# C_2023094EN.01001201.xml

| 13.3.2023 | EN | Official Journal of the European Union | C 94/12 |
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13.3.2023

EN

Official Journal of the European Union

C 94/12

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Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 15 November 2022 — SC AA SRL v MFE

(Case C-701/22)

(2023/C 94/13)

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Applicant: SC AA SRL

Defendant: MFE

Questions referred

| 1. | Must the principle of sound financial management be interpreted, in conjunction with the principle of equivalence, as precluding a legal person, which operates a profit-making undertaking and is the recipient of non-repayable financing from the ERDF, from obtaining from the public authority of a Member State default interest (penalty interest) in relation to the late payment of eligible expenditure for a period in which an administrative act was in force that excluded reimbursement and which was subsequently annulled by a judicial decision? |
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1.

Must the principle of sound financial management be interpreted, in conjunction with the principle of equivalence, as precluding a legal person, which operates a profit-making undertaking and is the recipient of non-repayable financing from the ERDF, from obtaining from the public authority of a Member State default interest (penalty interest) in relation to the late payment of eligible expenditure for a period in which an administrative act was in force that excluded reimbursement and which was subsequently annulled by a judicial decision?

| 2. | If the answer to the first question is in the negative, is the fault of the recipient of the financing established by that decision relevant to the quantification of the amount of default interest, having regard to the fact that the same public authority responsible for the management of the European funds declared, ultimately, after the adoption of that decision, all the expenditure eligible? |
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2.

If the answer to the first question is in the negative, is the fault of the recipient of the financing established by that decision relevant to the quantification of the amount of default interest, having regard to the fact that the same public authority responsible for the management of the European funds declared, ultimately, after the adoption of that decision, all the expenditure eligible?

| 3. | In interpreting the principle of equivalence with regard to the point in time at which default interest is awarded to the recipient of the non-repayable financing from the ERDF, is it relevant that a rule of national law provides that, in the event of a finding of irregularity, the only consequence is that the financial benefit concerned is not granted or, as the case may be, is withdrawn (repayment of the undue amounts), to the extent to which it was granted, without receipt of interest, notwithstanding that the recipient of those amounts has enjoyed the advantage of their use up to the time of repayment, and that it is only where that repayment does not take place within the statutory time limit, that is, 30 days from the notification of the credit instrument, that the provisions of Article 42(1) and (2) of the Ordonanța de urgență a Guvernului nr. 66/2011 (Government Emergency Order No 66/2011) permit the receipt of interest after the expiry of that time limit? |
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3.

In interpreting the principle of equivalence with regard to the point in time at which default interest is awarded to the recipient of the non-repayable financing from the ERDF, is it relevant that a rule of national law provides that, in the event of a finding of irregularity, the only consequence is that the financial benefit concerned is not granted or, as the case may be, is withdrawn (repayment of the undue amounts), to the extent to which it was granted, without receipt of interest, notwithstanding that the recipient of those amounts has enjoyed the advantage of their use up to the time of repayment, and that it is only where that repayment does not take place within the statutory time limit, that is, 30 days from the notification of the credit instrument, that the provisions of Article 42(1) and (2) of the Ordonanța de urgență a Guvernului nr. 66/2011 (Government Emergency Order No 66/2011) permit the receipt of interest after the expiry of that time limit?

| 4. | Do the provisions of the third paragraph of Article 288 TFEU preclude, in circumstances such as those of the present case, the applicability of Directive 2011/7/EU (1) from being extended by a national rule also to the case of a contract for the grant of non-repayable financing from the ERDF concluded between the public authority responsible for the management of European funds and a legal person operating a profit-making undertaking? |
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4.

Do the provisions of the third paragraph of Article 288 TFEU preclude, in circumstances such as those of the present case, the applicability of Directive 2011/7/EU (1) from being extended by a national rule also to the case of a contract for the grant of non-repayable financing from the ERDF concluded between the public authority responsible for the management of European funds and a legal person operating a profit-making undertaking?

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(1)  Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (recast) (OJ 2011 L 48, p. 1).

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