CELEX: 62021CJ0401
Appeal
Cohesion Fund and European Regional Development Fund (ERDF)
Regulation (EU) No 1303/2013
Applicable co-financing rate
Amendment of the rate adopted between submission of the final application for an interim payment and acceptance of the accounts
Principle that accounts relate to a specific year and principle of non-retroactivity

By its appeal, Romania asks the Court of Justice to set aside the judgment of the General Court of the European Union of 14 April 2021, Romania v Commission (
T‑543/19
,
EU:T:2021:193
; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment in part of Commission Decision C(2019) 4027 final of 23 May 2019 (‘the decision at issue’), with regard to the acceptance of the accounts and the calculation of the amount chargeable to the Cohesion Fund and the European Regional Development Fund (ERDF) for the accounting year 2017/2018 and for ‘Large Infrastructure’ Operational Programme CCI 2014RO16M1OP001, applying a co-financing rate for the first and second priorities of that operational programme of 75% and not 85%.
Legal context
Article 1 of Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (
OJ 2013 L 347, p. 320
, and corrigendum
OJ 2016 L 200, p. 140
), as amended by Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 (
OJ 2018 L 193, p. 1
) (‘Regulation No 1303/2013’) provides:
‘This Regulation lays down the common rules applicable to the [ERDF], the European Social Fund (ESF), the Cohesion Fund, the European Agricultural Fund for Rural Development (EAFRD) and the European Maritime and Fisheries Fund (EMFF), which operate under a common framework (the “European Structural and Investment [Funds]” – “ESI Funds”). …
Part Three lays down the general rules governing the ERDF, the ESF (together referred to as the “Structural Funds”) and the Cohesion Fund concerning the tasks, priority objectives and organisation of the Structural Funds and the Cohesion Fund (the “Funds”), the criteria that Member States and regions are required to fulfil in order to be eligible for support from the [ESI] Funds, the financial resources available and the criteria for their allocation.
Part Four lays down general rules applicable to the Funds and the EMFF on management and control, financial management, accounts and financial corrections.
…’
Article 2(4) of that regulation provides:
‘For the purposes of this Regulation, the following definitions apply:
…
(4)
“Fund-specific rules” means the provisions laid down in, or established on the basis of, Part Three or Part Four of this Regulation or a Regulation governing one or more of the ESI Funds listed in the fourth paragraph of Article 1’.
Under the title ‘Determination of co-financing rates’, Article 120 of that regulation provides:
‘1.   The [European] Commission decision adopting an operational programme shall fix the co-financing rate and the maximum amount of support from Funds for each priority axis. Where a priority axis concerns more than one category of regions or more than one Fund, the Commission decision shall, where necessary, fix the co-financing rate by category of region and Fund.
2.   For each priority axis, the Commission decision shall set out whether the co-financing rate for the priority axis is to be applied to:
(a)
total eligible expenditure, including public and private expenditure; or
(b)
eligible public expenditure.
3.   The co-financing rate at the level of each priority axis and, where relevant, by category of region and Fund, of operational programmes under the Investment for growth and jobs goal shall be no higher than:
(a)
85% for the Cohesion Fund;
…
The Commission shall carry out a review to assess the justification for maintaining the co-financing rate, referred to in the second subparagraph, after 30 June 2017 and shall if necessary make a legislative proposal before 30 June 2016.
…’
Article 130 of the same regulation, entitled ‘Common rules for calculating interim payments and payment of the final balance’, provides in paragraph 1:
‘The Commission shall reimburse as interim payments 90% of the amount resulting from applying the co-financing rate for each priority, laid down in the decision adopting the operational programme, to the eligible expenditure for the priority included in the payment application. The Commission shall determine the remaining amounts to be reimbursed as interim payments or to be recovered in accordance with Article 139.’
Article 131(1) of Regulation No 1303/2013 provides:
‘Payment applications shall include, for each priority:
(a)
the total amount of eligible expenditure incurred by beneficiaries and paid in implementing operations, as entered in the accounting system of the certifying authority;
(b)
the total amount of public expenditure incurred in implementing operations, as entered in the accounting system of the certifying authority.
…’
Article 135 of that regulation, entitled ‘Deadlines for presentation of interim payment applications and for their payment’, is worded as follows:
‘1.   The certifying authority shall submit on a regular basis an application for interim payment in accordance with Article 131(1) covering amounts entered in its accounting system in the accounting year. However, the certifying authority, where it considers it to be necessary, may include such amounts in payment applications submitted in subsequent accounting years.
2.   The certifying authority shall submit the final application for an interim payment by 31 July following the end of the previous accounting year and, in any event, before the first application for interim payment for the next accounting year.
3.   The first application for interim payment shall not be made before the notification to the Commission of the designation of the managing authorities and certifying authorities in accordance with Article 124.
4.   Interim payments shall not be made for an operational programme unless the annual implementation report has been sent to the Commission in accordance with the Fund-specific rules.
5.   Subject to available funding, the Commission shall make the interim payment no later than 60 days after the date on which a payment application is registered with the Commission.’
Article 137 of that regulation, which governs the preparation of the accounts, states:
‘1.   The accounts referred to in point (a) of Article 63(5) and Article 63(6) 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
)] shall be submitted to the Commission for each operational programme. The accounts shall cover the accounting year and shall include at the level of each priority and, where applicable, fund and category of regions:
(a)
the total amount of eligible expenditure entered into the accounting systems of the certifying authority which has been included in payment applications submitted to the Commission in accordance with Article 131 and Article 135(2) by 31 July following the end of the accounting year, the total amount of the corresponding public expenditure incurred in implementing operations, and the total amount of corresponding payments made to beneficiaries under Article 132(1);
…
(d)
for each priority, a reconciliation between the expenditure stated pursuant to point (a) and the expenditure declared in respect of the same accounting year in payment applications, accompanied by an explanation of any differences.
2.   Where expenditure previously included in an application for interim payment for the accounting year is excluded by a Member State from its accounts due to an ongoing assessment of that expenditure’s legality and regularity, any or all of that expenditure subsequently found to be legal and regular may be included in an application for interim payment relating to subsequent accounting years.
…’
Under the title ‘Examination and acceptance of accounts’, Article 139 of the same regulation provides:
‘1.   The Commission shall carry out an examination of the documents submitted by the Member State under Article 138. Upon request by the Commission, the Member State shall provide all necessary additional information to enable the Commission to determine whether the accounts are complete, accurate and true, by the deadline set out in Article 84.
2.   The Commission shall accept the accounts where it is able to conclude that the accounts are complete, accurate and true. The Commission shall reach such a conclusion where the audit authority has provided an unqualified audit opinion regarding the completeness, accuracy and veracity of the accounts unless the Commission has specific evidence that the audit opinion on the accounts is unreliable.
…
6.   On the basis of the accepted accounts, the Commission shall calculate the amount chargeable to the Funds and to the EMFF for the accounting year and the consequent adjustments in relation to the payments to the Member State. The Commission shall take into account:
(a)
the amounts in the accounts referred to in point (a) of Article 137(1) and to which the co-financing rate for each priority is to be applied;
(b)
the total amount of payments made by the Commission during that accounting year, consisting of:
(i)
the amount of interim payments paid by the Commission in accordance with Article 130(1) and Article 24; and
(ii)
the amount of the annual pre-financing paid under Article 134(2).
7.   After the calculation carried out under paragraph 6, the Commission shall clear the respective annual pre-financing and pay any additional amount due within 30 days of the acceptance of the accounts. Where there is an amount recoverable from the Member State, it shall be subject to a recovery order issued by the Commission which shall be executed, where possible, by offsetting against amounts due to the Member State under subsequent payments to the same operational programme. Such recovery shall not constitute a financial correction and shall not reduce support from the Funds and the EMFF to the operational programme. The amount recovered shall constitute assigned revenue in accordance with Article 177(3) of [Regulation No 966/2012].
…’
Background to the dispute
The background to the dispute was set out by the General Court in paragraphs 1 to 10 of the judgment under appeal and, for the purposes of the present proceedings, may be summarised as follows.
By Implementing Decision C(2015) 4823 final of 9 July 2015 (‘the 2015 Implementing Decision’), adopted on the basis of Article 29(4) and Article 96(10) of Regulation No 1303/2013, the Commission approved certain elements of the Operational Programme ‘Large Infrastructure’ CCI 2014RO16M1OP001 for support from the ERDF and the Cohesion Fund under the investment for growth and jobs goal in Romania for the period 1 January 2014 to 31 December 2020 (‘the operational programme’). That programme included eight priority axes.
Article 4(3) of the 2015 Implementing Decision, read with Annex II thereto, fixed the co-financing rate for the first and second priority axes of that programme at 75% and stated that that rate would apply to eligible public expenditure.
On 6 July 2018, the Romanian authorities submitted to the Commission the final application for an interim payment in respect of the operational programme for the accounting year 2017/2018, in accordance with Article 135(2) of Regulation No 1303/2013.
By Implementing Decision C(2018) 8890 final of 12 December 2018 (‘the 2018 Implementing Decision’), adopted on the basis of Article 96(10) of Regulation No 1303/2013, the Commission amended in particular Annex II to the 2015 Implementing Decision, increasing the co-financing rate for the first and second priority axes of the operational programme to 85%.
At a meeting which was held on 15 January 2019 between the Romanian authorities and the Commission, those authorities requested that the co-financing rate of 85% for the first and second priority axes of the operational programme, as fixed in the 2018 Implementing Decision, be applied for the accounting year 2017/2018 instead of the co-financing rate of 75% fixed in the 2015 Implementing Decision. In answer to that request, the Commission stated that the guidance set out in the document entitled ‘Guidance for Member States on Preparation, Examination and Acceptance of Accounts’, in the version prepared by the Commission on 3 December 2018, precluded the application of the co-financing rate of 85% fixed in the 2018 Implementing Decision for that accounting year.
On 15 February 2019, the Romanian authorities submitted to the Commission the operational programme accounts for the accounting year 2017/2018, in accordance with Article 138(a) of Regulation No 1303/2013.
By letters of 8 March and 13 May 2019, the Romanian authorities again requested the Commission to apply the co-financing rate of 85% for the first and second priority axes of the operational programme for the accounting year 2017/2018.
By letter of 17 May 2019, the Commission confirmed to the Romanian authorities that the co-financing rate of 85% for the first and second priority axes of the operational programme was not applicable for the accounting year 2017/2018. In particular, it explained that, in the context of the programme period 2014 to 2020 and in accordance with the guidance set out in the document referred to in paragraph 15 of the present judgment, any amendment of a co-financing rate is to apply only to current and future accounting years, in application of the principle that accounts relate to a specific year.
On 23 May 2019, the Commission adopted the decision at issue, by which it accepted the operational programme accounts for the accounting year 2017/2018, in accordance with Article 139(2) and (3) of Regulation No 1303/2013, and, on the basis of the accepted accounts, calculated the amount chargeable to the Cohesion Fund and the ERDF for that year, in accordance with Article 139(6) of that regulation. It is apparent from the annex to that decision that, in calculating that amount, the Commission applied the co-financing rate of 75% for the first and second priority axes of the operational programme, as fixed in the 2015 Implementing Decision.
The procedure before the General Court and the judgment under appeal
By application lodged at the General Court Registry on 30 July 2019, Romania sought annulment in part of the decision at issue, in so far as the Commission applied a co-financing rate of 75%, and not of 85%, for the first and second priorities of the operational programme.
In support of its action, Romania put forward two pleas in law, alleging, first, infringement of Article 120(3) and Article 139(6) of Regulation No 1303/2013 and breach of the principle of legitimate expectations and, secondly, breach of the obligation to state reasons laid down in the second paragraph of Article 296 TFEU and of the principle of good administration.
By the judgment under appeal, the General Court, finding that those pleas were unfounded, dismissed the action in its entirety.
As regards, in particular, the first part of the first plea, alleging infringement of Article 120(3) and Article 139(6) of Regulation No 1303/2013, the General Court rejected that part, first carrying out, in paragraphs 29 to 51 of the judgment under appeal, a literal, contextual and teleological interpretation of the latter provision and secondly examining, in paragraphs 53 to 71 of the judgment under appeal, the arguments put forward by Romania in support of the theory that the applicable co-financing rate for the purposes of Article 139(6)(a) of Regulation No 1303/2013 is the rate in force at the time when the accounts are accepted.
Forms of order sought
By its appeal, Romania claims that the Court of Justice should:
–
set aside the judgment under appeal;
–
give final judgment on the action brought before the General Court, by annulling in part the decision at issue in so far as the Commission applied a co-financing rate of 75%, and not of 85%, for the first and second priorities of the operational programme or, in the alternative, refer the case back to the General Court for a new ruling, and
–
order the Commission to pay the costs.
The Commission contends that the Court should:
–
dismiss the appeal and
–
order Romania to pay the costs.
The appeal
In support of its appeal, the appellant raises three grounds, the first alleging an error of law in the interpretation and application of Article 139(6)(a) of Regulation No 1303/2013, read in conjunction with Article 137(1)(a) and (d), Article 137(2), Article 131, Article 135(2), and Article 139(1), (2) and (7) of that regulation, the second, an error of law in the interpretation and application of the principle that accounts relate to a specific year and, the third, an error of law in the interpretation and application of the principle of non-retroactivity.
First ground of appeal
Arguments of the parties
By its first ground of appeal, Romania complains, in essence, that the General Court incorrectly interpreted and applied Article 139(6)(a) of Regulation No 1303/2013, read in conjunction with Article 137(1)(a) and (d), Article 137(2), Article 131, Article 135(2), and Article 139(1), (2) and (7) of that regulation, when it ruled that the co-financing rate applicable in the calculation of the amount chargeable to the Cohesion Fund and the ERDF for a specific accounting year is the rate in force on the date of submission, by the Member State concerned, of the final application for an interim payment corresponding to that accounting year given that, first, all the eligible expenditure which the Commission takes into consideration when calculating the amount chargeable to those funds is the expenditure that has been submitted in the final application for an interim payment and that, secondly, the eligible expenditure and the co-financing rate applicable to that expenditure are two intrinsically linked elements on the basis of which the amount chargeable to those funds is calculated.
In particular, the appellant criticises the General Court, in the first place, for considering, in paragraphs 38, 39, 60 and 68 of the judgment under appeal, that the amount of expenditure in the final application for an interim payment constitutes the basis for calculating the amount chargeable to the Cohesion Fund and the ERDF, whereas in the appellant’s opinion, only the amount of expenditure included in the accepted accounts can be used to determine that amount, since only those accounts show the eligible expenditure exhaustively and definitively.
The General Court was thus incorrect in assimilating the total amount of eligible expenditure included in the final application for an interim payment corresponding to a particular accounting year and the total amount of eligible expenditure included in the accepted accounts for that year, since those two amounts are different, and the Commission, in accordance with Article 139(6) of Regulation No 1303/2013, calculated the amount chargeable to the Cohesion Fund and the ERDF on the basis of the accepted accounts.
The fact that, under Article 137(2) of Regulation No 1303/2013, expenditure previously included in an application for interim payment for a particular accounting year may be excluded by a Member State from its accounts due to an ongoing assessment of that expenditure’s legality and regularity shows that the final application for an interim payment and the accounts accepted by the Commission may reflect separate expenditure.
In the second place, the appellant submits that the General Court’s assimilation of those amounts is contrary to the principle of sound financial management, the provisions of Regulation No 1303/2013 concerning the submission and acceptance of accounts, and the procedural safeguards associated with the stage relating to the acceptance of accounts designed to ensure the integrity of the Cohesion Fund and the ERDF.
In that context, the appellant disputes the General Court’s assessment in paragraph 59 of the judgment under appeal that the stage relating to the preparation, examination and acceptance of the accounts for a specific accounting year is of a ‘procedural nature’.
In the third place, the appellant claims that the General Court erred in law in stating, in paragraph 40 of the judgment under appeal, that, in order to calculate the amount payable, the Commission must also take into account the total amount of payments which it has made during that accounting year, an amount which consists, in particular, of the amount of interim payments paid by the Commission in accordance with Article 130(1) of Regulation No 1303/2013.
On the one hand, the amount payable is a cumulative amount, consisting of the total amount of support from the Cohesion Fund and the ERDF for a given accounting year, which is calculated by applying the co-financing rate in force to the total amount of expenditure certified in the accounts and accepted by the Commission, so determination of the amount payable would require a new calculation, totally separate from that of the payments made previously during the accounting year. On the other hand, interim payments are only one of the factors to be taken into account in determining the outstanding amount. Accordingly, payments made during the accounting year, including interim payments, are to be deducted from the total amount payable, which allows the balance owed to the Member States from the Cohesion Fund and the ERDF, or from the Member States to those funds, to be determined.
The Commission disputes the appellant’s arguments.
Findings of the Court
In the first place, it should be pointed out that, in paragraph 37 of the judgment under appeal, which is not challenged by the appellant, the General Court, having held that the final application for an interim payment must be made after the end of a given accounting year, stated that that application ‘constitutes the basis on which the accounts are prepared and the amount chargeable to the Cohesion Fund and the ERDF is calculated’.
It is apparent from the wording of that paragraph, and, in particular, from the words ‘en effet’ [in the French text of that judgment] which come after that statement, that it is based on the General Court’s finding, in the second sentence of that paragraph, that is to say, that the final application for an interim payment is the basis for the determination of both the expenditure taken into consideration by the Commission under Article 139(6)(a) of Regulation No 1303/2013 and the total amount of the interim payments taken into consideration by the Commission under Article 139(6)(b).
As follows from a reading of paragraphs 38 to 41 of the judgment under appeal, paragraphs 38 and 39 of that judgment, which the appellant challenges, contain the grounds for the finding that the final application for an interim payment is the basis for the determination of the expenditure taken into consideration by the Commission under Article 139(6)(a) of Regulation No 1303/2013. In particular, in those paragraphs, the General Court interpreted that provision in the light of its context.
In that regard, it should be noted that, according to Article 139(6)(a) of Regulation No 1303/2013, in order to calculate the amount chargeable to the Cohesion Fund and the ERDF for the accounting year, the Commission is to take into account the amounts in the accounts referred to in Article 137(1)(a) and to which the co-financing rate for each priority is to be applied.
Article 137(1)(a) of Regulation No 1303/2013 provides that the accounts, which are to cover the accounting year, are to include, in particular, the total amount of eligible expenditure entered into the accounting system of the certifying authority which has been included in payment applications submitted to the Commission in accordance with Article 131 and Article 135(2) of that regulation by 31 July following the end of the accounting year.
Article 131(1) of that regulation provides that payment applications must include, for each priority, first, the total amount of eligible expenditure incurred by beneficiaries and paid in implementing operations, as entered in the accounting system of the certifying authority, and, secondly, the total amount of public expenditure incurred in implementing operations, as entered in the accounting system of that authority.
For its part, Article 135 of Regulation No 1303/2013 provides, in paragraphs 1 and 2, respectively, first, that the certifying authority is to submit on a regular basis an application for interim payment, in accordance with Article 131(1) of that regulation, covering amounts entered in its accounting system in the accounting year and, secondly, that that authority is to submit the final application for an interim payment by 31 July following the end of the previous accounting year and, in any event, before the first application for interim payment for the next accounting year.
It follows from the provisions referred to in paragraphs 39 to 42 of the present judgment, first, that the accounts for a specific accounting year may include only eligible expenditure that has been paid and entered in the accounting system of the certifying authority during the accounting year and declared by that authority by means of interim payment applications submitted to the Commission.
Secondly, each application for interim payment resumes from the start the calculation of the eligible expenditure paid and entered in the accounting system of the certifying authority during the accounting year, with the result that the final application for an interim payment, which may be submitted by 31 July following the end of that year, consolidates the cumulative total amount of the eligible expenditure declared during that year, as the General Court stated in paragraphs 38 and 68 of the judgment under appeal and the appellant itself acknowledged in its appeal.
Thirdly, the final application for an interim payment thus closes the declaration of eligible expenditure corresponding to the accounting year concerned, in so far as, following its submission, the Member State concerned can no longer declare eligible expenditure for payment in respect of that accounting year, as the General Court also stated in paragraph 38 of the judgment under appeal. Therefore, the total amount of the eligible expenditure relating to an accounting year that may be included in the accepted accounts for that year, on the basis of which the amount chargeable to the Cohesion Fund and the ERDF for that year is calculated, is that set out in the final application for an interim payment.
Consequently, it is clear from Article 139(6)(a) of Regulation No 1303/2013, read in conjunction with Article 131(1), Article 135(1) and (2) and Article 137(1)(a) of that regulation that the final application for an interim payment is the basis for the determination of the expenditure taken into consideration by the Commission under Article 139(6)(a) of that regulation and, therefore, for calculating the amount chargeable to the Cohesion Fund and the ERDF, as the General Court held in paragraph 37 of the judgment under appeal, in so far as the total amount of eligible expenditure included in the final application for an interim payment corresponding to a particular accounting year constitutes the ‘starting point’ for calculating the amount chargeable to those funds for that accounting year.
An overall reading of paragraphs 37 to 41 of the judgment under appeal shows that that is precisely the conclusion that the General Court came to in paragraph 39 of that judgment when it held that it was clear on reading of Article 139(6)(a) of Regulation No 1303/2013 together with Article 137(1)(a) and Article 135(2) of that regulation – the first of which refers to the second and the second, in turn, to the third – that the eligible expenditure which the Commission takes into consideration when calculating the amount chargeable to the Cohesion Fund and the ERDF is the expenditure that has been entered in the certifying authority’s accounting system during the accounting year concerned and submitted in the final application for an interim payment.
That conclusion was, moreover, also reached by the appellant, in paragraph 46 of its appeal, in which it stated that, ‘in order to determine the amount chargeable [to the Cohesion Fund and the ERDF], it is first necessary to calculate the total amount of the expenditure entered in the accounting systems of the certifying authority which has been included in interim payment applications submitted to the Commission’ and that, ‘since each application for interim payment resumes from the start the calculation of the expenditure entered in the accounting systems, the final application for an interim payment should reflect all the expenditure declared during the accounting year’. Thus, the appellant itself considers, for the same reasons as the General Court, that the final application for an interim payment constitutes the starting point for calculating the amount chargeable to the Cohesion Fund and the ERDF, although this is not tantamount to assimilating the expenditure included in that application with that included in the accepted accounts.
Lastly, it should be noted that, on the grounds that the total amount of the eligible expenditure relating to a given accounting year is determined at the time of the final application for an interim payment relating to that accounting year, the General Court found, in paragraph 39 of the judgment under appeal, that it seems to be consistent with the scheme of Regulation No 1303/2013 that the determination of the co-financing rate applicable to that expenditure should follow the same logic, so that that rate is the rate that was in force no later than the time of submission of the final application for an interim payment.
Thus, the fact that the General Court took into consideration the date of the submission of the final application for an interim payment for the purpose of determining the co-financing rate applicable is exclusively the result of the findings, rightly made by the General Court, that, first, the final application for an interim payment crystallises the total amount of the eligible expenditure entered in the certifying authority’s accounting system during the accounting year in question and submitted for payment in the context of that year, and that, secondly, that application closes the declaration of eligible expenditure corresponding to that accounting year, so that, following its submission, the Member State concerned can no longer declare expenditure eligible for payment in respect of that accounting year.
In that context, it should be noted that the fact that some eligible expenditure included in the final application for an interim payment may potentially be excluded from the accounts, inter alia on grounds of its irregularity, does not, as the General Court rightly stated in paragraph 68 of the judgment under appeal, alter the findings set out in the preceding paragraph of the present judgment on which the General Court relied in order to reach the conclusion set out in paragraph 39 of the judgment under appeal.
Therefore, contrary to what the appellant claims, the grounds in paragraphs 38, 39 and 68 of the judgment under appeal do not justify the conclusion that the General Court assimilated the total amount of eligible expenditure included in the final application for an interim payment corresponding to a particular accounting year and the total amount of eligible expenditure included in the accepted accounts for that year, and that it thus implicitly attributed a definitive character to the total amount of eligible expenditure included in that application. Nor can it be inferred from those grounds that the General Court assimilated those amounts when concluding that the reference date to be taken into consideration in order to determine the co-financing rate applicable for a given accounting year is that of the submission of the final application for an interim payment corresponding to that year. The same applies with regard to paragraph 60 of the judgment under appeal, which reiterates the conclusion reached in paragraph 39 of that judgment.
Consequently, the appellant’s arguments, as summarised in paragraphs 28 to 30 of the present judgment, are unfounded.
In the second place, the appellant’s argument that the fact that the date of the submission of the final application for an interim payment for the purpose of determining the co-financing rate applicable was taken into consideration compromises the procedures relating to the preparation, transmission, examination and acceptance of the accounts and the procedural safeguards associated with the acceptance of accounts, designed to ensure the integrity of the Cohesion Fund and the ERDF, is also unfounded.
Suffice it to note that those procedures must in any event take place in accordance with the provisions of Regulation No 1303/2013 and the principle of sound financial management and that it is therefore irrelevant whether the date taken into consideration for the purposes stated is the date of the final application for an interim payment or that of the acceptance of the accounts.
Furthermore, contrary to what the appellant suggests, the General Court by no means underestimated the importance of the stage relating to the preparation, examination and acceptance of the accounts for a given accounting year for the purpose of calculating the amount chargeable to the Cohesion Fund and the ERDF, by describing that stage as being of a procedural nature.
Indeed, besides the fact that, in paragraph 58 of the judgment under appeal, the General Court expressly recognised that that stage is of ‘crucial’ importance for those purposes, in that, as the appellant submits, it enables the Commission to determine whether the accounts submitted by the Member State concerned are complete, accurate and true, as paragraph 59 of the judgment under appeal makes clear, the ‘procedural’ nature which the General Court attributed to that stage is exclusively linked to the fact, as the General Court correctly held, that that stage consists in an
ex post facto
verification of the eligible expenditure included in the accounts which the Member States have prepared on the basis of the applications for interim payment submitted to the Commission, so that stage cannot result in expenditure that has not been the subject of such applications being taken into account.
In the third and last place, as regards the appellant’s argument challenging paragraph 40 of the judgment under appeal, it must be stated that, since that paragraph merely reiterates the content of Article 139(6)(b) of Regulation No 1303/2013, and of Article 130(1) of that regulation, it cannot be vitiated by an error of law.
In those circumstances, the first ground of appeal must be rejected.
Second ground of appeal
Arguments of the parties
By its second ground of appeal, the appellant submits, in essence, that, by holding in paragraph 50 of the judgment under appeal, that if a co-financing rate adopted following the final application for an interim payment were to be applied to expenditure incurred during an accounting year and entered in the accounting system, that would amount, in essence, to a breach of the principle that accounts relate to a specific year, the General Court incorrectly interpreted and applied that principle.
The appellant claims that application, for a specific accounting year, of a co-financing rate set after the date of the final application for an interim payment corresponding to that year but before the closure of the accounts relating to that year, such as the co-financing rate fixed by the 2018 Implementing Decision, complies with the principle that accounts relate to a specific year.
According to the appellant, even if expenditure is declared in stages over the applications for interim payment, it becomes cumulative at the time the accounts are submitted, for the purposes of their acceptance and calculation of the amount chargeable to the Cohesion Fund and the ERDF in relation to the total eligible expenditure entered during an accounting year, which makes it possible to update the co-financing rate at any time up until the date of the acceptance of the accounts and the calculation of the amount payable, without the application of the updated co-financing rate leading to fresh calculations of the interim payments already made by the Commission.
The Commission disputes the appellant’s arguments.
Findings of the Court
As was held by the General Court in paragraphs 34 and 35 of the judgment under appeal, which are not challenged by the appellant, the system of shared management of the European structural and investment funds introduced by Regulation No 1303/2013 is based on the principle that accounts relate to a specific year, that principle meaning, inter alia, that the procedures laid down in that regulation concerning both the financial management of the expenditure chargeable to the Cohesion Fund and the ERDF and the preparation, examination and acceptance of the accounts are based on that principle, so they have as a single reference period the accounting year.
Therefore, application of the principle that accounts relate to a specific year requires that the matters to be taken into consideration for the purpose of calculating the amount chargeable to the Cohesion Fund and the ERDF for a given accounting year, namely, according to Article 139(6)(a) and (b) of Regulation No 1303/2013, the eligible expenditure, the co-financing rate applicable and the payments made by the Commission, must relate to that year, unless an exception is provided for by the EU legislature.
That is how, in accordance with the principle that accounts relate to a specific year, first, only eligible expenditure entered in the accounting system of the certifying authority ‘in the accounting year’ and submitted for payment to the Commission by means of applications for interim payment can be taken into consideration for the purpose of calculating the amount chargeable to the Cohesion Fund and the ERDF for that year, as is clear from Article 139(6)(a) of Regulation No 1303/2013, read in conjunction with Article 137(1)(a), Article 131(1) and Article 135 of that regulation. Secondly, only payments made ‘during that accounting year’ must be taken into consideration for those purposes, as is clear from Article 139(6)(b) of that regulation.
As regards the co-financing rate applicable, it should be noted that that rate refers, ultimately, to the percentage of the total amount of eligible expenditure incurred by the Member State concerned during an accounting year that must be covered by the European Union.
Although Regulation No 1303/2013 does not specify the co-financing rate that is applicable for calculating the amount chargeable to the Cohesion Fund and the ERDF for a given accounting year, where the co-financing rate fixed is amended after the final application for an interim payment corresponding to that year has been submitted but before the accounts for that year have been accepted, the fact remains that, according to the principle that accounts relate to a specific year underlying Regulation No 1303/2013, the co-financing rate applicable can only be the rate that was in force during that year, namely, in the present case, the co-financing rate fixed by the 2015 Implementing Decision.
The fact that the amount chargeable to the Cohesion Fund and the ERDF for a given accounting year is calculated after acceptance of the accounts relating to that year, and therefore after the close of that year, has therefore no effect on the determination of the co-financing rate applicable for that year, nor does that fact have any effect on the determination of the eligible expenditure and payments made by the Commission that must be taken into consideration for the purposes of that calculation.
That circumstance results from the fact that the Commission must, in accordance with the obligations incumbent on it as the institution responsible for implementing the EU budget, obtain assurance that the Member States are using the European structural and investment funds in a legal and regular manner, and cannot commit those funds without first verifying that the conditions relating to the support granted by those funds, as laid down in Regulation No 1303/2013, are met. Those verification operations cannot, by their very nature, take place until after the close of the accounting year concerned, in the context of the procedure for the examination and acceptance of the accounts relating to that year.
The finding in paragraph 68 of the present judgment is all the more valid since, as is clear from Article 130(1) of Regulation No 1303/2013, reimbursements by the Commission to a Member State as interim payments made during the accounting year following applications for interim payment are calculated by applying to the eligible expenditure included in those applications the co-financing rate in force on the date of the latter, a point which the appellant does not dispute.
It would be inconsistent to calculate the amount chargeable to the Cohesion Fund and the ERDF for a given accounting year by applying to the eligible expenditure incurred by the Member State concerned during that year a different co-financing rate from the one that had been applied throughout that year in order to calculate the interim payments relating to that expenditure that have already been made by the Commission.
The General Court did not therefore err in law when it held, in paragraph 50 of the judgment under appeal, that to apply to expenditure incurred during an accounting year and entered in the accounting system a co-financing rate adopted following the final application for an interim payment would amount, in essence, to a breach of the principle that accounts relate to a specific year.
The second ground of appeal must therefore be rejected as unfounded.
Third ground of appeal
Arguments of the parties
By its third ground of appeal, the appellant complains, in essence, that the General Court incorrectly interpreted and applied the principle of non-retroactivity when, in paragraph 65 of the judgment under appeal, it held that application of the co-financing rate fixed in the 2018 Implementing Decision in respect of the accounting year 2017/2018 would amount to that decision being retroactive.
In that regard, in the first place, by recognising that the accounting year 2017/2018 ended on 30 June 2018 and that the final application for an interim payment was submitted at the beginning of July 2018, the appellant claims that, contrary to what was held by the General Court, Romania’s legal situation cannot be regarded as having become definitive by 12 December 2018, the date of the 2018 Implementing Decision, since that situation could, on the contrary, have still undergone amendments until the date on which the accounts were accepted.
This is witnessed by the fact that administrative procedures concerning an accounting year continue after the period covered by such a year and may potentially alter the legal relationship established between the Member State and the Commission on the basis of the final application for an interim payment, until the time when the accounts are accepted.
In the second place, considering that the submission and acceptance of accounts are subsequent effects of applications for interim payment for a given accounting year, the appellant claims that, even if it were to be considered that the legal situation of a Member State becomes definitive at the time when the final application for an interim payment is submitted, implementation of the principle of non-retroactivity would require the application of the new co-financing rate, since, according to that principle, a new legal rule applies immediately to the future effects of a legal situation that arose under the old law.
In the third place, the appellant submits that retroactive application of the co-financing rate involves, in reality, calculation of eligible amounts for accounting years whose accounts have already been closed and which are no longer concerned by administrative operations that may alter legal relationships between the Member State and the Commission, which is not so in the present case.
The Commission disputes the appellant’s arguments.
Findings of the Court
It should be noted that, having held that it is clear from a literal, contextual and teleological interpretation of Regulation No 1303/2013 that the co-financing rate applicable for the calculation of the amount chargeable to the Cohesion Fund and the ERDF for a given accounting year, in accordance with Article 139(6)(a) of that regulation is the rate in force on the date of submission, by the Member State concerned, of the final application for an interim payment corresponding to the accounting year concerned, the General Court, in paragraphs 52 to 71 of the judgment under appeal, examined and rejected the arguments put forward by Romania in support of the theory that the co-financing rate applicable, within the meaning of Article 139(6)(a) of Regulation No 1303/2013, is the rate in force at the time when the accounts are accepted.
In particular, in paragraphs 57 to 65 of the judgment under appeal, the General Court examined the argument that the procedures relating to a given accounting year remain open until the time when the accounts are accepted and the amount chargeable to the Cohesion Fund and the ERDF is calculated.
In that regard, in paragraphs 58 to 60 of the judgment under appeal, the General Court rejected that argument, holding, in paragraph 59 of that judgment, that, important though it may be, the procedural stage relating to acceptance of the accounts is intended merely to carry out an
ex post facto
verification of the expenditure which the Member State concerned has included in its applications for interim payment relating to an accounting year and included in the final application for an interim payment, so that that stage cannot result in expenditure not included in that final application being taken into account.
In paragraph 60 of the judgment under appeal, the General Court added that it is for that reason that, as it stated in paragraph 39 of that judgment, the eligible expenditure taken into account by the Commission in the calculation of the amount chargeable to the Cohesion Fund and the ERDF is the expenditure entered in the certifying authority’s accounts during the accounting year concerned and submitted in the final application for an interim payment. The General Court thus held that the co-financing rate applicable to that expenditure should follow the same logic, in the absence of any other indication in that regard from the EU legislature. In other words, the co-financing rate applicable should be the rate that was in force on the date of submission of the final application for an interim payment, as it ruled in paragraph 39 of the judgment under appeal.
It follows from a reading of paragraphs 61 to 65 of the judgment under appeal, and, in particular, of the word ‘moreover’ used in paragraph 61 of that judgment, that the reasoning contained in those paragraphs, seeking to support the finding which emerges from paragraph 60 of that judgment, is superfluous in relation to that given in paragraphs 58 to 60 of the same judgment.
Therefore, since the first and second grounds of appeal have been rejected and, consequently, paragraphs 39, 59 and 60 of the judgment under appeal have been upheld, the third ground of appeal must be rejected as ineffective.
Since none of the grounds put forward by the appellant in support of its appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission.

On those grounds, the Court (Seventh Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders Romania to bear its own costs and to pay those incurred by the European Commission.

[Signatures]
(
*1
)	Language of the case: Romanian.