Provisional text

delivered on 22 May 2025 (1)

Joined Cases C‑416/24 and C‑417/24

On Air Media Professionals SRL

Agenția pentru Întreprinderi Mici și Mijlocii (C‑416/24)

and

Different Media SRL

Ministerul Antreprenoriatului și Turismului – Agenția pentru Întreprinderi Mici și Mijlocii, Atragere de Investiții și Promovare a Exportului Iași (C‑417/24)

(Request for a preliminary ruling from the Curtea de Apel Bacău (Court of Appeal, Bacău, Romania))

( Reference for a preliminary ruling – State aid – Regulation (EU) No 651/2014 – Exemption of certain categories of aid compatible with the internal market – Translation error in the Romanian language version – Legal effects of the regulation correcting that error – Possibility of the recovery of aid granted prior to the correction on the basis of the version of the regulation containing that error )

I.Introduction

What is the fate of aid measures granted by a Member State, on the basis of a language version of a European Commission regulation which is incorrect but has been duly published in the Official Journal of the European Union? That is the question which the Court is called upon in essence to answer in the present case, since Romania has granted aid, on the basis of the Romanian language version of Regulation (EU) No 651/2014 (2) (‘the GBER’), to undertakings which should not have received it.

Questioned as to whether in such a situation a Member State is required to take steps to recover such aid, the Court will be required to clarify the scope of various principles relating to the publication and application of EU law, in the light of the European Union’s language rules.

II.Legal context

A.European Union law

1.The GBER

Recital 14 of the GBER states:

‘Aid granted to undertakings in difficulty should be excluded from the scope of this Regulation, since such aid should be assessed under the Community guidelines on State aid for rescuing and restructuring firms in difficulty of 1 October 2004 as prolonged by Commission communication concerning the prolongation of the application of the Community guidelines on State aid for rescuing and restructuring firms in difficulty of 1 October 2004 or their successor Guidelines, in order to avoid their circumvention, with the exception of aid schemes to make good the damage caused by certain natural disasters. In order to provide legal certainty, it is appropriate to establish clear criteria that do not require an assessment of all the particularities of the situation of an undertaking to determine whether an undertaking is considered to be in difficulty for the purposes of this Regulation.’

Article 1 of that regulation, entitled ‘Scope’, provides in paragraph 4(c):

‘This Regulation shall not apply to:

…

(c)aid to undertakings in difficulty, with the exception of aid schemes to make good the damage caused by certain natural disasters, …’

Article 2 of that regulation, entitled ‘Definitions’, provides in the first sentence of paragraph 18(a):

‘For the purposes of this Regulation the following definitions shall apply:

…

18.“undertaking in difficulty” means an undertaking in respect of which at least one of the following circumstances occurs:

(a)In the case of a limited liability company (other than [a small or medium-size enterprise (SME]) that has been in existence for less than three years or, for the purposes of eligibility for risk finance aid, an SME within [seven] years from its first commercial sale that qualifies for risk finance investments following due diligence by the selected financial intermediary), where more than half of its subscribed share capital has disappeared as a result of accumulated losses …’. (3)

In the case of that provision, the words ‘in existence for less than three years’ were translated, in the Romanian language version as ‘in existence for at least three years.’ (4)

2.Regulation (EU) 2021/452

Recitals 1 and 2 of Regulation (EU) 2021/452 (5) (‘the correcting regulation’) state:

(1)‘(1) The Romanian language version of the [GBER] contains errors in the first sentence of Article 2(18)(a) and in the first sentence of Article 2(18)(b) that alter the meaning of the provisions.

(2)The Romanian language version of the [GBER] should therefore be corrected accordingly. The other language versions are not affected.’

Article 1 of that regulation provides:

‘The [GBER] is corrected to read as follows:

1.The first sentence of Article 2(18)(a) shall be replaced by the following wording: “In the case of a limited liability company (other than an SME that has been in existence for less than three years or, for the purposes of eligibility for risk finance aid, an SME within [seven] years from its first commercial sale that qualifies for risk finance investments following due diligence by the selected financial intermediary), where more than half of its subscribed share capital has disappeared as a result of accumulated losses.”

…’

Article 2 of that regulation provides:

‘This Regulation shall enter into force on the twentieth day following that of its publication in the [Official Journal].’

3.Decision C(2020) 5949 final

By Decision C(2020) 5949 final, (6) the Commission authorised the State aid scheme entitled ‘Support for SMEs and certain related large enterprises to overcome the economic crisis caused by the COVID-19 pandemic’ (‘the aid scheme at issue in the main proceedings’), which Romania notified to it on 20 August 2020.

Recitals 16 and 47 of that decision state:

16.‘16. Aid may not be granted under the measure to undertakings that were in difficulty within the meaning of the General Block Exemption Regulation (“GBER”), the Block Exemption Regulation for the Agricultural Sector (“ABER”) [ (7) ], or the Block Exemption Regulation for the Fishery and Aquaculture Sector (“FIBER”) [ (8) ] on 31 December 2019.

…

47.The Commission accordingly considers that the measure is necessary, appropriate, and proportionate to remedy a serious disturbance in the economy of a Member State and meets all the conditions of the Temporary Framework. In particular:

…

•Aid may not be granted under the measure to undertakings that were already in difficulty on 31 December 2019 (see recital (16)). The measure therefore complies with point 22(c) of the Temporary Framework;

…’

B.Romanian law

1.OUG No 130/2020

Article 4(1) of the Ordonanța de urgență a Guvernului nr. 130/2020 privind unele măsuri pentru acordarea de sprijin financiar din fonduri externe nerambursabile, aferente Programului operațional Competitivitate 2014-2020, în contextul crizei provocate de COVID-19, precum și alte măsuri în domeniul fondurilor europene (Government Emergency Ordinance No 130 on certain measures to provide financial support through non-repayable external funds, relating to the Operational Programme for Competitiveness 2014-2020 (OPC 2014-2020), in the context of the COVID-19 crisis, and other measures in the area of European funds) of 31 July 2020 (9) (‘OUG No 130/2020’), provides:

‘The micro-grants are of the value of EUR 2 000 and are granted only once, in lump sum form, in compliance with the provisions of Article 3(1) of Regulation (EU) No 1301/2013 of the European Parliament and of the Council of 17 December 2013 on the European Regional Development Fund and on specific provisions concerning the Investment for growth and jobs goal and repealing Regulation (EC) No 1080/2006 [OJ 2013 L 347, p. 289], as amended, and of Article 67(1)(c) 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].’

Under Article 6 of OUG No 130/2020, the micro-grants provided for in Article 4(1) of that Government Emergency Ordinance are granted, on the basis of a State aid contract, to beneficiaries which meet all of the following conditions: (a) they have engaged in a normal/operational activity for at least one calendar year before the date on which the application for funding is submitted, with the exception of an authorised natural person/individual medical practice for whom/which the start of the activity may have taken place not later than 1 February 2020; (b) their turnover during the financial year preceding the submission of the application for funding is at least equivalent in Romanian lei (RON) to EUR 5 000 on the date on which the application for funding is submitted, with the exception of beneficiaries of the State aid referred to in Article 5(1)(a), beneficiaries who were created in 2019, with a turnover of below EUR 5 000, for which the minimum turnover threshold is calculated by multiplying the number of full months’ activity in 2019 by the amount of EUR 415, and beneficiaries of State aid referred to in Article 5(1)(b) and (c); (c) they maintain their activity for a period of at least six months from the granting of support in the form of micro-grants.

Article 32(1) of OUG No 130/2020 provides that the rules for granting State aid are laid down in the context of the State aid scheme – Support for SMEs, subject to the Commission’s opinion, and Article 32(2) provides that the amendment and/or addition of the State aid scheme – Support for SMEs takes effect from the date on which the Commission communicates the authorisation decision.

2.Order No 1060/2857/2020

Point 3 of the annex to Ordinul nr. 1060/2857/2020 pentru aprobarea Schemei de ajutor de stat – Sprijin pentru IMM-uri în vederea depășirii crizei economice generate de pandemia de COVID-19 (Order No 1060/2857/2020 approving the State aid scheme – Support for SMEs to overcome the economic crisis caused by the COVID-19 pandemic) of 8 September 2020 (10) (‘Order No 1060/2857/2020’), issued by the Ministerul Economiei, Energiei și Mediului de Afaceri (Ministry of Economy, Energy and Business Environment, Romania) and the Ministerul Fondurilor Europene (Ministry of European Funds, Romania) contains, inter alia, the following definition:

‘…

3.6“undertakings in difficulty” – pursuant to Article 2(18)(a) of the [GBER], an undertaking shall be considered to be in difficulty in the following circumstances: (i) in the case of a limited liability company (other than an SME that has been in existence for at least three years), where more than half of its subscribed share capital has disappeared as a result of accumulated losses. Such is the case where the deduction of accumulated losses of reserves (and of all the other items generally regarded as being the company’s own funds) leads to a negative cumulative amount that exceeds half of the subscribed share capital. For the purposes of this provision, “limited liability company” means in particular the types of undertaking referred to in Annex I to Directive 2013/34/EU of the European Parliament and of the Council [(11)] and the “share capital” includes, where appropriate, issue premiums …’

Point 6.19 of that annex states that the general eligibility criteria for beneficiaries applying for funding under the measures of this State aid scheme are as follows: (a) they are not in difficulty on 31 December 2019, within the meaning of Article 2(18) of the GBER; (b) no decision to recover State aid has been issued or enforced against them; (c) they are not subject to any arrangement with creditors, or to any winding up, insolvency or bankruptcy proceedings.

3.Order No 2989/2020

Point 8.11 of Ordinul nr. 2989/2020 privind aprobarea Procedurii de implementare a măsurii “Microgranturi acordate din fonduri externe nerambursabile” din cadrul schemei de ajutor de stat instituite prin Ordonanța de urgență a Guvernului nr. 130/2020 privind unele măsuri pentru acordarea de sprijin financiar din fonduri externe nerambursabile, aferente Programului operațional Competitivitate 2014-2020, în contextul crizei provocate de COVID-19, precum și alte măsuri în domeniul fondurilor europene (Order No 2989/2020 approving the procedure for the implementation of the measure ‘Micro-grants awarded through non-repayable external funds’ as part of the State aid scheme established by OUG No 130/2020 of 30 September 2020 (12) provides, in essence, that State aid will be recovered in full where it is established, following checks carried out after financing contracts have been signed, that the beneficiary does not come into the category of eligible beneficiaries provided for under OUG No 130/2020.

III.The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

On 20 August 2020, Romania notified the aid scheme at issue in the main proceedings to the Commission. The Commission approved that aid scheme by Decision C(2020) 5949 final.

According to recital 16 of that decision, no State aid could be granted on the basis of the approved scheme to undertakings that were in difficulty, within the meaning of Article 2(18) of the GBER, on 31 December 2019. As is clear from recital 47 of that decision, it was one of the conditions laid down by the Commission in order for it to be able to declare the aid scheme necessary, appropriate and proportionate and therefore compatible with the internal market.

Following notification of Decision C(2020) 5949 final, the aid scheme at issue in the main proceedings was implemented by Order No 1060/2857/2020.

Article 4(1) of that order provided for the granting of aid up to the value of EUR 2 000 per beneficiary for certain categories of SME.

According to Decision C(2020) 5949 final, one of the general eligibility criteria to be met by beneficiaries applying for funding was, under point 6.19 of the annex to that order, not being in difficulty on 31 December 2019, within the meaning of Article 2(18) of the GBER. The definition of an ‘undertaking in difficulty’ given in that article, was reiterated in point 3.6(i) of that annex and excluded from its scope SMEs that had been ‘in existence for at least three years’.

24.In the context of the aid scheme at issue in the main proceedings, On Air Media Professionals and Different Media, limited liability companies under Romanian law, concluded on 10 December 2020 financing contracts under which they each received a micro-grant of 9 679 RON (approximately EUR 1 945) to help them overcome the economic crisis caused by COVID-19.

25.Those micro-grants were subsequently each the subject of decisions for the recovery of State aid, dated 8 November and 18 October 2022. The Romanian authorities considered that the appellants in the main proceedings did not meet one of the legal conditions for receiving the aid at issue, since on 31 December 2019 they were ‘undertakings in difficulty’, within the meaning of Point 3.6(i) of the annex to Order No 1060/2857/2020, because the capital losses recorded by those companies on that date far exceeded their subscribed capital.

26.The appellants in the main proceedings brought appeals against those decisions before the Tribunalul Neamț (Regional Court, Neamț, Romania). They claimed that they met all the conditions laid down for obtaining micro-grants and, in particular, that they did not have the characteristics of undertakings in difficulty, within the meaning of Article 2(18) of the GBER. They contended that those provisions exclude from the category of ‘undertakings in difficulty’ ‘SMEs that have been in existence for at least three years’. The appellants had been in existence for thirteen and eighteen years, respectively, on the date of the conclusion of their financing contracts.

27.The Tribunalul Neamț (Regional Court, Neamț) dismissed those appeals. That court relied on the fact that the Romanian language version of the GBER had been corrected by the correcting regulation, after the granting of the aid, which therefore provided that only SMEs that had been in existence for less than three years, and not, as in the original version, SMEs that had been in existence for at least three years, fell outside the scope of the concept of ‘undertakings in difficulty’ and were therefore eligible for the aid in question.

28.That court held that the correcting regulation had not amended the GBER but had merely corrected its Romanian language version, since the original version, in English, had referred, since its adoption, to undertakings which had been ‘in existence for less than three years’. It therefore applied Article 2(18) of the GBER, as corrected by the correcting regulation, and found that the appellants in the main proceedings did not meet all the eligibility criteria at the date of their applications.

29.The appellants in the main proceedings brought appeals in cassation before the Curtea de Apel Bacău (Court of Appeal, Bacău, Romania), the referring court.

30.They claim, in the first place, that it is the amendment introduced by the correcting regulation, in March 2021, more than three months after the contract was signed and more than two months after the grants were used to purchase equipment needed by the undertakings, which is the basis for the recovery decisions. They therefore complain that the court of first instance applied that provision retroactively.

31.Secondly, the appellants in the main proceedings challenge the concept of the ‘original version of the regulation’, which appears in the grounds of the judgment at first instance. They consider that that concept has no legal basis, since the Romanian language is one of the official languages of the European Union, just like any of the other 23 languages.

32.Thirdly, they point out that, on the date on which the financing contract was signed, the Romanian language version of the GBER had been in force, unamended, for more than six years and that the text of that regulation was perfectly in accordance with all the other relevant legislative acts in this case, in particular Order No 1060/2857/2020, which contained the same wording. In those circumstances, they claim that they submitted their applications for State aid, signed the financing contracts and executed them all in good faith.

33.The referring court considers that it must decide whether the adoption of a regulation, namely the correcting regulation, correcting the official version of an EU regulation in one language has the effect of retroactively applying the corrected version, from the entry into force of the original regulation, or whether it produces effects only from the entry into force of the correcting regulation.

34.It also questions whether the principles of legal certainty and protection of legitimate expectations preclude the recovery of State aid granted in compliance with the conditions appearing originally in the Romanian language version, in a context such as that of the present case.

35.It observes, lastly, that the national case-law is not uniform on these questions.

36.In those circumstances, the Curtea de Apel Bacău (Court of Appeal, Bacău) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Does the adoption of a regulation correcting the official Romanian language version of an EU regulation, namely [the correcting regulation], have the effect of retroactively applying the corrected version, from the entry into force of the original regulation, or does it produce effects only for the future, after the entry into force of the correcting regulation, in a situation in which the national authorities granted State aid in accordance with the conditions laid down in the original Romanian language version of [the GBER] and have requested, following the entry into force of [the correcting regulation], the recovery of the State aid granted?

(2)Does the equivalence of the language versions of an EU regulation mean that the national authorities of a Member State may rely, against a beneficiary of State aid granted in accordance with the original Romanian language version of [the GBER], on the provisions of [the correcting regulation] correcting that version in order to request the recovery of State aid, in the absence of any fault on the part of the aid beneficiary?

(3)Are EU law and, in particular, the principles of the protection of legitimate expectations and legal certainty, to be interpreted as precluding the recovery of State aid granted in compliance with the conditions initially laid down in the Romanian language version, conditions which, however, did not exist in the other language versions of [the GBER], when the correction was made by means of [the correcting regulation] to the Romanian language version after the State aid was granted?’

37.By decision of the President of the Court of 22 July 2024, Cases C‑416/24 and C‑417/24 were joined for the purposes of the written and oral parts of the procedure and of the judgment.

38.The Commission has submitted written observations. No hearing has taken place.

IV.Analysis

A.Preliminary remarks

39.By its first question, the referring court asks in essence whether the correcting regulation has the effect of retroactively applying the corrected language version from the date of the entry into force of the GBER which it corrects, or produces effects only for the future.

40.By its second question, it asks in essence whether the principle of the equivalence of the language versions means that a Member State may rely, against a beneficiary of State aid granted on the basis of an incorrect version of the GBER, on the version of the GBER corrected by the correcting regulation in order to request the recovery of that aid.

41.Lastly, by its third question, it seeks, in essence, to establish whether the principles of the protection of legitimate expectations and legal certainty are to be interpreted as permitting a beneficiary of State aid granted on the basis of an incorrect language version of the GBER to avoid the obligation of recovery of the aid in question.

42.In my view, the first question concerns a matter of principle and seeks to identify the temporal effects of a regulation correcting a translation error in the GBER. The second and third questions, concern at a practical level the implications of such a correcting regulation as regards aid measures which have been granted on the basis of an incorrect version which it has corrected. In other words, they both concern the question of the scope of such a correcting regulation, which cannot be fully determined except by examining the possibility, both for the Member State whose official language was that of the incorrect version of the GBER and for individuals, to rely on the correction provided for in that correcting regulation, and from what point in time.

43.In those circumstances, it seems to me appropriate to examine the first question first of all before going on to study the second and third questions together.

B.First question

44.By its first question, the referring court asks in essence whether the correcting regulation must be interpreted as applying retroactively from the date of entry into force of the GBER.

45.The Commission points out in that regard that Article 2 of the correcting regulation provides that it is to enter into force on the twentieth day following that of its publication in the Official Journal. That regulation produces effects only for the future. However, this does not mean that, for the period between the entry into force of the original act and the entry into force of the correcting act different rules should apply depending on the language version in question, since that would undermine the uniform interpretation and application of EU law.

46.Although the Commission’s position appears at first sight rather complex, this is due, in my view, to the fact that it is not easy to give an unequivocal answer to the question of the temporal effects of a correcting regulation designed to correct a translation error in a language version of the GBER without a more detailed analysis of the principles governing the publication of acts of secondary legislation within the European Union and their subsequent application, in particular in the light of the specific nature of the EU language arrangements. (13)

47.I therefore consider it appropriate to give a brief reminder of those principles (14) and of the case-law relating to them before examining the question of the temporal effects of a regulation such as the correcting regulation at issue in the main proceedings, intended to rectify a translation error in an original regulation.

1.Principles relating to the publication and subsequent application of EU legislative acts

48.First of all, the need to publish EU legislative acts stems from the actual wording of the TFEU. As the Court points out, it is clear from the provisions of Article 297 TFEU that a regulation cannot take effect in law unless it has been published in the Official Journal. (15)

49.That publication requirement stems, logically, both from the actual wording of the treaties and from the principle of legal certainty, which requires that EU legislation must allow those concerned to acquaint themselves with the precise extent of the obligations it imposes on them. (16)

50.Next, while the need to publish an act for reasons of legal certainty is a requirement common to the legal systems of all the Member States, it is expressed in a particular way with regard to EU law due to the linguistic context in which that law is to apply.

51.Thus, the Treaties provide that the texts drawn up in each of the official languages are equally authentic, while Regulation No 1 provides that regulations are to be drafted in the official languages. Moreover, as the Court has consistently held, all the language versions of an EU act must, in principle, be recognised as having the same value. (17) That principle of the equivalence of the language versions, in connection with legal certainty, therefore assumes that proper publication of a regulation for a Member State whose language is an official language of the European Union, must include the publication of that act, in that language, in the Official Journal (18) and that also such proper publication is a pre-condition for the act concerned to be enforceable against natural and legal persons. (19)

52.Such a principle also makes it possible to guarantee legal certainty and ensure uniform interpretation and application of EU law, since under it each language version of the same text published in the Official Journal is given the same meaning in each Member State and one language version of a provision of EU law cannot be made to override another language version. (20) According to the Court’s settled case-law, the equivalence of the language versions, in so far as it allows for the uniform application and interpretation of EU law, also presupposes that, where there is any divergence between the various language versions of a provision it must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. (21)

53.Lastly, since, as I noted above, publication of an EU legislative act is a condition for that act to produce legal effects, it also makes it possible, as a general rule, to determine the point in time when those effects enter into force. Article 297 TFEU provides that EU legislative acts are to enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.

54.The Court allows this rule to be qualified to a certain extent, however, as regards the effects of an EU legislative act in connection with its publication. It therefore holds that in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of EU law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them. (22)

55.In other words, non-retroactivity of an EU legislative act remains the principle, its effects being contingent upon its publication in the Official Journal. However, in certain exceptional cases and in circumstances strictly defined by case-law, it may be permitted that an EU legislative act should produce legal effects at a point in time prior to its publication.

2.Temporal effects of the correcting regulation

56.As a reminder, in the present case the correcting regulation is designed to correct a translation error in the Romanian version of the GBER, concerning the definition of the scope of potential beneficiaries of certain State aid. In other words, the translation error led to an error in the substance of the provision in question, but that error does not at first sight lead to a difficulty in interpreting the text, since the wording of the latter, although incorrect, is clear.

57.The correcting regulation therefore makes it possible to align the Romanian version of the GBER with the other language versions and to correct the resulting material error.

58.It is therefore necessary to determine whether that correction must be regarded as having effects only for the future, following its entry into force, or whether it may be interpreted as meaning that the Romanian version of the GBER must be read in its corrected version from the entry into force of the GBER and, therefore, prior to that of the correcting regulation.

59.As the Commission points out, Article 2 of the correcting regulation lays down the date of its entry into force, which it gives as the twentieth day following its publication in the Official Journal. Nevertheless, as I have pointed out, (23) the case-law of the Court accepts that the point in time when an act enters into force does not necessarily coincide with the point in time when it takes effect, since in certain circumstances that act may have retroactive effect.

60.It seems to me that this must be so in the present case. First, there is no doubt that, by correcting the translation error existing in the Romanian version of the GBER through the adoption of the correcting regulation, the legislature’s intention was to ensure that the substance of the Romanian version no longer differed incorrectly from the other language versions. In other words, the correcting regulation serves a purpose of general interest, namely consistency of the various language versions of an EU legislative act, which justifies interpreting it as having retroactive effects, or, more specifically, having effects from the entry into force of the GBER which it corrects. Similarly, secondly, the retroactive effect of the correcting regulation is clear from its purpose, since it is specifically designed to make all the language versions of the GBER correspond by removing a translation error from the Romanian version. It would therefore be neither effective nor consistent to consider that this applies only for the future, allowing divergences to remain for the period between the entry into force of the GBER and the entry into force of the correcting regulation.

61.In those circumstances, I take the view that the answer to the first question referred for a preliminary ruling should be that the correcting regulation must be interpreted as having a retroactive effect and the error in the Romanian version of the GBER to which it relates must be regarded as being corrected from the entry into force of the latter.

C.Second and third questions

62.By its second and third questions, the referring court asks, in essence, whether the correcting regulation correcting the Romanian language version of the GBER must be interpreted as meaning that aid granted on the basis of the incorrect language version of the GBER must be recovered.

63.More generally, those two questions raise the issue of whether it is possible, both for the Member State and for individuals, to rely on the correcting regulation and, if so, from what date.

64.I do not think it can be inferred from the retroactive effect alone that it is possible for the Member State to rely on the correcting regulation to require the recovery of aid granted on the basis of the incorrect version of the GBER. As I have stated, the principle of the uniform interpretation and application of EU law is not the only principle governing the question of the publication and application of EU legislative acts. It must be reconciled with other principles, including the principles of legal certainty and of the protection of legitimate expectations.

65.I must point out that reliance on the principle of legal certainty does not on its own make it possible to provide a clear answer to the question of the scope of the correcting regulation, without first clarifying the boundaries of that principle. It seems to me that the principle of legal certainty may lead to different solutions, depending on the case and on the person who relies on that principle. (24)

66.More specifically, in so far as the principle of legal certainty underlies, in the context of the European Union, both the principle of the equivalence of the language versions and the principle of the uniform interpretation and application of EU law, reliance on it might in the present case lead to two opposing conclusions. Thus, the EU institutions, like the Commission in its written observations, stress the need for a uniform interpretation and application of EU law in order to conclude that the GBER in Romanian should, in the light of the principle of legal certainty, be read from its entry into force according to the version corrected by the correcting regulation.

67.Conversely, individuals in that Member State invoke the principle of legal certainty in order to rely on the incorrect language version of the GBER, before its correction by the correcting regulation. It is, in my view, on that conception of the principle of legal certainty which the answers to the second and third questions should be based, first, since they seek precisely to determine the effects of the correcting regulation on the legal situation of individuals in Romania and, secondly, because the principle of legal certainty as a guarantee of uniform interpretation and application of EU law reaches its limits in the present case, for the reasons I shall explain.

(b)Legal certainty for the benefit of individuals

68.It stems from the principle of legal certainty that only an act that is properly published in the Official Journal may be enforced against natural and legal persons of a Member State and that proper publication of that act for a Member State includes its publication in the language of that Member State. (25)

69.Two conclusions may, in my view, be drawn from that case-law in the present case.

70.First, it is apparent from it that the GBER, in its Romanian version containing a translation error, was published in the Official Journal and was therefore authentic, in the same way as all the other language versions in the other Member States.

71.Secondly, and on the other hand, it is also apparent, in my view, that the alteration brought about by the correcting regulation, although it has retroactive effects, cannot, in that situation, be enforced against natural and legal persons who took as their basis the version of the GBER that was incorrect but was published in the Official Journal and was authentic. (26)

(c)The impossibility of using a systematic and teleological interpretation for the purposes of a uniform interpretation and application of EU law

72.The fact that there was a divergence between the language versions before the entry into force of the correcting regulation does not alter this fact. While it is true that case-law requires, in order to ensure uniform interpretation and application of EU law, in the event of divergences between the various language versions, that the provision in question must be interpreted ‘by reference to the general scheme and the purpose of the rules of which it forms part’, (27) I do not think such an interpretation can be envisaged in the present case. The use of a systematic and teleological interpretation is not in my view limitless, although its purpose is to ensure the uniform interpretation and application of EU law as an expression of the principle of legal certainty.

73.Accordingly, I note that the Court has developed that case-law in situations where there are difficulties in interpreting a provision, justifying attention to more than one language version and use, in the event of divergences, of a teleological and systematic interpretation. That is not so in the present case. As I have pointed out, the incorrect provision in the Romanian version of the GBER was clear and did not give rise to any difficulty of interpretation. As the Court has held, although such an interpretation is possible in principle in order to resolve a drafting ambiguity, it cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. (28) In other words, the systematic and teleological interpretation cannot lead to altering or ignoring the unequivocal meaning of a provision which emerges clearly from its wording.

74.It could be argued that, in the case of a Member State which has applied an incorrect provision of an EU legislative act, its status confers on it a certain degree of knowledge of the legislation, indicating to it that a clear provision may however be incorrect in its language version in the light of its context and purpose. On the other hand, such knowledge cannot be assumed in the case of individuals, and natural or legal persons cannot be required to check the other language versions of a clearly worded provision, and to ascertain its purpose and the context in which it appears, when there is nothing in the actual wording of the provision leading to any difficulty of interpretation.

75.In those circumstances, only the wording of the provision in the Romanian version, published in the Official Journal before it was corrected by the correcting regulation, should be enforced against natural and legal persons of that Member State. Similarly, it follows that the correcting regulation should not be enforceable, before its entry into force, against natural and legal persons of the Member State who have benefited from aid measures granted on the basis of the incorrect language version of the GBER.

76.That is all the more so in the light of the principle of protection of legitimate expectations.

2.The principle of protection of legitimate expectations

77.The Court has consistently held that the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. (29) That right applies to any individual in a situation in which an EU institution, body or agency, by giving that person precise assurances, has led him to entertain well-founded expectations. Information that is precise, unconditional and consistent, in whatever form it is given, constitutes such assurances. (30)

78.As regards the State aid scheme, case-law is however restrictive. The Court thus holds that, in view of the mandatory nature of the supervision of State aid by the Commission under the procedure laid down in Article 108(3) TFEU, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article. (31) In particular, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 108(3) TFEU, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful. (32)

79.It is also settled case-law that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law; nor can the conduct of a national authority responsible for applying EU law, which acts in breach of that law, give rise to a legitimate expectation on the part of an economic operator of beneficial treatment contrary to EU law. (33)

80.However, the Court accepts at the same time that a recipient of illegally granted aid is not precluded from relying on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful and thus opposing the recovery of that aid. (34)

81.As the Commission contends, that seems to me to be so in the present case. First, the Romanian version of the GBER containing a material error was published in the Official Journal, and so it was authentic in that Member State and could therefore give rise to a legitimate expectation on the part of beneficiaries of the aid that they came within the scope of the beneficiaries of the measures in question. Secondly, I note that the national provisions on the basis of which the aid measures were granted, reproduce not only the exact wording of the GBER in its incorrect Romanian version, but were also approved by the Commission. In addition, I would point out that responsibility for the proper publication of texts in the Official Journal lies with the EU institutions. In those circumstances, I take the view that the error on the basis of which the aid was paid to the beneficiaries was not only attributable to the Romanian authorities, whose conduct should be regarded as being contrary to EU law, but also to the Commission. The EU administration therefore gave rise, through precise assurances, to justified expectations that the aid measures granted were lawful.

82.In my view, the principle of protection of legitimate expectations precludes recovery of aid granted on the basis of the incorrect language version of the GBER corrected by the correcting regulation.

3.Conclusion on the second and third questions

83.It follows from the above that, in my view, the answer to the second and third questions should be that the correcting regulation correcting the Romanian language version of the GBER, read in the light of the principles of legal certainty and the protection of legitimate expectations, must be interpreted as precluding it from being enforced against individuals of that Member State who have benefited from aid measures granted on the basis of the incorrect version of the GBER before its entry into force, so that the Member State cannot rely on it in order to require the recovery of that aid.

V.Conclusion

84.In the light of the above considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Curtea de Apel Bacău (Court of Appeal, Bacău, Romania) as follows:

(1)Commission Regulation (EU) 2021/452 of 15 March 2021 correcting the Romanian language version of Regulation (EU) No 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty,

(2)must be interpreted as having a retroactive effect, and the error in the Romanian language version of Regulation No 651/2014 to which it relates must be regarded as being corrected from the entry into force of the latter.

(3)(2) Regulation 2021/452, read in the light of the principles of legal certainty and protection of legitimate expectations,

must be interpreted as precluding it from being enforced against individuals who, before its entry into force, benefited from aid measures granted by Romania on the basis of the incorrect Romanian language version of Regulation No 651/2014, so that that Member State cannot rely on it in order to require the recovery of that aid.

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1Original language: French.

2Commission Regulation of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ 2014 L 187, p. 1).

3Italics added.

4Italics added.

5Commission Regulation of 15 March 2021 correcting the Romanian language version of Regulation (EU) No 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ 2021 L 89, p. 1).

6Decision of 27 August 2020 on State aid SA.58166 (2020/N) – Romania – COVID-19: Support for SMEs and certain related large enterprises to overcome the economic crisis caused by the COVID-19 pandemic (OJ 2020 C 302, p. 1).

7Commission Regulation (EU) No 702/2014 of 25 June 2014 declaring certain categories of aid in the agricultural and forestry sectors and in rural areas compatible with the internal market in application of Articles 107 and 108 of the Treaty on the Functioning of the European Union (OJ 2014 L 193, p. 1).

8Commission Regulation (EU) No 1388/2014 of 16 December 2014 declaring certain categories of aid to undertakings active in the production, processing and marketing of fishery and aquaculture products compatible with the internal market in application of Articles 107 and 108 of the Treaty on the Functioning of the European Union (OJ 2014 L 369, p. 37).

9Monitorul Oficial al României, Part I, No 705 of 6 August 2020.

10Monitorul Oficial al României, Part I, No 835 of 11 September 2020.

11Directive of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ 2013 L 182, p. 19).

12Monitorul Oficial al României, Part I, No 902 of 5 October 2020.

13As a reminder, the European Union has 24 official languages and the rules governing the languages are laid down by Regulation No 1 determining the languages to be used by the European Economic Community (OJ English Special Edition: Series I Volume 1952-1958, p. 59).

14For a detailed analysis of these principles, see Bobek, M., ‘The Binding Force of Babel: the Enforcement of EC Law Unpublished in the Languages of the New Member States’, Cambridge Yearbook of European Legal Studies, Vol. 9, 2006-2007, and Kalėda, S.L., Przejęcie prawa wspólnotowego przez nowe państwo członkowskie: zagadnienia przejściowe i międzyczasowe, WPiPG, Warsaw, 2003.

15Judgment of 11 December 2007, Skoma-Lux (C‑161/06, EU:C:2007:773, paragraph 33).

16Judgment of 11 December 2007, Skoma-Lux (C‑161/06, EU:C:2007:773, paragraph 38).

17Judgments of 20 November 2003, Kyocera (C‑152/01, EU:C:2003:623, paragraph 32), and of 15 June 2023, Saint-Louis Sucre (Recognition of a producer organisation) (C‑183/22, EU:C:2023:486, paragraph 28).

18Judgment of 11 December 2007, Skoma-Lux (C‑161/06, EU:C:2007:773, paragraph 34).

19Judgment of 11 December 2007, Skoma-Lux (C‑161/06, EU:C:2007:773, paragraph 37).

20Judgments of 28 November 2024, Másdi (C‑169/23, EU:C:2024:988, paragraph 42), and of 14 December 2023, Rivière and Others v Parliament (C‑767/21 P, EU:C:2023:987, paragraph 47).

21Judgments of 13 February 2025, Verbraucherzentrale Berlin (Concept of initial commitment period) (C‑612/23, EU:C:2025:82, paragraph 31), and of 28 November 2024, Másdi (C‑169/23, EU:C:2024:988, paragraph 42).

22Judgments of 22 June 2022, Volvo and DAF Trucks (C‑267/20, EU:C:2022:494, paragraph 31), and of 21 December 2021, Skarb Państwa (Motor insurance cover) (C‑428/20, EU:C:2021:1043, paragraph 33). See also judgment of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 106).

23See point 54 of the present Opinion.

Thus, M. Bobek describes the principle of legal certainty as being like an ‘empty shell’, the content of which varies depending on the values underlying it in its application. See, Bobek, M., ‘The Binding Force of Babel: the Enforcement of EC Law Unpublished in the Languages of the New Member States’, Cambridge Yearbook of European Legal Studies, op. cit., p. 14.

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25Judgment of 11 December 2007, Skoma-Lux (C‑161/06, EU:C:2007:773, paragraphs 34 and 37).

26On this point, see Kowalik-Bańczyk, K., ‘Art. 297’, in Kornobis-Romanowska, D., Łacny, J., Wróbel, A., Traktat o funkcjonowaniu Unii Europejskiej. Komentarz. Tom III (art. 223-358), 2012, Warsaw.

27Judgments of 13 February 2025, Verbraucherzentrale Berlin (Concept of initial commitment period) (C‑612/23, EU:C:2025:82, paragraph 31), and of 28 November 2024, Másdi (C‑169/23, EU:C:2024:988, paragraph 42).

28Judgments of 14 November 2024, Commission v Germany (Deterioration of lowland hay meadows) (C‑47/23, EU:C:2024:954, paragraph 141), and of 21 March 2024, Gjensidige (C‑90/22, EU:C:2024:252, paragraph 58).

29Judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332, paragraph 112), and of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 97).

30Judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 97).

31Judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 98).

32Judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 98).

33Judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172, paragraph 104).

34Judgment of 20 September 1990, Commission v Germany (C‑5/89, EU:C:1990:320, paragraph 16).