OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 15 December 2022 (1)
Case C‑545/21
ANAS SpA
v
Ministero delle Infrastrutture e dei Trasporti
(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy))
(Reference for a preliminary ruling – Structural Funds – European Regional Development Fund (ERDF) – Regulation (EC) No 1083/2006 – Article 2(7) – Concept of ‘irregularity’ – Conduct presumed to be likely to favour an economic operator during an award procedure – Article 98(1) and (2) – Financial corrections by Member States – Public works contracts – Directive 2004/18/EC – Article 45(2)(d) – Optional grounds of exclusion – Grave professional misconduct)
Introduction
1. The present request for a preliminary ruling has been made by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) in proceedings between the company Azienda Nazionale Autonoma Strade SpA (‘ANAS’) and the Ministero delle Infrastrutture e dei Trasporti (Ministry of Infrastructure and Transport, Italy) concerning a decision by the latter to recover the sums paid to ANAS in the context of a project involving work co-financed by the European Regional Development Fund (ERDF), owing to irregularities in the award of a public contract.
2. Essentially, the questions for a preliminary ruling raised by the referring court relate, first of all, to the interpretation of the concept of ‘irregularity’, within the meaning of Regulation (EC) No 1083/2006, (2) with regard to actual corruption or attempted corruption concerning a tender evaluation committee in the context of the implementation of works financed by the budget of the European Union; next, to the transposition into Italian law of Article 45(2)(d) of Directive 2004/18/EC, (3) relating to the grounds of exclusion of a tenderer from the award procedure; and, last, to the criteria governing the calculation of the amount of the financial correction applicable in the event of irregularity.
Legal framework
European Union law
Regulation No 1083/2006
3. Article 1 of Regulation No 1083/2006, entitled ‘Subject matter’, provides:
‘This Regulation lays down the general rules governing the [ERDF], the European Social Fund (ESF) (hereinafter referred to as the Structural Funds) and the Cohesion Fund, without prejudice [to] the specific provisions laid down in Regulations (EC) No 1080/2006, (4) (EC) No 1081/2006 (5) and (EC) No 1084/2006. (6)
This Regulation defines the objectives to which the Structural Funds and the Cohesion Fund (hereinafter referred to as the Funds) are to contribute, the criteria for Member States and regions to be eligible under those Funds, the financial resources available and the criteria for their allocation.
This Regulation defines the context for cohesion policy, including the method for establishing the Community strategic guidelines on cohesion, the national strategic reference framework and the process for examination at Community level.
To this end, this Regulation lays down the principles and rules on partnership, programming, evaluation, management, including financial management, monitoring and control on the basis of responsibilities shared between the Member States and the Commission.’
4. According to Article 2(7) of that regulation:
‘For the purposes of this Regulation, the following terms shall have the meanings assigned to them here:
…
(7) “irregularity: any infringement of a provision of Community law resulting from an act or omission by an economic operator which has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure to the general budget.’
5. In accordance with Article 9(5) of that regulation:
‘Operations financed by the Funds shall comply with the provisions of the Treaty and of acts adopted under it.’
6. Article 70(1)(b) of that regulation states:
‘Member States shall be responsible for the management and control of operational programmes, in particular through the following measures:
…
(b) preventing, detecting and correcting irregularities and recovering amounts unduly paid together with interest on late payments where appropriate. They shall notify these to the Commission and keep the Commission informed of the progress of administrative and legal proceedings.’
7. Article 98 of Regulation No 1083/2006 provides:
‘1. The Member States shall in the first instance bear the responsibility for investigating irregularities, acting upon evidence of any major change affecting the nature or the conditions for the implementation or control of operations or operational programmes and making the financial corrections required.
2. The Member State shall make the financial corrections required in connection with the individual or systemic irregularities detected in operations or operational programmes. The corrections made by a Member State shall consist of cancelling all or part of the public contribution to the operational programme. The Member State shall take into account the nature and gravity of the irregularities and the financial loss to the Funds.
…’
Directive 2004/18
8. Under Article 45(2)(d) of Directive 2004/18:
‘Any economic operator may be excluded from participation in a contract where that economic operator:
…
(d) has been guilty of grave professional misconduct proven by any means which the contracting authorities can demonstrate’.
Italian law
9. Article 38(1)(c) and (f) of decreto legislativo n. 163 – Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (Legislative Decree No 163 – 'Code on public works, services and supplies contracts and transposing Directives 2004/17/EC and 2004/18), of 12 April 2006, (7) provides:
‘The following persons shall be excluded from participation in procedures for the award of concessions and public works, supplies and services contracts, and shall be prohibited from taking part as subcontractors or from concluding any related contract:
…
(c) any person who has been the subject of a conviction that has the force of res judicata or a criminal order against which no appeal lies, or who has been the subject of a judgment implementing a sentence resulting from a negotiated plea, as provided for in Article 444 of the Code of Criminal Procedure, in respect of the commission of grave professional conduct offences to the detriment of the State or the Community; the following constitute, in any event, grounds for exclusion: a conviction set out in a judgment which has the force of res judicata for one or more offences relating to participation in a criminal organisation, corruption, fraud or money-laundering, as defined by the Community measures cited in Article 45(1) of Directive 2004/18;
…
(f) any person who, in the reasoned assessment of the contracting authority, has been guilty of serious negligence or bad faith in the performance of any contract awarded by the contracting authority which published the contract notice, or any person who has been found guilty of grave professional misconduct on the basis of any evidence which the contracting authority may establish.’
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
10. In the context of the national operational programme ‘Networks and Mobility’ for the period 2007-2013, approved by the European Commission, ANAS was granted funding for a road modernisation project.
11. In 2012, following a restricted tendering procedure based on the economically most advantageous criterion, ANAS, as contracting authority, awarded a public contract for the completion of that work to a temporary group of undertakings composed of Aleandri SpA and CCC Società Cooperativa; the work has in the meantime been completed.
12. Following a criminal investigation for bribery involving, respectively, three officials of ANAS, including two members of the tender evaluation committee, Aleandri and its legal representative, (8) during 2020 the Ministry of Infrastructure and Transport ordered recovery of the sums already paid to ANAS by way of funding for that project and declared that the balance not yet paid was not payable, on the ground that the award of the contract in question was vitiated by an ‘irregularity’ of a fraudulent nature, within the meaning of Article 2(7) of Regulation No 1083/2006, and also of Articles 4 and 5 of Regulation (EC, Euratom) No 2988/95. (9)
13. By its action before the referring court, ANAS seeks annulment of that decision, claiming that it was not the subject of any conviction, (10) that there is no proof that Aleandri won the public contract in question illegally and that no misconduct on the part of the members of the tender evaluation committee can be imputed to it. In addition, as the work in question was carried out, there is no connection between the presumed irregularity or fraud and the expenditure funded by the general budget of the European Union.
14. The referring court finds that the work in question was deemed eligible for funding by the general budget of the European Union and was carried out properly, and that it is not known whether the tendering procedure was disrupted by the conduct forming the subject matter of the criminal investigation referred to above. It therefore wonders, in essence, about the concept of ‘irregularity’, within the meaning of Regulation No 1083/2006, and about the procedure for calculating the financial correction to be made following such an irregularity, and also about the compatibility of the national legislation with Article 45(2)(d) of Directive 2004/18, relating to the optional exclusion from participation in a public contract of a tenderer that has committed serious professional misconduct.
15. It was in those circumstances that the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 70(1)(b) of [Regulation No 1083/2006], Article 27(c) of [Regulation (EC) No 1828/2006 (11)], Article 1 of the [Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the protection of the European Communities’ financial interests, signed in Brussels on 26 July 1995 (12)], Article 1(2) of [Regulation No 2988/95] and Article (3)(2)(b) of Directive (EU) 2017/1371 [(13)] be interpreted as meaning that conduct which is likely, in the abstract, to favour an economic operator during a contract award procedure is always categorised as an “irregularity” or as “fraud”, thus constituting a legal basis for the recovery of the aid, even when there is no complete proof that such conduct has actually taken place, or there is no complete proof that it was decisive in the selection of the beneficiary?
(2) Does Article 45(2)(d) of [Directive 2004/18] preclude a legal provision such as Article 38(1)(f) of Legislative Decree No 163/2006, which does not allow the exclusion from a tender of an economic operator [which] has attempted to influence the decision-making process of the contracting authority, particularly when the attempt consisted of bribing certain members of the tender evaluation committee?
(3) If the answer to one or both of the above questions is in the affirmative, must the rules referred to always be interpreted as requiring the Member State to recover the aid and the Commission to make a 100% financial correction, despite the fact that the aid was used for its intended purpose, for a project eligible for EU funding and which was actually implemented?
(4) If the answer to question 3 is negative, [that is to say], that no recovery of the aid or 100% financial correction is necessary, do the provisions referred to in question 1, and compliance with the principle of proportionality, make it possible to establish the recovery of the aid and the financial correction taking into account the financial damage actually caused to the general budget of the European Union? More specifically, in a situation such as the one at issue in these proceedings, can the “financial implications”, within the meaning of Article [99](3) of [Regulation No 1083/2006 (14)], be established on a flat-rate basis, by applying the criteria set out in the table under [Title 2] of [the annex to Commission Decision C(2013) 9527 of 19 December 2013, (15) entitled “Guidelines for determining financial corrections to be made to expenditure financed by the Union under shared management, for non-compliance with the rules on public procurement” (“the 2013 guidelines”)]?’
16. Written observations were lodged by ANAS, the Italian Government and the Commission. The Court decided to give a ruling without holding a hearing, in accordance with Article 76(2) of its Rules of Procedure.
Analysis
The first question
17. By its first question, the referring court asks, in essence, whether Article 70(1)(b) of Regulation No 1083/2006, Article 27(c) of Regulation No 1828/2006, Article 1 of the PFI Convention, Article 1(2) of Regulation No 2988/95 and Article 3(2)(b) of Directive 2017/1371 must be interpreted as meaning that conduct which is likely to favour an economic operator in a public contract award procedure comes within the concept of ‘irregularity’ or ‘fraud’ and thus constitutes a legal basis that justifies the withdrawal of the contribution, even where that conduct or its effects on the selection procedure have not been fully proven.
18. As a preliminary point, although the referring court refers to the concepts of ‘irregularity’ and ‘fraud’, I consider, as the Commission asserts, that the analysis should focus on whether the conduct in question comes within the concept of ‘irregularity’, which includes the more restricted concept of ‘fraud’. (16) Furthermore, the first question referred should be examined not only by reference to Article 70(1)(b) of Regulation No 1083/2006 and Article 1(2) of Regulation No 2988/95, to which the referring court refers, but also, and mainly, in the light of Article 2(7) of that regulation, which concerns the concept of ‘irregularity’. (17)
19. That said, I recall that, in accordance with Article 1 of Regulation No 1083/2006, that regulation lays down, inter alia, the principles on management, monitoring and control of operations receiving funding from the ERDF on the basis of responsibilities shared between the Member States and the Commission. (18) Furthermore, under, in particular, Article 70(1)(b) of that regulation, the Member States are to be responsible for the management and control of operational programmes and, in particular, are to prevent, detect and correct ‘irregularities’ and recover amounts unduly paid.
20. To that end, in accordance with Article 2(7) of that regulation, ‘irregularity’ in the context of, inter alia, the ERDF refers to any infringement of a provision of EU law resulting from an act or omission by an economic operator which has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure to the general budget. (19) More specifically, the Court has made clear that the existence of such an irregularity presupposes the combination of three elements, namely, first, the existence of an infringement of EU law; second, the fact that that infringement is the result of an act or omission on the part of an economic operator; and, third, the existence of prejudice, actual or potential, caused to the budget of the European Union. (20)
21. In that respect, as regards, in the first place, the existence of an infringement of EU law, it follows from Article 9(5) of Regulation No 1083/2006 that the role of the European Union is to finance through its funds only actions conducted in complete conformity with EU law, including the rules applicable to public procurement. (21) In addition, the Court has held that Article 2(7) of Regulation No 1083/2006 covers not only infringements of a provision of EU law as such, but also breaches of the provisions of national law which are applicable to operations supported by the Structural Funds and thus contribute to ensuring the correct application of EU law relating to the management of projects financed by those funds. (22)
22. On that basis, as regards, first, the identification of the provisions that have been infringed, I recall that, in accordance with Article 2 of Directive 2004/18 and with the corresponding national rules, the contracting authorities must treat economic operators equally and act in a transparent way. The Court has consistently held, moreover, in cases concerning public procurement, that the contracting authority is required to comply with the principle that tenderers should be treated equally. (23)
23. It seems to me that, as the Commission observes, conduct such as that engaged in by certain officials of ANAS, consisting in having taken payments from the successful undertaking in order to favour the award of the contract to that undertaking, constitutes, at least, a breach of the principles of equal treatment in the tender award procedure, (24) irrespective of the fact that it actually disrupted the tendering procedure at issue. (25)
24. In addition, Article 45(2)(d) of Directive 2004/18 allows the awarding authority to exclude from participation in a contract any economic operator which has been guilty of grave professional misconduct. I consider that such a ground of exclusion, which is optional but has been provided for by Italian law in Article 38(1)(f) of Legislative Decree No 163/2006, would also give rise to, if it is confirmed by the referring court, (26) an infringement within the meaning of the case-law cited in point 21 of this Opinion.
25. Second, the referring court has doubts about the standard of proof required to establish the existence of an infringement, and therefore of an irregularity, emphasising that, in this case, proof of the contested conduct and of its impact on the award of the contract is not fully established.
26. In that regard, it is sufficient to note that, in the absence of provisions of EU law on the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, including the standard of proof required to establish an irregularity, provided that those rules observe the principles of equivalence and effectiveness. (27)
27. That approach, which already prevails with regard to the principles of equality and transparency referred to in point 22 of this Opinion, is expressly recognised in Article 45(2)(d) of Directive 2004/18, which, on the assumption that it is relevant in the present case, (28) allows the awarding authority to exclude from participation in a contract any economic operator which has been guilty of grave professional misconduct proven ‘by any means’ which the contracting authorities can demonstrate. (29)
28. In this instance, I shall merely observe that, as the Commission correctly observes, exclusion on the ground of grave professional misconduct must be based on an autonomous finding by the contracting authority of the existence of such unprofessional conduct, based on any form of evidence and, where appropriate, on elements resulting from criminal proceedings, but without being automatic. In that regard, the Court has held that a judicial decision, even if it is not yet final, may, depending on the subject matter of that decision, provide the contracting authority with an appropriate means to justify the existence of grave misconduct, as that authority’s decision is in any event open to judicial review. (30) The same considerations apply, in my view, with respect to the principles of equality and transparency referred to in point 22 of this Opinion.
29. In the second place, the fact that such an infringement of EU law or of the applicable national law originates in an act or an omission by an economic operator is not called into question in the present case.
30. In any event, I note that ANAS is indeed an ‘economic operator’ (31) and that the concept of an ‘act or omission’ does not require a subjective element. In fact, the Court has made clear that while the concept of ‘irregularity’ in Article 2(7) of Regulation No 1083/2006 contains no specification as regards the intentional or negligent conduct of the beneficiary concerned, conduct of such a nature cannot be regarded as an essential element for the finding of an irregularity within the meaning of that provision. (32)
31. In the third place, as regards the existence of a detriment caused to the budget of the European Union because of such an omission, it follows from Article 2(7) of Regulation No 1083/2006 that an infringement of EU law or of national law applicable to operations supported by the Funds constitutes an ‘irregularity’, within the meaning of that provision, if it has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure to the general budget.
32. The referring court emphasises that, in the present case, it is not shown that the budget of the European Union has suffered prejudice.
33. The Court has nonetheless interpreted that provision as meaning that a failure to comply with the public procurement rules constitutes an irregularity within the meaning of that provision in so far as the possibility may not be excluded that that failure will have an impact on the budget of the Funds concerned, without a demonstration of the existence of a specific financial impact being required. (33)
34. In this instance, I am of the view that conduct, such as that referred to by the referring court, entailing, at least, a breach of the principles of equal treatment and transparency, would be likely to disrupt unlawfully the tendering procedure at issue by favouring the successful undertaking. Without there being any need to demonstrate the existence of an actual financial loss, it cannot be precluded that, in the absence of that conduct, the tenders would have been awarded to a different tenderer or on more favourable conditions for the budget of the European Union, which, in accordance with the case-law cited in the preceding point, incorporates the third condition referred to by the case-law referred to in point 20 of this Opinion.
35. In conclusion, I propose that the answer to the first question submitted for a preliminary ruling should be that Article 2(7) and Article 70(1)(b) of Regulation No 1083/2006 must be interpreted as meaning that conduct which, in the assessment of the competent authorities, is likely to favour an economic operator during an award procedure is categorised as an ‘irregularity’ and, as a general rule, entails the withdrawal of the advantage unduly obtained, provided that the possibility that that conduct has had an impact on the budget of the Funds concerned cannot be precluded.
The second question
36. By its second question, the referring court asks, in essence, whether Article 45(2)(d) of Directive 2004/18 precludes a provision, such as Article 38(1)(f) of Legislative Decree No 163/2006, which does not allow an economic operator which has attempted to influence the decision-making process of the contracting authority to be excluded from the award procedure, in particular where that attempt consisted in bribing certain members of the tender evaluation committee.
37. Article 45(2)(d) of Directive 2004/18 concerns the grounds of exclusion of a tenderer from the award procedure and provides that any economic operator which has been guilty of grave professional misconduct proved by any means which the contracting authorities can demonstrate may be excluded from participation in a contract.
38. In transposing such a provision into Italian law, Article 38(1)(f) of Legislative Decree No 163/2006 excludes, in particular, from any participation in procedures for the award of concessions and public works contracts, public service contracts and public supply contracts, any person who has been found guilty of grave professional misconduct on the basis of any evidence which the contracting authority may establish.
39. While the referring court interprets that provision as not allowing an economic operator which has attempted to influence the decision-making process of the contracting authority, in particular by attempts at corruption, to be excluded from the award procedure, the Italian Government and the Commission seem to be of the view that, on the contrary, according to Italian case-law and administrative practice, that provision allows attempts to influence the decision-making process of the contracting authority to be included in the concept of ‘grave misconduct’. (34)
40. In that regard, I recall that the Court’s case-law leaves the national legislature a discretion as to the way in which it transposes Article 45(2)(d) of Directive 2004/18. (35)
41. Furthermore, it seems to me that Article 38(1)(f) of Legislative Decree No 163/2006, like Article 45(2)(d) of Directive 2004/18, is couched in very broad terms and translates, essentially, the concept of ‘grave professional misconduct proven by any means’ by the similar concept of ‘grave professional misconduct on the basis of any evidence’; (36) in addition to that, the Commission has observed that, owing to the broad terms in which it is formulated, the national provision in question readily lends itself to being interpreted consistently with the provision which it transposes. (37)
42. Accordingly, while I have no desire to encroach on the jurisdiction of the referring court as regards the interpretation of national law, it seems to me that the wording of the transposing provision is consistent with the provision transposed. (38)
43. Furthermore, the relevance of the question submitted by the national court is not obvious, since it is not clear from the case file submitted to the Court that the ‘irregularity’ detected by the competent authorities in the present case is linked with an infringement of Article 45(2)(d) of Directive 2004/18, as transposed in Article 38(1)(f) of Legislative Decree No 163/2006, that ought to have caused the awarding authority to exclude from the procurement procedure the tenderer which subsequently became the contracting authority for that contract. (39) As the Commission emphasises, it is difficult to imagine, in the present case, the existence of an ‘irregularity’ on the part of ANAS for not having excluded the tenderer in question from the procurement procedure, on the ground of grave professional misconduct which was detected well after the contract had been awarded.
44. However, I recall that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (40) and that, in the present case, it is not obvious that the interpretation sought of the provision of EU law at issue has no bearing on the real situation or on the subject matter of the dispute in the main proceedings.
45. In conclusion, I propose that the answer to the second question should be that Article 45(2)(d) of Directive 2004/18 must be interpreted as meaning that it does not preclude, in principle and having regard to the obligation to interpret national law in accordance with the objectives of that provision, national legislation which excludes from any participation in procedures for the award of concessions and public works contracts, public supply contracts and public service contracts persons who have been guilty of grave professional misconduct proven by any means by the contracting authority.
The third and fourth questions
46. By its third and fourth questions submitted for a preliminary ruling, which should be dealt with together, the referring court asks, in essence, whether, where there is an ‘irregularity’, the provisions referred to in the first two questions must be interpreted as meaning that they always require the Member State to apply a financial correction of 100% and, if the answer is in the negative, what criteria must be applied to determine that rate of correction, having regard to those rules and to the principle of proportionality.
47. More particularly, the referring court is uncertain about the compatibility of the application of a financial correction at a rate of 100% with the rules and principles cited, since the contributions at issue were made for work which was eligible for European funding and was carried out. It wonders whether that financial correction should not be determined, rather, by reference to the economic prejudice caused to the general budget of the European Union and whether the financial implications of the insufficiencies found (41) may be established at a flat rate, by application of the criteria set out in the table in Title 2 of the 2013 guidelines. (42)
48. In the words of Article 98(1) and (2) of Regulation No 1083/2006, where an irregularity has been found, the Member States are to make the financial corrections required, which are to consist of cancelling all or part of the public contribution to the operational programme, and to determine the amount of the correction to be applied, taking account of three criteria, namely the nature of the irregularity found, its gravity and the financial loss to the Funds concerned. In addition, where a specific, and not a systemic, irregularity is at issue, the Court’s case-law has made clear that that requirement necessarily involves a case-by-case examination, taking all of the circumstances of each relevant case into account in the light of one of those three criteria. (43)
49. As regards, in the first place, the question whether every irregularity triggers the obligation to apply a financial correction rate of 100%, I consider that such an interpretation would clearly run counter to the principles and the case-law cited in the preceding point, under which Member States are required, when they impose a financial correction as a result of an irregularity, to take account of the circumstances of the case, including the consequences of the irregularity on the grant of the contributions and the carrying out of the work eligible for funding. (44)
50. That conclusion does not however include, in my view, the obligation to restrict, in all circumstances, the financial correction to the financial loss incurred by the Funds in question. There are situations in which the risk of sustaining, where irregularities are found, a loss limited to the part to which the irregularity relates would not have a deterrent effect. In such situations, the total withdrawal of the financing might be proportionate, irrespective of any proof of the existence of a corresponding loss by the Funds concerned (45) and without the fact that the subsidised project was eventually implemented being decisive in that respect. (46)
51. In this instance, I am of the view that actual or attempted corruption involving members of the tender evaluation committee are capable of constituting a particularly grave and reprehensible infringement, (47) irrespective of the establishment of proof of their economic repercussions on the budget of the European Union, so that such conduct is, as a general rule, capable of leading to a correction of 100% of the contribution, which it is for the competent national administration, subject to review by the referring court, to assess, stating reasons, in the light of the circumstances of the particular case and in compliance with the principle of proportionality.
52. As regards, in the second place, the calculation of the amount of the financial correction, it should be borne in mind that in so far as the 2013 guidelines, to which the referring court refers, cover the determination of the financial corrections which the Commission applies to expenditure financed by the European Union under shared management, for non-compliance with the rules on public procurement, they may also provide guidance where the Member States themselves correct irregularities, although those guidelines are not binding on the Member States. (48) In particular, point 1.3 of those guidelines, which concern the criteria relating to the rates of correction to be applied, refers, in the first paragraph, to a range of corrections (of 5%, 10%, 25% and 100%) that are applied to the expenditure of a contract according to the seriousness of the irregularity and the principle of proportionality when it is not possible to quantify precisely the financial implications for the contract in question. Point 1.3 states, in the second paragraph, that the seriousness of an irregularity and the financial impact to the EU budget are assessed taking into account the level of competition, transparency equal treatment: the irregularity is considered to be serious when the non-compliance at stake has a deterrent effect to potential tenderers or leads to the contract being awarded to a tenderer other than the one that ought to have obtained the contract. That same point goes on to establish, in particular, that no correction will be made when the irregularity is only of a formal nature without any actual or potential financial impact (third paragraph), while a financial correction of 100% may be applied in the most serious cases when the irregularity favours certain tenderer(s) or candidate(s) or where the irregularity relates to fraud, as established by a competent judicial or administrative body (sixth paragraph).
53. Those guidelines therefore provide the referring court with relevant criteria, when calculating the amount of the financial correction, in order to determine that amount, taking account of the financial loss caused to the general budget of the European Union, within the meaning of Article 98(2) of Regulation No 1083/2006. (49)
54. In conclusion, I propose that the answer to the third and fourth questions submitted for a preliminary ruling should be that Article 98 of Regulation No 1083/2006 must be interpreted as meaning that if the existence of an irregularity, within the meaning of Article 2(7) of that regulation, systematically requires the competent national authorities to make a financial correction, the amount of the applicable correction must be determined, in accordance with the principle of proportionality, taking account of all the actual circumstances that are relevant, namely the nature and gravity of the irregularity found, and also the resulting financial loss for the Funds concerned, but without requiring those authorities to restrict in all circumstances the financial correction to the financial loss incurred by those Funds, so that a particularly grave and reprehensible infringement is, as a general rule, capable of triggering a correction of 100% of the contribution, irrespective of the establishment of proof of any economic repercussion on the budget of the European Union.
Conclusion
55. In the light of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling referred by the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) as follows:
(1) Article 2(7) and Article 70(1)(b) of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999
must be interpreted as meaning that conduct which, in the assessment of the competent authorities, is likely to favour an economic operator during an award procedure is categorised as an ‘irregularity’ and, as a general rule, entails the withdrawal of the advantage unduly obtained, provided that the possibility that that conduct has had an impact on the budget of the Funds concerned cannot be precluded.
(2) Article 45(2)(d) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts
must be interpreted as meaning that it does not preclude, in principle and having regard to the obligation to interpret national law in accordance with the objectives of that provision, national legislation which excludes from any participation in procedures for the award of concessions and public works contracts, public supply contracts and public service contracts persons who have been guilty of grave professional misconduct proven by any means by the contracting authority.
(3) Article 98 of Regulation No 1083/2006
must be interpreted as meaning that if the existence of an ‘irregularity’, within the meaning of Article 2(7) of Regulation No 1083/2006, systematically requires the competent national authorities to make a financial correction, the amount of the applicable correction must be determined, in accordance with the principle of proportionality, taking account of all the actual circumstances that are relevant, namely the nature and gravity of the irregularity found, and also the resulting financial loss for the Funds concerned, but without requiring those authorities to restrict in all circumstances the financial correction to the financial loss incurred by those Funds, so that a particularly grave and reprehensible infringement is, as a general rule, capable of triggering a correction of 100% of the contribution, irrespective of the establishment of proof of any economic repercussion on the budget of the European Union.