Action brought on 3 September 2008 - Spain v Commission

(Case T-358/08)

Language of the case: Spanish

Parties

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

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 financial 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 operating in the water, energy, transport and telecommunications sectors, publishing it only in the Boletín Oficial de Aragón.

In support of its form of order the applicant claims:

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 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 subsequent 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.

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 the period prescribed, in accordance with the provisions in Article H.2 of Annex II to Regulation 1164/94 and Article 18 of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections.

In the alternative, the applicant alleges infringement of the principle of proportionality.

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