Opinion of the Advocate General — ECLI:EU:C:2024:220
Date: 2024-03-07
Language of the case: Romanian
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-701/22 – 1 
Case C-701/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 November 2022 
Referring court:  
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
15 December 2021 
Applicant:  
SC AA SRL 
Defendant:  
Ministerul Fondurilor Europene (MFE) 
  
Subject matter of the main proceedings 
An action brought by a commercial company, a recipient of non-repayable 
financing from the European Regional Development Fund (ERDF), requesting 
that the national public authority responsible for the management of European 
funds be ordered to pay default interest and compensation for the delay in the 
reimbursement of eligible expenditure. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of the principle of sound financial management, the principle of 
equivalence and Directive 2011/7/EU 
Questions referred for a preliminary ruling 
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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-701/22 
 
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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?  
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 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? 
Provisions of European Union law relied on 
Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general 
provisions on the European Regional Development Fund, the European Social 
Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 – 
Article 60 
Articles 288 and 325 TFEU 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions – 
Articles 1 and 2 
MFE 
 
3 
Provisions of national law relied on 
Legea nr. 287/2009 privind Codul civil (Law No 287/2009 on the Romanian Civil 
Code) – Article 1 535 on default interest in the case of pecuniary obligations, 
according to which, when a sum of money is not paid by the due date, the creditor 
is entitled to default interest, from the due date until the time of payment, in the 
amount agreed upon by the parties or, failing that, in the amount provided for by 
law, without having to prove [that he or she has suffered] any damage. 
Ordonanța Guvernului nr. 13 din 24 august 2011 privind dobânda legală 
remuneratorie și penalizatoare pentru obligații bănești, precum și pentru 
reglementarea unor măsuri financiar-fiscale în domeniul bancar (Government 
Order No 13 of 24 August 2011 on statutory remunerative and default interest in 
respect of pecuniary obligations and on the regulation of certain financial and tax 
measures in the banking sector) – Part I on statutory remunerative and default 
interest in respect of pecuniary obligations: 
– Article 1, according to which the parties are free to set, in the contract, the 
interest rate both for the repayment of a loan of a sum of money and for the late 
payment of a pecuniary obligation; 
– Article 3, in particular paragraph 21, according to which, in relations between 
professionals and between professionals and contracting authorities, statutory 
default interest is fixed at the level of the reference interest rate plus 8 
percentage points; 
– Article 10, according to which various provisions of the Civil Code, including 
Article 1 535, are applicable to default interest.  
Legea nr. 72 din 28 martie 2013 privind măsurile pentru combaterea întârzierii în 
executarea obligațiilor de plată a unor sume de bani rezultând din contracte 
încheiate între profesioniști și între aceștia și autorități contractante (Law No 72 of 
28 March 2013 on measures to combat delay in the performance of obligations to 
pay certain sums of money arising from contracts concluded between 
professionals and between professionals and contracting authorities) – Article 20, 
which inserts paragraph 21 in Ordonanța Guvernului nr. 13/2011 (Government 
Order No 13/2011) and Article 22, according to which the concept of 
‘professional’ referred to in the abovementioned paragraph 21 means any natural 
or legal person operating a profit-making undertaking. 
Ordonanța de urgență a Guvernului nr. 66 din 29 iunie 2011 privind prevenirea, 
constatarea și sancționarea neregulilor apărute în obținerea și utilizarea fondurilor 
europene și/sau a fondurilor publice naționale aferente acestora (Government 
Emergency Order No 66 of 29 June 2011 on the prevention, detection and 
penalising of irregularities in obtaining and using European funds and/or national 
public funds related to them) – Article 42, which provides, among other things, 
that credits on the balance sheet arising from irregularities are due upon expiry of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-701/22 
 
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the payment deadline set out in the credit instrument, that is to say within 30 days 
from the date of notification of that instrument. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, a commercial limited liability company, is the recipient of non-
repayable financing from the Programul operațional sectorial de creștere a 
competitivității economice (Sectoral operational programme for increasing 
economic competitiveness) under the European Regional Development Fund 
(ERDF) for the implementation of the project entitled ‘Achiziție de echipamente 
pentru creșterea capacității de producție SC AA SRL’ (Acquisition of equipment 
for increasing the SC AA SRL production capacity). 
2 In the financing contract concluded on 22 April 2015 between the applicant and 
the defendant, the Ministerul Fondurilor Europene (MFE) (Ministry of European 
Funds), which is the managing authority for the programme, the latter undertakes 
to grant non-repayable financing in the maximum amount of RON 3 334 257.20 
(Romanian lei), and the applicant [undertakes in turn to] co-finance the project 
with the amount of RON 3 334 257.20, which represents its own contribution to 
the eligible expenditure of the project, and with the amount of RON 2 385 556.64, 
which represents the non-eligible amount of the project. 
3 Although the project was completed in full and on time, the defendant terminated 
the financing contract on 29 August 2016, citing a failure to comply with the 
principle of transparency when the applicant purchased a certain quantity of 
equipment. 
4 Following an action brought by the applicant against the decision to terminate, the 
administrative court annulled that decision, finding that the measure terminating 
the contract was disproportionate in view of the fact that the project had been 
completed; the court also noted that the defendant could have taken less drastic 
measures against the applicant, such as applying financial corrections. 
5 In that context, on 6 May 2021, the defendant paid the eligible expenditure in full. 
6 Following the ruling on the claim for reimbursement of the eligible expenditure, 
the applicant currently seeks, by means of the action brought before the referring 
court (the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania)), payment of 
statutory interest from the date of bringing proceedings until the date of actual 
payment of the eligible expenditure mentioned above, as well as an order that the 
defendant pay compensation in the amount of RON 28 983.65, for interest and 
commission. 
7 In that regard, the applicant relies on the provisions of the Civil Code concerning 
payment of interest from the due date of the credit of the defendant. With regard 
to the claim for compensation, it states that it was forced to conclude additional 
MFE 
 
5 
acts in relation to the credit contract it had concluded for the implementation of 
the project and that those acts resulted in additional costs. 
Succinct presentation of the reasoning in the request for a preliminary 
reference  
8 In the reasoning on the first three questions, the referring court observes that, for 
the situation at issue, in which the decision to terminate a financing contract of the 
European Regional Development Fund (ERDF) has been definitively annulled by 
an administrative court, there are no specific provisions governing the possibility 
of requiring the competent public authority to pay interest in the event that the 
eligible amounts have been paid late, after the termination of the financing 
contract has been definitively annulled. 
9 As regards whether EU law, and in particular the principle of sound financial 
management, recognises that possibility, the referring court considers that there is 
no uniform judicial practice. Some national courts have, therefore, considered 
that, in its capacity as a professional, the beneficiary of the financing contract may 
rely on the principles of legal certainty, protection of legitimate expectations, and 
equivalence in order to claim compensation for damages arising from the 
impossibility of using the sums due in a timely manner. In that regard, neither the 
fact that EU law and national law contain no express provisions to that effect, nor 
the fact that an administrative contract is concerned and the financial assistance is 
granted free of charge are relevant. Some courts have considered that the 
provisions of national law governing the legal regime on financing contracts are 
supplemented by the ordinary law provisions of the Civil Code and Government 
Order No 13/2011. 
Other courts, by contrast, have considered that, since the national legislation 
governing non-repayable financing does not provide for the right to default 
interest, that interest cannot be recognised in a situation such as that in the present 
case. The provider of the financing is not a professional, and the rules of national 
law governing legal acts concluded between professionals are not applicable to the 
legal relationship between the parties concerned. According to the case-law of the 
Court of Justice, where EU law does not provide for the award of interest, it is for 
national law to determine the terms and conditions applicable to interest in 
accordance with the principle of procedural autonomy 
10 The referring court asks whether, even if the provisions of civil law relating to the 
payment of default interest were applicable, the award of interest would not, 
nevertheless, be incompatible with the protection of the financial interests of the 
European Union and, in particular, with the principle of sound financial 
management, given the legal nature of the financing contract. 
11 Moreover, the referring court also raises the issue of the possibility of limiting the 
amount of default interest in order to take into account the fault of the recipient of 
the financing. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-701/22 
 
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12 With regard to the third question, the referring court states that, pursuant to 
Article 42(1) and (2) of the Government Emergency Order No 66/2011, where 
irregularities are found, the beneficiary of a financial advantage can be required to 
pay default interest only if repayment is not made within 30 days from the date of 
notification of the credit instrument. According to Article 325 TFEU, Member 
States are required to take the same measures to counter fraud affecting the 
financial interests of the Union as they take to counter fraud affecting their own 
financial interests. 
13 The referring court asks for a ruling on whether the principle of equivalence does 
not require even in the present case, which is not similar to that of withdrawal of 
the financial advantage, that default interest can be awarded only from the date on 
which the judgment annulling the decision to terminate the contract becomes final. 
14 In the context of the fourth question, the issue arises as to whether the law that 
transposes Directive 2011/7 into national law (and more specifically, the 
provisions of Article 3, paragraph 21, of Government Order No 13/2011 which set 
the statutory rate of default interest in relations between professionals and 
contracting authorities) extends the scope of the directive to financing contracts, 
such as the one at issue in the present case, beyond the limits imposed by the third 
paragraph of Article 288 TFEU.