SIA „ Zinātnes parks” v Finanšu ministrija.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:59
• Date: 27 January 2022
• Docket Number: C-347/20
• Celex Number: 62020CJ0347
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

27 January 2022 (*)

(Reference for a preliminary ruling – Structural Funds – European Regional Development Fund (ERDF) – Regulation (EU) No 1303/2013 – Co-financing programme – State aid – Regulation (EU) No 651/2014 – Scope – Limits – Concepts of ‘subscribed share capital’ and ‘undertaking in difficulty’ – Exclusion of undertakings in difficulty from ERDF support – Conditions for the taking effect of an increase of the subscribed share capital – Date of submission of evidence of that increase – Principles of non-discrimination and transparency)

In Case C‑347/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Administratīvā rajona tiesa (District Administrative Court, Latvia), made by decision of 15 July 2020, received at the Court on 28 July 2020, in the proceedings

SIA ‘Zinātnes parks’

v

Finanšu ministrija,

THE COURT (Fifth Chamber),

composed of E. Regan (Rapporteur), President of the Chamber, C. Lycourgos, President of the Fourth Chamber, I. Jarukaitis, M. Ilešič and A. Kumin, Judges,

Advocate General: J. Kokott,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 14 July 2021,

after considering the observations submitted on behalf of:

– SIA ‘Zinātnes parks’, by I. Duka, advokāte,

– the Latvian Government, initially by K. Pommere and V. Soņeca, and subsequently by K. Pommere and J. Davidoviča, acting as Agents,

– Ireland, by M. Browne, J. Quaney, M. Lane and A. Joyce, acting as Agents, and by D. Fennelly, Barrister-at-Law,

– the European Commission, by A. Bouchagiar, J. Hradil and L. Ozola, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 September 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 125(3)(a)(ii) 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), as well as Article 2(18)(a) of Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 [TFEU] (OJ 2014 L 187, p. 1).

2 The request has been made in proceedings between SIA ‘Zinātnes parks’ and the Finanšu ministrija (Ministry of Finance, Latvia), concerning a decision of the latter of 4 November 2019 rejecting Zinātnes parks’ project application in the context of a programme co-financed by the European Regional Development Fund (ERDF) (‘the rejection decision’).

Legal context

EU law

Regulation (EU) No 1301/2013

3 Recital 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) states:

‘Article 176 [TFEU] provides that the [ERDF] is intended to help to redress the main regional imbalances in the Union. …’

4 Article 3 of that regulation, entitled ‘Scope of support from the ERDF’, provides in paragraph 3 thereof:

‘The ERDF shall not support:

…

(d) undertakings in difficulty, as defined under Union State aid rules;

…’

Regulation No 1303/2013

5 Regulation No 1303/2013 lays down common rules and general provisions applicable to the ERDF, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund, together referred to as the European Structural and Investment Funds (‘the ESI Funds’).

6 In accordance with Article 4(7) of that regulation, in principle, the part of the budget of the Union allocated to the ESI Funds is to be implemented within the framework of shared management between the Member States and the Commission.

7 Article 26(1) and (2) of that regulation is worded as follows:

‘1. The ESI Funds shall be implemented through programmes in accordance with the Partnership Agreement. Each programme shall cover the period from 1 January 2014 to 31 December 2020.

2. Programmes shall be drawn up by Member States or any authority designated by them, in cooperation with the partners referred to in Article 5. Member States shall draw up the programmes based on procedures that are transparent for the public, in accordance with their institutional and legal framework.’

8 Article 123 of that regulation requires each Member State to designate, for each operational programme, a managing authority, a certifying authority and an audit authority.

9 Article 125 of Regulation No 1303/2013 defines the functions of the managing authority. Pursuant to paragraph 1 of that article, that authority is responsible for managing the operational programme in accordance with the principle of sound financial management.

10 As regards the selection of operations, Article 125(3) of that regulation provides that that authority is to:

‘(a) draw up and, once approved, apply appropriate selection procedures and criteria that:

(i) ensure the contribution of operations to the achievement of the specific objectives and results of the relevant priority;

(ii) are non-discriminatory and transparent;

(iii) take into account the general principles set out in Articles 7 and 8;

…

(d) satisfy itself that the beneficiary has the administrative, financial and operational capacity to fulfil the conditions referred to in point (c) before approval of the operation;

…’

Regulation No 651/2014

11 Recital 14 of Regulation No 651/2014 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 [(OJ 2004 C 244, p. 2)] 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 [(OJ 2012 C 296, p. 3)] 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.’

12 Article 1 of that regulation, entitled ‘Scope’, provides in paragraph 4 thereof:

‘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.’

13 Article 2 of that regulation, entitled ‘Definitions’, is worded as follows:

‘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 …, where more than half of its subscribed share capital has disappeared as a result of accumulated losses. This is the case when deduction of accumulated losses from reserves (and all other elements generally considered as part of the own funds of the company) leads to a negative cumulative amount that exceeds half of the subscribed share capital. For the purposes of this provision, “limited liability company” refers in particular to the types of company mentioned in Annex I [to] Directive 2013/34/EU [of the European Parliament and of the Council 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)] and “share capital” includes, where relevant, any share premium.

…

(c) Where the undertaking is subject to collective insolvency proceedings or fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors.

…’

Directive (EU) 2017/1132

14 According to recitals 7 and 8 of Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ 2017 L 169, p. 46):

‘(7) The coordination of national provisions concerning disclosure, the validity of obligations entered into by, and the nullity of, companies limited by shares or otherwise having limited liability, is of special importance, particularly for the purpose of protecting the interests of third parties.

(8) The basic documents of a company should be disclosed in order for third parties to be able to ascertain their contents and other information concerning the company, especially particulars of the persons who are authorised to bind the company.’

15 Article 4 of that directive, entitled ‘Compulsory information to be provided in the statutes or instruments of incorporation or separate documents’, provides:

‘The following information at least shall appear in either the statutes or the instrument of incorporation or a separate document published in accordance with the procedure laid down in the laws of each Member State in accordance with Article 16:

…

(b) the nominal value of the shares subscribed and, at least once a year, the number thereof;

…

(g) the amount of the subscribed...