Action brought on 2 January 2007 - Spain v Commission

(Case T-3/07)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo)

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 Andalucia:

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,

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) 5103 of 20 October 2006, in that it reduces the assistance 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 waste (MSW) treatment facilities in the Comunidad Autónoma de Andalucia).

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

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).

In support of its claims, the applicant alleges:

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

-    Incorrect interpretation of Article 11(3)(b) and (e) of Directive 92/50/EEC ¹ in relation to the alleged irregularities detected in the direct award of two service contracts. As part of that plea, in the alternative, error of calculation.

-    Breach of the directives on public contracts regarding the inclusion of the 'criterion of experience' as one 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 possibility, 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 sufficiently serious breach of Community law in relation to the irregularities stemming from the failure to publish certain contracts.

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