18.7.2016

Official Journal of the European Union

C 260/2

(Joined Cases C-260/14 and C-261/14) (<span class="super">1</span>)

((Reference for a preliminary ruling - Protection of the financial interests of the European Union - Regulation (EC, Euratom) No 2988/95 - European Regional Development Fund (ERDF) - Regulation (EC) No 1083/2006 - Award of a contract by the beneficiary of funds acting as contracting authority for the performance of the action eligible for funding - Definition of ‘irregularity’ - Criterion relating to ‘breach of EU law’ - Tendering procedures contrary to national law - Nature of financial corrections adopted by Member States - Administrative measures or penalties))

(2016/C 260/02)

Language of the case: Romanian

Referring court

Parties to the main proceedings

Applicants: Judeţul Neamţ (C-260/14), Judeţul Bacău (C-261/14)

Defendant: Ministerul Dezvoltării Regionale şi Administraţiei Publice

Operative part of the judgment

1.Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests and Article 2(7) 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 failure to comply with national provisions by a contracting authority, the beneficiary of Structural Funds, in connection with the award of a public contract of an estimated value below the threshold laid down in Article 7(a) 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, as amended by Commission Regulation (EC) No 1422/2007 of 4 December 2007, may constitute, at the time the contract is awarded, an ‘irregularity’ within the meaning of Article 1(2) of Regulation No 2988/95 or Article 2(7) of Regulation No 1083/2006, if that breach has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure.

2.The second sentence of the first subparagraph of Article 98(2) of Regulation No 1083/2006 is to be interpreted as meaning that financial corrections by Member States, if applied to co-financed expenditure under Structural Funds for failure to comply with rules concerning the award of public contract, are administrative measures within the meaning of Article 4 of Regulation No 2988/95.

3.The principles of legal certainty and protection of legitimate expectations must be interpreted as not precluding a Member State from applying financial corrections governed by an internal legislative measure which entered into force after an alleged breach of the rules governing public contracts occurred, provided that it is a question of the application of new rules to the future effects of situations which arose under the earlier rules, which is a matter to be determined by the national court, taking into account all the relevant circumstances of the proceedings before it.

(<span class="super">1</span>) OJ C 292, 1.9.2014.