Compania Naţională de Administrare a Infrastructurii Rutiere SA v Ministerul Fondurilor Europene - Direcţia Generală Managementul Fondurilor Externe.
Date: 2017-12-06
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It must be stated that no such time limit has been provided for transposing Directive 2004/18 into national law. Romania therefore had to comply with that directive as from its accession to the European Union in accordance with the principle that the provisions of EU law apply ab initio and in toto to new Member States (see, to that effect, judgment of 3 December 1998, KappAhl, C‑233/97, EU:C:1998:585, paragraph 15).
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In that regard, according to settled case-law, the directive applicable to a public contract is, as a rule, the one in force on the date when the contracting authority chooses the type of procedure to be followed and decides definitively whether it is necessary for a prior call for competition to be issued for the award of that contract (judgment of 7 April 2016, Partner Apelski Dariusz, C‑324/14, EU:C:2016:214, paragraph 83).
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Accordingly, Regulation No 1083/2006 forms part of the mechanism designed to ensure the proper management of EU funds and the safeguarding of the European Union’s financial interests (see, to that effect, judgment of 26 May 2016, Judeţul Neamţ and Judeţul Bacău, C‑260/14 and C‑261/14, EU:C:2016:360, paragraph 34).
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It follows that the role of the European Union is to finance through its funds only actions conducted in complete conformity with EU law, including the rules applicable to public procurement (see to that effect, judgment of 14 July 2016, Wrocław — Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 43 and the case-law cited).
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As regards the second aspect referred to in paragraph 53, it follows from the definition in Article 2(7) of Regulation No 1083/2006 that an infringement of EU law constitutes an ‘irregularity’, within the meaning of that provision, only if it has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure to that budget. Therefore, the Court has held that such an infringement is to be considered to be an irregularity only in so far as it was capable, as such, to have a budgetary impact. By contrast, there is no requirement that the existence of a specific financial impact be shown (judgment of 14 July 2016, Wrocław — Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 44 and the case-law cited).
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Consequently, it should be considered that a failure to comply with the public procurement rules constitutes an ‘irregularity’ within the meaning of Article 2(7) of Regulation No 1083/2006 in so far as the possibility may not be excluded that that failure will have an impact on the budget of the Funds concerned (judgment of 14 July 2016, Wrocław — Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 45).
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For that purpose, Article 98(2) thereof also requires the competent national authority to calculate the amount of the correction to apply by taking into account three criteria, namely the nature and gravity of the irregularities and the resulting financial loss to the Funds (judgment of 14 July 2016, Wrocław — Miasto na prawach powiatu, C‑406/14, EU:C:2016:562, paragraph 47).