Provisional text
JUDGMENT OF THE COURT (Fourth Chamber)
5 March 2026 (*)
( Appeal – Common Agricultural Policy (CAP) – European Agricultural Guarantee Fund (EAGF) and European Agricultural Fund for Rural Development (EAFRD) – Implementing Decision (EU) 2021/2020 – Expenditure excluded from European Union financing – Expenditure incurred by Romania – Regulation (EU) No 1306/2013 – Article 52 – Conformity clearance procedure – Implementing Regulation (EU) No 908/2014 – Article 34 – Change in the legal basis of the European Commission’s proposals for financial corrections – Possibility for the Member State concerned to make its views on those proposals known in a meaningful way – Concept of ‘external factor’ – Regulation (EU) No 1307/2013 – Article 44 – Diversification requirements – Confusion between set-aside land and temporary grassland – Implementing Regulation (EU) No 809/2014 – Article 35 – Increase in the control rate – Concept of ‘significant non-compliance’ )
In Case C‑457/24 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 June 2024,
Romania, represented by E. Gane, R. Antonie and M. Chicu, acting as Agents,
appellant,
the other party to the proceedings being:
European Commission, represented by A. Biolan and M. Salyková, acting as Agents,
defendant at first instance,
THE COURT (Fourth Chamber),
composed of I. Jarukaitis, President of the Chamber, F. Biltgen, President of the First Chamber, acting as Judge of the Fourth Chamber, M. Condinanzi, N. Jääskinen (Rapporteur) and
R. Frendo, Judges,
Advocate General: J. Kokott,
Registrar: R. Șereș, Administrator,
having regard to the written procedure and further to the hearing on 18 June 2025,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal, Romania seeks to have set aside the judgment of the General Court of the European Union of 17 April 2024, Romania v Commission (T‑49/22, EU:T:2024:254; ‘the judgment under
appeal’), by which the General Court dismissed its action seeking the partial annulment of Commission Implementing Decision (EU) 2021/2020 of 17 November 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) (OJ 2021 L 413, p. 10; ‘the contested decision’), in so far as that decision concerns expenditure allegedly incurred by Romania under the EAGF and the EAFRD (together, ‘the funds’) during the 2018 and 2019 financial years, amounting to EUR 178 320 110.85.
The legal framework
Regulation (EU) No 1303/2013
2        Article 85 of 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 (OJ 2013 L 347, p. 320), entitled ‘Financial corrections by the Commission’, provides in paragraph 3:
‘When deciding on a financial correction under paragraph 1, the [European] Commission shall respect the principle of proportionality by taking account of the nature and gravity of the breach of applicable law and its financial implications for the budget of the [European] Union. The Commission shall keep the European Parliament informed of decisions taken to apply financial corrections.’
Regulation (EU) No 1306/2013
3        Recitals 36, 37 and 39 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549, and corrigendum OJ 2016 L 130, p. 13), state:
‘(36)      The Commission is responsible for the implementation of the budget of the European Union in cooperation with Member States in accordance with Article 317 TFEU. The Commission is empowered to decide, by means of implementing acts, whether the expenditure effected by the Member States complies with Union law. Member States should be given the right to justify their decisions to make payments and should have recourse to conciliation where there is no common agreement between them and the Commission. …
(37)      As regards the EAGF, sums recovered should be paid back to that Fund where the expenditure is not in conformity with Union law and no entitlement existed. In order to allow sufficient time for all the necessary administrative proceedings, including internal checks, Member States should request recovery from the beneficiary within 18 months after a control report or similar document, stating that an irregularity has taken place, has been approved and, where applicable, received by the paying agency or body responsible for the recovery. Provision should be made for a system of financial responsibility where irregularities have been committed and where the total amount has not been recovered. In this respect a procedure should be established enabling the Commission to safeguard the interests of the Union budget by deciding on partial charging to the Member State concerned of the sums lost as a result of irregularities and not recovered within a reasonable period. …
…
(39)      In order to protect the financial interests of the Union’s budget, measures should be taken by Member States to satisfy themselves that transactions financed by the Funds are actually carried out and are executed correctly. Member States should also prevent, detect and deal effectively with any irregularities or non-compliance with obligations committed by beneficiaries. …’
4        Article 52 of Regulation No 1306/2013, entitled ‘Conformity clearance’, provides:
‘1.      Where it finds that expenditure falling within the scope of Article 4(1) and Article 5 has not been effected in conformity with Union law and, in respect of the EAFRD, has not been effected in conformity with the applicable Union and national law referred to in Article 85 of Regulation [No 1303/2013], the Commission shall adopt implementing acts determining the amounts to be excluded from Union financing. …
2.      The Commission shall assess the amounts to be excluded on the basis of the gravity of the non-conformity recorded. It shall take due account of the nature of the infringement and of the financial damage caused to the Union. It shall base the exclusion on the identification of amounts unduly spent and, where these cannot be identified with proportionate effort, may apply extrapolated or flat-rate corrections. Flat-rate corrections shall only be applied where, due to the nature of the case or because the Member State has not provided the Commission with the necessary information, it is not possible with proportionate effort to identify more precisely the financial damage caused to the Union.
3.      Before the adoption of any decision to refuse financing, the findings from the Commission’s inspection and the Member State’s replies shall be notified in writing, following which the two parties shall attempt to reach agreement on the action to be taken. At that point in the procedure the Member States shall be given the opportunity to demonstrate that the actual extent of the non-compliance is less than in the Commission’s assessment.
If agreement is not reached, the Member State may request the opening of a procedure aimed at reconciling, within a period of four months, each party's position. A report of the outcome of the procedure shall be submitted to the Commission. The Commission shall take into account the recommendations in the report before deciding on any refusal of financing and shall give reasons if it decides not to follow those recommendations.
…’
5        Article 53 of that regulation, entitled ‘Commission powers’, provides in paragraph 1:
‘The Commission shall adopt implementing acts laying down rules on:
…
(b)      the conformity clearance provided for in Article 52 with regard to the measures to be taken in connection with the adoption of the decision and its implementation, including the information exchange between the Commission and the Member States and the deadlines to be respected as well as the conciliation procedure provided for in that Article, including the establishment, tasks, composition and working arrangements of the conciliation body.’
6        Article 58 of that regulation, entitled ‘Protection of the financial interests of the Union’, reads as follows:
‘1.      Member States shall, within the framework of the [Common Agricultural Policy (CAP)], adopt all legislative, regulatory and administrative provisions and take any other measures necessary to ensure effective protection of the financial interests of the Union, in particular to:
(a)      check the legality and regularity of operations financed by the Funds;
…
2.      Member States shall set up efficient management and control systems in order to ensure compliance with the legislation governing Union support schemes aimed at minimising the risk of financial damage to the Union.
…’
Regulation (EU) No 1307/2013
7        Article 43 of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608, and corrigendum OJ 2016 L 130, p. 23), entitled ‘General rules’, provided in paragraph 1:
‘Farmers entitled to a payment under the basic payment scheme or the single area payment scheme shall observe, on all their eligible hectares within the meaning of Article 32(2) to (5), the agricultural practices beneficial for the climate and the environment referred to in paragraph 2 of this Article or the equivalent practices referred to in paragraph 3 of this Article.’
8        Article 44 of that regulation, entitled ‘Crop diversification’, provided:
‘1.      Where the arable land of the farmer covers between 10 and 30 hectares and is not entirely cultivated with crops under water for a significant part of the year or for a significant part of the crop cycle, there shall be at least two different crops on that arable land. The main crop shall not cover more than 75% of that arable land.
Where the arable land of the farmer covers more than 30 hectares and is not entirely cultivated with crops under water for a significant part of the year or for a significant part of the crop cycle, there shall be at least three different crops on that arable land. The main crop shall not cover more than 75% of that arable land and the two main crops together shall not cover more than 95% of that arable land.
2.      Without prejudice to the number of crops required pursuant to paragraph 1, the maximum thresholds set out therein shall not apply to holdings where grasses or other herbaceous forage or land lying fallow cover more than 75% of the arable land. In such cases, the main crop on the remaining arable area shall not cover more than 75% of that remaining arable land, except where this remaining area is covered by grasses or other herbaceous forage or land lying fallow.
3.      Paragraphs 1 and 2 shall not apply to holdings:
(a)      where more than 75% of the arable land is used for the production of grasses or other herbaceous forage, is land lying fallow, or is subject to a combination of these uses, provided that the arable area not covered by these uses does not exceed 30 hectares;
(b)      where more than 75% of the eligible agricultural area is permanent grassland, is used for the production of grasses or other herbaceous forage or for the cultivation of crops under water for a significant part of the year or for a significant part of the crop cycle, or is subject to a combination of these uses, provided that the arable area not covered by these uses does not exceed 30 hectares;
(c)      where more than 50% of the areas of arable land declared were not declared by the farmer in his aid application of the previous year and, where based on a comparison of the geo-spatial aid applications, all arable land is being cultivated with a different crop compared to that of the previous calendar year;
…’
9        Article 3 of Regulation (EU) 2017/2393 of the European Parliament and of the Council of 13 December 2017 (OJ 2017 L 350, p. 15), amended Article 44(2) and (3)(a) and (b)
of Regulation No 1307/2013 as follows:
‘2.      Without prejudice to the number of crops required pursuant to paragraph 1, the maximum thresholds set out therein shall not apply to holdings where grasses or other herbaceous forage or land lying fallow or cultivated with crops under water for a significant part of the year or for a significant part of the crop cycle cover more than 75% of the arable land. In such cases, the main crop on the remaining arable area shall not cover more than 75% of that remaining arable land, except where this remaining area is covered by grasses or other herbaceous forage or land lying fallow.
3.      Paragraphs 1 and 2 shall not apply to holdings:
(a)      where more than 75% of the arable land is used for the production of grasses or other herbaceous forage, is used for cultivation of leguminous crops, is land lying fallow or is subject to a combination of those uses;
(b)      where more than 75% of the eligible agricultural area is permanent grassland, is used for the production of grasses or other herbaceous forage or for the cultivation of crops under water for a significant part of the year or for a significant part of the crop cycle, or is subject to a combination of those uses’.
10      In accordance with Article 6 of Regulation 2017/2393, the amendment to Article 44 of Regulation No 1307/2013 was applicable from 1 January 2018.
Delegated Regulation (EU) No 640/2014
11      Article 2 of Commission Delegated Regulation (EU) No 640/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross
compliance (OJ 2014 L 181, p. 48, and corrigendum OJ 2015 L 209, p. 48), as amended by Commission Delegated Regulation (EU) 2017/723 of 16 February 2017 (OJ 2016 L 107, p. 1), provides:
‘1.      For the purposes of the integrated system referred to in Article 67(1) of Regulation [No 1306/2013], the definitions in Article 4(1) of Regulation [No 1307/2013] and in Article 67(4) of Regulation [No 1306/2013] shall apply.
The following definitions shall also apply:
…
(23)      “area determined” means:
(a)      for area-related aid schemes, the area for which all eligibility criteria or other obligations relating to the conditions for the granting of the aid have been met, regardless of the number of the payment entitlements at the beneficiary’s disposal; …
…’
12      Article 23 of that delegated regulation, entitled ‘Basis of calculation of the payment for agricultural practices beneficial for the climate and the environment in respect of the eligible hectares declared under the basic payment scheme or the single area payment scheme’, provides in paragraph 2:
‘Without prejudice to the administrative penalties applicable in accordance with Article 28, if the area declared in a single application for the basic payment or the single area payment exceeds the area determined, the area determined shall be used for the calculation of the greening payment.
However, if the area determined for the basic payment scheme or the single area payment scheme is found to be greater than the area declared in the aid application, the area declared shall be used for the calculation of the greening payment.’
13      Article 24 of that delegated regulation, entitled ‘Reduction of the greening payment in case of non-compliance with crop diversification’, states:
‘1.      In respect of arable land for which the first subparagraph of Article 44(1) of Regulation [No 1307/2013] requires at least two different crops while the main crop shall not cover more than 75% of the total area of arable land, but the area determined for the main crop covers more than 75% of the total area of arable land determined, the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by 2 times the area of the main crop in excess of the 75% of the total area of arable land determined.
2.      In respect of arable land for which the second subparagraph of Article 44(1) of Regulation [No 1307/2013] requires at least three different crops while the main crop shall not cover more than 75% of the total area of arable land, but the area determined for the main crop covers more than 75% of the total area of arable land determined, the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by the area of the main crop in excess of the 75% of the total area of arable land determined.
3.      In respect of arable land for which the second subparagraph of Article 44(1) of Regulation [No 1307/2013] requires at least three different crops while the two main crops shall not cover more than 95% of the total area of arable land, but the area determined for the two main crops covers more than 95% of the total area of arable land determined, the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by 5 times the area of the two main crops in excess of the 95% of the total area of arable land determined.
4.      In respect of holdings for which Article 44(2) of Regulation [No 1307/2013] requires that the main crop on the remaining arable land shall not cover more than 75% of that remaining arable land, but the area determined for the main crop on the remaining arable land determined covers more than 75%, the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by 2 times the area of the main crop in excess of the 75% of that remaining arable land determined.
5.      Where a beneficiary has been found non-compliant with crop diversification as described in this Article for three years, the area by which the area to be used for the calculation of the greening payment is to be reduced in accordance with paragraphs 1 to 4 for the subsequent years shall be multiplied by 2.’
14      Article 25 of that delegated regulation, entitled ‘Reduction of the greening payment in case of non-compliance with the permanent grassland requirements’, reads as follows:
‘1.      If a non-compliance with the third subparagraph of Article 45(1) of Regulation [No 1307/2013] has been determined, the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by the area determined as non-compliant with the requirements in the third subparagraph of Article 45(1) of Regulation [No 1307/2013].
2.      If a non-compliance with the obligations as referred to in Article 44 of [Commission Delegated Regulation (EU)
No 639/2014 of 11 March 2014 supplementing Regulation No 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and amending Annex X to that Regulation (OJ 2014 L 181, p. 1)] has been determined, the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by the area determined as non-compliant with the obligations as referred to in Article 44 of Delegated Regulation [No 639/2014].
3.      Non-compliances shall be deemed to be “determined” if they are established as a consequence of any kind of checks carried out in accordance with Article 74 of Regulation [No 1306/2013] or after having been brought to the attention of the competent control authority or paying agency in whatever other way.’
15      Article 26 of Delegated Regulation No 640/2014, entitled ‘Reduction of the greening payment in case of non-compliance with the ecological focus area requirements’, provides:
‘1.      The ecological focus area required in accordance with Article 46(1) of Regulation [No 1307/2013], hereinafter referred to as “the ecological focus area required”, shall be calculated on the basis of the total area of arable land determined and including, if applicable pursuant to Article 46(2) of Regulation [No 1307/2013], the areas determined as referred to in points (c), (d), (g) and (h) of the first subparagraph of Article 46(2) of that Regulation.
2.      If the ecological focus area required exceeds the ecological focus area determined taking account of the weighting of ecological focus areas provided for in Article 46(3) of Regulation [No 1307/2013], the area to be used for the calculation of the greening payment in accordance with Article 23 of this Regulation shall be reduced by 10 times the ecological focus area not found.
For the purposes of the first subparagraph, the ecological focus area determined shall not exceed the share of the ecological focus areas declared in the total area of arable land declared.
3.      Where a beneficiary has been found non-compliant with the ecological focus area requirements as described in this Article for three years, the area by which the area to be used for the calculation of the greening payment is to be reduced in accordance with paragraph 2 for the subsequent years shall be multiplied by 2.’
Implementing Regulation (EU) No 809/2014
16      Article 35 of Commission Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system, rural development measures and cross
compliance (OJ 2014 L 227, p. 69), as amended by Commission Implementing Regulation (EU) 2018/746 of 18 May 2018 (OJ 2018 L 125, p. 1), entitled ‘Increase of the control rate’, is worded as follows:
‘Where on-the-spot checks reveal any significant non-compliance in the context of a given aid scheme or support measure or in a region or part of a region, the competent authority shall appropriately increase the percentage of beneficiaries to be checked on-the-spot in the following year.’
Implementing Regulation (EU) No 908/2014
17      Recital 27 of Commission Implementing Regulation (EU) No 908/2014 of 6 August 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to paying agencies and other bodies, financial management, clearance of accounts, rules on checks, securities
and transparency (OJ 2014 L 255, p. 59, and corrigendum OJ 2015 L 114, p. 25), as amended by Commission Implementing Regulation (EU) 2018/56 of 12 January 2018 (OJ 2018 L 10, p. 9), states:
‘In order to ensure that in normal cases the conformity clearance procedure is concluded within a reasonable period of time, it is appropriate to lay down specific time periods for the different stages of the procedure to be respected by the Commission and Member States. At the same time, however, it should be possible for the Commission to extend those time periods where necessary in view of the complexity of a case under investigation. The conformity clearance procedure should give Member States the right to adversarial proceedings and properly assess the information necessary for the Funds’ risk evaluation.’
18      Article 34 of that implementing regulation, entitled ‘Conformity clearance’, provides:
‘1.      In order to determine what amounts are to be excluded from Union financing, when finding that expenditure has not been incurred in conformity with Union rules, the Commission shall use its own findings and shall take into account the information made available by Member States, provided that the latter information is provided within the time limits set by the Commission in the framework of the conformity clearance procedure carried out in accordance [with]
Article 52 of Regulation [No 1306/2013] and in conformity with this Article.
2.      When, as a result of any inquiry, the Commission considers that expenditure was not effected in compliance with Union rules, it shall communicate its findings to the Member State concerned, specifying the corrective measures needed to ensure future compliance with those rules, and indicating the provisional level of financial correction which at that stage of the procedure it considers corresponds to its findings. That communication shall also schedule a bilateral meeting within four months after expiry of the period for reply by the Member State. The communication shall make reference to this Article.
The Member State shall reply within two months of receipt of the communication. In its reply the Member State shall have the opportunity, in particular, to:
(a)      demonstrate to the Commission that the actual extent of the non-compliance or the risk for the Funds is less than what was indicated by the Commission;
(b)      inform the Commission of the corrective measures it has undertaken to ensure compliance with Union rules and the effective date of their implementation.
In justified cases, the Commission may, upon reasoned request of the Member State, authorise an extension of the two month period by a maximum of two months. The request shall be addressed to the Commission before the expiry of that period.
If the Member State considers that a bilateral meeting is not required, it shall inform the Commission accordingly in its reply to the communication mentioned above.
3.      In the bilateral meeting both parties shall endeavour to come to an agreement as to the measures to be taken as well as to the evaluation of the gravity of the infringement and of the financial damage caused to the Union budget.
The Commission shall within 30 working days of the bilateral meeting draw up the minutes and send them to the Member State. The Member State may send its observations to the Commission within 15 working days after receipt of the minutes.
The Commission shall within six months after sending the minutes of the bilateral meeting formally communicate its conclusions to the Member State on the basis of the information received in the framework of the conformity clearance procedure. That communication shall evaluate the expenditure to be excluded from Union financing under Article 52 of Regulation (EU) No 1306/2013 and Article 12 of [Commission Delegated Regulation (EU) No 907/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to paying agencies and other bodies, financial management, clearance of accounts, securities and use of euro (OJ 2014 L 255, p. 18)]. The communication shall make reference to Article 40(1) of this Regulation.
…
6.      When evaluating the expenditure to be excluded from Union financing, the information communicated by the Member State after the Commission’s formal communication referred to in the second subparagraph of paragraph 3 may only be taken into account:
(a)      where it is necessary to avoid the gross overestimation of the financial damage caused to the Union budget; and
(b)      if the late transmission of the information is duly justified by external factors and does not jeopardise the timely adoption by the Commission of the decision pursuant to Article 52 of Regulation [No 1306/2013].
…’
19      Article 40 of that implementing regulation, entitled ‘Conciliation procedure’, provides in paragraph 1:
‘A Member State may refer a matter to the Conciliation Body within 30 working days of receipt of the Commission’s formal communication referred to in the third subparagraph of Article 34(3) by sending a reasoned request for conciliation to the secretariat of the Conciliation Body.
…’
Background to the dispute and the contested decision
20      The background to the dispute was set out by the Court in paragraphs 2 to 30 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.
The 2017 investigation
21      The Commission opened investigation AA/2017/002/RO (‘the 2017 investigation’) against Romania, on the basis of Article 52 of Regulation No 1306/2013 and Article 34 of Implementing Regulation No 908/2014, to verify whether the administration and control by the Romanian authorities of the area aid schemes paid from the funds had been carried out in accordance with Union legislation for the
2015 and 2016 financial years.
22      From 12 to 16 June 2017, the Commission carried out an on-the-spot audit in Romania.
23      On 28 August 2017, following that audit, the Commission notified Romania of the results of its verifications, in accordance with Article 34(2) of Implementing Regulation No 908/2014, and requested additional information.
24      On 20 February 2018, the Commission organised a bilateral meeting (‘the 2017 bilateral meeting’) in accordance with Article 34(2) of Implementing Regulation No 908/2014.
25      On 3 April 2018, the minutes of the 2017 bilateral meeting were communicated to Romania, together with an invitation to provide additional information by 2 July 2018.
26      On 25 April 2018, Romania submitted its comments on the minutes of the 2017 bilateral meeting and, on 2 July and 11 September 2018, its replies to the request for additional information made in those minutes, in accordance with the provisions of Implementing Regulation No 908/2014.
27      On 1 March 2019, the Commission communicated to Romania, in accordance with the third subparagraph of Article 34(3) and Article 40(1) of Implementing Regulation No 908/2014, its conclusions based on the information received in the context of the conformity clearance procedure. Specifically, the Commission, first, indicated that it maintained its position that the system implemented by Romania during the 2015 and 2016 financial years, which was the subject of the 2017 investigation, had deficiencies in the functioning of five key controls and, secondly, specified the amount it intended to exclude from Union financing.
28      On 10 April 2019, Romania submitted a request for conciliation. Following the conciliation, a report from the conciliation body was sent to Romania on 24 June 2019.
29      On 10 July 2019, following that report, Romania submitted to the Commission a revised impact assessment based on Article 34(6) of Implementing Regulation No 908/2014.
30      The Commission then communicated its final position to Romania, in which it indicated that it was partially maintaining its position as expressed in its conclusions communicated on 1 March 2019 and that it was reducing the amount it proposed to exclude from Union funding, after taking into account the revised impact calculation submitted by Romania (‘the final position for 2017’).
31      The summary report on the 2017 investigation
was subsequently communicated to Romania.
The 2018 investigation
32      The Commission opened investigation AA/2018/007/RO (‘the 2018 investigation’) against Romania, on the basis of Article 52 of Regulation No 1306/2013 and Article 34 of Implementing Regulation No 908/2014, to verify whether the administration and control by that Member State of the area aid schemes paid from
the funds had been carried out in accordance with Union legislation for the
2017 and 2018 financial years.
33      From 2 to 6 July 2018, the Commission carried out an on-the-spot audit in Romania (‘the 2018 audit’).
34      By letter dated 28 August 2018, the Commission notified Romania of the results of its verifications, in accordance with Article 34(2) of Implementing Regulation No 908/2014.
35      On 29 October 2018, Romania submitted its comments on the results of the verifications to the Commission.
36      On 23 January 2019, the Commission invited Romania to a bilateral meeting in accordance with Article 34(2) of Implementing Regulation No 908/2014.
37      On 5 March 2019, the Commission and the Romanian authorities met at a bilateral meeting (‘the 2018 bilateral meeting’).
38      On 10 April 2019, the Commission sent Romania the minutes of the 2018 bilateral meeting (‘the minutes of the 2018 investigation’).
39      On 3 May 2019, Romania submitted its comments on the minutes of the 2018 investigation to the Commission.
40      By letter dated 10 June 2019, Romania submitted its responses to the request for additional information made in the minutes of the 2018 investigation.
41      On 19 December 2019, the Commission then sent Romania the preliminary conclusions of the 2018 investigation (‘the communication on excluded expenditure for 2018’), in accordance with the third subparagraph of Article 34(3) of Implementing Regulation No 908/2014, in which it communicated its proposal to exclude from Union financing an amount of EUR 178 846 662.94 and confirmed its view that, in Romania, during the 2017 and 2018 financial years, the implementation of the area aid scheme had infringed EU regulations.
42      In particular, the Commission noted that the grounds for excluding the expenditure in question from the funds related to deficiencies found in four key controls, namely administrative controls concerning the definition of set-aside land in relation to
that of temporary grassland, the performance of cross-checks to establish the eligibility of the parcels declared, the performance of a sufficient number of on-the-spot checks, and the performance of on-the-spot checks of sufficient quality.
43      On 5 February 2020, Romania submitted a request for conciliation (‘the 2018 conciliation request’).
44      On 15 December 2020, Romania participated in a conciliation meeting.
45      On 4 January 2021, the conciliation body issued its report, in which it concluded that conciliation was not possible.
46      On 5 July 2021, the Commission communicated its final position to Romania, adopted following the conciliation report. In that position, the Commission essentially maintained its assessment that the system implemented in Romania during the 2017 and 2018 financial years had deficiencies in the functioning of four key controls. In addition, the Commission reduced the proposed flat-rate corrections to a sum of EUR 178 320 110.85.
47      Subsequently, the Commission sent Romania a summary report in which it outlined the various stages of the 2018 investigation, the scope of the comments made by Romania during the conformity clearance procedure and the reasons for its final conclusions.
48      On 17 November 2021, the Commission adopted the contested decision.
49      With regard to the expenditure incurred by Romania in respect of the funds for the
2017 and
2018 financial years, the Commission noted the infringements of EU law referred to in paragraph 42 of the present judgment and decided to impose a flat-rate correction of EUR 178 320 110.85 on Romania.
The procedure before the General Court and the judgment under appeal
50      By application lodged at the Registry of the General Court on 27 January 2022, Romania brought an action seeking the partial annulment of the contested decision in so far as it concerned expenditure incurred by Romania from the funds during the 2018 and 2019 financial years, amounting to EUR 178 320 110.85.
51      In support of its action, Romania raised three pleas in law.
52      By the judgment under appeal, the General Court rejected those pleas in law as unfounded and, consequently, dismissed the action in its entirety.
53      In the first place, in paragraphs 34 to 173 of the judgment under appeal, the General Court examined and rejected the first plea in law, alleging that the Commission had improperly exercised its power to exclude sums from Union financing on the basis of Article 52 of Regulation No 1306/2013 and which was divided into five parts.
54      First, in paragraphs 37 to 52 of that judgment, the General Court analysed and rejected as unfounded the first part of that plea in law, alleging errors committed by the Commission in finding deficiencies in the administrative checks concerning the relationship between the 2017 and 2018 investigations and the time limit applicable to the information provided by Romania in the context of the 2018 investigation.
55      In that regard, the Court noted, in particular in paragraphs 41 and 42 of that judgment, that the 2017 investigation and the 2018 investigation overlapped in relation to the four key controls for which the Commission had found infringements. However, it observed that, on the one hand, those infringements concerned two different periods, with the 2017 investigation covering the 2015 and 2016 financial years and the 2018 investigation covering the 2017 and 2018 financial years and, on the other hand, the decision adopted following the 2017 investigation had not been appealed and had therefore become final. The Court considered that the appeal had been brought against the contested decision, which had been adopted at the end of the 2018 investigation and concerned the 2017 and 2018 financial years. According to the General Court, Romania could therefore only challenge, with regard to the 2017 investigation, the references to that investigation made by the Commission during the 2018 investigation and on the basis of which the latter had adopted the contested decision.
56      With regard to the time limit applicable to the communication of information by Romania in the context of the 2018 investigation, the Court noted, in paragraph 47 of the judgment under appeal, that the two conditions laid down in that regard in Article 34(6) of Implementing Regulation No 908/2014 were cumulative in nature, so that if one of the two was not satisfied, there was no need to examine the other.
57      The Court then ruled, in paragraph 49 of that judgment, that the partial overlap between the 2017 investigation and the 2018 investigation had no bearing on the legality of the contested decision, so that the conduct alleged against the Commission by Romania, which had claimed that it had been unable to provide the information essential for the 2018 investigation because of the Commission’s conduct in the 2017 investigation, could not be regarded as an external factor within the meaning of Article 34(6)(b) of Implementing Regulation No 908/2004.
58      Furthermore, in paragraph 50 of that judgment, the Court noted that, in the context of the conformity clearance procedure, the Member State concerned had to provide an explanation showing that external factors had justified the late submission of information, after the official communication sent by the Commission, and that it was for the Commission to assess whether that explanation was satisfactory, given that, if the Commission had rejected that explanation and had not applied Article 34(6) of Implementing Regulation No 908/2014, that Member State could have challenged before the General Court the refusal to take into account the information it had thus provided.
59      In paragraph 51 of the judgment under appeal, the General Court noted, on the one hand, that, during the 2018 investigation, the only external factor relied on by Romania concerned the information on error rates used to calculate the risk to the EAGF. On the other hand, Romania had challenged the Commission’s conduct not during the conformity clearance procedure, but only before the General Court, so that the Commission could not validly be criticised for failing to examine correctly the concept of ‘external factor’ within the meaning of Article 34(6)(b) of Implementing Regulation No 908/2004.
60      Secondly, in paragraphs 53 to 99 of that judgment, the General Court examined and rejected as unfounded the second part of the first plea in law, alleging errors of assessment by the Commission in finding deficiencies in the administrative controls
concerning the definition of set-aside land in relation to the definition of temporary grassland.
61      In that regard, the General Court first rejected, in paragraph 77 of that judgment, a first complaint based on references to the 2017 investigation made by the Commission in the context of the 2018 investigation.
62      With regard to Romania’s argument that, in the case of arable land with an area of between 10 and 30 hectares (ha), the fact that set-aside land is confused with temporary grassland does not pose any risk to the funds and that, consequently, Article 44(1) of Regulation No 1307/2013 has been complied with in the present case, the General Court ruled, in particular, in paragraph 70 of the judgment under appeal, that by stating that, in almost all cases, if one of the two crops, temporary grassland or set-aside land, is declared under one of the two categories necessary to ensure diversification (main crop or secondary crop), other crops are declared under the other category, Romania had implicitly acknowledged that it was unable to guarantee that there was no risk to the funds.
63      In paragraph 71 of that judgment, the General Court stated that that argument amounted to admitting the possible existence of cases in which the two crops required by the first subparagraph of Article 44(1) of Regulation No 1307/2013 were set-aside land and temporary grassland. Thus, contrary to what Romania had argued, a distinction between set-aside land and temporary grassland would have been necessary to ensure compliance with the requirement laid down in that provision that two crops must be present on the farmer’s arable land covering between 10 and 30 ha, since there could be a situation in which, in reality, arable land was entirely covered by set-aside land or temporary grassland.
64      As regards Romania’s argument that, while in principle the main crop must not cover more than 75% of arable land, exceeding that threshold is permitted in the case of both set-aside land and temporary grassland, in accordance with Article 44(3) of Regulation No 1307/2013, so that, even if the two crops are combined, there is no risk to the funds, the General Court found, in paragraph 72 of that judgment, that Romania had not proved that the precondition for the application of the exception provided for in Article 44(3)(a) of that regulation, namely that temporary grassland, land set aside or a combination of the two represent more than 75% of the arable land of a holding, had been met.
65      With regard to Romania’s argument that its inspectors had checked the land declared as set aside for two consecutive years in order to penalise any irregularities, the General Court noted, in paragraph 76 of the judgment under appeal, that the 2018 audit had highlighted a different problem, namely that, on the spot, an error had been made in the classification of the land, which had had a knock-on effect, calling into question the application of the greening thresholds based on crop diversification in accordance with Article 44 of Regulation No 1307/2013.
66      The General Court then rejected, in paragraph 87 of that judgment, the second complaint, alleging a lack of clarity of the legal basis for the 2018 investigation.
67      In paragraphs 83 to 86 of that judgment, the General Court relied on the fact that Romania had been aware of the legal basis for the 2018 investigation by 10 April 2019 at the latest, the date on which the minutes
of the 2018 investigation were communicated. Furthermore, in its view, Romania could not validly argue that the reference to Article 44 of Regulation No 1307/2013, which concerns crop diversification in order to benefit from the payment scheme for agricultural practices beneficial for the climate and the environment, was not sufficient to understand the nature and scope of the Commission’s challenge.
68      Finally, in paragraph 99 of the judgment under appeal, the General Court rejected the third complaint, alleging errors in the calculation of the flat-rate correction applied by the Commission in the 2018 investigation.
69      To that end, it noted, in particular, in paragraph 95 of that judgment, that the exception provided for in Article 34(6) of Implementing Regulation No 908/2014 was not applicable in the present case. Furthermore, in paragraph 97 of that judgment, it found that Romania had not demonstrated that the Commission had made an error of assessment in considering that the correction alleged by Romania in support of its argument that the irregularity identified by the Commission was of minor importance and limited in scope had not taken place.
70      Thirdly, in paragraphs 100 to 152 of the judgment under appeal, the General Court examined and rejected as unfounded the third part of the first plea, alleging errors of assessment by the Commission in finding deficiencies in the cross-checks carried out to establish the eligibility of the parcel declared.
71      With regard to the first complaint, alleging errors of assessment by the Commission in finding deficiencies in the performance of checks under the EAGF, the General Court rejected it in paragraph 143 of that judgment.
72      In particular, in paragraphs 121 and 122 of that judgment, it noted the updating of the Land Parcel Identification System (‘the LPIS’) from the low percentage of non-compliance cases found during the 2018 investigation and considered that the Commission had not erred in its assessment when it considered in the contested decision that, with regard to that update, there was no applicable threshold for errors.
73      With regard to that update, the Court held, in paragraphs 130 and 131 of the judgment under appeal, that the question of the legal basis for the three-yearly update of the LPIS had no bearing on the deficiencies identified by the Commission. First, it was apparent from the minutes of the bilateral meeting of 8 September 2017 on the 2017 action plan, cited by Romania itself, that no Member State had been penalised for failing to update the LPIS every three years, but that the errors resulting from the failure to update it created a risk for the funds and could form the basis for financial corrections. Secondly, as the General Court had already noted in relation to other arguments put forward by Romania, it was the age of the LPIS images that was the source of the risk to the EAGF.
74      With regard to the second complaint, alleging errors committed by the Commission in finding deficiencies in the performance of checks under the EAFRD, the General Court rejected it in paragraph 152 of that judgment.
75      The General Court ruled, first, in paragraph 149 of that judgment, that the Commission had correctly explained, in the communication on excluded expenditure for 2018, that it had not taken into account the calculations submitted by Romania on the ground that they did not comply with what had been agreed at the 2018 bilateral meeting. Secondly, it ruled, in paragraph 150 of that judgment, that the Commission had not erred in its assessment in considering that the exception provided for in Article 34(6) of Implementing Regulation No 908/2014 was not applicable in the present case.
76      The General Court also stated, in paragraph 151 of the judgment under appeal, that, in any event, it was not for the Commission to prove that a Member State’s calculations were incorrect, but for the Member State to demonstrate that the information on which the Commission had based its doubts was incorrect, which, in its view, Romania had failed to do in the present case.
77      Fourthly, in paragraphs 153 to 169 of that judgment, the General Court examined and rejected as unfounded the fourth part of the first plea, alleging errors of assessment by the Commission in finding deficiencies in the performance of a sufficient number of on-the-spot checks.
78      Concerning the disagreement between Romania and the Commission on the percentage of beneficiaries who must be checked under the greening aid measures where significant non-compliance is found, the General Court first observed, in paragraph 162 of the judgment under appeal, that that disagreement related to the determination of the percentage resulting from the calculation aimed at establishing one of the two values necessary to determine that percentage.
79      With regard to working document DS/CDP/2015/19, referred to by Romania, the General Court noted, in paragraph 163 of that judgment, that that document indicated that the greening payment could only be made for the area that was in principle eligible, namely, that which met the eligibility criteria for the single area payment scheme (‘the SAPS’). In paragraph 164 of that judgment, the General Court found that that document specified, with regard to the formula to be used to determine the greening control rate that should be increased in the year following that of the significant non-compliances, that the numerator, namely, the total reduction for greening in hectares, was to be understood as the total reduction in the number of hectares for the area checked, including the reduction for all greening requirements. That meant, according to the General Court, that not only the reduction resulting from all greening requirements had to be taken into account, but also the reduction in the number of hectares for the controlled area.
80      Fifthly, in paragraphs 170 to 173 of the judgment under appeal, the General Court examined and rejected as unfounded the fifth part of the first plea in law, alleging errors committed by the Commission in finding deficiencies in the performance of on-the-spot checks of sufficient quality, in so far as the merits of that part were linked to those of the second and third parts of the first plea in law.
81      In the second place, in paragraphs 174 to 181 of that judgment, the General Court examined and rejected as unfounded the second plea in law, alleging infringement of the principle of proportionality.
82      In that regard, the General Court noted, in paragraph 180 of that judgment, that, in the context of that plea in law, Romania had again relied, first, on the fact that it had been unable to submit appropriate calculations within the time limit laid down in Article 34(3) of Implementing Regulation No 908/2014 due to the overlap between the 2017 and 2018 investigations and, secondly, on the fact that the Commission had not applied Article 34(6) of that implementing regulation and had therefore not taken into account the calculations Romania had submitted in the 2018 conciliation request. The General Court therefore held, in paragraph 181 of that judgment, that, in so far as it had ruled in that judgment that, first, the presentation of appropriate calculations in the context of the 2018 investigation did not depend on the calculations in the 2017 investigation and, secondly, the conditions laid down in Article 34(6) of that implementing regulation were not met in the present
case, the second plea in law should be rejected.
83      In the third place, in paragraphs 182 to 209 of the judgment under appeal, the General Court examined and rejected as unfounded the third plea in law, alleging breach of the obligation to state reasons.
Forms of order sought by the parties before the Court of Justice
84      Romania claims that the Court should:
–        declare the appeal admissible and set aside the judgment under appeal in its entirety;
–        rule definitively on the dispute by granting the appeal for partial annulment of the contested decision, or
–        in the alternative, refer the case back to the General Court for it to rule again, granting the application for partial annulment of the contested decision brought by Romania, and
–        order the Commission to pay the costs.
85      The Commission contends that the Court should:
–        dismiss the appeal, and
–        order Romania to pay the costs.
The appeal
86      In support of its appeal, Romania raises four grounds.
The first ground of appeal, alleging infringement of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014 and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’)
87      The first ground of appeal comprises four parts.
The first part, relating to the amendment of the legal basis of the Commission’s proposals for financial corrections during the conformity clearance procedure
–       Arguments of the parties
88      In the first part of the first ground of appeal, Romania challenges paragraphs 85 and 86 of the judgment under appeal.
89      First, the General Court erred in finding that the Commission could change the legal basis of
its proposals for financial corrections during the conformity clearance procedure, including in the context of the bilateral meeting. Secondly, the General Court erred in finding that Romania had been informed of the legal basis of
those proposals by 10 April 2019 at the latest, namely the date on which the
minutes of the 2018 investigation were communicated, and that that Member State had had the opportunity to submit its observations before the Commission sent it the communication relating to the excluded expenditure.
90      The clearance procedure requires, in accordance with Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, that, at the first stage of that procedure, the Commission indicate the EU rules which it considers to have been infringed, the necessary measures and the correction envisaged in that regard.
91      Romania notes, with reference to the judgment of 3 May 2012, Spain v Commission (C‑24/11 P, EU:C:2012:266, paragraphs 26 to 28), that, following an investigation and where it considers that expenditure has not been incurred in accordance with EU rules, the Commission is required to communicate the results of its checks to the Member State concerned and to indicate the corrective measures to be taken to ensure compliance with those rules in the future. In order for such a communication to serve as a warning to that Member State, the Commission should provide it with full knowledge of the its reservations, in particular by indicating with sufficient precision the irregularity of which it is accused.
92      The Commission considers that the first part of the first ground of appeal must be rejected as unfounded.
–       Findings of the Court
93      First of all, it should be noted that conformity clearance is governed by Article 52 of Regulation No 1306/2013.
94      In accordance with paragraph 1 of Article 52, a conformity clearance is carried out when the Commission considers that expenditure falling within the scope of Article 4(1) and Article 5 of that Regulation has not been made in accordance with Union law and, for the EAFRD, has not been made in accordance with Union law and the applicable Member State law referred to in Article 85 of Regulation No 1303/2013. The Commission is then to adopt implementing acts determining the amounts to be excluded from Union financing.
95      Article 52(3) of Regulation No 1306/2013 defines the procedure to be followed prior to any decision to refuse funding. It follows that the adoption of such a decision is subject to the existence of an exchange of written notifications between the Commission and the Member State concerned concerning the results of the verifications carried out by the Commission with a view to reaching agreement on the measures to be adopted. In the absence of agreement, the Member State concerned may request the opening of a conciliation procedure, at the end of which a report containing recommendations is submitted to the Commission, which takes them into account before deciding on a refusal of financing (see, to that effect, judgment of 23 October 2025, Bulgaria v Commission (Undue expenditure financed by the EAGF), C‑294/23 P, EU:C:2025:823, paragraph 56).
96      That procedure thus establishes a dialogue between the Commission and the Member State concerned and aims, in essence, first, to enable them to exchange information, second, to offer that Member State the opportunity to exercise its right of defence, third, to enable it to demonstrate the inaccuracy of the Commission’s findings and, finally, fourthly, to enable that Member State to inform the Commission of the corrective measures implemented to ensure compliance with EU law (see, by analogy, judgment of 13 February 2020, Greece v Commission (Permanent pasture), C‑252/18 P, EU:C:2020:95, paragraph 84).
97      Secondly, in accordance with Article 53(1)(b) of Regulation No 1306/2013, the Commission adopted Implementing Regulation No 908/2014, Article 34 of which lays down the detailed rules for the conformity clearance procedure provided for in Article 52 of Regulation No 1306/2013.
98      As is apparent from Article 34 of Implementing Regulation No 908/2014, read in the light of recital 27 thereof, that is an adversarial procedure, the various stages of which are subject to specific time limits in order to ensure that it is concluded within a reasonable period (see, to that effect, judgment of 23 October 2025, Bulgaria v Commission (Undue expenditure financed by the EAGF), C‑294/23 P, EU:C:2025:823, paragraph 58).
99      In the first stage, the Commission, in accordance with Article 34(2) of Implementing Regulation No 908/2014, is to communicate its findings to the Member State concerned, specifying the corrective measures it considers necessary and indicating the provisional level of financial correction it considers appropriate.
100    It follows from the case-law that that communication must identify with sufficient precision all the irregularities alleged against the Member State concerned which ultimately gave rise to the financial correction envisaged. Only such a communication can ensure full knowledge of the Commission’s reservations (see, to that effect, judgment of 23 October 2025, Bulgaria v Commission (Undue expenditure financed by the EAGF), C‑294/23 P, EU:C:2025:823, paragraph 59 and the case-law cited).
101    Furthermore, in accordance with the first subparagraph of Article 34(2) of Implementing Regulation No 908/2014, that communication must provide for a bilateral meeting to be held within five months of the expiry of the period for the Member State concerned to respond. It is also apparent from the second subparagraph of Article 34(3) of that implementing regulation that the Commission must, within 30 working days of the bilateral meeting, draw up the minutes of that meeting and forward them to the Member State concerned, which may communicate its comments to the Commission within 15 working days of receipt thereof.
102    Although the communication referred to in paragraph 99 of the present judgment must give the Member State concerned full knowledge of the Commission's reservations, so that it can fulfil a warning function (see, to that effect, judgment of 13 February 2020, Greece v Commission (Permanent pasture), C‑252/18 P, EU:C:2020:95, paragraph 82 and the case-law cited), it does not follow that all the legal provisions potentially infringed by the irregularity initially found must necessarily be mentioned in that communication.
103    The Court has already held that, in so far as that communication may serve as a warning, the mere omission of a legal reference in that document does not constitute a breach of an essential procedural requirement (see, to that effect, judgments of 24 January 2002, Finland v Commission, C‑170/00, EU:C:2002:51, paragraph 34, and of 7 October 2004, Spain v Commission, C‑153/01, EU:C:2004:589, paragraph 93).
104    Similarly, while the Commission is required to comply, in its relations with Member States, with the conditions it has imposed on itself through implementing regulations, Member States may not adopt purely formalistic positions in their relations with the Commission where the circumstances show that their rights have been fully protected (see, to that effect, judgments of 24 January 2002, Finland v Commission, C‑170/00, EU:C:2002:51, paragraph 34, and of 7 October 2004, Spain v Commission, C‑153/01, EU:C:2004:589, paragraph 93). That is the case, in particular, where the Member State concerned has been able to understand the basis of the Commission’s proposals for financial corrections and has been able to make its views known effectively during the conformity clearance procedure (see, by analogy, judgment of 19 January 2006, Comunità montana della Valnerina v Commission, C‑240/03 P, EU:C:2006:44, paragraph 129 and the case-law cited).
105    It should be added that, contrary to Romania’s contention, the interpretation of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, according to which no change may be made to the legal basis of
the Commission’s proposals for financial corrections after the communication referred to in paragraph 99 of the present judgment, which constitutes the first stage of the conformity clearance procedure, amounts to accepting, contrary to the case-law cited in paragraph 104 of the present
judgment, that Member States may prevent the progress of such a procedure. That interpretation misunderstands the progressive nature of such a procedure, which is based on the exchange of information between the Commission and the Member State concerned, and would compel the Commission to repeat the same procedure, even though it is clear from the circumstances of the case that that Member State understood the Commission’s proposals for financial correction and was able effectively to submit its observations on them before the Commission communicated to it, in accordance with the third subparagraph of Article 34(3) of Implementing Regulation No 908/2014, the conclusions it reached on the basis of the information received in the context of the conformity clearance procedure.
Such an interpretation would therefore be contrary to the objective of protecting the financial interests of the Union budget, set out in recitals 37 and 39 of Regulation No 1306/2013, in so far as it would be likely to undermine the effectiveness of the recovery of amounts unduly spent.
106    Thus, the General Court did not err in law in ruling, in paragraph 85 of the judgment under appeal, that the Commission may amend the legal basis of its proposals for financial corrections during the conformity clearance procedure, provided that such amendment takes place at a stage in that procedure which allows the Member State to express its views on those proposals.
107    As regards whether the General Court erred in law in finding, in paragraph 86 of the judgment under appeal, that Romania had been informed, by 10 April 2019 at the latest, of the legal basis for the Commission’s allegations and that it had therefore been in a position to take a meaningful position on those proposals, it is apparent from the General Court’s assessment of the facts in paragraphs 83 and 84 of the judgment under appeal, which is not contested by Romania, that, in the minutes of the 2018 investigation which were communicated to Romania on 10 April 2019, the Commission had specified that the legal basis for the deficiencies alleged against it
consisted of
Articles 4 and 44 to 46 of Regulation No 1307/2013. In paragraph 84 of that judgment, the General Court further noted that that Member State was aware of the deficiencies identified in the 2018 audit concerning the issue of the definition of set-aside land in relation to that of temporary grassland, so that it could not validly argue that the reference to Article 44 of that regulation, which concerns crop diversification in order to benefit from the greening payment scheme, was not sufficient to understand the nature and scope of the Commission’s allegations.
108    In those circumstances, given that Romania was thus given the opportunity to submit its observations on that document, as required by the provisions referred to in paragraph 101 of the present judgment, the Court was able, in paragraph 86 of the judgment under appeal, to rule that Romania had been informed of the legal basis of
the Commission’s proposals for financial corrections by 10 April 2019 at the latest, the date on which the minutes of the 2018 investigation were communicated, so that it had had the opportunity to submit its observations in a meaningful manner before the Commission sent it its conclusions on the expenditure excluded for 2018.
109    It follows from the foregoing considerations that the first part of the first ground of appeal must be rejected as unfounded.
The second part, concerning the applicability of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, to the transmission of information relating to the absence of infringement of EU law
–       Arguments of the parties
110    In the context of the second part of the first ground of appeal, Romania challenges paragraphs 50 and 51 of the judgment under appeal.
111    In its view, the General Court erred in finding in that judgment that Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, applies not only to the transmission of information relating to the calculation of the financial correction, but also to the transmission of information relating to the absence of an infringement of EU law.
112    The General Court referred, in those paragraphs, to the conditions laid down in Article 34(6) of Implementing Regulation No 908/2004 in order to validate, in essence, the Commission’s conclusion that the information provided by Romania after the communication on
excluded expenditure for 2018 and intended to demonstrate that there had been no infringement of EU law should not have been taken into consideration.
113    The condition set out in Article 34(6)(a) of that implementing regulation refers to the taking into account of information provided late by the Member State, in order to avoid gross overestimation of the financial loss to the Union budget. That provision constitutes an exception and must therefore be interpreted and applied strictly. It does not therefore apply to the transmission of information relating to the absence of an infringement of EU law.
114    The Commission considers, primarily, that the second part of the first ground of appeal
is inadmissible. It points out that, in the context of an appeal, the Court’s review is limited to assessing the legal solution given to the pleas and arguments debated before the General Court. Romania did not argue before the General Court that Article 34 of Implementing Regulation No 908/2014 did not apply to the conformity clearance procedure which led to the contested decision, but argued the opposite. Furthermore, the Commission considers that the arguments put forward by Romania do not make it possible to determine clearly what infringement of EU law was committed in the context of the conformity clearance procedure conducted in the present case, which that Member State considers, moreover, to be ‘non-existent’.
115    In the alternative, the Commission submits that the second part of the first ground of appeal must be rejected as unfounded.
–       Findings of the Court
116    As a preliminary point, the Commission argues that the second part of the first ground of appeal is inadmissible on the grounds, first, that Romania did not raise the argument relating to the inapplicability of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, to the transmission of information concerning the absence of an infringement of EU law before the General Court and, secondly, that that argument lacks clarity.
117    It suffices to note in that regard that, according to well-established case-law, the Court’s jurisdiction in the context of an appeal is limited to assessing the legal solution given to the pleas and arguments debated before the first judges. A party cannot, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court. However, an appellant is entitled to lodge an appeal relying, before the Court of Justice, on grounds and arguments which arise from the judgment under appeal itself and seek to criticise, in law, its correctness (judgment of 6 October 2021, Sigma Alimentos Exterior v Commission, C‑50/19 P, EU:C:2021:792, paragraphs 39 and 40 and the case-law cited).
118    In the present case, Romania clearly and in detail criticises the grounds of the judgment under appeal, set out in paragraphs 50 and 51 thereof. If, as Romania contends, Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, was not applicable to the transmission of information relating to the absence of an infringement of EU law, the assessment made by the General Court in those paragraphs regarding the late submission of that information would be incorrect. Thus, the second part of the first ground of appeal cannot be regarded as altering the subject matter of the dispute before the General Court or as lacking clarity, circumstances which would render that part inadmissible.
119    In view of those considerations, the objection of inadmissibility raised against the second part of the first ground of appeal must be rejected.
120    In essence, it follows from Article 34(6) of Implementing Regulation No 908/2014 that that provision concerns the assessment of expenditure to be excluded from Union financing.
121    The assessment of whether there has been a breach of EU law giving rise to such exclusion and the determination of the amount of the resulting financial correction are intrinsically linked. Therefore, it cannot be considered, as Romania essentially argues, that the submission of additional information by the Member State concerned in order to demonstrate the absence of an infringement of EU law could be made after the communication of the Commission’s official conclusions without taking into account the framework established by Article 34(6) of Implementing Regulation No 908/2014, which lays down the conditions under which the Member State may communicate such information.
122    If that provision were not applicable to the transmission of such information, Member States could provide the Commission, after it had communicated its official conclusions, with additional information requiring it to continually review its own conclusions as to the alleged absence of an infringement of EU law.
123    Furthermore, as is apparent from paragraph 98 of the present judgment, the conformity clearance procedure is an adversarial procedure, the various stages of which are subject to specific time limits in order to ensure that it is completed within a reasonable period.
124    Romania’s proposed interpretation of Article 34(6) of Implementing Regulation No 908/2014 would have the effect of prolonging that procedure and would render meaningless the specific time limits which the Commission and the Member States are required to comply with under Article 34(3) of that implementing regulation.
125    Such an interpretation, in that it would allow Member States to prolong the procedure for recovering amounts unduly spent, would, moreover, be difficult to reconcile with the objective of protecting the financial interests of the Union budget, as set out in recitals 37 and 39 of Regulation No 1306/2013. As noted in paragraph 105 of the present judgment, prolonging the conformity clearance procedure is likely to undermine the effectiveness of the recovery of those amounts.
126    Consequently, the second part of the first ground of appeal must be rejected as unfounded.
The third part, relating to the concept of ‘external factor’ within the meaning of Article 34(6)(b) of Implementing Regulation No 908/2014
–       Arguments of the parties
127    In the context of the third part of the first ground of appeal, Romania challenges paragraph 49 of the judgment under appeal.
128    In its view, the General Court erred in finding in that judgment that the Commission’s conduct, namely the partial overlap between two investigations and the late clarification, in the first investigation, of elements relevant to the second investigation, could not constitute an ‘external factor’ to that second investigation within the meaning of Article 34(6)(b) of Implementing Regulation No 908/2014.
129    According to Romania, any external factor that makes it impossible for a Member State to ascertain the allegations against it constitutes an ‘external factor’ within the meaning of that
provision. That is the case, in particular, where the Commission provides a late clarification of the alleged deficiency or adopts a different approach in two investigations conducted at the same time.
130    Furthermore, Romania emphasises that it did not invoke the overlap between the two investigations to challenge the legality of the 2017 investigation, which covered the years 2015 and 2016, contrary to what is stated in paragraphs 41 and 42 of the judgment under appeal. That overlap would have affected the legality of the 2018 investigation, as Romania was unable to ascertain in good time the allegations made against it in that investigation.
131    The Commission argues, primarily, that the third part of the first ground of appeal is inadmissible. It points out that, according to settled case-law, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals are limited to questions of law. Romania merely challenges the factual assessment made by the General Court in paragraph 49 of the judgment under appeal. In the alternative, the Commission disputes the merits of Romania’s argument.
–       Findings of the Court
132    As a preliminary point, the Commission submits that, by the third part of the first ground of appeal, Romania is in reality challenging the factual assessment made by the General Court in paragraph 49 of the judgment under appeal and that, therefore, that part should be declared inadmissible.
133    In that regard, it suffices to note that Romania is challenging not the factual assessment made by the General Court, but the interpretation of the concept of ‘external factor’ within the meaning of Article 34(6)(b) of Implementing Regulation No 908/2014, as set out in paragraph 49 of the judgment under appeal, according to which the Commission’s conduct, namely the partial overlap of two investigations and the clarification by the Commission, in the first investigation, of elements relevant to the second investigation, does not constitute such an ‘external factor’ to that second investigation which could justify taking into account in the context of that investigation, in accordance with that provision, the information communicated by the Member State concerned after the official communication from the Commission referred to in the third subparagraph of Article 34(3) of that implementing regulation.
134    In those circumstances, the third part of the first ground of appeal is admissible.
135    On the substance, Romania argues that the General Court erred in finding, in paragraph 49 of the judgment under appeal, that the conduct alleged by Romania against the Commission in the 2017 investigation could not be regarded as an external factor within the meaning of Article 34(6)(b) of Implementing Regulation No 908/2014.
136    However, as the General Court rightly pointed out in paragraph 50 of the judgment under appeal, in the context of the conformity clearance procedure, the Member State concerned must provide an explanation which allows it to be considered that external factors justified the late submission of information after the official communication, sent by the Commission, of the minutes of the bilateral meeting, and that it is for the Commission to assess whether that explanation is satisfactory, given that, if the Commission rejects that explanation and does not apply Article 34(6) of Implementing Regulation No 908/2014, that Member State could challenge the refusal to take the information provided into account before the General Court.
137    In that regard, it is apparent from paragraph 51 of the judgment under appeal that, first, the Commission had argued before the General Court, without being contradicted by Romania, that, during the 2018 investigation, the only external factor relied on by Romania concerned the information on error rates used to calculate the risk to the EAGF. Furthermore, Romania challenged the Commission’s conduct not during the conformity clearance procedure, but only before the General Court.
138    Those grounds alone are sufficient to justify the rejection by the General Court, in paragraph 52 of the judgment under appeal, of Romania’s argument concerning the time limit applicable to the information provided by it in the context of the 2018 investigation.
139    Consequently, the argument directed against paragraph 49 of the judgment under appeal is not such as to call into question the General Court’s rejection, in paragraph 52 of the judgment under appeal, of the first part of the first plea
in the action for annulment. It is therefore ineffective.
140    Consequently, the third part of the first ground of appeal must be rejected as partly ineffective and partly unfounded.
The fourth part, relating to the Member State’s right to effective judicial review
–       Arguments of the parties
141    In the fourth part of the first ground of appeal, Romania considers that the General Court restricted its right to effective judicial review, in breach of Article 47 of the Charter. The three errors of law identified in the first three parts of that ground have the effect of limiting the possibility for that Member State to raise effectively before the Commission, and subsequently before the General Court, essential aspects relating to the existence of an infringement of EU law, which is a prerequisite for the imposition of financial corrections.
142    The Commission submits that the fourth part of the first ground of appeal must be declared inadmissible on the grounds of lack of clarity. Romania has not sufficiently explained how the Commission or the General Court infringed Article 47 of the Charter. In any event, that part must, according to the Commission, be rejected as unfounded.
–       Findings of the Court
143    As regards the Commission’s objection that Romania’s arguments based on the infringement of Article 47 of the Charter are inadmissible on the grounds that they are unclear, it should be noted at the outset that it is clear from the appeal that those arguments, raised by Romania in the fourth part of the first ground, constitute, in its view, the consequence of the alleged errors identified by Romania in the first three parts of that ground.
144    In those circumstances, the fourth part of the first ground of appeal is admissible.
145    That being so, in so far as Romania considers that the infringement of Article 47 of the Charter referred to in that plea results from the alleged errors identified by it in the first three parts of that ground of appeal, it suffices to note that it is apparent from paragraphs 93 to 109, 120 to 126 and 135 to 140 of the present judgment that the examination of those first three parts did not reveal any error of law in the assessment made by the General Court.
146    In those circumstances, the fourth part of the first ground of appeal cannot succeed either.
147    Consequently, the first ground of appeal must be rejected in its entirety.
The second ground of appeal, alleging infringement of Article 52 of Regulation No 1306/2013, read in conjunction with Article 44(1) to (3) of Regulation No 1307/2013 and the principle of proportionality
148    The second ground of appeal comprises five parts.
The first part, relating to the rules applicable to crop diversification, in the case of arable land between 10 and 30 ha
–       Arguments of the parties
149    In the first part of the second ground of appeal, Romania essentially criticises the General Court’s application, in paragraphs 69 to 72 and 76 of the judgment under appeal, of Article 44(1) to (3) of Regulation No 1307/2013 concerning the rules applicable to crop diversification where the declared arable land is between 10 and 30 ha.
150    More specifically, that
part refers to the examination carried out by the General Court in paragraphs 69 to 72 of that judgment, at the end of which it rejected Romania’s argument that, in the case of land with an area of between 10 and 30 ha, the fact that the set-aside land is confused with temporary grassland does not pose any risk to the funds. In that regard, Romania considers that it is impossible to conceive of a situation in which the confusion between set-aside land and temporary grassland could, in the case of arable land with an area of between 10 and 30 ha, lead to a breach of Article 44(1) to (3) of Regulation No 1307/2013.
151    Furthermore, Romania contends that, by extension, the General Court erred in finding, in paragraph 76 of that judgment, that the confusion between set-aside land and temporary grassland had produced a cascade of consequences, calling into question the application of the greening thresholds based on crop diversification, as provided for in Article 44 of Regulation No 1307/2013.
152    The Commission considers that that argument should be rejected.
–       Findings of the Court
153    With regard, first of all, to Romania’s argument, by which it contests, in essence, the reasoning of the General Court, set out in paragraphs 70 to 72 of the judgment under appeal, in which the General Court rejected Romania’s argument that, in the case of land with an area of between 10 and 30 ha, confusion between set-aside land and temporary grassland did not entail any risk to the funds, it should be noted that, in accordance with the first subparagraph of Article 44(1) of Regulation No 1307/2013, where a farmer’s arable land covers between 10 and 30 ha and is not entirely cultivated with crops under water for a significant part of the year or for a significant part of the crop cycle, that arable land is to
comprise at least two different crops and the main crop is not to cover more than 75% of that arable land.
154    Thus, under that provision, in order to ensure crop diversification, at least two different crops must, in principle, be present on arable land with an area of between 10 and 30 ha.
155    It is therefore clear that confusion between set-aside land and temporary grassland can lead to a breach of that rule.
156    As the General Court correctly noted in paragraphs 70 and 71 of the judgment under appeal, if one of the two crops, temporary grassland or set-aside land, is declared under one of the two categories necessary to ensure diversification in accordance with Article 44(1) of Regulation No 1307/2013, namely main crop or secondary crop, other crops are declared under the other category. In such a case, it cannot be ruled out that there may be a situation in which, in reality, arable land is entirely covered by set-aside land or temporary grassland, so that the condition that at least two crops must be present on arable land with an area of between 10 and 30 ha, as provided for in the first subparagraph of Article 44(1) of Regulation No 1307/2013, would not be met.
157    Therefore, the General Court cannot be criticised for having considered that a distinction between set-aside land and temporary grassland is necessary to ensure crop diversification in accordance with the requirements laid down in the first subparagraph of Article 44(1) of Regulation No 1307/2013.
158    Next, as regards Romania’s argument that confusion between set-aside land and temporary grassland does not pose a risk to funds in respect of arable land with an area of between 10 and 30 ha, since exceeding the 75% threshold is permitted in the case of both set-aside land and temporary grassland, it should be noted that Article 44(3)(a) of Regulation No 1307/2013, both in its version prior to 1 January 2018 or in its version subsequent to that date following the amendment made to it by Regulation 2017/2393, provides that paragraphs 1 and 2 of Article 44 do not apply to holdings where more than 75% of the arable land is used for the production of grass or other herbaceous forage, or is set aside or used for a combination of those purposes.
159    As the General Court noted in paragraph 72 of the judgment under appeal, the application of that exception therefore requires that a precondition be met, namely that temporary grassland, set-aside land or a combination of the two represent more than 75% of the arable land on a farm.
160    Therefore, in so far as the General Court found, in paragraph 72 of the judgment under appeal, in the context of its findings and assessment of the facts and evidence, that Romania had not proved that that condition was satisfied in the present case, the General Court was also entitled to reject Romania's arguments concerning the possible application of Article 44(3)(a) of Regulation No 1307/2013.
161    Finally, in so far as the interpretation of Article 44(1) to (3) of Regulation No 1307/2013 concerning the rules applicable to crop diversification, as carried out by the General Court in the case of arable land with an area of between 10 and 30 ha, is free from error of law, Romania’s argument that the General Court wrongly held, in paragraph 76 of the judgment under appeal, that the confusion between set-aside land and temporary grassland had produced a cascade of consequences, calling into question the application of the greening thresholds based on crop diversification provided for in Article 44 of Regulation No 1307/2013, cannot succeed either.
162    Consequently, the first part of the second ground of appeal must be rejected as unfounded.
The second part, relating to the distortion of Romania’s argument
–       Arguments of the parties
163    The second part of the second ground of appeal concerns paragraphs 58 and 69 to 71 of the judgment under appeal. According to Romania, the General Court confused the assertions in paragraph 63 of the application with those in paragraph 64 of that application. In so doing, the General Court distorted the content of Romania’s argument, which concerned the specific case of arable land with an area of between 10 and 30 ha.
164    That distortion resulted in the General Court erroneously finding, in paragraph 70 of the judgment under appeal, that the Romanian authorities had implicitly acknowledged that they were not able to guarantee that there was no risk to the funds in respect of arable land with an area of between 10 and 30 ha.
165    In reality, Romania argued that, in the case of those arable lands, the confusion between set-aside land and temporary grassland does not result in a breach of the diversification requirements.
166    The Commission disputes that argument.
–       Findings of the Court
167    It should be noted that the arguments based on a distortion of Romania’s reasoning, which allegedly affects, in particular, paragraph 70 of the judgment under appeal, cannot succeed.
168    In that regard, it should be noted that that paragraph 70
is part of a line of reasoning in which the General Court responded to a series of arguments put forward by Romania seeking to demonstrate that, in the case of arable land with an area of between 10 and 30 ha, the fact that set-aside land is confused with temporary grassland does not pose any risk to the funds.
169    As is apparent from paragraphs 153 to 162 of the present judgment, the General Court did not err in law in finding, in paragraphs 71 and 72 of the judgment under appeal, that, in the case of that arable land, confusion between set-aside land and temporary grassland could lead to a breach of the rules on crop diversification and present a risk of damage to the EU budget. By stating that, in the case of that arable land, the confusion between set-aside land and temporary grassland did not result in a breach of the diversification requirements, Romania implicitly acknowledged that it was unable to distinguish between set-aside land and temporary grassland for the purposes of applying the rules laid down in Article 44 of Regulation No 1307/2013.
170    Consequently, the second part of the second ground of appeal is not such as to call into question the General Court’s analysis and must therefore be rejected as ineffective.
The third part, relating to the Commission’s alleged obligation to take into account information concerning the absence of an infringement of EU law in the case of arable land with an area of between 10 and 30 ha
–       Arguments of the parties
171    The third part concerns the finding in paragraph 95 of the judgment under appeal that the Commission’s services were not required to take into account the information provided by Romania concerning the absence of an infringement of EU law in the case of arable land with an area of between 10 and 30 ha.
172    The Commission disputes Romania’s argument.
–       Findings of the Court
173    In the third part of its second ground of appeal, Romania repeats some of the arguments already put forward in support of the first ground of appeal. Although that part refers to paragraph 95 of the judgment under appeal, and not to paragraphs 50 and 51 of that judgment, as in the second part of the first ground of appeal, it must nevertheless be noted that, in that
paragraph 95, the General Court merely reiterated that, on the basis of the examination carried out in paragraphs 49 to 51 of that judgment, the exception provided for in Article 34(6) of Implementing Regulation No 908/2014 was not applicable in the present case.
174    As is apparent from paragraph 126 of the present judgment, the General Court did not err in law in its interpretation of Article 34(6) of Implementing Regulation No 908/2014.
175    The third part of the second ground of appeal
must therefore be rejected as unfounded.
The fourth part, relating to the infringement of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014
–       Arguments of the parties
176    In the context of the fourth part of the second ground of appeal, Romania challenges the interpretation of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, given by the General Court in paragraphs 83 to 87 of the judgment under appeal.
177    The Commission considers that that part should be rejected as unfounded.
–       Findings of the Court
178    It should be noted that, in the fourth part of the second ground of appeal, Romania argues, referring to the arguments set out in the first part of the first ground of appeal, that the General Court erred in law in its interpretation of Article 52 of Regulation No 1306/2013, read in conjunction with Article 34 of Implementing Regulation No 908/2014, as apparent from paragraphs 83 to 87 of the judgment under appeal.
179    As is apparent from the examination carried out in paragraphs 93 to 108 of the
present judgment, the General Court did not err in law in its interpretation of those provisions.
180    The fourth part of the second ground of appeal must therefore be rejected as unfounded.
The fifth part, relating to the principle of proportionality when applying the 5% flat-rate correction
–       Arguments of the parties
181    In the context of the fifth part of the second ground of appeal, Romania submits that the General Court erred in law in paragraphs 95 to 99 of the judgment under appeal by finding, following an analysis which it describes as summary, that the principle of proportionality had been respected by the Commission when it applied a flat-rate correction of 5% for the
2017 and 2018 financial years.
182    In its view, in order to justify such a financial correction, there must be a significant failure to apply explicit EU rules, exposing the funds to a real risk of loss or irregularity.
183    Romania considers, in essence, that the summary analysis carried out by the General Court in paragraphs 95 to 99 of the judgment under appeal does not support its assessment that the application of the flat-rate correction of 5% complies with the principle of proportionality, as required by Article 85(3) of Regulation No 1303/2013 and Article 52(1) of Regulation No 1306/2013.
184    In its analysis of the seriousness and extent of the non-compliance found in paragraph 97 of the judgment under appeal, the General Court did not address the reasons that would have justified the application of flat-rate corrections whose amount is considerably higher than double those applied for the 2015 and 2016
financial years.
185    With regard to the duration and repetition of the alleged non-compliance, in paragraph 98 of that judgment, the General Court made general statements which do not make it possible to understand the reasons why it would be justified to penalise Romania’s conduct on the grounds of its repetitive nature, when that conduct has not first been definitively ruled to be contrary to EU law. In that context, Romania points out that the final position for 2017 was communicated to the Romanian authorities on 20 December 2019, namely, after the communication on excluded expenditure for 2018. At that date, objectively speaking, Romania could not have changed its conduct for the financial years covered by the 2018 investigation.
186    The Commission considers that the fifth part of the second ground of appeal must be rejected as unfounded.
–       Findings of the Court
187    With regard, in the first place, to Romania’s argument that the judgment under appeal is insufficiently reasoned, it should be noted that, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (judgment of 19 September 2019, Poland v Commission, C‑358/18 P, EU:C:2019:763, paragraph 74 and the case-law cited).
188    However, the obligation to state reasons does not require the General Court to provide an account which responds exhaustively and one by one to all the arguments put forward by the parties to the case. The statement of reasons may therefore be implicit, provided that it enables the interested parties to know the reasons why the General Court did not uphold their arguments and the Court of Justice to have sufficient information to carry out its review (judgment of 19 September 2019, Poland v Commission, C‑358/18 P, EU:C:2019:763, paragraph 75 and the case-law cited).
189    In the present case, it suffices to note that, in response to Romania’s argument that the calculation presented in the 2018 conciliation request should have been taken into account, the General Court first noted in paragraph 95 of the judgment under appeal, referring to the examination carried out in paragraphs 49 to 51 of that judgment, in which it was found
that the two conditions laid down in Article 34(6) of Implementing Regulation No 908/2014 were not met, that the exception provided for in that provision was not applicable in the present case. The General Court then responded, in paragraph 97 of that judgment, to Romania’s arguments that the irregularity identified by the Commission was of low severity and limited scope. In that regard, it referred to the assessment in paragraphs 73 to 75 of that judgment, according to which Romania had not demonstrated that the irregularities found had been corrected during the administrative checks. In paragraph 98 of the judgment under appeal, the General Court responded to Romania’s arguments seeking to demonstrate that those irregularities were not of a lasting and repetitive nature, explaining that the evidence presented by Romania related to the 2017 investigation and not to the 2018 investigation.
190    Furthermore, it should be noted that it was in paragraphs 174 to 181 of the judgment under appeal, which were not contested by Romania, that the General Court responded to that Member State’s second plea in law, alleging infringement of the principle of proportionality in the application of flat-rate corrections of 5% for the EAGF and 2% for the EAFRD. Therefore, the General Court cannot validly be criticised for not having set out, in paragraphs 95 to 99 of that judgment, specific reasons relating to compliance with that principle, going beyond a response to all the arguments put forward by Romania in the context of the third complaint in the second part of the first plea in law, alleging errors in the calculation of the flat-rate correction applied by the Commission in the context of the 2018 investigation.
191    It follows that the General Court did not fail in its obligation to state reasons, as the grounds set out in paragraphs 95 to 99 of the judgment under appeal clearly and unequivocally show the reasons why the General Court rejected Romania’s arguments based on alleged errors in the calculation of the flat-rate correction applied by the Commission in the 2018 investigation.
192    Consequently, the complaint alleging insufficient grounds must be rejected as unfounded.
193    In the second place, with regard to Romania’s argument that the General Court infringed the principle of proportionality by failing to find that the flat-rate correction applied by the Commission in the contested decision was not appropriate, it must be noted that Romania merely asserts that the General Court’s summary reasoning does not support the assessment that the application of a flat-rate correction of 5% in the 2018 investigation complies with the principle of proportionality, without, however, specifying the legal arguments in support of that assertion. It is not for the Court to investigate what error of law the General Court may have committed (see, to that effect, judgment of 25 June 2020, Vnesheconombank v Council, C‑731/18 P, EU:C:2020:500, paragraph 82 and the case-law cited).
194    It follows that the fifth part of the second ground of appeal must be rejected as partly unfounded and partly inadmissible.
The third ground of appeal, alleging infringement of Article 52 of Regulation No 1306/2013 and of the Guidelines on the calculation of financial corrections
195    By its third ground of appeal, Romania submits that the General Court infringed Article 52 of Regulation No 1306/2013 and Communication C(2015) 3675 final from the Commission of 8 June 2015 entitled ‘Guidelines on the calculation of the financial corrections in the framework of
the conformity and financial clearance of accounts procedures’ (‘the Guidelines on the calculation of financial corrections’). In the context of that ground of appeal, Romania challenges paragraphs 121 and 122 and 130 and 131 of the judgment under appeal.
Arguments of the parties
196    Romania argues that the General Court infringed Article 52 of Regulation No 1306/2013 and the Guidelines on the calculation of financial corrections in relation to the deficiency concerning the ‘LPIS update-quality’, by considering, in paragraphs 121 and 122 of the judgment under appeal, that Romania’s argument relating to the low percentage of cases of non-compliance found was not, in that regard, relevant in that respect and, in paragraphs 130 and 131 of that judgment, that Romania’s arguments relating to the action plan established in October 2017 could not succeed either.
197    In so ruling, the General Court defined the deficiency related to the failure to update the LPIS every three years in a contradictory manner.
198    Having noted that there was no threshold applicable to errors resulting from the updating of the LPIS and that any error was likely to have financial consequences, the General Court also considered that the absence of an ‘LPIS
update-quality’ every three years objectively constitutes the deficiency underlying the application of the financial correction.
199    Furthermore, if the errors resulting from the age of the images created a risk for the funds and the question of the legal basis for updating the LPIS every three years was irrelevant, it would follow that the errors resulting from the failure to update the LPIS would constitute the deficiency underlying the application of the financial correction.
200    In that regard, Romania contends that Article 52 of Regulation No 1306/2013 establishes a rule whereby any deficiency, non-compliance or irregularity which forms the basis for a financial correction must result from a breach of EU law and must therefore be based on a clearly identified legal basis. Furthermore, according to the Guidelines on the calculation of financial corrections, in the event of imperfect controls, financial corrections may only be applied in the event of a serious breach of clearly identified rules of EU law.
201    According to it, the legal basis for updating the LPIS every three years had not been identified, as the Commission had moreover indicated in the minutes of the bilateral meeting of 8 September 2017 on the 2017 action plan that that update was not a legal obligation, but simply good practice. Furthermore, the General Court concluded that there was a deficiency characterised by errors resulting from the failure to update the LPIS, even though no such errors had been found in the 2018 investigation. The latter wrongly rejected Romania’s arguments concerning the low percentage of non-compliance cases. Such an assessment contradicts the Commission’s findings regarding the updating of the LPIS in the 2018 investigation. The Commission’s working hypothesis in that investigation was based rather on the pre-existing general problem of the age of the images in the LPIS.
202    In that regard, Romania argues that the errors resulting from the failure to update the LPIS do not correspond to the deficiency referred to as ‘LPIS update-quality’, as described by the Commission in its findings on the quality of the LPIS update. That Member State points out that, in accordance with settled case-law, the written communication must give the Member State concerned full knowledge of the Commission’s reservations, so that that communication can fulfil a warning function. However, by referring to a separate deficiency, the General Court ‘nullified’ the warning function of the Commission’s findings made in the conformity clearance procedure.
203    The Commission disputes Romania’s argument.
204    It considers that the argument that, by referring to a deficiency distinct from that described in its findings in the conformity clearance procedure, the General Court ‘nullified’ the warning function of those findings is inadmissible on the ground that Romania did not raise that argument at first instance.
Findings of the Court
205    It should be noted at the outset that, in order to ensure sound financial management of Union funds and to protect the financial interests of the Union, Regulation No 1306/2013 imposes certain obligations on Member States. Thus, in accordance with Article 58(1) of that regulation, Member States are responsible for taking, within the framework of the CAP, all legislative, regulatory and administrative provisions, as well as any other measures necessary to ensure effective protection of the financial interests of the Union. Furthermore, it follows from Article 58(2) of that regulation that Member States are required to set up effective management and control systems to ensure compliance with the legislation governing Union aid schemes in order to minimise the risk of financial loss to the Union.
206    Therefore, even if EU law does not specify the frequency of updates to the LPIS, it is in any event incumbent on the Member States, in accordance with the obligations referred to in the previous paragraph of the present judgment, to ensure that the LPIS effectively guarantees compliance with the legislation governing EU aid schemes and minimises the risk of financial loss to the European Union.
207    That being said, it must be noted that there is nothing in the judgment under appeal, and in particular in paragraphs 121, 122, 130 and 131 thereof, to suggest that the General Court found that there was a deficiency characterised by the failure to update the LPIS every three years.
208    In particular, contrary to Romania’s contention in paragraph 122 of the judgment under appeal, the General Court, recalling the preliminary nature of the updating of the LPIS in relation to any on-the-spot check, rejected that Member State’s argument that the low percentage of cases of non-compliance found during the checks should have been taken into account when imposing the financial correction. The General Court made no mention in that judgment of any obligation on the part of that Member State to update the LPIS every three years. As regards paragraph 131 of that judgment, the Court noted therein that, since it was the age of the LPIS images, namely, the quality of the images recorded, that gave rise to the risk for the EAGF, and not the frequency with which they were updated, the question of the legal basis for the cycle for updating those images had no bearing on the application of the corrections established in the 2018 investigation.
209    Furthermore, with regard to Romania’s complaint concerning the contradictory nature of the General Court’s assessment and the Commission’s findings regarding the existence of a new deficiency linked to the failure to update the LPIS, the Commission’s argument that it is inadmissible on the grounds that that Member State did not raise it at first instance must be rejected.
210    In that regard, as is apparent from the case-law cited in paragraph 117 of the
present judgment, an applicant is entitled to bring an appeal before the Court on the basis of pleas and arguments arising from the judgment under appeal itself and seeking to challenge its legal validity.
211    That is the case here, since Romania essentially argues that the General Court deviated, in defining the deficiency relating to the updating of the LPIS, from that found by the Commission in the 2018 investigation and that it therefore found that there was a new irregularity which had not been identified by the Commission during the conformity clearance procedure. That complaint is therefore admissible.
212    However, with regard to the substance of Romania’s argument, it should be noted that, contrary to what that Member State claims, it does not follow from paragraphs 121, 122, 131 and 133 of the judgment under appeal that the General Court considered that a new deficiency linked to the failure to update the LPIS existed, contrary to the Commission’s findings.
213    As noted in paragraph 208 of the present judgment, the General Court merely pointed out that it was the age of the LPIS images that gave rise to the risk for the EAGF, and not the frequency with which they were updated.
214    Consequently, the General Court cannot be criticised for having infringed Article 52 of Regulation No 1306/2013 and the Guidelines on the calculation of financial corrections in paragraphs 121, 122, 130 and 131 of the judgment under appeal, or for
having, in that context, defined an alleged deficiency relating to the updating of the LPIS every three years in contradictory terms.
215    The third ground of appeal must therefore be rejected as unfounded.
The fourth ground of appeal, alleging infringement of Articles 31, 34 and 35 of Implementing Regulation No 809/2014, Articles 23 to 26 of Delegated Regulation No 640/2014 and working document DS/CDP/2015/19
216    By its fourth ground of appeal, Romania submits that the General Court infringed Articles 31, 34 and 35 of Implementing Regulation No 809/2014, Articles 23 to 26 of Delegated Regulation No 640/2014 and working document DS/CDP/2015/19. That ground of appeal concerns paragraphs 163 and 164 of the judgment under appeal.
Arguments of the parties
217    According to Romania, the General Court erred in law when it considered that the area not eligible for the SAPS should be taken into account in calculating the total reduction for greening in hectares, in order to increase the sample (rate) for on-the-spot checks. Such an interpretation, which equates the area not eligible for the SAPS with a case of reduction of the payment for agricultural practices beneficial to the climate and the environment (‘the greening payment’), is contrary to Articles 31, 34 and 35 of Implementing Regulation No 809/2014, Articles 23 to 26 of Delegated Regulation No 640/2014 and working document DS/CDP/2015/19.
218    Romania emphasises that Annex I to that document sets the percentage increase in the control rate for the greening payment, with reference to two values. The first value, known as ‘A’, includes the percentage of hectares of land checked on the spot for which reductions for
greening were applied. Value ‘B’ includes the percentage of farmers checked on the spot for whom one or more non-compliances with greening have been established.
219    The percentage represented by value ‘A’, where the on-the-spot check for the greening payment includes a random sample and a sample selected on the basis of a risk analysis carried out in accordance with Article 34(2)(b) and (c) of Implementing Regulation No 809/2014, is determined separately for each of the two samples. The average of the two resulting percentages constitutes the value ‘A’ used to determine the increase in the rate of on-the-spot checks for the greening payment.
220    Furthermore, Romania notes that, in order to determine the total reduction in the greening payment per hectare to be applied for the purposes of determining the increase in the rate of on-the-spot checks for the greening payment, Articles 24 to 26 of Delegated Regulation No 640/2014 should be complied with. Those articles refer to the reduction of the greening payment in three cases, namely in the event of non-compliance with the crop diversification requirement, in the event of non-compliance with the requirements relating to permanent grassland and in the event of non-compliance with the requirements applicable to ecological focus areas. Contrary to the General Court’s ruling, however, the area not eligible for the SAPS
does
not constitute a case of reduction of the greening payment.
221    Romania also points out that, pursuant to Article 2(1)(23) of Delegated Regulation No 640/2014, the area determined includes only hectares eligible for payment.
222    Furthermore, with regard to reductions in the greening payment in the event of non-compliance with the crop diversification requirement and in the event of non-compliance with the requirements applicable to ecological focus areas, the perimeter or area subject to reduction is calculated by reference to the same determined area. As a result, not all hectares eligible for the SAPS are eligible for the greening payment.
223    Romania also notes that, as stated in Article 35 of Implementing Regulation No 809/2014 and confirmed by working document DS/CDP/2015/19, significant non-compliance must be determined by reference to the results of on-the-spot checks for the greening payment.
224    The Commission considers that this ground of appeal should be rejected as unfounded.
Findings of the Court
225    In its fourth ground of appeal, Romania alleges that the General Court infringed Articles 31, 34 and 35 of Implementing Regulation No 809/2014, Articles 23 to 26 of Delegated Regulation No 640/2014 and working document DS/CDP/ 2015/19, by ruling, in paragraphs 163 and 164 of the judgment under appeal, that the area not eligible for the SAPS should be taken into account in calculating the total reduction for greening in hectares, in order to increase the sample (rate) for on-the-spot checks.
226    In the first place, with regard to Romania’s complaint that the area not eligible for the SAPS should not be taken into account in that calculation, it should be noted that, in accordance with Article 35 of Implementing Regulation No 809/2014, where on-the-spot checks reveal significant non-compliance in relation to an aid scheme or support measure or in a region or part of a region, the competent authority shall increase the percentage of beneficiaries to be checked on the spot in the following year accordingly.
227    In that regard, it should be noted that compliance with the eligibility criteria for the SAPS is one of the conditions that must be met in order for farmers to be eligible for the greening payment.
228    First, Article 2(1)(23)(a) of Delegated Regulation No 640/2014 defines the concept of ‘area determined’ as, in the context of area-related aid schemes, the area for which all eligibility criteria or other obligations relating to the conditions for granting aid are met, regardless of the number of payment entitlements available to the beneficiary.
229    Secondly, Article 23(2) of that delegated regulation provides that, without prejudice to the administrative penalties applicable in accordance with Article 28 of that delegated regulation, if the area declared in a single application for the basic payment or the single area payment is greater than the area determined, the area determined is to be used to calculate the amount of the greening payment.
230    Thirdly, Article 43(1) of Regulation No 1307/2013 refers to hectares eligible under the basic payment scheme or the SAPS. It follows, in particular, that farmers entitled to a payment under one of those schemes
are to observe, on all their eligible hectares,
as defined in
Article 32(2) to (5) of that regulation, the agricultural practices beneficial for the climate and the environment referred to in Article 43(2) thereof or the equivalent practices referred to in Article 43(3) thereof.
231    It therefore follows from the foregoing that the SAPS criteria are among the conditions compliance with which
must be verified in order to establish the existence of a significant non-compliance in the context of an aid scheme or support measure within the meaning of Article 35 of Implementing Regulation No 809/2014. It follows that the fact that an area is not eligible for the SAPS must be taken into account in the error rate relating to greening used to increase on-the-spot checks in the following year.
232    Consequently, the General Court cannot be criticised for having noted, in paragraphs 163 and 164 of the judgment under appeal, that the area not eligible for the SAPS had to be taken into account in calculating the total reduction for greening in hectares, in order to increase the percentage of beneficiaries to be checked.
233    In the second place, with regard to Romania’s argument that there is no risk of granting greening payments for hectares that are not eligible for the SAPS, given the provisions of Article 23(2) of Delegated Regulation No 640/2014, it suffices to note that that observation is certainly true for a specific beneficiary who has been properly checked on the spot and for whom any ineligibility for the SAPS has been properly established.
234    However, as the Commission rightly pointed out, the same cannot be said for all the other beneficiaries concerned, who were not properly audited on the spot.
235    In the third place, it must be noted that Romania’s complaint that the General Court wrongly considered that the area not eligible for the SAPS constitutes a case of reduction of the greening payment referred to in Articles 24 to 26 of Delegated Regulation No 640/2014 is based on an incorrect reading of the judgment under appeal.
236    It is apparent from paragraphs 163 and 164 of the judgment under appeal that the General Court merely held that the area not eligible for the SAPS had to be taken into account in the error rate relating
to greening used to increase the sample for on-the-spot checks. Contrary to what Romania appears to argue, the possible increase in the percentage of beneficiaries to be subject to on-the-spot checks in the following year does not, in itself, lead to a reduction in the greening payment within the meaning of Articles 24 to 26 of Delegated Regulation No 640/2014.
237    In view of the foregoing considerations, the fourth ground of appeal cannot succeed.
238    As none of the grounds raised in support of this appeal have been upheld, the appeal must be dismissed in its entirety.
Costs
239    Pursuant to Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.
240    Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
241    Since the Commission has requested that Romania be ordered to pay the costs and the latter has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission.
On those grounds, the Court (Fourth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders Romania to bear its own costs and to pay those incurred by the European Commission.
[Signatures]
*      Language of the case: Romanian.