# C_2017161EN.01000602.xml

| 22.5.2017 | EN | Official Journal of the European Union | C 161/6 |
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22.5.2017

EN

Official Journal of the European Union

C 161/6

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Request for a preliminary ruling from the Sąd Okręgowy we Wrocławiu (Poland) lodged on 17 January 2017 — Skarb Państwa — Wojewoda Dolnośląski v Gmina Trzebnica

(Case C-19/17)

(2017/C 161/08)

Language of the case: Polish

Referring court

Referring court

Sąd Okręgowy we Wrocławiu

Parties to the main proceedings

Parties to the main proceedings

Applicant: Skarb Państwa — Wojewoda Dolnośląski

Applicant:

Defendant: Gmina Trzebnica

Defendant:

Questions referred

Questions referred

| 1. | Do contributions in kind which a beneficiary receives on account of penalties or indemnities in connection with the non-performance or late performance of an obligation constitute receipts within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003? (1) |
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1.

Do contributions in kind which a beneficiary receives on account of penalties or indemnities in connection with the non-performance or late performance of an obligation constitute receipts within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003? (1)

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| 2. | If Question 1 is answered in the affirmative:






  (a) | Can losses or additional costs incurred by the beneficiary in connection with the non-performance or late performance of a contract by a contractor be deducted from receipts in the form of penalties? |
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2.

If Question 1 is answered in the affirmative:

(a)

Can losses or additional costs incurred by the beneficiary in connection with the non-performance or late performance of a contract by a contractor be deducted from receipts in the form of penalties?

| (b) | Does a contribution in kind by the contractor consisting in the performance for the beneficiary of other works which are in no way linked to the object of the financing and which release the contractor from the obligation to pay the contractual penalty (datio in solutum) constitute a receipt within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003? |
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(b)

Does a contribution in kind by the contractor consisting in the performance for the beneficiary of other works which are in no way linked to the object of the financing and which release the contractor from the obligation to pay the contractual penalty (datio in solutum) constitute a receipt within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003?

datio in solutum

| 3. | If the answers to Questions 1 and 2a are in the affirmative, is the amount of the receipt obtained by the beneficiary to be taken to be the amount of the contractual penalty imposed on the contractor or the value of the contribution in kind? |
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3.

If the answers to Questions 1 and 2a are in the affirmative, is the amount of the receipt obtained by the beneficiary to be taken to be the amount of the contractual penalty imposed on the contractor or the value of the contribution in kind?

| 4. | Can the amount of the receipts obtained by the beneficiary during the period of the assistance be deducted from the co-financing after the closure of the assistance within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003? |
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4.

Can the amount of the receipts obtained by the beneficiary during the period of the assistance be deducted from the co-financing after the closure of the assistance within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003?

| 5. | If Question 4 is answered in the affirmative, can the amount of the receipts obtained by the beneficiary be deducted from the co-financing where those receipts were not notified to the Commission by the Member State before the closure of the assistance? |
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5.

If Question 4 is answered in the affirmative, can the amount of the receipts obtained by the beneficiary be deducted from the co-financing where those receipts were not notified to the Commission by the Member State before the closure of the assistance?

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(1)  OJ 2004 L 72, p. 66.

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