Action brought on 3 September 2008 - Spain v Commission

(Case T-359/08)

Language of the case: Spanish

Parties

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

Defendant: Commission of the European Communities

Form of order sought

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 Management 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 Community financing initially granted for the whole group of projects was 80% of the costs eligible for public funding.

In a letter sent by the Commission to the applicant 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 Cohesion 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 application of the Guidelines in force at the material time.

In support of its claims the applicant submits, first and in 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.

The 2007 Guidelines also infringe:

the general principle of transparency in Article 255 of the EC Treaty and Regulation (EC) No 1049/2001 of the European 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 applicant submits that, as well as being based on illegal rules, it 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, failing that, the value of the contract.

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