Friday, 29 May 2015

Recognition of official lists of approved economic operators and certification by certification bodies under Reg. 64 Public Contracts Regulations 2015

Reg.64 of the Public Contracts Regulations 2015 (PCR2015) transposes Article 64 of Directive 2014/24 regarding the rules applicable to the recognition of official lists of approved economic operators and certification by certification bodies for the purposes of qualitative selection. The UK (England and Wales) has decided not to create its own official list or certification system [reg.64(10) PCR2015] and, consequently, the rules only apply to the recognition in the UK of inscription in official lists or certification obtained in other Member States. In my view, the transposition is correct.

The following remarks are based on my Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015)323-325, and focus on the text of the Directive. However, they are equally applicable to reg. 64 PCR2015. 

Official Lists of Contractors and Certification Systems. The same logic and criteria applied in the analysis of the rules relating to the qualitative selection of candidates and bidders are of relevance in the analysis of the rules regulating the establishment of official lists of contractors, suppliers or service providers,[1] or of systems of certification by public or private bodies complying with European certification standards within the meaning of Annex VII of Dir 2014/24.[2] 

Such registers[3] and certification systems are aimed at reducing administrative costs and at simplifying the documentation requirements involved in tender procedures,[4] allowing undertakings (or groups of undertakings) to register or get certified for a given period of time, and thereby comply with the formalities regarding professional, economic, financial, quality and environmental standing in all tenders developed during that period of time simply by producing proof of registration or certification (art 64(3) dir 2014/24).[5] They also provide partial or limited proof of suitability to contracting authorities of other Member States by the registered or certified contractors of the Member State holding the official list (art 64(4), 64(5) and 64(6)), and particularly ‘certified registration on official lists by the competent bodies or a certificate issued by the certification body shall constitute a presumption of suitability with regard to requirements for qualitative selection encompassed by the official list or certificate’, thereby partially carrying on this reduction of the administrative burden to the participation in cross-border tender procedures.

These systems can create significant competition problems, particularly depending on the domestic rules applicable by Member States as concerns the authorisation for private certification entities to operate in the market, or the tariffs and prices applicable to certification services, which can raise significant barriers of access to the procurement market. However, these are issues not covered by Dir 2014/24 and, consequently, are dealt with under the applicable competition rules.[6]

In order to guarantee the functionality of these registration and certification systems, Dir 2014/24 establishes certain additional rules—such as a prohibition of revision of information which can be deduced from the ensuing certificates by contracting authorities without justification (art 64(5)), the obligation to run the systems in a non-discriminatory manner (art 64(6)), the non-mandatory character of such systems for operators of other Member States, or the recognition of equivalent certificates and alternative means of proof (art 64(7) dir 2014/24). It also creates some additional mechanisms for the exchange of information between Member States in order to further reduce the administrative burden (art 64(8) dir 2014/24).

From a substantive point of view, it is worth noting that the requirements available to Member States in the design of such registration and certification systems are guided by the general rules and criteria regarding qualitative selection of candidates (art 64(2) dir 2014/24). This is a logical requirement, since these systems should be conceived as instances of (indirect) qualitative selection of bidders with potential effects over a large number of tenders. Indeed, as directed by article 64(2) of Dir 2014/24, Member States shall adapt the conditions for registration on these lists and for the issue of certificates by certification bodies to the relevant provisions regulating qualitative selection criteria, including the specific rules applicable to groups of undertakings. 

Therefore, in general terms, the same pro-competitive requirements already discussed apply here. Notwithstanding this general idea, registers of approved contractors and certification systems present an additional feature that seems to merit detailed analysis: the establishment of the categories or types of contracts, as well as the quantitative thresholds for which registration or certification is available. In this regard, it should be noted that nothing in Dir 2014/24 expressly regulates the categories and thresholds applicable to certification and registration procedures. Establishing excessively narrow or excessively broad categories for registration or certification might generate distortions of competition between registered and non-registered (or certified and non-certified) tenderers, as well as competition amongst tenderers included in each of these groups.

In this regard, it is submitted that an objective, transparent and competition-neutral way to organise the registration and certification systems is to adopt the classifications and descriptions contained in the Common Procurement Vocabulary (CPV)[7]—which, in my opinion, are binding on Member States for these purposes (art 4 in fine Commission Regulation 213/2008). In this regard, certification and registration for each activity and for each product should be available separately, without affecting the possibility of obtaining joint registration or certification for multiple activities and/or products by a single undertaking or group of undertakings. 

Also, the economic thresholds set for certification or registration—that is, the value of the contracts for which certification or registration is obtainable should not be set at excessively high levels—thereby limiting the competitive ability of undertakings in the high range of each of the categories. On the contrary, if possible, the system should allow for ‘continuous’ certification or registration—ie, for a continuous sliding scale of values, perhaps grouped at small intervals—so that each undertaking can get certified or registered to tender for contracts with a value up to whichever amount is proportionate to its particular economic and financial standing, without the need to meet specific minimum thresholds.[8]

In any case, it should be emphasised that the establishment of these registration and certification systems should not prevent unregistered or uncertified operators from proving that they meet the applicable professional, technical, economic, financial, quality and environmental requirements by means other than the relevant certificates—so that lack of registration or certification shall not per se determine the exclusion of interested undertakings from a given tender procedure.[9] Put otherwise, registration or certification cannot be used as a mandatory selection requirement by contracting authorities. This is specifically regulated with relation to economic operators from other Member States, who cannot be obliged to undergo such registration or certification in order to participate in a public contract (art 64(7) dir 2014/24). 

As regards domestic economic operators, it is submitted that the anti-formalist logic applicable to the system of qualitative selection, as well as the mandates of the principle of competition and the principle of equality and non-discrimination, prevent contracting authorities from excluding domestic contractors due to the sole fact that they are not registered or certified for a given category of contracts.[10] In this regard, official lists of contractors and certification systems should be seen as an instrument aimed at easing and fostering participation in tender procedures, but cannot constitute barriers or impediments to access such procedures. Therefore, contracting authorities should be obliged to adopt a possibilistic approach and accept proof of compliance with the relevant professional, technical, economic, financial, quality and environmental requirements by means other than certification or registration (analogically, as regards the obligation to accept proof by means other than certification of compliance with quality and environmental standards, see arts 60 and 62 dir 2014/24).


[1] The practice of developing and keeping bidders’ mailing lists has long been used in some Member States. For a review of the use of the same technique in the US, see RE Lieblich, ‘Bidder Pre-Qualification: Theory in Search of Practice’ (1972) 5 Public Contract Law Journal 32; P Shnitzer, Government Contract Bidding, 3rd edn (Washington, Longman–Federal Publications, 1987) 4–9; and KM Jackson, ‘Prequalification and Qualification: Discouragement of New Competitors’ (1989–1990) 19 Public Contract Law Journal 702.
[2] See: S Arrowsmith, The Law of Public and Utilities Procurement. Regulation in the EU and the UK, Vol. 1, 3rd edn (London, Sweet & Maxwell, 2014) 1311–20;  PA Trepte, Public Procurement in the EU: A Practitioner’s Guide, 2nd edn (Oxford, Oxford University Press, 2007) 358–63; and C Bovis, EC Public Procurement: Case Law and Regulation (Oxford, Oxford University Press, 2006) 136–37, 170–71 and 231–32.
[3] For related discussion, see W Kostka, ‘Vendors' list for procurement following expressions of interest - a critical analysis of a new procurement mechanism for the EU institutions’ (2014) 23 Public Procurement Law Review 219–28.
[4] See: S Arrowsmith, ‘Framework Purchasing and Qualification Lists under the European Procurement Directives’ (part 1) (1999) 8 Public Procurement Law Review 115, 116.
[5] However, given the functional and anti-formalistic interpretation of the ECJ regarding the possibility to rely on the capacity of other entities, particularly in Case C-94/12 Swm Costruzioni 2 and Mannocchi Luigino [2013] pub. electr. EU:C:2013:646 35 and 36, the actual effectiveness of these systems and their continued existence can be queried. Indeed, it can be argued that certification systems should only cover ‘works with special requirements necessitating a certain capacity which cannot be obtained by combining the capacities of more than one operator’ as, otherwise, the whole certification system is completely superficial if the contracting authority must (as indeed it shall) accept any ‘jigsaw’ of (partial) certifications presented by a group of undertakings (or by an incapable main contractor that enters into subcontract agreements) in order to prove that they have sufficient (aggregate) economic, technical and financial standing.
[6] For a recent case where the CJEU rubber stamped the Italian minimum tariffs for certification in public procurement, subject to proportionality, see Case C-327/12 Soa Nazionale Costruttori [2013] pub. electr. EU:C:2013:827.
[7] Commission Regulation (EC) No 213/2008 of 28 November 2007 amending Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the common procurement vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV (Regulation 213/2008) [2008] OJ L74/1.
[8] The only minimum threshold that could be relevant would be the setting of the threshold that triggers the application of the EU public procurement directives. However, if Member States opt for the development of a certification or registration system, they might as well also adopt it for procurement activities not covered by the directives (ie, procurement below thresholds) and, consequently, then, there would be no clear justification for the setting of minimum economic thresholds—other than, arguably, considerations related to the administrative costs of running the certification or registration system which, in this case, should be proportionate to the minimum thresholds set.
[9] Generally, on certain types of mandatory qualification lists and the undesirability of their restrictive effects—although based on the previous utilities directive—see S Arrowsmith, ‘Framework Purchasing and Qualification Lists under the European Procurement Directives’ (part 2) (1999) 8 Public Procurement Law Review 161, 171–80 and 185–86.
[10] Although based in the previous EU directives, see Arrowsmith, Framework Purchasing and Qualification Lists (part 2) (1999) 175–76, who found support for this argument in Case C-87/94 Commission v Belgium [1996] ECR I-2043 51–56, where the ECJ determined that ‘the principle of equality underlying the directive applies as much to domestic as to foreign firms’.

Thursday, 28 May 2015

Reliance on the capacities of other entities under Reg. 63 Public Contracts Regulations 2015

Reg.63 of the Public Contracts Regulations 2015 (PCR2015) determines the requirements applicable to economic agents willing to rely on the capacities of other entities in order to participate in tenders for public contracts, and transposes the equivalent rules under Article 63 of Directive 2014/24

Reliance on the capacities of other entities is an issue recently discussed by the CJEU in Swm Costruzioni 2 and Mannocchi Luigino (C-94/12, EU:C:2013:646, see discussion here), where the CJEU clearly stressed that the EU regime 'permits the combining of the capacities of more than one economic operator for the purpose of satisfying the minimum capacity requirements set by the contracting authority, provided that the candidate or tenderer relying on the capacities of one or more other entities proves to that authority that it will actually have at its disposal the resources of those entities necessary for the execution of the contract' (para 33). 

This resonates with reg.63(1) PCR2015, according to which an economic operator may, where appropriate and for a particular contract, rely on the economic and financial standing and technical and professional ability of other entities, regardless of the legal nature of the links which it has with them. Consequently, this facilitative approach needs to inform the interpretation of reg.63 PCR2015 / Art 63 Dir 2014/24.

The following are comments relating to Art 63 Dir 2014/24, but they apply equally to reg.63 PCR2015. A fuller version is available at: A Sanchez Graells, 'Exclusion, Qualitative Selection and Short-listing', in F Lichère, R Caranta & S Treumer (eds), Modernising Public Procurement. The New Directive, vol. 6 European Procurement Law Series (Copenhagen, DJØF, 2014) 97-129. 

Article 63 of Dir 2014/24 maintains the functional approach in Directive 2004/18 and consolidates the rules on reliance on the capacities of other entities scattered in Arts 47(2), 47(3), 48(3) and 48(4) of that Directive. It continues to make it clear that, as long as it is appropriate for a particular contract, any economic operator can ‘rely on the capacities of other entities, regardless of the legal nature of the links which it has with them’ to which aim it ‘it shall prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing a commitment by those entities to that effect’. Equally and under the same conditions, ‘a group of economic operators […] may rely on the capacities of participants in the group or of other entities[1]. However, the new Directive goes beyond these general rules and imposes more specific (and restrictive) criteria concerning reliance on other operators for certain requirements.

Firstly, with regard to criteria relating to the educational and professional qualifications or to the relevant professional experience, economic operators may only rely on the capacities of other entities where the latter will perform the works or services for which these capacities are required. 

Secondly, the contracting authority shall verify whether the other entities on whose capacity the economic operator intends to rely fulfill the relevant selection criteria or whether there are grounds for their exclusion. Consequently, an entity which does not meet a relevant selection criterion, or in respect of which there are grounds for exclusion, may be excluded (ie may not be relied upon). In the precise terms of Art 63(1) Dir 2014/24 ‘[t]he contracting authority shall require that the economic operator replaces an entity which does not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. The contracting authority may require or may be required by the Member State to require that the economic operator substitutes an entity in respect of which there are non-compulsory grounds for exclusion.’ 

Thirdly, Member States may provide that in the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators, by a participant in that group.  

Finally, where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the contracting authority may require that the economic operator and those entities be jointly liable for the execution of the contract. 

In my view, the first two additions are sensible and aim to prevent instances where reliance on third party capabilities is merely formal. However, the same cannot be said from the other two requirements. On the one hand, there is no good reason to require that the conduct of critical tasks be carried out by the main contractor, given that it is already assuming full liability for such tasks. Imposing a requirement that the task is actually carried out by the main contractor can have the effect of excluding other tenderers that could actually fulfill the contract relying on the capabilities of third parties and, consequently, runs contrary to the functional approach in the current Directive, goes beyond the terms of Art 19 of Dir 2014/24[2] and, ultimately, of the case law of the CJEU on teaming and joint bidding[3]

On the other hand, and on a related note, the last requirement of joint liability for the execution of the contract can make it very difficult to reach subcontracting agreements or similar arrangements for the reliance on third parties for the partial execution of a minor part of the contract. Moreover, it can result in complicated structures of side letters of indemnity that raise the legal costs linked to participation. In my opinion, in relation with both requirements, the contracting entity should be satisfied with the liability of the main contractor and, if need be, ‘self-protect’ through requirements for adequate professional risk indemnity insurance under Art 58(3) of Dir 2014/24.




[1] Interestingly, Article 19 of Dir 2014/24 provides specific rules for groups of operators.

[2] Indeed, it only requires that ‘in the case of public service and public works contracts as well as public supply contracts covering in addition services or siting and installation operations, legal persons may be required to indicate, in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question’.


[3] A Sanchez Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 336-340.

Wednesday, 27 May 2015

My preliminary thoughts on why UK's Referendum Bill franchise infringes Art 18 TFEU

This is just a short development of my thoughts regarding why UK's Referendum Bill franchise infringes Art 18 TFEU. For an analysis of the voting franchise and the difficult issues it raise, see Prof Jo Shaw's excellent piece here. I will develop lengthier arguments in view of the debate I hope this will spur. For now, this is a broad brushstroke presentation of the argument:


Art 18 TFEU prohibits any discrimination on grounds of nationality, and that prohibition of discrimination applies within the scope of application of the Treaties and without prejudice to any special provisions contained therein. As recently stressed by the CJEU in Dano (C-333/13, EU:C:2014:2358) “Every Union citizen may therefore rely on the prohibition of discrimination on grounds of nationality laid down in Article 18 TFEU in all situations falling within the scope ratione materiae of EU law. These situations include those relating to the exercise of the right to move and reside within the territory of the Member States conferred by point (a) of the first subparagraph of Article 20(2) TFEU and Article 21 TFEU”… “the principle of non-discrimination, laid down generally in Article 18 TFEU, is given more specific expression in … Directive 2004/38 in relation to Union citizens who … exercise their right to move and reside within the territory of the Member States” (59 & 61).


I will limit my points to non-UK EU citizens that have resided in the UK for more than five years, which have acquired permanent residency under Art 16 Dir 2004/38 (thought the same arguments apply functionally to the rest of non-UK EU citizens residing in the UK, at least those who are not an unreasonable burden on the social assistance system). 


Those non-UK residents will (likely) see their permanent residency right affected (if not taken away) should the UK pull out (barring a general grandfathering of those rights). While some non-UK EU citizens are given right to vote in the referendum (Irish, Maltese, Cypriots) regardless of any other condition linked to their right to residence under Art 16 Dir 2004/38 or otherwise; others (rest of nationalities) do not get the right to vote on an issue that affects the continuity of the rights acquired under Dir 2004/38—and, ultimately, Arts 20-21 TFEU, which clearly engages Art 18 TFEU. This is discrimination based on nationality and, consequently, prohibited by Art 18 TFEU. Moreover, given the relevance of permanent residence rights for the development of basic human rights as recognised in the EU Charter (such as private and family life, Art 7; or property, Art 17, just to mention the most likely to be affected), this sort of discrimination is unacceptable.


Of course, the only valid argument against this is that Art 50(1) TEU determines that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. However, even then, it seems contrary to UK constitutional principles to force non-UK citizens to apply for citizenship (if they can) in order to have their basic fundamental rights upheld. Hence, this is not only politically and socially unacceptable, but legally flawed and open to challenge before the Court of Justice of the European Union.

Quality assurance standards and environmental management standards under Reg. 62 Public Contracts Regulations 2015

Reg.62 of the Public Contracts Regulations 2015 (PCR2015) sets out substantive and documentary requirements linked to determining compliance with quality assurance standards and environmental management standards, in terms very close to Article 62 of Directive 2014/24

Reg.62 PCR2015 establishes three main rules: (1) when imposing compliance with quality assurance and/or environmental management, contracting authorities should refer to the relevant European standards and require certificates of compliance issued by accredited bodies; (2) contracting authorities shall recognise equivalent certificates from bodies established in other Member States; and (3) where economic operators have not had the possibility to obtain the required certificates within the time limits set by the contracting authorities for reasons not attributable to the economic operator concerned, contracting authorities shall accept other evidence of equivalent compliance, provided that the economic operator proves that the proposed quality assurance and/or environmental management measures comply with the required standards.

Reg.62 PCR2015 (and, originally, art 62 dir 2014/24) fundamentally consolidate the rules in Arts 49 and 50 of Directive 2004/18, with some updates to the standards referred to and with some changes in drafting, the only of which seems relevant is that contracting authorities must now only accept other evidence of equivalent quality assurance standards and environmental management standards where the economic operator concerned has no access to such certificates, or no possibility of obtaining them within the relevant time limits for reasons that are not attributable to that economic operator. This seems to reduce the scope for the submission of equivalent certificates in some instances and could be unduly restrictive of competition. However, this effect will largely depend on the interpretation given to this ‘waiver clause’, whereby the contracting authority can reject to take into consideration alternative means of proof. 

Once more, thus, I would submit that contracting authorities are bound to follow a possibilistic approach and be flexible when it comes to determining compliance with quality assurance and environmental management requirements [see also regs.44 and 60 PCR2015]. This is particularly important when the environmental management and/or quality assurance requirements are linked to processes and certificates that would impact the economic operator beyond the scope of the contract--ie, when certification exclusively for the purposes of the contract is not possible because the systems needed affect the whole of the undertaking's activities. 

This is an issue very closely related to the acceptable award criteria under reg.67 PCR2015. Given that such provision requires many other comments, I think it is worth anticipating now my views on this frontier issue. The following remarks are based on my Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 387-88.

Restrictions Derived from Award Criteria that Result in de facto Exclusion of Tenders or the Advantage of Some Tenders over Others. Even if rules on qualitative selection and non-discrimination requirements are formally complied with in a given tender, the adoption of certain award criteria could generate the same results as an infringement of those rules. That could be the case if the award criteria or their weighting favoured tenders submitted by certain operators on the basis of conditions that could not have been used for the purposes of the qualitative selection of candidates or that automatically exclude de facto a significant number of tenders (or even restrict the number of compliant tenders to one).

For instance, they could do so by requiring the implementation of quality management systems for the purposes of the specific contract that would have proven excessive or irrelevant for the purposes of assessing the general suitability of the tenderer;[1] or that exclude certain operators because they focus on requirements whose implementation would be impossible for tenderers that did not comply with these or other requirements beforehand, or whose partial implementation would not be economically viable with regard exclusively to the specific contract.[2] These sort of requirements are now potentially covered by article 67(2) of Directive 2014/24, given that it allows contracting authorities to include award criteria that do not relate ‘to an intrinsic characteristic of a product, that is to say something which forms part of the material substance thereof’ and, consequently, can focus on factors involved in the specific process of production, provision or trading or a specific process for another stage of their life cycle, ‘even where such factors do not form part of their material substance’.

In these instances, it is still important to highlight that the adoption of such award criteria could generate significant distortions or restrictions of competition—without, it must be admitted, generating a substantial potential for discrimination and, currently, with an apparent legal coverage under article 67(2) of Directive 2014/24. Therefore, in view of the requirements of the principle of competition, such a strategy should be significantly restricted and contracting authorities should guarantee that the award criteria and their weighting ensure equality of opportunity of all tenderers and, consequently, should not focus on or advantage compliance with criteria not restricted to the tender itself—ie, criteria that undertakings would be in a position to comply with or not depending on previous or general conditions unrelated (or not specifically related) to the subject-matter of the contract.[3]

Drawing the line between, on the one hand, justified award criteria related to production processes or elements related to other stages in the life cycle of the products or services and, on the other hand, excessive and unjustified requirements that de facto advantage certain competitors over others will be difficult. In my view, it should be conducted on the basis of a strict proportionality requirement aimed at preventing unjustified distortions of competition.

These issues were recently analysed (in general terms) by the CJEU in relation to requirements concerning corporate social responsibility policies and, more specifically, with a focus on requirements of compliance with ‘criteria of sustainability of purchases and socially responsible business’. These are requirements that clearly affect tenderers as a whole and are remotely related to the specific scope of the contract (where contracting authorities can, however, avail themselves from the use of social labels).[4] In that regard, and in line with what is here submitted, it is important to stress that the CJEU rejected the possibility to consider such requirements as the establishment of minimum levels of professional or technical ability and emphasised that such type of considerations are incompatible with the rules of the procurement Directives when they are unrelated or go beyond the subject matter of the contract.[5]

Consequently, in order to avoid distortions of competition (and regardless of the creation of discriminatory situations), contracting authorities must refrain from setting such type of requirements as either selection or award criteria that result in de facto exclusion of tenders or the advantage of some tenders over others. In my opinion, the reasoning of the CJEU regarding those requirements at qualitative selection phase are transferrable mutatis mutandis to their introduction as award criteria under article 67(2) of Directive 2014/24. Otherwise, the use of this new provision would further erode and damage the distinction between selection and award criteria, which the CJEU has recently emphasised and which, consequently, should be respected in the detailed application of the rules concerning award criteria.[6]




[1] However, this has been accepted as a proportionate requirement by the GC in Case T-288/11 Kieffer Omnitec v Commission [2013] pub. electr. EU:T:2013:228. For criticism, see A Sanchez Graells, GC on quality assurance standards in public procurement: A knee-jerk reaction (T-288/11) (7 May 2013) howtocrackanut.blogspot.co.uk/2013/05/gc-on-quality-assurance-standards-in.html.
[2] In similar terms, rejecting the possibility of establishing general requirements that go further than required by the object of the contract, see PA Trepte, Regulating Procurement. Understanding the Ends and Means of Public Procurement Regulation (Oxford, Oxford University Press, 2004) 197–98.
[3] For instance, if certifying compliance with a given quality standard for the product required the previous certification of the general operations of the undertaking as being compliant with a more general quality control system, and the tender documents did not require tenderers to be certified under that standard—then, giving better evaluations to certified than to non-certified products would generate a distortion of competition by de facto excluding or reducing the chances of award to non-certified undertakings (which would not be in a position to get the products certified only for the purposes of the tender). Therefore, by indirectly advantaging or requiring compliance with a condition not imposed at the qualitative selection stage, which refers to more general conditions unrelated to the specific contract, the contracting authority would be distorting competition in a way that should be declared to run contrary to the directives.
[4] Case C-368/10 Commission v Netherlands [2012] pub. electr. EU:C:2012:284 98112.
[5] ibid 106–108.
[6] Case C-641/13 P Spain v Commission [2014] pub. electr. EU:C:2014:2264.