Information;Order — ECLI:EU:C:2023:1034
Date: 2023-12-14
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Principles, objectives and tasks of the Treaties
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Romania

Translation C-474/23 – 1 
Case C-474/23 
Request for a preliminary ruling 
Date lodged: 
25 July 2023 
Referring court: 
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
3 July 2023 
Appellant: 
Alfasoft S.A. 
Respondent: 
Agenția pentru Întreprinderi Mici și Mijlocii, Atragere de Investiții 
și Promovare a Exportului Cluj-Napoca 
  
[…] 
CURTEA DE APEL CLUJ 
SECȚIA A III-A CONTENCIOS ADMINISTRATIV ȘI FISCAL 
(Court of Appeal, Cluj, Third Division for Administrative and Tax Matters) 
[…] 
ORDER 
Public hearing of 3 July 2023 
[…] 
The appeal brought by the appellant ALFASOFT SA against civil judgment 
No 2824/2022 of 24 November 2022 of the Tribunalul Cluj (Regional Court, 
Cluj), […] in proceedings against the respondent AGENȚIA PENTRU 
ÎNTREPRINDERI MICI ȘI MIJLOCII, ATRAGERE DE INVESTIȚII ȘI 
PROMOVARE A EXPORTULUI CLUJ-NAPOCA (Agency for small and 
medium-sized enterprises, attracting investment and promoting export, Cluj-
Napoca), seeking the annulment of an administrative act, was examined. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 7. 2023 – CASE C-474/23 
 
2  
[…] 
I. Succinct presentation of the facts and procedure in the main 
proceedings 
1 By the action which is the subject of the present case, the appellant, ‘Alfasoft’ SA, 
sought, in adversarial proceedings between itself and the respondent, AGENȚIA 
PENTRU ÎNTREPRINDERI MICI ȘI MIJLOCII, ATRAGERE DE INVESTIȚII 
ȘI PROMOVARE A EXPORTULUI CLUJ-NAPOCA, an order that the latter be 
ordered to pay the amount of the subsidy to which the appellant claims it was 
entitled under the provisions of OUG No 130/2020 (Governmental Emergency 
Ordinance No 130/2020). 
2 The appellant submits that it suffered serious financial hardship because of the 
COVID-19 pandemic, and therefore sought to gain access to one of the support 
measures adopted by the Romanian State in OUG No 130/2020, a measure 
financed by European funds. In order to benefit from the support measure, the 
appellant was required to possess a certificate relating to the state of emergency. 
Such certificates were issued once certain substantive conditions had been met 
(such as a reduction in income and revenue in April 2020 by at least 25% 
compared with the average for the period from January to February 2020, or the 
fact that the employees had been beneficiaries of the redundancy fund during the 
state of emergency). Certificates were issued through a government platform 
(prevenire.gov.ro) managed by the Ministerul Economiei, Energiei și Mediului de 
Afaceri (Ministry of Economy, Energy and Business Environment). 
3 Pursuant to Article 13(2) of OUG No 130/2020, in the period from 1 August to 
15 September 2020, the MAT (Ministry of Entrepreneurship and Tourism) was to 
issue, on request, certificates attesting to the state of emergency to economic 
operators whose business was damaged in the context of the COVID-19 
pandemic, during the state of emergency. 
4 Pursuant to those provisions, the platform prevenire.gov.ro remained active until 
15 September 2020 and was subsequently closed, with the result that it was no 
longer possible for any further certificates relating to the state of emergency to be 
issued. 
5 In that context, on 22 October 2020, when access to the measure from which the 
appellant wished to benefit was made available, the latter was no longer able to 
obtain the certificate relating to the state of emergency. Thus, although it had 
registered an application in order to access the measure, the application was 
rejected because the appellant did not possess the relevant certificate. 
6 The appellant challenged the refusal before the courts, as stated in paragraph 1 [of 
this reference]. That action was dismissed at first instance by civil judgment 
No 2824/2022 of the Cluj Regional Court. In reaching that decision, the court of 
first instance held, in essence, that the appellant did not possess a certificate 
ALFASOFT 
 
3 
relating to the state of emergency, even though Article 13(2) of OUG 
No 130/2020 laid down the period during which that certificate could be obtained. 
On the basis of those legal provisions, the court of first instance did not consider it 
relevant that, at the time when the appellant might have access to the measure, the 
platform through which the certificate relating to the state of emergency could be 
issued was no longer active. 
7 The appellant brought an appeal against civil judgment No 2824/2022 of the Cluj 
Regional Court. Pending the appeal, the appellant requested that the matter be 
referred to the Court of Justice of the European Union […] (request made by the 
appellant, and reformulated by the referring court) 
II. Provisions of national law relied on 
8 Pursuant to Article 13 of OUG No 130/2020: 
‘(1) Working capital grants shall be awarded to beneficiaries that fulfil the 
following cumulative conditions: 
(a) they have obtained the certificate relating to the state of emergency on the 
basis of Ordonanței de urgență a Guvernului nr. 29/2020 privind unele măsuri 
economice și fiscal-bugetare (Governmental Emergency Ordinance No 29/2020 
on economic and fiscal/budgetary measures), as amended; 
(b) they have recorded an operating profit from normal activity (management 
activity) in one of the last two financial years preceding the submission of the 
funding application for award of the grant, on the basis of the accounts submitted; 
(c) they have a holding in the working capital of at least 15% of the value of the 
subsidy at the date of use of the working capital subsidy; 
(d) they maintain or, if applicable, increase the number of employees, at the 
date of submission of the application, for at least six months following the date of 
the grant of subsidies, except in the case of individual employment contracts 
entered into with seasonal or/and daily workers. 
(2) In the period from 1 August to 15 September 2020, the MAT shall, on 
request, issue certificates attesting to the state of emergency to economic 
operators whose business has been damaged in the context of the COVID-19 
pandemic, during the state of emergency. 
(3) The certificate attesting to the state of emergency issued by the MAT shall 
certify, on the basis of a sworn declaration, that the economic operator has 
recorded a reduction in income or revenue of at least 25% in March, April or May 
2020, compared with the average for January and February 2020, or partial or 
total business interruption as a result of decisions taken by the relevant public 
authorities during the period of the declared state of emergency.’ 
REQUEST FOR A PRELIMINARY RULING OF 3. 7. 2023 – CASE C-474/23 
 
4  
III. Succinct presentation of the reasoning in the request for a preliminary 
ruling 
9 The Court [of Appeal] considers that the situation in which the appellant finds 
itself is unfair, and that this unfairness results from the applicable rules of 
domestic law. 
10 On that point, the Court [of Appeal] observes that the appellant’s application for 
the grant was rejected on the ground that it did not satisfy a formal condition, 
namely that it did not possess a certificate attesting to the state of emergency. At 
the same time, it observes that, at the time when access to the measure was open, 
the appellant was objectively unable to obtain the certificate, since the electronic 
platform enabling it to be obtained was already closed. Similarly, it should also be 
noted that the certificate in question was obtained on the basis of a simple sworn 
declaration by the beneficiary, with the result that the authorities were not 
required to make any effort to verify documents or to carry out any other work. 
11 In that context, in view of the fact that funding from European funds is involved, 
the Court [of Appeal] has doubts as to the manner in which the general principles 
of EU law are to be interpreted in the present case, in particular with regard to the 
principles of effectiveness and proportionality. 
12 As regards the principle of effectiveness, it should be noted that, in the appellant’s 
specific situation, it may rightly be considered that the award of the subsidy has 
become excessively difficult, since the application was rejected because of failure 
to meet a formal condition which, objectively, could no longer be satisfied at the 
time when access to the measure was made available. It is true that the appellant 
could have shown greater diligence and obtained the certificate before 
15 September, but it has not been proved in the present case that the appellant 
could or should have been aware of the fact it might be asked to provide such a 
certificate subsequently. 
13 As regards the principle of proportionality, the Court [of Appeal] considers that 
the measures adopted by the legislature must be consistent and that, where the 
State offers certain aid to economic operators, the conditions for granting such aid 
must comply with the principle of proportionality. In the present case, there are 
absolutely no grounds stated for the legislature to have determined that certificates 
attesting to the state of emergency could be issued only during the period from 
1 August to 15 September 2020. In that regard, the Court [of Appeal] points out 
that those certificates were issued via a digital platform and that they were issued 
on the basis of a sworn statement by the economic operators concerned. 
Therefore, even after 15 September, the issue of those certificates would not entail 
a significant use of human or financial resources on the part of the public 
authority. Since the issuance of the certificates ended on 15 September 2020 and, 
subsequently, subsidies were launched for which the possession of such a 
certificate was required, it is considered that the question arises as to whether the 
principle of proportionality has been infringed, since the interests of those 
ALFASOFT 
 
5 
economic operators that were not diligent enough to foresee that they might need 
certificates attesting to the state of emergency even after 15 September 2020 were 
harmed. However, the harm caused to economic actors does not correspond to any 
benefit in terms of the public interest, indicating that the measure may be 
disproportionate. 
14 In its request for a reference for a preliminary ruling to be made, the appellant also 
referred to compliance with the principle of equivalence, although it never 
demonstrated what grounds there are for such an action, based on national law, for 
which the conditions are more favourable than those of the action based on EU 
law. In that context, the Court [of Appeal] considers that the principle of 
equivalence is not relevant in the present case. 
IV. Question referred for a preliminary ruling 
15 In the light of the foregoing, the Court [of Appeal] considers it necessary to refer 
the following question to the Court of Justice of the European Union for a 
preliminary ruling: 
[…] [question reproduced in the operative part] 
THE COURT ORDERS THAT 
The following question be referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267 TFEU: 
Do the principles of EU law, in particular the principles of effectiveness and 
proportionality, as interpreted in the case-law of the Court of Justice of the 
European Union, preclude a specific situation in which access to funding covered 
by European funds is blocked by the fact that an individual can no longer obtain a 
document for evidentiary purposes by reason of national legislation under which 
the period within which those documents could be obtained had expired before the 
possibility of obtaining funding was opened? 
 […] [national procedure]