Case T‑509/09

Portuguese Republic

v

European Commission

(Fisheries — Financial contribution for the implementation of control and surveillance systems — Decision not to reimburse the expenditure incurred for the acquisition of two ocean patrol vessels — Article 296 EC — Directive 93/36/EEC — Legitimate expectations — Obligation to state reasons)

Summary — Judgment of the General Court (First Chamber), 18 June 2013

1.      Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility

(Arts 264 TFEU and 266 TFEU)

2.      Fisheries — Common fisheries policy — Control measures — Contribution for the implementation of control and surveillance systems — Conditions — Applicability of directives concerning the coordination of procedures for the award of public contracts — Derogation by reason of the military nature of the material under Article 296(1)(b) EC — Not permissible

(Art. 296(1)(b) EC; Council Directive 93/36; Council Decision 2001/431, Arts 2(e), 9(1), and 17(2) and (3))

3.      Approximation of laws — Procedures for the award of public supply contracts — Directive 93/36 — Derogations from common rules — Restrictive interpretation — No requirement to impose an obligation of confidentiality

(Council Directive 93/36, Art. 2(1)(b))

4.      Approximation of laws — Procedures for the award of public supply contracts — Directive 93/36 — Financial assistance for the implementation of control and surveillance systems in the matter of the common fisheries policy — Refusal to reimburse costs incurred by reason of non-compliance with the conditions laid down by the grant decision — No breach of principle of the protection of legitimate expectations

(Council Directive 93/36)

5.      Acts of the institutions — Statement of reasons — Obligation — Scope — Implementing decision — Reference to provisions of the basic regulation making it possible to determine the criteria governing the adoption of the decision — Adequate statement of reasons

(Art. 253 EC; Council Decision 2001/431)

1.      See the text of the decision.

(see para. 28)

2.      It is clear from Article 2(e), Article 9(1) and Article 17(2) and (3) of Decision 2001/431, on a financial contribution by the Community to certain expenditure incurred by the Member States in implementing the control, inspection and surveillance systems applicable to the common fisheries policy, that a financial contribution by the Union for the acquisition of vessels which are actually used for the control and surveillance of fishing activities is possible, under that decision, only if the expenditure is incurred in accordance with the conditions laid down by that decision and by the directives concerning the coordination of procedures for the award of public contracts, including Directive 93/36 coordinating procedures for the award of public supply contracts. It follows that Decision 2001/431, and in particular Article 17(2) thereof, must be regarded as requiring that co-financing by the Union presupposes the applicability ratione materiae of those directives.

The inherent purpose of the requirement to comply with the conditions laid down by the directives concerning the coordination of procedures for the award of public contracts is primarily to ensure that purchase operations co-financed by the Union are fully transparent and fully controllable. In addition, co-financing by the Union of warships does not, in principle, fall within the common fisheries policy. Thus, under Decision 2001/431, it is not permissible for a Member State to request, on the one hand, co-financing by the Union for the acquisition of vessels wholly or partly intended for the purposes of control and surveillance of fishing activities which, in accordance with that decision, must comply with the rules on the award of public contracts and to decide, on the other hand, not to apply those rules by relying on Article 296(1)(b) EC, on account of the military nature of the equipment acquired. However, Article 296(1)(b) EC does not prevent the Member States which intend to acquire military equipment falling within the scope of that provision from deciding nonetheless to comply with the common procedures for the award of public contracts and, accordingly, from being able to claim the financial contribution provided for in Decision 2001/431.

(see paras 38-40, 42, 45)

3.      In the context of the award of public supply contracts, the requirement to impose an obligation of confidentiality in no way prevents the use of a competitive tendering procedure for the award of a contract. Moreover, requirements relating to confidentiality could be taken into account, in particular, in the conditions governing participation in the procedure or in the assessment of the proposals, by laying down an award sub-criterion relating to measures to protect the confidentiality of information.

(see para. 51)

4.      The principle of the protection of legitimate expectations cannot be used to object to the cancellation of Community assistance where the conditions laid down for the grant of that assistance have manifestly not been fulfilled.

(see para. 62)

5.      See the text of the decision.

(see paras 67-69)