Information;Order — ECLI:EU:C:2023:822
Date: 2023-10-25
Language of the case: Romanian
Court formation: Tenth Chamber
Subject matter: Agriculture and Fisheries;Economic, social and territorial cohesion;European Social Fund (ESF);European Regional Development Fund (ERDF);Cohesion Fund
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Romania

Summary C-635/22 – 1 
Case C-635/22 
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: 
11 October 2022 
Referring court: 
Curtea de Apel Timișoara (Romania) 
Date of the decision to refer: 
30 June 2022 
Appellant and applicant at first instance: 
SC Assofrutti Rom SRL 
Respondents and defendants at first instance: 
Agenția pentru Finanțarea Investițiilor Rurale 
Centrul Regional pentru Finanțarea Investițiilor Rurale 5 Vest 
Timișoara 
  
Subject matter of the main proceedings 
Appeal against a judgment delivered on 10 December 2020 by which the 
Tribunalul Timiș (Regional Court, Timiș, Romania) dismissed an action brought 
by the appellant and applicant at first instance (‘the applicant’) seeking the 
annulment of a decision adopted by the respondents and defendants at first 
instance (‘the defendants’). By that decision, the defendants held that certain 
expenditure incurred by the applicant under a grant agreement for a forgivable 
loan was not eligible for payment. 
Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, interpretation is sought of Article 17 of 
Directive 2008/90 and Article 4(10) of Regulation No 1303/2013, read in 
conjunction with Article 39(1)(a) and (b) TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-635/22 
 
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Questions referred for a preliminary ruling 
1. Can the provisions of Article 17 of Council Directive 2008/90/EC of 
29 September 2008 on the marketing of fruit plant propagating material and fruit 
plants intended for fruit production be interpreted as prohibiting Member States 
from requiring the public procurement procedure to be conducted prior to the 
marketing of [Conformitas Agraria Communitatis (CAC)] material? 
2. In a situation such as that in the present case, can Article 4(10) of Regulation 
No 1303/2013, read in conjunction with Article 39(1)(a) and (b) of the Treaty on 
the Functioning of the European Union, be interpreted as precluding the 
requirement for the public procurement procedure to be conducted as provided for 
in [Romania’s National Rural Development Programme] 2014-2020 (fifth 
version)? 
Provisions of European Union law relied on 
Council Directive 2008/90/EC of 29 September 2008 on the marketing of fruit 
plant propagating material and fruit plants intended for fruit production, 
Articles 1, 2 and 17; 
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, Articles 2, 4, 8 and 89; 
Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 
17 December 2013 on support for rural development by the European Agricultural 
Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) 
No 1698/2005, Articles 6 and 13; 
Treaty on the Functioning of the European Union, Articles 39 and 40. 
Provisions of national law relied on 
Programul național de dezvoltare rurală al României 2014-2020 (Romania’s 
National Rural Development Programme 2014-2020) (‘the NRDP 2014-2020’), 
fifth version. This version of the NRDP 2014-2020, unlike previous variants, 
allows the use of Conformitas Agraria Communitatis propagating material (‘CAC 
material’) in the case of walnut and hazelnut plants due to the lack of certified 
propagating material for those species on the market in Romania and in the 
European Union. However, it specifies that, in the case of CAC material for 
ASSOFRUTTI ROM 
 
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walnut and hazelnut plants, the procurement procedure for goods and services of 
the Agenția pentru Finanțarea Investițiilor Rurale (Agency for the Financing of 
Rural Investments) (‘the public procurement procedure’) will apply. 
Hotărârea Guvernului nr. 226 din 2 aprilie 2015 privind stabilirea cadrului 
general de implementare a măsurilor [PNDR 2014-2020] cofinanțate din Fondul 
European Agricol pentru Dezvoltare Rurală și de la bugetul de stat (Government 
Decision No 226 of 2 April 2015 laying down the general framework for the 
implementation of the [NRDP 2014-2020] measures co-financed by the European 
Agricultural Fund for Rural Development and by the State budget). According to 
Article 2(1)(b) of that decision, ‘specific eligible expenditure’ means expenditure 
relating to the delivery of specific investments under each measure or sub-
measure included in the NRDP 2014-2020, as set out in the guidance for 
applicants. Under Article 2(1)(h) thereof, ‘guidance for applicants’ means the 
detailed technical and financial specifications providing all the information 
necessary for the applicant to prepare, deliver and implement the project, drawn 
up for each measure of the NRDP 2014-2020. Lastly, Article 2(1)(i) of the 
decision states that ‘NRDP 2014-2020’ means the programming document setting 
out the measures and amounts allocated to Romania by the EAFRD. 
Ordinul ministrului agriculturii și dezvoltării rurale nr. 115 din 25 aprilie 
2017 privind aprobarea Ghidurilor solicitantului aplicabile în sesiunile de 
depunere de proiecte organizate pentru anul 2017, aferente sM4.1, sM6.1, 6.3, 
sM4.1a, sM9.1 și sM9.1a (Decree No 115 of the Minister for Agriculture and 
Rural Development of 25 April 2017 on the approval of the Guidelines for 
applicants to be used for the project pitch sessions organised for 2017, relating to 
sM4.1, sM6.1, 6.3, sM4.1a, sM9.1 and sM9.1a) (‘the Guidance for Applicants’). 
According to the provisions of that guidance relating to investments in fruit farms, 
‘where these are being created and/or converted, the applicant shall use only 
propagating material and fruit plants in the certified organic category or higher, 
with the exception of the walnut and hazelnut species, in which case [CAC 
material] may also be used. In the case of [CAC material] for walnut and hazelnut 
plants, [the public procurement procedure] shall apply. For other types of material 
(for example, certified material), the standard costs and the contribution in kind 
shall be used’. 
Ordonanța de urgență 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 (Emergency Order No 66 
of 29 June 2011 on the prevention, detection and sanctioning of irregularities in 
the acquisition and use of European funds and/or related national public funds). 
Under Article 6 of that emergency order, the competent authorities are obliged to 
exclude, in whole or in part, from the payment of expenditure incurred and 
declared by beneficiaries, any expenditure that does not meet the conditions of 
legality, regularity or compliance laid down by the national and [EU] legislation 
in force. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-635/22 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 On 24 November 2017, the applicant concluded an agreement with the Agenția 
pentru Finanțarea Investițiilor Rurale relating to the grant of a forgivable loan for 
the implementation of a project to create a hazelnut plantation and purchase 
machinery. Under the terms of that agreement, the loan was to be granted in four 
instalments. The first three instalments were paid to the applicant. 
2 The applicant’s request for payment of the fourth instalment concerned 
expenditure relating to material for the plantation in the amount of 1 153 352.34 
Romanian lei (RON) (equivalent to EUR 254 098.33). That request was rejected 
by the competent authority, namely the Centrul Regional pentru Finanțarea 
Investițiilor Rurale 5 Vest Timișoara (Regional Centre for Rural Investment 
Financing, West Timisoara 5), on the ground that that expenditure was ineligible, 
since the applicant had used CAC material when no public procurement procedure 
had been conducted. 
3 The competent authority stated that, although the specific provisions of the NRDP 
2014-2020 framework permit the use of CAC material in the case of hazelnut 
plants, the provisions in question specify that the public procurement procedure is 
to be applied in respect of that species. In those circumstances, payment for 
expenditure incurred in respect of CAC material cannot be made on the basis of 
the standard costs and the contribution in kind, as the applicant claims. 
4 The applicant brought an action claiming that (i) the decision rejecting its request 
for payment of the fourth instalment of the loan should be annulled and (ii) the 
defendants should be ordered to pay that instalment. It argued that the propagating 
material it used falls into the category stipulated in the grant agreement and that 
there is no requirement to conduct the public procurement procedure. 
5 The Regional Court, Timiș, dismissed that action by judgment of 10 December 
2020. In the grounds of its judgment, that court stated, in essence, that the 
applicant’s interpretation of the grant agreement and the applicable legal 
provisions was incorrect. Therefore, considering the provisions of the NRDP 
2014-2020 and the Guidance for Applicants, if CAC material is used, the public 
procurement procedure must be applied, whereas if other types of material are 
used, the standard costs and the contribution in kind are to be taken into account. 
Consequently, the beneficiary may opt to use CAC material for its hazelnut plants, 
but if it does so, the public procurement procedure must be conducted and 
payment for expenditure in respect of CAC material is not possible on the basis of 
the standard costs and the contribution in kind. According to the interpretation of 
the grant agreement at issue, which expressly refers to the Guidance for 
Applicants for verification of the eligibility of the expenditure for which payment 
is requested, the applicant should have applied the public procurement procedure 
in view of its use of CAC material. In those circumstances, the decision to reject 
the request for payment of the fourth instalment is well founded. 
ASSOFRUTTI ROM 
 
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6 The applicant brought an appeal against the judgment of the Regional Court, 
Timiș, before the Curtea de Apel Timișoara (Court of Appeal, Timișoara, 
Romania), the referring court. 
The essential arguments of the parties in the main proceedings 
7 The applicant submits that, according to the Guidance for Applicants and the grant 
agreement at issue, the use of CAC material is permitted for the hazelnut species. 
Since that agreement relates to a payment system based on the standard costs and 
the contribution in kind, it should be interpreted as allowing payment for 
expenditure in respect of CAC material to be based on those costs. 
8 The applicant further submits that it used propagating material produced in its 
own nursery, which is why it did not apply the public procurement procedure. The 
decision not to conduct such a procedure was justified since, irrespective of the 
tenders received from the market had the public procurement procedure been 
followed, they could not have been for a lower amount than that represented by 
the costs incurred in using the material produced in the applicant’s own nursery. 
The costs generated by the applicant’s own material do not include any mark-up, 
which a tender originating from the market would to a greater or lesser extent. 
9 The defendants argue that, under the NRDP 2014-2020, the Guidance for 
Applicants and the grant agreement at issue, the applicant should have conducted 
the public procurement procedure for the use of CAC material in the hazelnut 
plantation it created. In the absence of such a procedure, expenditure relating to 
the fourth instalment, based on the standard costs and on the contribution in kind, 
are not eligible for payment. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The referring court states that the decision on the substance of the dispute in the 
main proceedings depends on the answers to be given by the Court of Justice to 
the questions referred for a preliminary ruling. 
11 The referring court notes that the first version of the NRDP 2014-2020, which was 
approved by a decision of the Commission of 26 May 2015, did not contain a 
derogation regarding CAC material and did not make the use of that material 
subject to the public procurement procedure. However, the NRDP 2014-2020 has 
been amended 14 times over the years. The derogation from the quality standard 
permitted for hazelnut plant propagating material and the requirement to conduct 
the public procurement procedure were not established until the adoption of the 
fifth version of the NRDP 2014-2020 and remained valid until the adoption of the 
thirteenth version. 
12 As regards the first question referred for a preliminary ruling, the referring court 
observes that Directive 2008/90 provides for the free movement of propagating 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-635/22 
 
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material and fruit plants, including CAC material. In that respect, Article 17(1) of 
that directive provides that propagating material is not subject to any marketing 
restrictions, while Article 17(2) lays down a negative obligation for Member 
States not to impose more stringent conditions or marketing restrictions other than 
those laid down in the directive. 
13 Contrary to the provisions of Directive 2008/90, the fifth version of the NRDP 
2014-2020 allows the use of CAC material only after the public procurement 
procedure has been carried out. Accordingly, it is helpful to establish whether this 
additional requirement hinders the free movement of CAC material – in other 
words, whether under the national provision the right to market CAC material is 
limited by the requirement for the public procurement procedure to be carried out. 
The Court’s answer in this respect is important because it will make it possible to 
determine whether the provisions of the fifth version of the NRDP 2014-2020 
comply with Directive 2008/90. 
14 As regards the second question referred for a preliminary ruling, the referring 
court affirms that the general provisions of EU law on agricultural policy are 
intended to reduce the administrative burden on the beneficiary and increase 
agricultural productivity by improving technical progress, ensuring the rational 
development of agricultural production and making better use of inputs. 
15 In the present case, the applicant asserts that the requirement to conduct the public 
procurement procedure when the material is produced in its own nursery 
constitutes an additional burden for the beneficiary, in relation to which it is 
necessary to determine whether it is in line with the objectives and principles of 
the European Union.