Action brought on 29 April 2011 - Spain v Commission

(Case T-235/11)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez)

Defendant: European Commission

Form of order sought

The applicant requests the Court to:

annul Commission Decision C(2011) 1023 final, of 18 February 2011, reducing assistance from the Cohesion Fund for the following project phases:

'Supply and assembly of track materials for the Madrid-Zaragoza-Barcelona-French border High-Speed Line. Madrid-Lleida section' (CCI No 1999.ES.16.C.PT.001)

'Madrid-Barcelona High-Speed Rail line. Lleida-Martorell section (Platform, 1st phase)' (CCI No 2000.ES.16.C.PT.001)

'Madrid-Zaragoza-Barcelona-French border High-Speed Line. Approaches to Zaragoza' (CCI No 2000.ES.16.C.PT.003)

'Madrid-Zaragoza-Barcelona-French border High-Speed Line. Lleida-Martorell section. X-A sub-section (Olérdola - Avinypnet del Penedés)' (CCI No 2001.ES.16.C.PT.007), and

'New High-Speed rail access to Levante. La Gineta-Albacete sub-section (Platform)' (CCI No 2004.ES.16.C.PT.014).

in the alternative, partially annul the decision, in respect of the corrections applied to the amendments expressly noted in the application, reducing the amount of the correction to EUR 27 047 647.00.

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant relies on three pleas in law.

First plea in law, alleging an infringement of Article H(2) of Annex II to Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p.1), as the Commission did not observe the period of three months, from the time of the hearing, for adopting the Decision.

Second plea in law alleging, in the case of supply contracts, an infringement, on account of incorrect application, of Article 20(2)(e) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector (OJ 1993 L 199, p. 84) and, in the case of contracts for works and contracts for services the subject of correction, an infringement, on account of incorrect application, of Article 20(2)(f) of that Directive, since the contracting of additional services is a conceptually distinct matter from the amendment of a contract at the performance phase provided for by Spanish legislation in relation to public contracts and consequently such amendment does not fall within the scope of Directive 93/38.

Third plea in law (in the alternative to the foregoing pleas and exclusively in the case of contracts for works and services the subject of correction), alleging an infringement of Article 20(2)(f) of Directive 93/38, on the ground that all the requirements were met for the Spanish authorities to use the unpublicised negotiated procedure to award contracts for the additional works carried out in the five phases of the project affected by the correction.

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