(Reference for a preliminary ruling– Structural Funds– European Regional Development Fund (ERDF)– Regulation (EU) No1303/2013– Co-financing programme– State aid– Regulation (EU) No651/2014

55By its second question, the referring court asks, in essence, whether Article3(3) of Regulation No1301/2013 is to be interpreted as meaning that, in order to determine whether a project applicant is to be regarded as not being ‘in difficulty’ within the meaning of Article2(18) of Regulation No651/2014, the competent managing authority must take account only of offers of evidence which comply with the requirements laid down when the project selection procedure was established.

56In that regard, it should be noted that Article3(3) of Regulation No1301/2013 merely states that the ERDF does not support undertakings in difficulty as defined by the EU rules on State aid. It must therefore be held that that provision does not contain any indication as to the nature of the evidence which may be taken into account in order to establish that an undertaking is not in difficulty.

57That said, it is apparent from the wording of Article125(3) of Regulation No1303/2013, which defines the role of the managing authorities responsible for the management of operational programmes, that those authorities are required to draw up and, once approved, to apply appropriate selection procedures and criteria, and are also required to satisfy themselves, inter alia, that the beneficiaries of the aid have the financial capacity to fulfil the conditions for support and therefore, in the case of ERDF support, that the beneficiaries are not ‘in difficulty’ within the meaning of Article2(18) of Regulation No651/2014.

58In order to comply with that obligation, the managing authorities must necessarily rely on information that is sufficiently reliable to rule out any reasonable doubt as to the financial situation of the companies concerned.

59As regards the determination of the precise nature of the evidence which may be taken into account, given that EU legislation contains no indication in that regard, it falls within the procedural autonomy of the Member States, since the competent national authorities have, in that regard, discretion in drawing up the project selection procedure.

60However, in accordance with the principles of equivalence and effectiveness, those evidential requirements must not be more demanding than those governing similar situations subject to domestic law, provided that such requirements, if applied, would make it possible to preserve the effectiveness of Article3(3) of Regulation No1301/2013; nor should they make it excessively difficult or impossible in practice to exercise the rights conferred by EU law, in particular the right of every project holder to be able effectively to submit it in order to receive ERDF support (see, by analogy, judgments of 21January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraph32, and of 3June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario, C‑726/19, EU:C:2021:439, paragraph47).

61In so far as the procedure at issue in the main proceedings concerns the grant, in the context of ERDF programmes, of funding from the budget of the Union and that, as such, it constitutes a measure implementing EU law, it must also comply with the general principles of EU law, which include, in particular, the principles of equal treatment, transparency and proportionality which are of fundamental importance where a procedure involving economic operators is at issue (see, to that effect, judgment of 26April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraphs50 and 59).

62Compliance with the principles of equal treatment and transparency implies, in particular, that the same evidential requirements apply to all applicants for the same programme and that those requirements be made public (see, by analogy, judgments of 2June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph37, and of 11May 2017, Archus and Gama, C‑131/16, EU:C:2017:358, paragraph26). As regards the principle of proportionality, under that principle, those requirements must not go beyond what is necessary to ensure that the substantive conditions laid down by EU law have been met (see, to that effect, judgment of 3June 2021, Rad Service and Others, C‑210/20, EU:C:2021:445, paragraph34).

63It is for the referring court to assess whether, in the present case, all of those conditions are satisfied. However, in order to guide it in that assessment, the Court may provide it with all the guidance as to the interpretation of EU law which may be useful to it (see, inter alia, judgments of 16July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph62, and of 6October 2021, A (Crossing borders in a pleasure boat), C‑35/20, EU:C:2021:813, paragraph85).

64In that regard, it is apparent from the national legislation cited by the referring court that the classification as an ‘undertaking in difficulty’ must, in accordance with the requirements laid down in that legislation for the purposes of the selection procedure, be made solely in the light of the information contained in the most recent publicly available final annual report or, if an interim activity report approved by a sworn auditor is submitted by the project applicant, in the light of the information contained in that report. Where the project applicant refers to publicly available information concerning an increase in share capital undertaken after the most recent final annual report, that information will be taken into account where it is accompanied by an interim activity report approved by a sworn auditor.

65First of all, since a company may, in principle, have an interim report drawn up by a sworn auditor at any time without this representing a cost to the company which is so excessive that such a requirement would make it excessively difficult or impossible in practice for a company which was ‘in difficulty’, within the meaning of Article2(18) of Regulation No651/2014, when its most recent final annual report was drawn up to demonstrate that it is no longer in difficulty, such rules cannot, in principle, be regarded as contrary to the principle of effectiveness.

66Next, as regards compliance with the principles of equal treatment and transparency, it is not apparent from the documents before the Court that the referring court has doubts as to whether the requirements at issue in the main proceedings were duly disclosed or whether they are applicable without distinction.

67Lastly, as regards the principle of proportionality, having regard to the requirements surrounding the drawing up of annual reports, which contribute to the reliability of the information contained therein, and to the guarantees offered by a sworn auditor’s approval of interim activity reports, requiring a managing authority to base its decision exclusively on those types of documents does not appear to go beyond what is necessary to ensure that the condition laid down in Article2(18) of Regulation No651/2014 has been met.

68In those circumstances, EU law does not preclude, in principle, national legislation, such as that at issue in the main proceedings, from requiring a managing authority to assess the financial situation of an undertaking solely in the light of the information contained in the most recent publicly available final annual report of the company submitting the project application, and, where appropriate, in an interim activity report approved by a sworn auditor, provided that the interim activity report has been submitted to that authority, unless it is found that those requirements do not comply with the principle of equivalence, which is for the managing authority to determine.

69In the light of all the foregoing considerations, the answer to the second question is that Article3(3) of Regulation No1301/2013 must be interpreted as meaning that, in order to determine whether a project applicant is to be regarded as not being ‘in difficulty’ within the meaning of Article2(18) of Regulation No651/2014, the competent managing authority must take account only of evidence which complies with the requirements laid down when the project selection procedure was drawn up, provided that those requirements comply with the principles of effectiveness and equivalence, as well as with the general principles of EU law, such as, in particular, the principles of equal treatment, transparency and proportionality.

The third question

70By its third question, the referring court asks, in essence, whether Article125(3) of Regulation No1303/2013, together with the principles of non-discrimination and transparency to which that provision refers, is to be interpreted as precluding national legislation under which project applications may not be the subject of clarification after they have been submitted.

71At the outset, it should be noted that the referring court does not specify whether, when it refers in the wording of its question to the submission of projects, it is referring to the deadline for submission of project applications laid down by national law or to the date on which the project application of a concerned project applicant was submitted. However, it is apparent from the documents before the Court that, in the case at issue in the main proceedings, Zinātnes parks submitted its file on the date of the deadline for submission of project applications laid down by national law. Accordingly, it does not appear necessary to examine the issue of whether EU law requires Member States to allow project applicants to provide clarifications after the submission of their project applications but before the deadline for submission of such applications. By contrast, that question arises in relation to clarifications that may be provided after that deadline.

72Next, it should be noted that Article125(3)(d) of Regulation No1303/2013 merely mentions that the competent managing authority must satisfy itself that each beneficiary of ERDF support has the administrative, financial and operational capacity to fulfil the conditions for support for each operation before approval of each operation, without specifying when that capacity must be assessed or when project applicants must provide that authority with the information necessary for the verification of that capacity.

73Given that EU law does not specify the deadline for providing the managing authorities with the necessary evidence, it is for the Member States to decide this within the limits laid down by the principles of effectiveness and equivalence, as well as by the obligation on every managing authority to ensure scrupulously compliance with general principles of law, which include the principles of equal treatment and transparency, referred to in Article125(3) of Regulation No1303/2013, as well as the principle of proportionality.

74As regards, in particular, the principles of transparency and equal treatment, it should be recalled that, where a Member State has set a deadline for project applicants to complete their file, those principles require the managing authorities to exclude from the selection procedure any application which has not been accompanied, by that date, by the necessary information (see, by analogy, judgments of 6November 2014, Cartiera dell’Adda, C‑42/13, EU:C:2014:2345, paragraph42, and of 2June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraphs42 to 44).

75In the case at issue in the main proceedings, it is apparent from the information provided by the referring court that the Member State concerned, while taking the view that the condition laid down in Article3(3) of Regulation No1301/2013 must be assessed at the date of approval of project applications, chose to prohibit those project applicants from completing their file after expiry of the deadline for submission of those project applications.

76Having regard to the need for the national managing authorities to have the necessary time to examine the files submitted to them (see, to that effect, by analogy, judgments of 10February 1998, Germany v Commission, C‑263/95, EU:C:1998:47, paragraph31, and of 25March 2010, Commission v Spain, C‑392/08, EU:C:2010:164, paragraph21), that Member State cannot, however, be criticised for having set a deadline for project applicants to communicate all the information necessary to the competent managing authority which was earlier than the date of approval of project applications.

77Consequently, as the Advocate General stated, in essence, in point80 of her Opinion, if project applicants were allowed to complete their file after the deadline for submission of project applications, the competent managing authority could find itself obliged to re-examine the same files repeatedly, with the risk that the date of approval of those applications would have to be postponed, thereby undermining the objectives of the financing programmes, or that the principles of equal treatment and transparency would no longer be observed. Such a possibility is also likely to give rise to additional costs for the competent managing authority, which a Member State may legitimately wish not to bear, in accordance with the principle of sound administration.

78Therefore, it must be held that a Member State may decide that project applicants are not authorised to complete their file after expiry of the deadline for submission of project applications, even if the national legislation provides that the condition laid down in Article3(3) of Regulation No1301/2013 must be assessed at a later date.

79In accordance with the principle of equivalence, it is important to identify, in national law, procedures which are comparable, having regard to their purpose, cause of action and essential characteristics, to that laid down for receipt of ERDF support and to ensure that those procedures are not, by allowing project applicants to complete their file after the deadline for submission of project applications, more favourable than that at issue in the main proceedings (see, by analogy, judgment of 26September 2018, Belastingdienst v Toeslagen (Suspensory effect of the appeal), C‑175/17, EU:C:2018:776, paragraphs42 to 44).

80In the light of the foregoing considerations, the answer to the third question is that Article125(3) of Regulation No1303/2013, together with the principles of non-discrimination and transparency to which that provision refers, must be interpreted as not precluding national legislation under which project applications may not be the subject of clarification after the deadline for submission of those applications. However, in accordance with the principle of equivalence, that impossibility, for project applicants, to complete their file after the deadline for submission of project applications must concern all procedures which may, where appropriate, be regarded as comparable with regard to their purpose, cause of action and essential characteristics to that laid down for receipt of ERDF support.