Contents
Judgment of the General Court (Fifth Chamber)18 October 2018note(Financial aid — Projects of common interest in the field of trans-European energy networks — Determination of the final amount of the financial aid — Audit report identifying irregularities — Ineligible costs — Obligation to state reasons — Legitimate expectations — Proportionality)In Case T‑387/16,Terna — Rete elettrica nazionale SpA, established in Rome (Italy), represented by A. Police, L. Di Via, F. Degni, F. Covone and D. Carria, lawyers,vEuropean Commission, represented by O. Beynet, L. Di Paolo, A. Tokár and G. Gattinara, acting as Agents,THE GENERAL COURT (Fifth Chamber),composed of D. Gratsias, President, I. Labucka and I. Ulloa Rubio (Rapporteur), Judges,Registrar: E. Coulon,gives the following
Judgment
Background to the dispute
1The applicant, Terna — Rete Elettrica Nazionale SpA, is a company established in Italy active in the high-voltage electricity transmission and distribution sector.
2The applicant has a 42.68% shareholding in CESI SpA, a company operating in the sector of electromechanical appliance testing and certification and electrical systems consultancy.
3In accordance with Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September 2006 laying down guidelines for trans-European energy networks and repealing Decision 96/391/EC and Decision No 1229/2003/EC (OJ 2006 L 262, p. 1), on 15 June 2007 the Commission of the European Communities published a call for proposals for the award of financial aid within the framework of annual work programme C(2007) 3945 of 14 August 2007 for grants in the field of trans-European energy networks.
4In accordance with Article 9 of Regulation (EC) No 680/2007 of the European Parliament and of the Council of 20 June 2007 laying down general rules for the granting of Community financial aid in the field of the trans-European transport and energy networks (OJ 2007 L 162, p. 1), following every call for proposals based on the multiannual or annual work programmes referred to in Article 8(1) of the same regulation, the Commission is to decide on the amount of financial aid to be granted to the projects or parts of projects selected and to specify the conditions and methods for their implementation.
5By Decision C(2008) 7941 of 2 December 2008 (‘the Decision of 2 December 2008’), the Commission selected, from amongst the programmes eligible for financial aid, the project of common interest ‘Direct current energy transmission between Italy and France by means of highway infrastructures’ (‘Project E 221’). By that decision, the applicant was granted a maximum of EUR 1542600 in financial aid.
6By Decision C(2010) 3360 of 21 May 2010 (‘the Decision of 21 May 2010’), the Commission selected, from amongst the programmes eligible for financial aid, the project of common interest ‘Feasibility study for a new electricity interconnection, through the southern cross-border between Italy and France by means of highway infrastructures’ (‘Project E 255’). By that decision, the applicant was granted a maximum of EUR 500000 in financial aid.
7Implementation of Projects E 221 and E 255 brought to light the need to acquire services related to activities which the applicant was unable to perform using its own resources. The applicant therefore entrusted the performance of those services to CESI. More specifically, in the context of Projects E 221 and E 255, the applicant awarded to CESI directly, on the basis of a negotiated procedure, the performance of seven tasks concerned with the supply of research, development and specialist support services and coming under framework agreements No 3000029140, No 3000034279 and No 6000001506 concluded with CESI by means of a derogation from the public procurement rules, on the basis of the existence of technical reasons, respectively on 17 April 2009, 27 May 2010 and 8 April 2011 (‘the tasks at issue’).
8Following completion of Projects E 221 and E 255, the Commission, by letter of 5 November 2010, informed the applicant that an external auditing firm (‘the auditing firm’) was going to conduct a financial audit of the costs declared by the applicant under those projects. The Commission made clear that the findings of the financial audit would be assessed by the competent departments with a view to adjusting the costs claimed by the applicant, and that, if those adjustments were to prove to be in the Commission’s favour, they could have an impact on future payments or result in the issuing of orders for the recovery of the overpaid amount.
9By letter of 13 June 2013, the auditing firm sent the draft audit report to the applicant. The draft audit report informed the applicant that some of the costs incurred in carrying out Projects E 221 and E 255 could not be regarded as eligible. Specifically, with regard to the external costs coming under the tasks at issue, the draft audit found that those costs could not be regarded as eligible since, according to the information provided by the Commission, the award of contracts to companies belonging to the same group would be allowed only if any profits made by the contractor are deducted from the costs borne. In addition, CESI had provided the services to the applicant on market terms, thereby securing a profit margin. The applicant was asked to express its agreement or to submit any observations.
10The applicant submitted its observations by letter of 5 July 2013. In this regard, the applicant claimed that it does not exercise any form of control over CESI and that the award of the tasks at issue to that company was entirely consistent with the principles laid down in European and national legislation. More specifically, the applicant submitted that those tasks had been awarded to CESI by a procedure without prior call for competition by virtue of the derogations laid down in Article 40(3)(c), (e) and (i) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1), namely the existence of technical reasons pursuant to which the contract could be executed only by a particular economic operator, the technical difficulties arising from any acquisition of new supplies resulting in an excessive and disproportionate increase in costs, and the existence of a framework agreement with CESI.
11By letter of 18 June 2014, the Commission sent the applicant the final audit report (‘the audit report’) produced by the auditing firm. The audit report reproduced virtually all the initial findings contained in the draft audit report, approved certain costs claimed by the applicant and made comments in the light of the applicant’s observations. The applicant was invited to submit any observations within a period of two weeks from receipt of the letter, failing which the Commission would issue two debit notes with a view to recovering a sum of EUR 414 101.72 in relation to Project E 221 and of EUR 80 769.67 in relation to Project E 255.
12By letter of 15 July 2014, the applicant responded to the Commission’s letter and provided certain new explanations. Whilst noting that a significant proportion of its earlier observations had been upheld, the applicant contested the findings reached by the audit report regarding the direct external costs coming under the tasks at issue. The applicant stressed that it did not exercise any type of control over CESI, which was merely a company with which it was associated but over which it did not exercise any power of management or coordination, in accordance with Article 2947 of the Italian Civil Code. In addition, the applicant explained the reasons which had led it to use a procedure without prior call for competition to award the tasks at issue to CESI, on the basis of the derogations provided for in Article 40(3)(c), (e) and (i) of Directive 2004/17.
13Further to the response provided by the applicant by the letter of 15 July 2014, the Commission ordered a further investigation. By email of 13 February 2015, it asked the applicant to provide it with additional explanations about the procedures which resulted in the award to CESI, by a procedure without prior call for competition, of framework agreements Nos 3000034279 and 6000001506. Specifically, the Commission requested an explanation for the reference to Article 40(3)(c) of Directive 2004/17 to justify CESI’s unique status as a particular economic operator, given the technical reasons associated with the contract. In addition, the Commission stated that the exception provided for in Article 40(3)(e) of Directive 2004/17 did not apply in the present case since the contract at issue was a service contract and not a supply contract.
14By email of 23 March 2015, the applicant responded to the Commission’s requests. The applicant stressed that it did not exercise any power of control, management or coordination over CESI and submitted that, by letter of 5 July 2013, it had already informed the Commission of the legal framework which had allowed it to award the tasks at issue to CESI directly, by a procedure without prior call for competition, namely Article 40 of Directive 2004/17, which in certain circumstances permits the use of a procedure without prior call for competition. The applicant stated that, on account of the use of specific tools and software developed jointly with it, CESI was the only economic operator capable of providing the services coming under the tasks at issue, since calling on other economic operators would have resulted in additional costs, longer time frames and a risk that information might be lost in the performance of those services.
15By letter of 6 July 2015, whilst noting the information gathered in the course of the further investigation and finding that CESI was not a company controlled by the applicant but rather a company associated with it and over which the applicant did not exercise any form of management or coordination, the Commission revised its position and informed the applicant that the costs relating to the tasks at issue, tasks awarded to CESI directly, could not be regarded as eligible not on account of the failure to comply with the Commission’s guidance on the award of contracts to companies belonging to the same group, but because of non-compliance with the applicable rules on public procurement. In this regard, the Commission found that the applicant could have awarded the tasks at issue to CESI directly, without first conducting a call for tender procedure, pursuant to Article 40(3)(i) of Directive 2004/17, only if the framework agreements under which those tasks fell had been awarded in accordance with that directive. The Commission also found that the applicant had failed to satisfy the burden of proof laid down in Article 40(3)(c) of Directive 2004/17, since it had not shown that, as a result of the technical capacities specific to the services falling within the scope of the framework agreements awarded to CESI, CESI was the only company to which the applicant could award those framework agreements. Finally, the Commission stated that the exception laid down in Article 40(3)(e) of Directive 2004/17 did not apply in the present case since it exclusively concerned supply contracts. The Commission announced that, within a period of one month, it would issue two debit notes: one in the amount of EUR 414 101.72 relating to Project E 221 and the other in the amount of EUR 80 769.67 relating to Project E 255.
16On 21 September 2015, the applicant brought an action before the Court for the annulment of the letter of 6 July 2015. That action was registered at the Court under reference T‑544/15.
17By letter of 23 May 2016, the ‘Energy’ Directorate-General (DG) of the Commission, proceeding with the procedure to recovery the amounts owed to it, informed the applicant that its arguments had been re-examined in conjunction with competent members of staff of other directorates-general. By that letter, the Commission confirmed the findings set out in the letter of 6 July 2015 and announced that, within a period of one month, it would issue two debit notes with a view to recovering an amount of EUR 414 101.72 in relation to Project E 221 and an amount of EUR 80 769.67 in relation to Project E 255.
18By letter of 14 June 2016, the Commission sent the applicant two debit notes: one in the amount of EUR 414 101.72 in relation to Project E 221, the other in the amount of EUR 80 769.67 in relation to Project E 255.
19By order of 13 September 2016, Terna v Commission (T‑544/15, not published, EU:T:2016:513), the Court dismissed the action brought in the case in question as manifestly inadmissible.
Procedure and forms of order sought
20By application lodged at the Court Registry on 20 July 2016, the applicant brought the present action.
21By separate document lodged at the Court Registry on 4 October 2016, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
22The applicant lodged its observations on that plea on 16 November 2016.
23By order of 17 February 2017 of the President of the Fifth Chamber of the General Court, the plea of inadmissibility was joined to the main proceedings.
24Pursuant to Article 106(3) of the Rules of Procedure, if a request to arrange a hearing is not submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, the Court may decide to rule on the action without an oral part of the procedure. In the present case, since it considers that it has sufficient information available to it from the material in the file, the Court has decided, in the absence of such a request, to rule without an oral part of the procedure.
25The applicant claims that the Court should:– annul the letters of 6 July 2015, 23 May and 14 June 2016 (‘the contested measures’);– join the present proceedings to Case T‑544/15, in accordance with Article 68(1) of the Rules of Procedure;– order the Commission to pay the costs.
26The Commission contends that the Court should:– dismiss the action as inadmissible and, in the alternative, as unfounded;– order the applicant to pay the costs.
27The application to join the present case to Case T‑544/15 has become redundant and there is therefore no longer any need to rule on the applicant’s second head of claim since, by order of 13 September 2016, Terna v Commission (T‑544/15, not published, EU:T:2016:513), the Court dismissed the action brought in the case in question as manifestly inadmissible.
Law
The plea of inadmissibility
28The Commission claims that the action is inadmissible on the ground that the contested measures are not acts capable of forming the subject matter of an action for annulment for the purposes of Article 263 TFEU. The Commission argues in this regard that the contested measures are not acts which definitively determine its position or final acts but rather acts preparatory to a possible recovery procedure. The Commission submits that only a possible decision following the issuing of the debit note could form the subject matter of an action for annulment.
29The applicant contests the Commission’s arguments and argues that the contested measures are final acts which produce binding legal effects, such as the refund of amounts, capable of affecting its interests by bringing about a significant change in its legal position. In this regard, the applicant submits, first of all, that the Commission fails to take account of the payment made by it, subject to reservations, on 12 August 2016, of the amounts requested by the Commission in order to avoid incurring default interest, and that, therefore, in such circumstances, the Commission will not adopt a subsequent decision, which in its view is the only act open to challenge. Next, the applicant submits that, if the contested measures are not open to appeal pursuant to Article 263 TFEU, the only act open to challenge would be that which the Commission would adopt on expiry of the deadline set for the payment of the debit note, that is to say when the default interest penalty applies, and that this would be contrary to the most fundamental legal principles. Lastly, the applicant submits that, if the action is dismissed on the ground of inadmissibility, the Court would deprive it of its right to effective judicial protection.
30In that regard, it should be recalled that, in accordance with settled case-law, only measures which produce binding legal effects capable of affecting an applicant’s interests by bringing about a significant change in his legal position are acts or decisions against which an action for annulment may be brought under Article 263 TFEU (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 5 October 1999, Netherlands v Commission, C‑308/95, EU:C:1999:477, paragraph 26; and of 29 January 2002, Van Parys and Pacific Fruit Company v Commission, T‑160/98, EU:T:2002:18, paragraph 60).
31More specifically, in the case of acts adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, it is clear from that same case-law that, in principle, an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 14 December 2006, Germany v Commission, T‑314/04 and T‑414/04, not published, EU:T:2006:399, paragraph 38).
32In the present case, it should be noted that, as is stated in paragraph 4 above, under Article 9 of Regulation No 680/2007, following every call for proposals for the award of financial aid, the Commission is to decide on the amount of the financial aid to be granted to the projects or parts of projects selected and to specify the conditions and methods for their implementation.
33Thus, the contested measures come within the framework of the Decisions of 2 December 2008 and of 21 May 2010, which are binding on the Commission and the applicant. Those Commission decisions entail an acceptance of the proposals submitted, namely agreement between the parties submitting the proposals, on the one hand, and the Commission, on the other, without however Regulation No 680/2007 providing that such agreement is to take the form of a contract.
34In such a context, the Commission’s letters of 23 May and 14 June 2016, in which the Commission makes definitive claims against the aid beneficiary, on the basis of the decision to grant financial aid, can be classified as acts open to review only if they specify the amounts which the Commission considers must be recovered from the aid beneficiary and which that beneficiary repays, subject to the bringing of an action, thus conforming to the will of the Commission.
35Furthermore, since repayment has been made, the Commission will not adopt any decision following the issuing of the debit note. Accordingly, preventing the applicant from being able to contest the sums repaid would risk undermining its right to an effective remedy. It would therefore be contrary to the right to sound administration to encourage the applicant not to pay the amounts payable as set out in the debit note so that any decision adopted after the debit note is issued may be challenged on the basis of Article 263 TFEU.
36It follows from the foregoing that the plea of inadmissibility raised by the Commission must be dismissed in relation to the letter of 14 June 2016, which serves as the covering letter for the debit notes mentioned in paragraph 18 above, and the letter of 23 May 2016, pursuant to which the ‘Energy’ DG of the Commission determined the definitive position of that institution vis-à-vis the merits of the case, after examining one last time the arguments advanced by the applicant and also consulting the competent staff of other directorates-general. However, the action must be dismissed as inadmissible in so far as it is directed against the letter of 6 July 2015, which has already been the subject matter of an action dismissed by the order of 13 September 2016, Terna v Commission (T‑544/15, not published, EU:T:2016:513) (see paragraphs 16 and 19 above), since that order has become final.
Substance
37The applicant puts forward four pleas in support of its action: the first alleges, in essence, a failure to conduct inquiries and to state reasons for the contested measures, a misapplication of Articles 14 and 37 of Directive 2004/17, and a misapplication of Article III.3.7, paragraphs 1, 4 and 6, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010; the second alleges a misapplication of Article 40(3)(c) of Directive 2004/17; the third alleges infringement of the principle of the protection of legitimate expectations; and the fourth, raised in the alternative, alleges infringement of the principle of proportionality.
38As a preliminary point, it should be observed that, on several occasions in the application, the applicant has claimed that the tasks at issue should have been examined independently from the framework agreements, concluded with CESI between 2009 and 2011, within the scope of which those tasks fall. The applicant considers that that substantive error conditioned the Commission’s subsequent analysis, since economic considerations, which are admittedly relevant as regards the conclusion of the framework agreements, are not relevant in relation to the tasks at issue, which led to the costs associated with those tasks being regarded as ineligible.
39In the present case, firstly, it should be observed that the applicant contradicts itself, in this regard, in the application. Although on several occasions it disputes the link between the tasks at issue and the framework agreements, on other occasions it claims that those tasks are linked to and come under the framework agreements. In the application, the applicant itself defines that relationship, by submitting that the tasks at issue must be assessed in the broader context of the relations existing between it and CESI, which are governed by the framework agreements which they concluded between 2009 and 2011. In addition, in the context of its third plea, the applicant claims that the legality of the direct award of the tasks at issue followed specifically from the Commission’s failure to contest the award, by a procedure without call for competition, of framework agreement No 3000034279, under which those tasks fall. However, the applicant also states in the application that the framework agreements are irrelevant as far as Projects E 221 and E 255 are concerned and that, therefore, the Commission should have restricted its examination solely to the direct awards to CESI of the tasks at issue beyond the framework agreements. Accordingly, it follows from the foregoing that the applicant cannot criticise the Commission, on the one hand, for having focused solely on the legality of the framework agreements and, on the other, of inferring the legality of each direct award of the tasks at issue specifically from the prior legality of the framework agreements.
40Secondly, it must be observed that the definition of a framework agreement contained in Article 1(4) of Directive 2004/17 establishes that a framework agreement is an agreement by which the contracting entity defines, with one or more economic operators, the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantities envisaged. It is apparent from that definition that the contracts based on the framework agreements are awarded subject to the conditions laid down in the framework agreement and that all the contracts awarded during the entire term of the framework agreement are intrinsically linked to the framework agreement, which will determine the prices, quantities and conditions.
41Thirdly it must be recalled that, under Article 17(2) of Directive 2004/17, contracting entities may not circumvent that directive by splitting works projects or proposed purchases of a certain quantity.
42Accordingly, in the light of Directive 2004/17 and in view of the close relationship between the framework agreements and the tasks at issue, awarded to CESI directly on the basis of those framework agreements, an assessment of the legality of the award of the tasks at issue, independent from the award of the framework agreements to which they are inevitably and intrinsically linked, would be clearly contrary to that directive.
43The Commission therefore correctly assessed the legality of the direct award of the tasks at issue to CESI in close conjunction with the award of the framework agreements under which those tasks fell.
44It is in the light of these preliminary considerations that the pleas in law put forward in support of the action must be examined.
The first plea in law, alleging, in essence, a failure to conduct inquiries and to state reasons for the contested measures, a misapplication of Articles 14 and 37 of Directive 2004/17, and a misapplication of Article III.3.7, paragraphs 1, 4 and 6, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010
45This plea is divided, in essence, into three parts, alleging, first, a failure to conduct inquiries and to state reasons for the contested measures; second, a misapplication of Articles 14 and 37 of Directive 2004/17; and, third, a misapplication of Article III.3.7, paragraphs 1, 4 and 6, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010, on account of an excessively formal application of Directive 2004/17.
–The first part of the first plea, alleging a failure to conduct inquiries and to state reasons for the contested measures
46The applicant takes the view, in essence, that the contested measures are vitiated by a failure to conduct inquiries and by an insufficient statement of reasons because the Commission relied on an incorrect reading of the applicable provisions and an incorrect framing of the relationship between the tasks at issue and the framework agreements.
47In this regard, the applicant submits that it has always relied in the alternative, and not cumulatively, on the derogation laid down in Article 40(3)(c) of Directive 2004/17, which concerns the tasks at issue only, and that laid down in Article 40(3)(i) of that directive, which concerns the framework agreements. In the applicant’s view, the Commission should have assessed whether there were technical reasons, within the meaning of Article 40(3)(c) of Directive 2004/17, justifying the award by a procedure without prior call for competition, having regard to those tasks and not to the framework agreements.
48In addition, the applicant claims that the brief statement of reasons provided by the Commission is manifestly flawed, since the Commission has never provided a response to the observations made by the applicant concerning the existence of technical reasons justifying the award of the tasks at issue to CESI by a procedure without prior call for competition.
49Finally, the applicant submits that the Commission wrongly excluded from the reimbursement sought by the applicant the costs relating to the tasks at issue awarded directly to CESI, on the basis of the assumption that the framework agreements to which those tasks refer were concluded by a procedure without prior call for competition, in breach of the EU rules on public procurement.
50The Commission contests the applicant’s arguments.
51It should be recalled that, in accordance with settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of that act (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited).
52The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 50 and the case-law cited).
53The statement of reasons must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (see judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54 and the case-law cited).
54Firstly, it should be observed, as set out in paragraphs 39 to 43 above, that the Commission correctly assessed the legality of the direct award of the tasks at issue to CESI in close conjunction with the award of the framework agreements under which those tasks fell. It follows that the applicant’s complaints concerning the incorrect framing of the relationship between the tasks at issue and the framework agreements have no basis.
55Second, it is apparent from the contested measures that the Commission set out the reasons why, in its view, the costs associated with the tasks at issue directly awarded to CESI in the context of Projects E 221 and E 255 were regarded as ineligible, and that the reasons provided by the applicant to derogate from the rules on public procurement were neither technically nor legally acceptable. Thus, by letter of 6 July 2015, the Commission stated that those tasks had not formed the subject of a call for competition procedure when they were awarded and that, therefore, the ability of the applicant to award them directly to CESI turned on the compatibility of the procedure adopted to conclude the framework agreements, under which the tasks at issue fell, with Directive 2004/17, in accordance with Article 14(2) and (3) of that directive. The Commission submitted in that regard that the explanations provided by the applicant, based on the technical nature of the expected provision of services, were incapable of justifying the direct award of the framework agreements. In addition, by letter of 23 May 2016, the Commission informed the applicant that the explanations advanced could not alter the assessments contained in the letter of 6 July 2015, which had to be regarded as final, and stated that, within a period of one month, it would issue two debit notes with a view to the recovery of an amount of EUR 414 101.72 in relation to Project E 221 and of an amount of EUR 80 769.67 in relation to Project E 255. Finally, the Commission sent the two debit notes to the applicant on 14 June 2016.
56It follows from the foregoing that the contested measures mark the conclusion of an exchange of letters, in the course of which the Commission set out, to the requisite legal standard, the points of fact and of law upon which it based its decisions and responded to all the comments made by the applicant. Accordingly, the contested measures were adopted in a context which enabled the applicant to understand the scope of the measures concerning it and, thereafter, sufficient reasons for them are stated.
57Finally, the question of whether the conclusion of a framework agreement in breach of the EU rules on public procurement is incapable of excluding the costs relating to the tasks coming under that framework agreement falls within the scope of the examination of the merits of the case and not of the form of the contested measures. Accordingly, such considerations, even assuming that they are sufficiently precise, are irrelevant in the context of the complaint alleging a failure to state reasons and can only be rejected.
58It follows from the foregoing that the first part of the first plea must be dismissed.
–The second part of the first plea, alleging a misapplication of Articles 14 and 37 of Directive 2004/17
59The applicant submits that the Commission was wrong to find that the use of subcontracting provides evidence capable of ruling out the existence of technical reasons which would justify the award of contracts by a procedure without call for competition, in accordance with Article 40(3)(c) of Directive 2004/17. In that regard, the applicant takes the view that the provision on subcontracting, namely Article 37 of Directive 2004/17, does not exclude from its scope contracts awarded by a procedure without prior call for competition, and that, similarly, Article 40 of Directive 2004/17 does not provide that, in a case of direct award by a procedure without call for competition, the particular economic operator is required to perform all the services forming the subject matter of the contract personally.
60The applicant adds that, in any event, subcontracting was used in relation to just one of the tasks at issue and provided for in favour of a restricted number of operators and in relation to purely secondary and ancillary activities which have a minor impact and are of no particular importance in the performance of that task. Moreover, the applicant claims that the services provided by the subcontractor were different from those to which technical reasons were connected.
61The Commission contests the applicant’s arguments.
62It should be observed that, although Article 37 of Directive 2004/17 allows contracting entities to subcontract to third parties a share of the contract at issue, Article 40(2) of that directive provides that contracting entities may choose between an open, restricted or negotiated procedure for the award of their contracts, provided that a call for competition has been made. In addition, Article 40(3)(c) of that directive provides that contracting authorities may use a procedure without prior call for competition when, for technical reasons, the contract may be executed only by a particular economic operator.
63In the present case, it should be observed that the use of other economic operators with a view to the provision of a service precludes, in itself, that service provision from coming under the derogation laid down in Article 40(3)(c) of Directive 2004/17. As is apparent from case-law, the application of Article 40(3)(c) of Directive 2004/17 is subject to two cumulative conditions, namely, first, that there are technical reasons connected to the services which are the subject matter of the contract and, second, that those technical reasons make it absolutely necessary to award that contract to a particular operator (see, by analogy, judgment of 2 June 2005, Commission v Greece, C‑394/02, EU:C:2005:336, paragraph 34).
64In addition, the framework agreements concluded with CESI, under which the tasks at issue fell, authorise the use of subcontracting, and the activities together with the corresponding contractors are listed in the framework agreements. Accordingly, the applicant must be deemed to have considered that other operators were, in principle, capable of carrying out those activities (see, to that effect and by analogy, judgment of 2 June 2005, Commission v Greece, C‑394/02, EU:C:2005:336, paragraph 37). It must therefore be held that it was not absolutely necessary to award those framework agreements to CESI, since the latter was not the only operator with the expertise to provide the services at issue.
65It cannot therefore be argued that the use of other operators — even in marginal circumstances, where the number of operators is restricted or where the activities are secondary — does not preclude the service provided from coming under the derogation provided for in Article 40(3)(c) of Directive 2004/17.
66In those circumstances, the second part of the first plea must be dismissed.
–The third part of the first plea, alleging a misapplication of Article III.3.7, paragraphs 1, 4 and 6, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010
67The applicant claims that Article III.3.7, paragraphs 1, 4 and 6, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010 has been misapplied on account of an excessively formal application of Directive 2004/17.
68In that regard, the applicant submits that Article III.3.7, paragraph 1, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010 does not provide for the obligation to use prior open or restricted procedures for the award of contracts, but merely lays down a more general duty to incur costs which are ‘reasonable and justified and which comply with the requirements of sound financial management, in particular in terms of economy and efficiency’. The applicant submits that, although it did lawfully opt not to launch a call for competition procedure in the literal sense for the award of contracts to CESI, it did conduct in-depth negotiations with CESI, obtaining substantial discounts from that operator. The applicant therefore criticises the Commission for having applied Directive 2004/17 in an excessively formal manner, since the Commission simply stated that the costs arising from the contracts directly awarded to CESI were not eligible merely because they had been awarded by a procedure without prior call for competition, without conducting a substantive review as to whether or not those contracts were advantageous from an economic perspective and whether the costs were reasonable and justified.
69The Commission contests the applicant’s arguments.
70It must be recalled that the principle of competitive tendering forms the basis of all public contracts financed in whole or in part by the budget of the European Union, alongside the principles of transparency, proportionality, equal treatment and non-discrimination, as provided for in Article 102 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).
71It must be observed that the contracts at issue, since they are financed in part by the European Union, must comply with the applicable rules on public procurement. Those rules include Article III.2.5 of Annex III to the Decisions of 2 December 2008 and of 21 May 2010, which establishes the principle that, when financed activities are awarded to third parties, the beneficiary is required to comply with the applicable rules on public procurement, as laid down in EU law. In addition, in accordance with Article 40(2) of Directive 2004/17, when awarding contracts, contracting entities may apply open, restricted or negotiated procedures, provided that, subject to the exceptions laid down in paragraph 3 of that article, a call for competition has been made.
72In the present case, the cost effectiveness of awarding activities to external operators does not provide an exemption from the obligation to comply with the provisions of Article III.2.5 of Annex III to the Decisions of 2 December 2008 and of 21 May 2010. The applicant relies on Article III.3.7(f) of Annex III to the Decisions of 2 December 2008 and of 21 May 2010, claiming that, in order to be eligible, the costs of the action must be reasonable and justified and comply with the principles of sound financial management. It submits that those principles were under no circumstances breached when the framework agreements were awarded to CESI by a procedure without prior call for competition, since CESI gave it substantial discounts. However, although that factor may be significant when awarding contracts, it cannot in any event justify derogation from the procurement rules and does not guarantee that the action has been undertaken in accordance with the policies of the European Union, in particular with the rules on public contracts.
73In that context, the Commission observed, in its letters of 6 July 2015 and of 23 May 2016, that the direct award of the framework agreements, under which the tasks at issue fall, was not justified by arguments based on technical reasons connected with the contract, pursuant to which the contract may be executed only by a particular economic operator. Accordingly, in view of the failure to comply with the rules laid down in EU legislation applicable in the field of public contracts when the abovementioned framework agreements were awarded by a procedure without prior call for competition, the costs relating to the tasks at issue cannot be regarded as eligible, even if they are reasonable and justified.
74It follows from the foregoing that the third part of the first plea must be dismissed and, therefore, so must the first plea in its entirety.
The second plea, alleging the misapplication of Article 40(3)(c) of Directive 2004/17
75The applicant submits that by entrusting to CESI, by a procedure without prior call for competition, services which it could not perform using its own resources was, in reality, a necessary decision, since CESI was the only operator capable of performing those services. The applicant thus states that the choice of CESI was covered by the exception laid down in Article 40(3)(c) of Directive 2004/17.
76The applicant considers that it provided precise information and justifications concerning the scope of the technical specifications of the services awarded directly to CESI, thus making clear the reasons why the award to CESI was necessary and, in any event, more economically advantageous. In this regard, the applicant submits that CESI is the only operator capable of providing the necessary support on account of its competence in the management and use of the software Spira, Promed, Sicre and Wcreso and the tool Grare, used in the context of framework agreement No 3000034279, in relation to Project E 255, and of framework agreement No 3000029140, in relation to Project E 221. More specifically, the applicant submits that a contract concluded with any other economic operator would have been on less advantageous terms, that the implementation time frames would have been longer, and that certain errors could have been made or information lost.
77Furthermore, the applicant takes the view that, in accordance with case-law, the continuity of complex projects constitutes a valid technical reason for the direct award to a particular operator. In this regard, it submits that it has shown that there were no reasonable alternatives to the direct award of the tasks at issue to CESI and, in view of the link existing between the tasks at issue and the activities previously performed under the framework agreements, it awarded those tasks to CESI by a procedure without prior call for competition.
78The Commission contests the applicant’s arguments.
79It follows from Article 40(3)(c) of Directive 2004/17 that contracting entities may use a procedure without prior call for competition inter alia when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be executed only by a particular economic operator.
80Moreover, it must be recalled that it follows from case-law that the application of Article 40(3)(c) of Directive 2004/17 is subject to two cumulative conditions, namely, first, that there are technical reasons connected to the works which are the subject matter of the contract and, second, that those technical reasons make it absolutely necessary to award that contract to a particular contractor (see, by analogy, judgment of 2 June 2005, Commission v Greece, C‑394/02, EU:C:2005:336, paragraph 34).
81It should also be noted that, as derogations from the rules relating to procedures for the award of public procurement contracts, the provisions of Article 20(2)(c) 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 (OJ 1993 L 199, p. 84), which contained similar rules to those laid down in Article 40(3)(c) of Directive 2004/17, had to be interpreted strictly. In addition, the burden of proof lies on the party seeking to rely on those provisions (judgment of 2 June 2005, Commission v Greece, C‑394/02, EU:C:2005:336, paragraph 33).
82In the present case, the applicant claims that the supplies of services involving services which it was unable to perform itself, using its own resources, are covered by the exception laid down in Article 40(3)(c) of Directive 2004/17, since CESI was the only operator capable of performing those services.
83It must be stated that the applicant, on whom the burden of proof lies, does not state any technical reasons or point to any ground establishing that such technical reasons, even assuming that they exist, made it absolutely necessary to entrust the performance of those services to CESI. In this regard, the applicant simply relies on the fact that the activities forming the subject matter of those supplies of services involved the use of software or of a programme already used jointly by it and CESI. It must be observed that, as the Commission points out, the fact that CESI uses software owned by the applicant is indeed an assessment criterion in the context of a comparison with other competing operators, but it cannot justify, in the light of the case-law cited in paragraph 80 above, the a priori exclusion of any other operator on the ground that CESI is, allegedly, the sole competent operator. Nothing would prevent the applicant, should it receive a more advantageous tender than CESI’s tender, from granting a licence for the use of the software or of the programme at issue to the new operator. In particular, it should be observed that the licence to use the programmes or software is not an exclusive right which would make it impossible for other operators to be used to perform the activities in question. This is necessarily the case because if it were possible to rely on previous professional relationships with the contracting entity in order to preclude any procedure involving a call for competition when new contracts are awarded, the objective of opening up contracts pursued by Directive 2004/17 would inevitably be compromised and this would have the paradoxical result of impeding competition to the benefit of the contractor.
84In addition, with regard to the explanations offered by the applicant to justify the direct award of the contested services to CESI on the ground that a contract concluded with any other company would have been on less advantageous terms, that the implementation time frames would have been longer or that certain errors might have been made or information lost, it should be observed that the alleged problems involved in moving from one provider to another and the additional costs to which that change might give rise, factors relied on the applicant, logically presuppose that a change in operator from CESI to another tenderer was technically possible. At no point does the applicant ever refer to a ground of technical incompatibility which would objectively prevent another operator from providing the same services, such that, as set out in paragraph 80 above, it would be absolutely necessary to select one operator only. In any event, it should also be noted that the applicant has at no time provided figures or evidence to show that a contract concluded with any other company would have been more costly or involved longer implementation time frames.
85Finally, with regard to the continuity of works, it must be observed that it is true that the aim of ensuring the continuity of works under complex projects is a technical reason which must be recognised as being important. However, merely to state that a package of works is complex and difficult is not sufficient to establish that it can only be entrusted to one contractor (see, by analogy, judgment of 14 September 2004, Commission v Italy, C‑385/02, EU:C:2004:522, paragraph 21). In the present case, the applicant simply stated in general terms that the use of any other operator would increase the costs and time frames without providing explanations which could show the need to use one operator only. The lack of other reasonable solutions is not the reference criterion for determining the legality of the direct award to a particular operator, which presupposes, on the contrary, the absolute necessity of such an award, as is established in case-law. Accordingly, the link between the previous activities provided by CESI for the applicant under the framework agreements and the tasks at issue cannot constitute such a reason.
86Since the applicant has failed to prove that, for technical reasons, within the meaning of Article 40(3)(c) of Directive 2004/17, the framework agreements under which the tasks at issue fall could only be awarded to CESI, the second plea in law must be dismissed.
The third plea, alleging infringement of the principle of the protection of legitimate expectations
87Firstly, the applicant claims that the contested measures are contrary to the principle of the protection of legitimate expectations because the Commission found to be ineligible the costs arising from the tasks falling under framework agreement No 3000034279, which it has never contested despite the publication of the award notice for that framework agreement in the Official Journal of the European Union on 7 July 2010. In this regard, the applicant submits that the publication in the Official Journal of the European Union of a contract notice providing information about the award of a contract to a particular economic operator following a negotiated procedure without prior call for competition, without the Commission or another economic operator contesting that award or submitting observations within the time limits laid down in Article 2f of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31), is a factor capable of giving rise to a legitimate expectation on the part of the applicant as to the lawfulness of the procedure adopted.
88Secondly, the applicant contests the applicability of the provisions of Directive 2004/17 in the present case on the basis of the value of a significant proportion of the number of tasks at issue, which is lower than the relevance threshold laid down in Article 16(a) of that directive.
89The Commission contests the applicant’s arguments.
90First, it must be observed that, in accordance with settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any individual in regard to whom an institution of the European Union has given rise to justified hopes (see judgment of 11 March 1987, Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC, 265/85, EU:C:1987:121, paragraph 44 and the case-law cited).
91However, three cumulative conditions must be satisfied in order to rely on that principle. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 30 June 2005, Branco v Commission, T‑347/03, EU:T:2005:265, paragraph 102 and the case-law cited; judgments of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 77, and of 30 June 2009, CPEM v Commission, T‑444/07, EU:T:2009:227, paragraph 126).
92With regard to the first condition, it is settled case-law that such assurances, in whatever form they are given, are precise, unconditional and consistent information from authorised and reliable sources. However, a person may not plead breach of the principle of legitimate expectations unless he has been given precise assurances by the administration (see judgment of 19 March 2003, Innova Privat-Akademie v Commission, T‑273/01, EU:T:2003:78, paragraph 26 and the case-law cited).
93In the present case, it is not apparent from the information in the file that the Commission gave the applicant the precise assurance that it would approve the method used by the applicant to award the contracts under Projects E 221 and E 255. Verification of the eligibility of expenditure is carried out only after the final financial statements have been produced, whereas the previous stages are concerned solely with the technical monitoring of the progress of the projects. Accordingly, it is only when payment of the balance is requested, a request which is submitted together with the technical implementation report and the financial statement of the eligible costs actually borne, that such verification takes place, as is clear inter alia from Article III.3.5 of Annex III to the Decisions of 2 December 2008 and of 21 May 2010.
94Accordingly, the fact that the Commission did not contest the award of framework agreement No 3000034279 to CESI, despite the lawful publication in the Official Journal of the European Union of the award notice, does not constitute an assurance such as to give rise to a legitimate expectation on the part of the applicant as regards the eligibility of the expenditure. In this regard, the silence observed by the Commission regarding the direct award of the framework agreement cannot be regarded as a precise assurance provided by the administration capable of giving rise to a legitimate expectation (see, to that effect, judgment of 18 January 2006, Regione Marche v Commission, T‑107/03, not published, EU:T:2006:20, paragraph 134).
95Secondly, with regard to the applicant’s argument that Directive 2004/17 is not applicable in the present case, it should be observed that, as regards specifically the calculation of the estimated value of a public contract, Article 17(2) and (3) of Directive 2004/17 provides, first, that, with regard to framework agreements, the estimated value to be taken into consideration is to be the maximum value net of value added tax (VAT) of all the contracts envisaged for the total term of the framework agreement and, second, that contracting entities may not circumvent the Directive by splitting works projects or proposed purchases of a certain quantity of supplies or services or by using special methods for calculating the estimated value of contracts. However, as has been set out in paragraphs 39 to 43 above, the tasks at issue directly awarded to CESI could not seriously be regarded as being separate from the framework agreements, since those tasks were carried out specifically in performance of those agreements.
96It is therefore necessary to determine the applicability of Directive 2004/17, for the purposes of Article 17(3) thereof, as regards the value of the framework agreements. In this regard, it must be observed that the value of the framework agreements significantly exceeds the relevance threshold, since framework agreement No 3000029140 was concluded for an amount of EUR 16039700, framework agreement No 3000034279 for an amount of EUR 19200000, and framework agreement No 6000001506 for an amount of EUR 24925000; in accordance with Article 16(a) of Directive 2004/17, the relevance threshold for supply and service contracts is EUR 499000.
97In those circumstances, the third plea must be dismissed.
The fourth plea, alleging infringement of the principle of proportionality
98The applicant submits, in the alternative, that the contested measures are unlawful since the Commission found all the costs relating to the tasks at issue to be ineligible. The applicant submits that the Commission declared those costs to be ineligible since, when awarding contracts to companies belonging to the same group, the principle of economic efficiency had not been observed because CESI had provided the services to it on market terms and had thus made a profit. The applicant takes the view, in this regard, that the Commission’s actions are contrary to the principle of proportionality, since Article III.3.8, paragraphs 4 and 6, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010 does not allow the Commission to exclude all the costs borne where a profit is made, but requires, as the case may be, simply a reduction in the amount of the financial aid in respect of the share deemed to be ineligible.
99The applicant therefore submits that the correct application of that article should have led the Commission, first of all, to identify the profit margin component of the costs relating to the tasks at issue and then to declare those costs ineligible solely in respect of the share of the profit deemed ineligible. The applicant therefore takes the view that the Commission exercised an excessive power to impose penalties given its remit, which confers on it only powers of monitoring and control.
100In addition, the applicant submits that the Commission declared the expenses at issue ineligible, whilst noting that CESI was not a company controlled by the applicant but merely a company associated with it. However, in the applicant’s view, a consistent application of that finding should have meant that the Commission understood that it was impossible for the applicant to obtain from CESI a detailed breakdown of the costs relating to the services provided by that company.
101The Commission contests the applicant’s arguments.
102It should be observed that this plea is ineffective since, as has been established in paragraph 15 above, following the further investigation ordered by the Commission, the Commission revised its position and found the costs to be ineligible on account of the failure to comply with the rules on public procurement and not because of the failure to comply with the principle of economic efficiency when awarding contracts to companies belonging to the same group. By its letter of 6 July 2015, the Commission informed the applicant that the costs relating to the tasks at issue, which were awarded directly to CESI, were ineligible because the framework agreements had been awarded by a procedure without call for competition and that the applicant had not satisfied the burden of proof laid down in Article 40(3) of Directive 2004/17.
103In the present case, the Commission has not exercised any power to impose penalties, but has simply found there to have been a breach of Article III.2.5.3 of Annex III to the Decisions of 2 December 2008 and of 21 May 2010, which requires the applicant to comply with EU legislation on the award of public contracts when awarding its contracts. Once that breach was established by the Commission, it could not come to any other conclusion, since only the costs of the action relating to contracts awarded in accordance with EU legislation on public contracts could be regarded as costs eligible for co-financing, as provided for in Articles III.2.5.3 and III.3.7 of Annex III to the Decisions of 2 December 2008 and of 21 May 2010. Therefore, faced with non-compliance with EU legislation on the award of public contracts in relation to certain contracts, the Commission was obliged to declare the related expenditure to be ineligible, to calculate the amount of the aid accordingly and to launch a procedure for the recovery of the difference between the amounts of the eligible costs and the amounts already paid. Thus, the amounts corresponding to the ineligible costs, in so far as they relate to contracts unlawfully entrusted to CESI, have become undue and, as such, subject to the repayment obligation pursuant to Article III.3.9, paragraph 1, of Annex III to the Decisions of 2 December 2008 and of 21 May 2010.
104Furthermore, the Commission cannot be criticised for having imposed a penalty, since the measures adopted to recover a proportion of the amounts paid has a less onerous impact on the beneficiary than the cancellation of the aid altogether. In accordance with Article 116(3) of Regulation No 966/2012, where, after the signature of the contract, the procedure or the performance of the contract proves to have been subject to substantial errors, irregularities or fraud, the contracting authority may suspend the performance of the contract or, where appropriate, terminate it. Furthermore, where substantial errors or irregularities are committed by the contractor, the contracting authority may, in addition, refuse to make payments or recover amounts unduly paid, to an extent proportionate to the seriousness of the substantial errors, irregularities or fraud.
105In those circumstances the fourth plea must be dismissed and the present action must be dismissed in its entirety.
Costs
106Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs in addition to those of the Commission, in accordance with the latter’s pleadings.
Operative part
On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:
1.Dismisses the action;
2.Orders Terna — Rete elettrica nazionale SpA to bear its own costs and those incurred by the European Commission.
Delivered in open court in Luxembourg on 18 October 2018.
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