Zamestnik-ministar na regionalnoto razvitie i blagoustroystvoto i rakovoditel na Upravlyavashtia organ na Operativna programa „Regioni v rastezh“ 2014-2020 v Obshtina Razlog.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:472
• Docket Number: C-376/21
• Date: 16 June 2022
• Celex Number: 62021CJ0376
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

16 June 2022 (*)

(Reference for a preliminary ruling – Public procurement – Regulation (EU, Euratom) 2018/1046 – Regulation (EU, Euratom) No 966/2012 – Inapplicability to public contracts awarded by Member States and financed by resources from the European Structural and Investment Funds – Directive 2014/24/EU – Direct and unconditional reference to provisions of EU law in national legislation – Applicability to a contract whose estimated value is lower than the threshold set in the directive – Article 32(2)(a) – Option for a contracting authority to invite only one economic operator to participate in a negotiated procedure without prior publication after deeming a prior open procedure unsuccessful – Obligation to maintain the initial conditions of the contract without introducing substantial alterations)

In Case C‑376/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), made by decision of 28 May 2021, received at the Court on 17 June 2021, in the proceedings

Zamestnik-ministar na regionalnoto razvitie i blagoustroystvoto i rakovoditel na Upravlyavashtia organ na Operativna programa ‘Regioni v rastezh’ 2014-2020

v

Obshtina Razlog,

THE COURT (Eighth Chamber),

composed of N. Jääskinen, President of the Chamber, M. Safjan and M. Gavalec (Rapporteur), Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the European Commission, by D. Drambozova, P. Ondrůšek, P. Rossi and G. Wils, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 102 and 104 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), as amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 (OJ 2015 L 286, p. 1) (‘Regulation No 966/2012’), as well as Articles 160 and 164 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation No 966/2012 (OJ 2018 L 193, p. 1) (‘the Financial Regulation’).

2 The request has been made in proceedings between the Zamestnik-ministar na regionalnoto razvitie i blagoustroystvoto i rakovoditel na Upravlyavashtia organ na Operativna programa ‘Regioni v rastezh’ 2014-2020 (Deputy Minister for Regional Development and Public Works and Head of the Managing Authority of the operational programme ‘Regions in Growth’ 2014-2020; ‘the Minister’) and the Obshtina Razlog (municipality of Razlog, Bulgaria) concerning that managing authority’s decision to apply a financial correction to that municipality because of breaches of rules relating to, first, public procurement and, second, the use of EU funds allocated to that municipality.

Legal context

European Union law

Regulation No 966/2012

3 Article 102 of Regulation No 966/2012, entitled ‘Principles applicable to public contracts’, provided:

‘1. All public contracts financed in whole or in part by the budget [of the European Union] shall respect the principles of transparency, proportionality, equal treatment and non-discrimination.

2. All contracts shall be put out to competition on the broadest possible basis, except when use is made of the procedure referred to in point (d) of Article 104(1).

…’

4 Article 104 of that regulation, entitled ‘Procurement procedures’, provided, in paragraph 1 thereof:

‘Procurement procedures for awarding concession contracts or public contracts, including framework contracts shall take one of the following forms:

…

(d) negotiated procedure, including without prior publication;

…’

5 Article 117 of that regulation, entitled ‘The contracting authority’, provided, in paragraph 1 thereof:

‘The institutions within the meaning of Article 2, executive agencies and bodies within the meaning of Articles 208 and 209 shall be deemed to be contracting authorities in the case of contracts awarded on their own account, except where they purchase from a central purchasing body. …

Those institutions shall delegate, in accordance with Article 65, the necessary powers for the exercise of the function of contracting authority.’

The Financial Regulation

6 Article 2 of the Financial Regulation, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation, the following definitions apply:

…

(51) “public contract” means a contract for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities within the meaning of Articles 174 and 178, in order to obtain, against payment of a price paid in whole or in part from the budget, the supply of movable or immovable assets, the execution of works or the provision of services, comprising:

…

(b) supply contracts;

…’

7 Article 63 of that regulation, entitled ‘Shared management with Member States’, provides, in paragraph 1 thereof:

‘Where the [European] Commission implements the budget under shared management, tasks relating to budget implementation shall be delegated to Member States. The Commission and Member States shall respect the principles of sound financial management, transparency and non-discrimination and shall ensure the visibility of the Union action when they manage Union funds. To that end, the Commission and Member States shall fulfil their respective control and audit obligations and assume the resulting responsibilities laid down in this Regulation. Complementary provisions shall be laid down in sector-specific rules.’

8 Article 160 of that regulation, entitled ‘Principles applicable to contracts and scope’, provides:

‘1. All contracts financed in whole or in part by the budget shall respect the principles of transparency, proportionality, equal treatment and non-discrimination.

2. All contracts shall be put out to competition on the broadest possible basis, except when use is made of the procedure referred to in point (d) of Article 164(1).

…’

9 Article 164 of that regulation, entitled ‘Procurement procedures’, provides:

‘1. Procurement procedures for awarding concession contracts or public contracts, including framework contracts shall take one of the following forms:

…

(d) negotiated procedure, including without prior publication;

…

4. In all procedures involving negotiation, the contracting authority shall negotiate with tenderers the initial and any subsequent tenders or parts thereof, except their final tenders, in order to improve their content. The minimum requirements and the criteria specified in the procurement documents shall not be subject to negotiation.

…’

10 Article 174 of the Financial Regulation, entitled ‘The contracting authority’, provides, in the first subparagraph of paragraph 1 thereof:

‘Union institutions, executive agencies and Union bodies referred to in Articles 70 and 71 shall be deemed to be contracting authorities in respect of contracts awarded on their own account, except where they purchase from a central purchasing body. Departments of Union institutions shall not be deemed to be contracting authorities where they conclude service-level agreements amongst themselves.’

Directive 2014/24/EU

11 Recitals 2 and 50 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), as amended by Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015 (OJ 2015 L 307, p. 5) (‘Directive 2014/24’), state:

‘(2) Public procurement … [is] one of the market-based instruments to be used to achieve smart, sustainable and inclusive growth, while ensuring the most efficient use of public funds. For that purpose, the public procurement rules adopted pursuant to 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)] and 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 (OJ 2004 L 134, p. 114)] should be revised and modernised in order to increase the efficiency of public spending …

…

(50) In view of the detrimental effects on competition, negotiated procedures without prior publication of a contract notice should be used only in very exceptional circumstances. This exception should be limited to cases where publication is either not possible, for reasons of extreme urgency brought about by events unforeseeable for and not attributable to the contracting authority, or where it is clear from the outset that publication would not trigger more competition or better procurement outcomes, not least because there is objectively only one economic operator that can perform the contract. This is the case for works of art, where the identity of the artist intrinsically determines the unique character and value of the art object itself. Exclusivity can also arise from other reasons, but only situations of objective exclusivity can justify the use of the negotiated procedure without publication, where the situation of exclusivity has not been created by the contracting...