1 This request for a preliminary ruling concerns the interpretation of Articles 288, 291 and 297 TFEU, of the principle of EU law under which a decision of the European Commission produces legal effects until it is annulled, of Articles 18 and 19 of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1), as amended by Council Regulation (EC) No 74/2009 of 19 January 2009 (OJ 2009 L 30, p. 100) (‘Regulation No 1698/2005’), and of Article 9(3) of Commission Regulation (EC) No 1974/2006 of 15 December 2006 laying down detailed rules for the application of Council Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2006 L 368, p. 15), as amended by Commission Implementing Regulation (EU) No 335/2013 of 12 April 2013 (OJ 2013 L 105, p. 1) (‘Regulation No 1974/2006’).
2 The request has been made in proceedings between Porcellino Grasso SRL and the Ministerul Agriculturii şi Dezvoltării Rurale (Ministry of Agriculture and Rural Development, Romania), the Agenția pentru Finanțarea Investițiilor Rurale (Agency for the Financing of Rural Investments, Romania), the Agenția de Plăți și Intervenție pentru Agricultură (Agency for Payments and Intervention in Agriculture, Romania) and the Agenția de Plăți și Intervenție pentru Agricultură - Centrul Județean Vâlcea (Agency for Payments and Intervention in Agriculture - Vâlcea District Centre, Romania) (‘the APIA Vâlcea’) concerning a reduction in animal welfare payments.
3 Article 18 of Regulation No 1698/2005, entitled ‘Preparation and approval’, provided: ‘1. Rural development programmes shall be established by a Member State following close cooperation with the partners referred to in Article 6. 2. Member States shall submit to the Commission a proposal for each rural development programme, containing the information mentioned in Article 16. 3. The Commission shall assess the proposed programmes on the basis of their consistency with the Community strategic guidelines, the national strategy plan and this Regulation. Where the Commission considers that a rural development programme is not consistent with the Community strategic guidelines, the national strategy plan or this Regulation, it shall request the Member State to revise the proposed programme accordingly. 4. Each rural development programme shall be approved in accordance with the procedure referred to in Article 90(2).’
4 Article 19 of that regulation, entitled ‘Review’, provided: ‘1. The rural development programmes shall be re-examined and, if appropriate, adapted for the remainder of the period by the Member State following Monitoring Committee approval. The revisions shall take into account the outcome of evaluations and the Commission’s reports, particularly with a view to strengthening or adapting the way in which the Community priorities are taken into account. 2. The Commission shall adopt a decision on requests to revise rural development programmes after the submission of such a request by a Member State in accordance with the procedure referred to in Article 90(2). Changes requiring approval by Commission decision shall be defined in accordance with the procedure referred to in Article 90(2).’
5 Article 40 of that regulation, entitled ‘Animal welfare payments’, stated: ‘1. Animal welfare payments provided for in Article 36(a)(v) shall be granted to farmers who make on a voluntary basis animal welfare commitments. 2. Animal welfare payments cover only those commitments going beyond the relevant mandatory standards established pursuant to Article 4 of and Annex III to [Council] Regulation (EC) No 1782/2003 [of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1)] and other relevant mandatory requirements established by national legislation and identified in the programme. These commitments shall be undertaken as a general rule for a period between five and seven years. Where necessary and justified, a longer period shall be determined according to the procedure referred to in Article 90(2) for particular types of commitments. 3. The payments shall be granted annually and shall cover additional costs and income foregone resulting from the commitment made. Where necessary, they may cover also transaction cost. Support shall be limited to the maximum amount laid down in Annex I.’
6 Article 6(1) of Regulation No 1974/2006 provided: ‘Changes in rural development programmes shall fall under the following categories: (a) revisions as referred to in Article 19(1) of Regulation [No 1698/2005]; (b) revisions stemming from coordination procedures for the uptake of the financial resources as referred to in Article 77(3) of Regulation [No 1698/2005]; (ba) changes to the financing plan related to the implementation of Article 70(4b) of Regulation [No 1698/2005]; (c) other changes not covered by points (a), (b) and (ba) of this paragraph.’
7 According to Article 9(1) to (3) of that regulation: ‘1. Changes in programmes by Member States as referred to in Article 6(1)(c) may involve changes of financial breakdowns by measure within an axis as well as non-financial changes concerning the introduction of new measures and types of operations, the withdrawal of existing measures and types of operations, the changes relating to the exception referred to in Article 5(6) of Regulation [No 1698/2005] or information on and description of existing measures in the programme. 2. Member States shall also be authorised to make changes as referred to in Article 6(1)(c) by transferring within a calendar year from and to any axis up to 3% of the total EAFRD contribution to the programme for the entire programming period. 3. Programme changes referred to in paragraphs 1 and 2 may be made before 31 December 2015 at the latest, provided that Member States notify such changes by 31 August 2015 at the latest.’
8 Article 5 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), entitled ‘EAFRD expenditure’, provides: ‘The EAFRD shall be implemented in shared management between the Member States and the [European] Union. It shall finance the Union’s financial contribution to rural development programmes implemented in accordance with the Union law on support for rural development.’
9 Article 52 of that regulation, entitled ‘Conformity clearance’, provides, in paragraph 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 (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)], the Commission shall adopt implementing acts determining the amounts to be excluded from Union financing. …’
10 Article 58 of Regulation No 1306/2013, entitled ‘Protection of the financial interests of the Union’, provides, in paragraph 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 [European Agricultural Guarantee Fund (EAGF) and the EAFRD]; (b) ensure effective prevention against fraud, especially in areas with a higher level of risk, and which will act as a deterrent, having regard to the costs and benefits as well as the proportionality of the measures; (c) prevent, detect and correct irregularities and fraud; (d) impose penalties which are effective, dissuasive and proportionate in accordance with Union law, or failing this, national law, and bring legal proceedings to that effect, as necessary; (e) recover undue payments plus interest, and bring legal proceedings to that effect as necessary.’
11 Following the adoption of Commission Decision C(2008) 3831 of 16 July 2008 approving the EAFRD Rural Development Programme for Romania for the 2007 to 2013 programming period, that Member State adopted provisions for improving animal welfare. At the request of that Member State, the Commission, by Implementing Decision C(2012) 3529 of 25 May 2012, included in the national rural development programme 2007-2013 (‘the RDP 2007-2013’) an aid measure in the form of payments intended to compensate for the loss of income and the additional costs borne by farmers who had voluntarily committed to implementing animal welfare standards (‘Measure 215’). As regards fattening pigs, that measure provides, inter alia, for an annual payment of EUR 4.90 per ‘livestock unit’ (LU) by way of aid for improving animal welfare during transport (‘aid for the improvement of transport’) and an annual payment of EUR 16.80/LU by way of aid for the reduction of nuisances by 30% in relation to the mandatory minimum level (‘aid for the reduction of nuisances’).
12 On 13 August 2012, Porcellino Grasso submitted an application to the APIA Vâlcea for non-repayable aid, including aid for the improvement of transport and aid for the reduction of nuisances, in return for its commitment to comply with fattening pig welfare measures in its holdings for a minimum period of five years.
13 On 14 August 2015, Porcellino Grasso submitted an application to the APIA Vâlcea for payment of that aid for the period from 16 July 2015 to 15 July 2016, corresponding to the fourth year of its commitment.
14 On 8 March 2016, the APIA Vâlcea informed Porcellino Grasso that, following an audit mission carried out by the representatives of the European Court of Auditors for the financial year 2015, errors that had led to overpayments had been identified as regards aid for the improvement of transport and aid for the reduction of nuisances, disbursed under Measure 215.
15 As a result of those errors, the APIA Vâlcea explained that it would reduce the amount of aid payable to Porcellino Grasso to the new rates of EUR 1.43/LU for aid for the improvement of transport and EUR 14.18/LU for aid for the reduction of nuisances. The reduction of those rates subsequently became definitive by the adoption of a decree of the Ministry of Agriculture and Rural Development.
16 Porcellino Grasso brought administrative proceedings against the payment decisions thus taken; those proceedings were still pending on the date on which the present request for a preliminary ruling was made.
17 On 31 January 2017, Porcellino Grasso submitted, inter alia, to the APIA Vâlcea an application for payment of aid for the improvement of transport and aid for the reduction of nuisances, for the period from 1 January 2017 to 31 December 2017, corresponding to the sixth year of its commitment.
18 By decision of 6 February 2018, the APIA Vâlcea approved that application, calculating, however that the payments to be made in respect of both sets of aid would be on the basis of the reduced amounts referred to in paragraph 15 of the present judgment.
19 Porcellino Grasso lodged a complaint against that decision, which was rejected on 8 March 2018.
20 Porcellino Grasso then brought an appeal before the Curtea de Apel Piteşti (Court of Appeal, Piteşti, Romania), which is the referring court, seeking, inter alia, annulment of that decision and the act rejecting its complaint, as well as compensation for damage in an amount equivalent to the difference between the sum which it considered to be due to it and sum which it had actually received.
21 The referring court states, first of all, that, by the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), the Court of Justice held, in essence, that EU law does not preclude national authorities involved in the implementation of a non-repayable financial support measure from adopting, on account of a calculation error found by the Court of Auditors, acts ordering a reduction in the amount of financial aid granted under the RDP 2007-2013, as approved by the Commission, without waiting for the Commission to adopt a decision excluding from EU funding the amounts resulting from that calculation error.
22 The referring court does not, however, rule out the possibility that EU rules and principles relied on by Porcellino Grasso, other than those taken into account in that judgment, may preclude the Romanian authorities from reducing the amount of the financial aid at issue in the main proceedings. The referring court notes that that amount was determined by Implementing Decision C(2012) 3529 amending the RDP 2007-2013 and that that decision was neither revoked nor annulled; nor could it be amended on the date on which the calculation errors referred to in paragraph 14 of the present judgment were identified.
23 The referring court states, next, that, according to Porcellino Grasso’s arguments, the judgment of the General Court of the European Union of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), concerns, in essence, questions of fact and law identical to those at issue in the case which gave rise to the judgment of 17 November 2022, AvicarvilFarms (C‑443/21, EU:C:2022:899). However, it appears that that judgment of the General Court contradicts the judgment in Avicarvil Farms, since the General Court and the Court of Justice reached different conclusions with regard, in particular, to the principle of the protection of legitimate expectations. The referring court is therefore uncertain whether it may take into account that judgment of the General Court in order to resolve the dispute before it.
24 Lastly, the referring court asks whether the principle of the liability of Member States in the event of an infringement of EU law requires the Romanian State to pay to a beneficiary such as Porcellino Grasso the amounts due in respect of aid for the improvement of transport and aid for the reduction of nuisances, in the amount initially provided for in Implementing Decision C(2012) 3529, throughout the duration of the commitments given by that beneficiary.
25 In those circumstances, the Curtea de Apel Pitești (Court of Appeal, Pitești, Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Do the provisions of Articles 288, 291 and 297 TFEU, the principle of [EU] law according to which a decision of the … Commission produces legal effects until it is annulled - as that principle has been enshrined in the judgments of 8 July 1999, Chemie Linz v Commission (C‑245/92 P, EU:C:1999:363), of 5 October 2004, Commission v Greece (C‑475/01, EU:C:2004:585), of 6 October 2015, Schrems (C‑362/14, EU:C:2015:650), of 14 June 2012, CIVAD (C‑533/10, EU:C:2012:347), of 22 October 1987, Foto-Frost (314/85, EU:C:1987:452), of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), and of 12 February 2008, CELF and Ministre de la Culture et de la Communication (C‑199/06, EU:C:2008:79) - as well as Article 9(3) of Regulation [No 1974/2006] and Articles 18 and 19 of Regulation [No 1698/2005] preclude a practice of the Romanian national authorities involving the adoption of internal measures that are contrary to [Implementing Decision C(2012) 3529] correcting the [RDP 2007-2013], and thus disapplying that decision, as long as it has not been amended or annulled? (2) Having regard to the general obligation of the Member States to comply with EU law, where a national court finds itself in a situation where it is complying with an interpretative judgment delivered by the Court of Justice under Article 267 TFEU[, namely, the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899)], and that judgment does not contain assessments as to the validity and effects of the Commission’s implementing decisions [(Commission Implementing Decision C(2012) 3529 and Commission Implementing Decision (EU) 2018/873 of 13 June 2018 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2018 L 152, p. 29)], but rather only [assessments] on the recovery of funding in the absence of a decision of the Commission to that effect, is the national court in question entitled to take into account, when ruling on the dispute before it, the effects of and reasoning (the considerations made) in a judgment of the General Court, given in an action for annulment governed by Article 263 TFEU and annulling an implementing decision of the Commission in a similar case[, namely the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5)]? (3) Does the principle of assumption of liability by the State require that, in a situation such as that in the present case, the Romanian State must pay the rates of support to the beneficiaries of Measure 215, in the amount laid down in [Implementing Decision C(2012) 3529], for the entire duration of their commitments?’
26 By its first and second questions, which it is appropriate to deal with together, the referring court asks, in essence, whether, in view of the considerations set out by the General Court in its judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), several rules and principles of EU law, which were not taken into account by the Court of Justice in its judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), have the effect of calling into question the operative part of the latter judgment in so far as those rules and principles would have to be interpreted as precluding the national authorities involved in the implementation of a non-repayable financial support measure from adopting, on account of calculation errors found by the Court of Auditors, acts ordering a reduction in the amount of financial aid granted under the RDP 2007-2013, as approved and amended by Commission decisions, when that programme could no longer be revised or amended on the date on which those errors were found.
27 In the first place, the Ministry of Agriculture and Rural Development submits that the first and second questions are inadmissible, on the ground that the first question has already been clarified by the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), and that the second question does not fall within the subject matter of the reference for a preliminary ruling provided for in Article 267 TFEU.
28 In that regard, it must be noted that the Court of Justice has jurisdiction to define the scope of a interpretative judgment which it has given as a preliminary ruling in the light of provisions of EU law or of case-law which had not been addressed in that judgment (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 28).
29 By its first and second questions, the referring court seeks an interpretation of the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), in the light of provisions of EU law and a judgment of the General Court which were not examined in the judgment in Avicarvil Farms. In those circumstances, those questions are admissible.
30 That said, it should be recalled, in the second place, that it is essential, as stated in Article 94(c) of the Rules of Procedure of the Court of Justice, that the request for a preliminary ruling contain a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings.
31 Although, in its first question, the referring court refers to Articles 288, 291 and 297 TFEU and to the principle of EU law under which a Commission decision produces legal effects until it is annulled, it must be stated that that court does not in any way explain, in its request for a preliminary ruling, the reasons which led it to seek clarification on those articles and that principle. In particular, it does not explain why, in its view, those articles and that principle are capable, inter alia in the light of their content, context or objective, of invalidating the interpretation set out in the operative part of the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899). In those circumstances, the first question is inadmissible in so far as it concerns those articles and that principle.
32 By contrast, the first question is admissible in so far as it concerns Article 9(3) of Regulation No 1974/2006 and Articles 18 and 19 of Regulation No 1698/2005. The referring court states, in essence, with reference to the considerations set out by the General Court in its judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), that, under those provisions, the RDP 2007-2013, as approved by Decision C(2008) 3831 and amended by Implementing Decision C(2012) 3529, could no longer be revised or amended on the date on which the calculation errors at issue in the main proceedings were found by the Court of Auditors. It therefore asks, in essence, whether, in such circumstances, the Romanian authorities were entitled to make the reduction referred to in paragraph 15 of the present judgment. In so doing, the referring court sets out, in a sufficient manner, the reasons for its uncertainty as to the interpretation of those provisions.
33 It follows from the foregoing considerations that the first question is admissible in so far as it concerns Article 9(3) of Regulation No 1974/2006 and Articles 18 and 19 of Regulation No 1698/2005, and that the second question is admissible in its entirety.
34 As a preliminary point, it must be noted that, in the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court of Justice may have to reformulate the question referred to it. To that end, the Court may extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of EU law that require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 21 March 2024, Dyrektor Izby Administracji Skarbowej w Bydgoszczy(Possibility of adjustment in the case of incorrect rate), C‑606/22, EU:C:2024:255, paragraphs 19 and 20 and the case-law cited).
35 In the present case, the first question is based, in essence, on the premiss that the RDP 2007-2013, as approved by Decision C(2008) 3831 and amended by Implementing Decision C(2012) 3529, could no longer be revised or amended on the date on which the calculation errors at issue in the main proceedings were found by the Court of Auditors. In that context, Article 18 of Regulation No 1698/2005 is irrelevant for the purposes of answering that question, in so far as, unlike Article 19 of that regulation and Article 9 of Regulation No 1974/2006, it relates, according to its heading, not to the revision or amendment of the EAFRD rural development programmes, but to their ‘preparation and approval’.
36 It must therefore be held that, by its first and second questions, the referring court asks, in essence, whether, in view of the considerations set out by the General Court in its judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), Article 19 of Regulation No 1698/2005 and Article 9(3) of Regulation No 1974/2006 have the effect of calling into question the operative part of the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), in so far as those articles would have to be interpreted as precluding national authorities involved in the implementation of a non-repayable financial support measure from adopting, on account of calculation errors found by the Court of Auditors, acts ordering a reduction in the amount of financial aid granted under the RDP 2007-2013, as approved and amended by Commission decisions, when that programme could no longer be revised or amended on the date on which those errors were found.
37 As the referring court has stated, in paragraphs 91 to 95 and paragraph 100 of the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), the General Court noted that, on the date on which calculation errors concerning aid relating to Measure 215, other than the sets of aid at issue in the main proceedings, were identified, the RDP 2007-2013, as approved by Decision C(2008) 3831 and amended by Implementing Decision C(2012) 3529, could no longer be revised or amended under Article 19 of Regulation No 1698/2005 and Article 9(3) of Regulation No 1974/2006. Those findings can, ratione temporis, be transposed mutatis mutandis to the case in the main proceedings.
38 However, the fact that, under those provisions, that programme could no longer be revised or amended on the date on which those calculation errors were identified cannot have the effect of calling into question the operative part of the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), which was delivered in a context differing from that at issue in the case which gave rise to the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5).
39 In paragraphs 74, 86, 91, 92, 100, 102 and 113 of the latter judgment, the General Court held, in essence, that, although, as a result of a calculation error, the amount of aid under Measure 215 would have been incompatible with Article 40(3) of Regulation No 1698/2005, the Commission had caused the Romanian authorities to entertain legitimate expectations that the payment of that amount was covered by EU funding. The General Court found that the Commission had available to it, when approving that aid and the calculation method relating to it, following specific negotiations with the Romanian authorities, all the information to enable it to detect that error and to assess whether that aid complied with that provision. The General Court concluded that that amount could be corrected only by an amendment to the RDP 2007-2013 and by a decision approving that amendment, and not, as the Commission had concluded, by an implementing decision excluding from funding the incorrect part of the aid concerned. Therefore, on those grounds, the General Court partially annulled that implementing decision.
40 It is true that the case which gave rise to the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899) also concerned, in relation to other aid under Measure 215, amounts which, because of calculation errors, did not comply with Article 40(3) of Regulation No 1698/2005 and which had been corrected by a Commission implementing decision, namely Implementing Decision 2018/873.
41 However, it is apparent from the file in that case that, as regards the calculation of those amounts, no legitimate expectations had been recognised, in respect of those amounts, in the relations between Romania and the Commission. While it is true that Romania, by its action in the case which gave rise to the order of 30 April 2019, Romania v Commission (T‑530/18, EU:T:2019:269), had sought the annulment of that implementing decision and argued that the calculation methods approved by the Commission in relation to those amounts should have been protected under the principle of the protection of legitimate expectations, the General Court, by that order, which was upheld on appeal by the judgment of 10 September 2020, Romania v Commission (C‑498/19 P, EU:C:2020:686), dismissed that action as inadmissible, on the ground that it had been brought out of time.
42 In paragraphs 33 to 36 of its judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), the Court of Justice therefore held that the amounts concerned, which did not comply with Article 40(3) of Regulation No 1698/2005 and were not recognised as being protected by legitimate expectations in the relations between Romania and the Commission, had to be corrected both by the Commission, on the basis of Article 52(1) of Regulation No 1306/2013, by way of the adoption of an implementing decision excluding from EU funding the incorrect part of the aid in question, and by the national authorities, on the basis of Article 58(1) of Regulation No 1306/2013; those authorities were also not required to wait for the Commission to adopt such an implementing decision.
43 In paragraph 44 of that judgment, the Court stated that, in the relations between the Romanian authorities and the farmers receiving the aid concerned, the principle of the protection of legitimate expectations had no bearing on that assessment. It considered that, since those amounts had been determined in a manner that was not in accordance with Article 40(3) of Regulation No 1698/2005, the Romanian authorities had no power to create, for those farmers, legitimate expectations that they would benefit from treatment in a manner contrary to EU law.
44 In the case in the main proceedings, it follows from the explanations provided by the referring court that the calculation errors at issue gave rise, in relation to aid also covered by Measure 215, although differing from the aid examined by the Court of Justice and the General Court in their respective judgments of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), and of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), to the determination of amounts that did not comply with Article 40(3) of Regulation No 1698/2005. Furthermore, the referring court does not state that the Commission or other EU institutions, bodies, offices or agencies recognised that those amounts were protected by legitimate expectations in the relations between Romania and the Commission. It follows that the situation at issue in the main proceedings corresponds, in essence, to that at issue in the case which gave rise to the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899).
45 However, first, the referring court states, with reference to Porcellino Grasso’s arguments, that the reasoning followed by the General Court in its judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5) can be transposed to the case in the main proceedings in that the principle of the protection of legitimate expectations would have to apply, in the relations between Romania and the Commission, to those amounts because, when the Commission approved the amendment to the RDP 2007-2013, it had available to it the information enabling it to assess whether the aid at issue in the main proceedings and the related calculation methods complied with Article 40(3) of Regulation No 1698/2005. Since, according to the referring court, those amounts enjoy protection under that principle, they can be corrected, in accordance with the findings of the General Court set out in paragraph 39 of the present judgment, only by an amendment to the RDP 2007-2013 and by a decision approving that amendment.
46 In that regard, it should be noted that, although the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), does indeed relate, as does the present case, to aid covered by Measure 215, it was aid differing from the aid at issue in the main proceedings. In those circumstances, the General Court was not able to examine, in that judgment, whether the Commission had available to it, when approving the amendment of the RDP 2007-2013, information enabling it to assess whether that aid and the related calculation methods complied with Article 40(3) of Regulation No 1698/2005, with the result that the General Court’s reasoning cannot be transposed mutatis mutandis to the case in the main proceedings. It must, moreover, be noted that, in its written observations, the Romanian Government does not claim that it relies, in its relations with the Commission, on the principle of the protection of legitimate expectations as regards the aid at issue in the main proceedings.
47 Second, the referring court states that, according to Porcellino Grasso’s arguments, the considerations set out by the General Court in paragraph 113 of the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), contradict paragraphs 42 and 44 of the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899). The referring court is therefore uncertain whether it should take those considerations into account.
48 As is clear from paragraph 113 of the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), the General Court’s reasoning follows on from that set out in paragraphs 75 to 86 of that judgment, according to which the calculation methods concerned and the amounts determined on the basis of those methods were protected, in the relations between Romania and the Commission, under the principle of the protection of legitimate expectations on account of the fact that those methods and amounts had been the subject of ‘specific negotiations with the Romanian authorities’ and that the Commission had available to it, in the context of those negotiations, all the information enabling it to assess whether those methods and amounts complied with Article 40(3) of Regulation No 1698/2005.
49 It follows from paragraph 42 of the present judgment that the case which gave rise to the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), concerned amounts of aid which were not protected by legitimate expectations in the relations between Romania and the Commission. Since that judgment was given in a completely different context from that at issue in the case which gave rise to the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), the considerations set out in paragraph 113 of the latter judgment cannot be relevant for the purposes of interpreting the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899).
50 It follows that the aid amounts at issue in the main proceedings, which were established following calculation errors, cannot be regarded, on the basis of the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), and in the absence of any indication to the contrary in the file before the Court, as being protected by legitimate expectations in the relations between Romania and the Commission, with the result that, in view of the considerations set out in paragraph 44 of the present judgment, the situation at issue in the main proceedings is, in essence, the same as that at issue in the case which gave rise to the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899).
51 Therefore, in a situation in which amounts have been established, following a calculation error, in a manner that does not comply with EU law and are not protected by legitimate expectations in the relations between the Commission and the Member State concerned, both that institution and that Member State are, as follows from paragraphs 33 and 34 of the judgment of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899), required, under Article 310(5) TFEU and Article 52(1) and Article 58(1) of Regulation No 1306/2013, to exclude from EU funding the amounts affected by that calculation error.
52 Such an exclusion in no way means that there is a need to revise or amend the relevant rural development programme.
53 The correction of a calculation error that does not comply with EU law, and of the rates and payments resulting from that error, does not entail any revision or amendment of the relevant rural development programme, but simply constitutes, as follows from the provisions referred to in paragraph 51 of the present judgment, a return to the situation which should, from the outset, have followed from that programme if that error had not been made, in such a way that no damage is caused to the EU budget.
54 Therefore, the fact that, under Article 19 of Regulation No 1698/2005 and Article 9(3) of Regulation No 1974/2006, the RDP 2007-2013 could no longer be revised or amended on the date on which the calculation errors at issue in the main proceedings were found by the Court of Auditors does not preclude both the Commission and the national authorities from taking the necessary measures to correct, in the context of a conformity clearance, the amounts and payments affected by those errors.
55 In the light of the foregoing grounds, the answer to the first and second questions is that Article 19 of Regulation No 1698/2005 and Article 9(3) of Regulation No 1974/2006 must be interpreted as not precluding the national authorities involved in the implementation of a non-repayable financial support measure from adopting, on account of calculation errors found by the Court of Auditors, acts ordering a reduction in the amount of financial aid granted under the RDP 2007-2013, as approved and amended by Commission decisions, when that programme could no longer be revised or amended on the date on which those errors were found. The considerations set out by the General Court in the judgment of 18 January 2023, Romania v Commission (T‑33/21, EU:T:2023:5), are irrelevant in that regard.
56 By its third question, the referring court asks, in essence, whether the principle of the liability of the Member States for infringement of EU law requires the Romanian State to pay to the beneficiaries of aid for the improvement of transport and aid for the reduction of nuisances the sums due in respect of both sets of aid in the amounts provided for in Implementing Decision C(2012) 3529, for the entire duration of the commitments entered into by those beneficiaries.
57 It should be noted that EU law imposes the principle that Member States are obliged to make good loss and damage caused to individuals by breaches of EU law for which those Member States can be held responsible (judgment of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 17 and the case-law cited).
58 In the present case, it is apparent from the findings of the referring court that, on account of the calculation errors at issue in the main proceedings, the support rates provided for in Implementing Decision C(2012) 3529 for aid for the improvement of transport and aid for the reduction of nuisances did not comply with Article 40(3) of Regulation No 1698/2005. It is also apparent from those findings that the Romanian authorities took the necessary measures to correct those rates so that they complied with that provision and that, in so doing, those authorities put an end to the infringement of EU law attributable to them.
59 In those circumstances, an aid beneficiary such as Porcellino Grasso cannot rely on the principle of Member States’ liability for infringement of EU law in order to claim the difference between the sum of the payments which it should have received initially and the corrected sum of those payments, even though the latter sum complies with EU law and that beneficiary has no right to receive that difference.
60 First, payment of the part of amounts that are affected by calculation errors to an aid beneficiary such as Porcellino Grasso would amount to unjust enrichment of that beneficiary, which is prohibited by EU law, in so far as that payment would have the effect of enriching that beneficiary without a valid legal basis and would result in the impoverishment of the European Union linked to that enrichment (see, to that effect, judgments of 10 April 2008, Marks & Spencer, C‑309/06, EU:C:2008:211, paragraph 41 and the case-law cited, and of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraph 53 and the case-law cited).
61 Second, assuming that, in its action for damages, Porcellino Grasso intends to rely, before the referring court, on the principle of the protection of legitimate expectations in its relations with the Romanian authorities, it should be noted that, as stated in paragraph 43 of the present judgment, that principle cannot give rise to legitimate expectations, on the part of a trader, of beneficial treatment contrary to EU law (judgment of 17 November 2022, Avicarvil Farms, C‑443/21, EU:C:2022:899, paragraph 41).
62 In the light of the foregoing grounds, the answer to the third question is that the principle of the liability of Member States for infringement of EU law does not apply where the support rates relating to financial aid granted under an EAFRD Rural Development Programme have been determined in a manner that does not comply with EU law and where the beneficiaries of that aid have received payments, in respect of that aid, that are calculated on the basis of corrected rates that comply with that law.
63 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.