Agbar has filed a complaint with the Secretariat-General of the European Commission for breach of Community law in relation to public contracts due to the systematic infringement by the Generalitat of the judicial decisions which oblige it to exclude Acciona from ATLL.
The document, presented by the lawyer Santiago Muñoz Machado on behalf of the company Aguas de Barcelona, concludes that “after two years in which the Generalitat of Catalonia has continued to manifestly and seriously breach the directives on contractual remedies, SGAB has decided to turn to the European Commission to begin the procedure foreseen in Article 258 of the Treaty on the Functioning of the EU”. This article authorizes the Commission to issue a reasoned opinion should a member state breach any of its obligations by virtue of the treaties.
The complaint refers to “the breach, by a contracting authority (the Administration of the Autonomous Community of Catalonia), of the right to an effective remedy in relation to public contracts, in addition to the basic principles of public procurement (equality, transparency and free competition)”.
According to the complaint lodged last Friday in Brussels, despite the fact that the Administrative Office of Contractual Appeals of Catalonia (OARCC) ruled that the winning bidder’s offer should be excluded, “since January 2013 the company which is not entitled to this (Acciona) has continued to act as the successful bidder, manifestly and scandalously mocking the contractual remedy which, however, has been incorporated into Spanish legislation by virtue of the provisions of the legislation of the EU”.
In this respect it is recalled that “it is not that the procurement process has been halted for all this time, but rather that the contracting authority has formalized the contract with the bidder whose offer should be excluded, despite the nullity of the award agreement declared by the competent body for appeals”.
Although the decision of the OARCC is enforceable and this has been confirmed as a final decision by the Spanish courts — six orders of the High Court of Catalonia and three final judgements of the Supreme Court of Justice —, the Generalitat is violating the guarantee and the imperative of effectiveness that must be recognized for a special appeal on contracting as imposed by Directive 2007/66/EC, the purpose of which is precisely to avoid faits accomplis and the maintenance of illegal or de facto situations in the public procurement of European contracting authorities.