Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 7 March 2025 – Institut po ribni resursi Varna v Rakovoditel na Natsionalnia organ po Savmestna operativna programa za transgranichno satrudnichestvo ‘Chernomorski basein 2014-2020’ i direktor na direktsia ‘Upravlenie na teritorialnoto satrudnichestvo’
(Case C-186/25, Institut po ribni resursi Varna)
Language of the case: Bulgarian
Referring court
Administrativen sad Varna
Parties to the main proceedings
Applicant: Institut po ribni resursi Varna
Defendant: Rakovoditel na Natsionalnia organ po Savmestna operativna programa za transgranichno satrudnichestvo ‘Chernomorski basein 2014-2020’ i direktor na direktsia ‘Upravlenie na teritorialnoto satrudnichestvo’
Questions referred
1. In the light of recital 12 and Section 1 (‘Procurement’) of Commission Implementing Regulation (EU) No 897/2014 1 laying down specific provisions for the implementation of cross-border cooperation programmes financed under Regulation (EU) No 232/2014 of the European Parliament and the Council establishing a European Neighbourhood Instrument, is a practice by the national authority, such as that at issue in the main proceedings – whereby the beneficiary is required in the course of the examination to furnish evidence of the contractor’s ability to perform the public contract, in accordance with the national rules, more specifically in accordance with Article 121 of the Zakon za obshtestvenite porachki (Law on the award of public contracts), and the national authority does not apply the procurement provisions of the aforementioned Implementing Regulation – permissible?
2. Is a practice by the national authority, such as that at issue in the main proceedings – whereby, even though Article 2(m) of Implementing Regulation (EU) No 897/2014, applicable to the ‘Black Sea Basin 2014-2020’ Joint Operational Programme for Cross-Border Cooperation under the European Neighbourhood Instrument, contains a legal definition of the concept of ‘irregularity’ and that is also referred to in the contract between the contracting authority and the partner as the legislation which defines the concept of ‘irregularity’, the national authority examines by reference to the legal definition of the concept of ‘irregularity’ in point 36 of Article 2 of Regulation (EU) No 1303/2013 1 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (consolidated version) and not by reference to the characteristics of the legal concept of ‘irregularity’ as defined in Article 2(m) of Implementing Regulation (EU) No 897/2014, whether there is an ‘irregularity’ as provided for in the public procurement contract which the contracting authority (the applicant) has concluded for the purposes of implementing the managing authority’s contract with the beneficiary (the contracting authority) – permissible?
If the answer to that question is that such a practice is permissible, how is the concept of ‘irregularity’ within the meaning of the point 36 of Article 2 of Regulation (EU) No 1303/2013 to be interpreted; in particular, is a delay of eight days in the performance of providing the service under the contract for the ‘production of a video film as part of the TIMMOD Project’ to be regarded as an infringement of national rules in the situation where the beneficiary has handed over the subject matter of the contract, after that was provided to it by the contractor, to the lead partner in … Romania and the product made, the video film, is used in the programme; in other words, does the delay in the performance of the contract between the beneficiary and the contractor constitute an infringement which can be classified as a breach of national law pursuant to point 36 of Article 2 of Regulation (EU) No 1303/2013, and is the expenditure which the beneficiary has incurred in making the contractual payment to the contractor without applying a deduction in the amount of 84 leva (BGN; BGN 10 500 х 0.1% = BGN 10.5 per day х 8 days = BGN 84) to that payment, therefore, an unjustified item of expenditure in the Union budget?
3. In the light of Article 41 of the [Charter of Fundamental Rights of the European Union], is a practice by the national authority, such as that at issue in the main proceedings – whereby, in the reasons given for the decision imposing penalties for the irregularity committed by the beneficiary: (1) reference is made only to the provision of EU law infringed, Article 33(1) of Regulation (EU, Euratom) 2018/1046 1 of the European Parliament and of the Council of 18 July 2018, but no information is given regarding what the specific infringement of that provision consists of and how the principles of economy, efficiency and effectiveness mentioned in that provision have been breached by that infringement or how the breach of those principles has the effect of damaging the Union budget; (2) the national authority provides no explanation for why it is examining the defining elements of the irregularity by reference to the legal definition of that concept given in point 36 of Article 2 of Regulation (EU) No 1303/2013 and not by reference to Article 2(m) of the applicable Implementing Regulation (EU) No 897/2014; and (3) the national authority provides no specific explanation for the amount of the penalty, expressed as a percentage, namely 25% of the value of the contract – permissible?
4. In the light of Article 2(2) and (3) of Council Regulation (EC, Euratom) No 2988/95 1 of 18 December 1995, must the nature and scope of the administrative penalty and the nature and seriousness of the irregularity in respect of which it is imposed already be provided for in EU law in order for the administrative penalty to be capable of being prescribed at national level, and are the Member States required, when prescribing measures and penalties in national law, to take into account or to specify the Community legal act providing for those measures and penalties? Are the provisions of Article 31(3) [in conjunction with] Article 74 of Implementing Regulation (EU) No 897/2014 to be interpreted as conferring on the Member States the competence to adopt rules on the level of penalties which may be imposed on the beneficiaries of projects forming part of programmes under the European Neighbourhood Instrument?
5. In the light of Article 63(2) of Regulation (EU, Euratom) 2018/1046 (‘Member States shall impose effective, dissuasive and proportionate penalties on recipients where provided for in sector-specific rules or in specific provisions in national law’), are penalties permissible at levels such as those at issue in the main proceedings, namely a penalty in the amount of BGN 84 (because the beneficiary did not apply a deduction in that amount to the sum paid to the contractor on account of the eight-day delay in performance) and a penalty in the amount of 25% of BGN 10 500.00, that is to say of the value of the eligible funds under the contract between the beneficiary and the contractor (on account of a breach of the principles of sound financial management laid down in the requirements under Article 33, Article 36(1) and Article 61 of Regulation [EU, Euratom] 2018/1046)?
____________
1 OJ 2014 L 244, p. 12.
1 OJ 2013 L 347, p. 320.
1 Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).
1 Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).