Dear Mr X,

On 20 March 2025, you complained to the European Ombudsman about how the European Commission dealt with your infringement complaint CPLT(2024)00905 against Spain.

In your complaint to the Commission, you contend that there are irregularities in certain public procurement procedures of the Parliament of Andalusia, amounting to fraud. In particular, you are concerned about the use of negotiated procedures without prior publication. You complained to the Andalusian Anti-Fraud and Corruption Office (OAAF) about these issues. Since the OAAF did not pursue your complaint, you argued that EU law was breached.

In its first reply of May 2024, the Commission explained that your complaint concerns an individual situation of alleged wrong application of EU law and advised you to seek redress at national level. The Commission nevertheless gave you explanations about the implementation of EU law with relevance in your case. It noted that Directive 89/665/EEC[1] and Directive 92/13/EEC[2] (the so-called Remedies Directives on public procurement), which have been transposed into Spanish law, provide economic operators with rapid review procedures to challenge the misuse of the negotiated procedure without prior publication. The Commission also pointed out that the EU directives on public procurement explicitly provide for the possibility of using such a procedure in certain cases and that its possible misuse does not necessarily constitute fraud or crime, the latter finding being in any case a matter for the courts of the Member State concerned.

Following your comments on the Commission’s reply, the Commission closed your infringement complaint in July 2024. With regard to your allegations of breach of Directive 2019/1937/EU[3], the Commission clarified the purpose of the directive, stressed that it has been transposed into Spanish law and restated that it is for national authorities, including national courts, to analyse individual cases in light of the national legal framework for the protection of whistleblowers, if applicable.

In your complaint to the Ombudsman, you claim that the Commission handled your complaint without sufficient transparency, as the responses you received came from the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs (DG GROW), even though you believe the issues raised fall under the responsibility of the Directorate-General for Justice and Consumers (DG JUST). Furthermore, you disagree with the Commission’s analysis that economic operators have at their disposal rapid review procedures to challenge the misuse of the negotiated procedure without prior publication.

Please note that the Commission enjoys wide discretion in deciding whether and when to commence an infringement procedure.[4] Its policy on infringements of EU law is set out in its Communication EU law: Better results through better application.[5] The role of the Ombudsman in such cases is limited to verifying that the Commission gave clear and reasonable explanations for its decision, and there was no manifest error of assessment.

We find nothing to suggest a manifest error of assessment by the Commission in your case. The Commission provided reasonable explanations for its position when it said that the matters you raised concern an individual situation, rather than evidence of a systemic non-compliance by Spain with EU law, and that your case can best be dealt with at national level. We understand that you have taken action at national level and that you have turned both to the Spanish Ombudsman and to the Seville Administrative Court.

Please note that the infringement procedure is not designed to provide individuals with a means of redress for a specific grievance they have at national level. Rather, it is a mechanism for ensuring that Member States are brought into compliance with EU law generally.

Regarding the fact that your case was dealt by DG GROW and was not transferred to DG JUST, it is up to the Commission to decide how to organise the handling of infringement complaints. In any case, in its closure letter, DG GROW informed you that it had consulted DG JUST. The Commission also has discretion in the way it conducts these consultations.

In view of the above, we have decided to close the inquiry[6] with the following conclusion:

Based on the information provided in the complaint, there was no maladministration by the European Commission.

We appreciate this may not be your desired outcome but I hope you find these explanations useful. Thank you for having contacted the European Ombudsman.

Yours sincerely,

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 02/05/2025

 

[1] Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:01989L0665-20140417.

[2] Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01992L0013-20140417.

[3] Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02019L1937-20241230.

[4] Judgment of the Court of 14 February 1989, Starfruit v Commission, case 247/87, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247.

[5] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN.

[6] Full information on the procedure and rights pertaining to complaints can be found at https://www.ombudsman.europa.eu/en/document/70707.