the European
Communities of 25 June 2008, C(2008) 3247, in so far as
it reduces financial assistance from the Cohesion Fund to
project group No 2001.ES.16.C.P.E.036 (cleaning of
the
Hydrographic Basin of the North — Galicia-2001), and

— order the Commission of the European Communities to pay

the costs.