OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 17 May 2018(1)
Case C‑239/17
Gert Teglgaard
Fløjstrupgård I/S
v
Fødevareministeriets Klagecenter
(Request for a preliminary ruling from the Østre Landsret (High Court of Eastern Denmark, Denmark))
(Common agricultural policy — Support schemes for farmers — Cross-compliance — Council Regulation (EC) No 1782/2003 — Council Regulation (EC) No 73/2009 — Commission Regulation (EC) No 796/2004 — Commission Regulation (EC) No 1122/2009 — Reductions in direct payments — Violations of national legislation implementing Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources — Relevant year for the calculation of reduction in direct payments)
1. A group of 173 cases are currently pending before the Østre Landsret (High Court of Eastern Denmark, Denmark) concerning payment of aid under direct support schemes for farmers and deductions therefrom to sanction failure to respect cross-compliance requirements. The Court has been asked to provide guidance on the interpretation of the rules determining the year on the basis of which percentage reductions in aid sanctioning such breaches are to be computed. A brief explanation of how the rules operate is necessary to understand the context in which these cases were brought.
2. Farmers that wish to avail themselves of the direct payment aid schemes are required to comply with a number of eligibility criteria relating to, amongst other matters, the areas declared as being farmed and the use thereof. Irregularities concerning the eligibility criteria are sanctioned by reductions to, or exclusions from, the aid to which the farmers would otherwise have been entitled.
3. In addition to the eligibility criteria, which are conditions for entitlement to the aid in question, farmers receiving aid under the direct payment aid schemes are also subject to cross-compliance requirements. One such requirement relates to limitations on the use of fertiliser. Compliance with such requirements is not a condition for entitlement to the aid, but non-compliance is similarly sanctioned by reductions in the amount of aid received by the farmers in question (or, in extreme cases, by exclusion from receipt of aid).
4. The cross-compliance requirements and the sanctions imposed for non-compliance are intended to encourage farmers to respect existing EU legislation affecting their activities.
EU law
Regulation No 1782/2003
5. Council Regulation (EC) No 1782/2003 (2) established common rules for direct support schemes under the common agricultural policy. Recital 2 of the regulation stated:
‘The full payment of direct aid should be linked to compliance with rules relating to agricultural land, agricultural production and activity. … If those basic standards are not met, Member States should withdraw direct aid in whole or in part on the basis of criteria which are proportionate, objective and graduated. Such withdrawal should be without prejudice to sanctions laid down now or in the future under other provisions of Community or national law.’
6. Article 6 was entitled ‘Reduction or exclusion from payments’. Its first paragraph provided in its original version:
‘Where the statutory management requirements or good agricultural and environmental condition are not complied with, as a result of an action or omission directly attributable to the individual farmer, the total amount of direct payments to be granted in the calendar year in which the non-compliance occurs, and after application of Articles 10 and 11, shall be reduced or cancelled in accordance with the detailed rules laid down under Article 7’ (emphasis added).
7. Article 6(1) was modified by Council Regulation (EC) No 146/2008 (3) with effect from 1 April 2008. After amendment, it provided:
‘Where the statutory management requirements or good agricultural and environmental conditions are not complied with at any time in a given calendar year (hereinafter “the calendar year concerned”), and the non-compliance in question is the result of an act or omission directly attributable to the farmer who submitted the aid application in the calendar year concerned, the total amount of direct payments to be granted, after application of Articles 10 and 11 to that farmer, shall be reduced or cancelled in accordance with the detailed rules laid down under Article 7.
The first subparagraph shall also apply where, the non-compliance in question is the result of an act or omission directly attributable to the person to whom or from whom the agricultural land was transferred.
For the purposes of application of the first and second subparagraphs for the year 2008, the calendar year shall correspond to the period of 1 April to 31 December 2008.
…’ (emphasis added).
8. Article 7 was entitled ‘Detailed rules for reduction or exclusion’ (4) and provided:
‘1. Detailed rules for the reductions and exclusions referred to in Article 6 shall be laid down in accordance with the procedure referred to in Article 144(2). [(5)] In this context, account shall be taken of the severity, extent, permanence and repetition of the non-compliance found as well as of the criteria set out in paragraphs 2, 3 and 4 of this Article.
…’
Commission Regulation No 796/2004
9. Detailed rules to implement Regulation No 1782/2003 were duly enacted in Commission Regulation (EC) No 796/2004. (6) Recitals 55 to 57 of that regulation stated:
‘(55) To protect the [EU’s] financial interests effectively adequate measures should be adopted to combat irregularities and fraud …
(56) The system of reductions and exclusions envisaged in Regulation (EC) No 1782/2003 with regard to cross-compliance obligations however [is directed] at a different aim, namely to set an incentive for farmers to respect the, already existing, legislation in the different fields of cross-compliance.
(57) Reductions and exclusions should be established having regard to the principle of proportionality … In the case of cross-compliance obligations reductions and exclusions may only be applied where the farmer acted negligently or intentionally. Reductions and exclusions should be graded according to the gravity of the irregularity committed and should go as far as the total exclusion from one or several aid schemes for a specified period …’
10. According to recital 70:
‘Specific and detailed provisions have to be laid down in order to ensure the equitable application of various reductions to be applied in respect of one or several aid applications by the same farmer. The reductions and exclusions provided for under this Regulation should apply without prejudice to additional sanctions under any other provisions of [EU] or national law.’
11. Chapter II in Title IV of Part II comprised Articles 65 to 67 and was entitled ‘Findings in relation to cross-compliance’. Article 65 was headed ‘General principles and definition’ and stated, so far as relevant to this Opinion:
‘…
2. For the purposes of applying Article 6(1) of Regulation No 1782/2003, an action or omission shall be directly attributable to the individual farmer who committed the non-compliance himself and who, at the time of the determination of the non-compliance in question, is in charge of the holding, the area, the production unit or the animal concerned. …
…
4. Non-compliances shall be deemed to be “determined” if they are established as a consequence of any kind of checks carried out in accordance with this Regulation or after having been brought to the attention of the competent control authority in whatever other way.’
12. Article 66 was headed ‘Application of reductions in the case of negligence’. It stated:
‘1. … where a non-compliance determined results from the negligence of the farmer, a reduction shall be applied on the overall amount of direct payments, as defined in Article 2(d) of Regulation (EC) No 1782/2003, that has been, or has to be, granted to the farmer concerned following aid applications he has submitted or will still submit in the course of the calendar year of the finding. That reduction shall, as a general rule, be 3% of that overall amount.
…’ (emphasis added).
13. Article 67 was entitled ‘Application of reductions and exclusions in cases of intentional non-compliance’ and provided as follows:
‘1. … where the non-compliance determined has been committed intentionally by the farmer, the reduction to be applied to the overall amount referred to in the first subparagraph of Article 66(1) shall, as a general rule, be 20% of that overall amount.
…’
14. In accordance with Article 81, Regulation No 796/2004 entered into force on 7 May 2004.
Regulation No 73/2009
15. Council Regulation (EC) No 73/2009 (7) repealed and replaced Regulation No 1782/2003 with effect, so far as relevant to this Opinion, from 1 January 2009. (8) According to recital 3:
‘Regulation No 1782/2003 established the principle that farmers who do not comply with certain requirements in the areas of public, animal and plant health, environment and animal welfare are subject to reductions of or exclusion from direct support. This “cross-compliance” system forms an integral part of Community support under direct payments and should therefore be maintained …’
16. Recital 53 stated:
‘… this Regulation should apply from 1 January 2009. However, those provisions that may reduce farmers’ rights or create new obligations, inter alia the cross-compliance obligations with which farmers have to comply throughout the year, should only apply from 2010 …’
17. Article 23 was headed ‘Reduction of or exclusion from payments in the event of non-compliance with cross-compliance rules’. Paragraph 1 provided:
‘Where the statutory management requirements or good agricultural and environmental condition are not complied with at any time in a given calendar year (hereinafter referred to as “the calendar year concerned”), and the non-compliance in question is the result of an act or omission directly attributable to the farmer who submitted the aid application in the calendar year concerned, the total amount of direct payments granted or to be granted … to that farmer shall be reduced or excluded in accordance with the detailed rules laid down in Article 24.
…’ (emphasis added).
18. Article 24(1) provided for detailed rules for the reductions and exclusions referred to in Article 23 to be laid down in a separate implementing regulation. In that context, account was to be taken, inter alia, of the severity, extent, permanence and repetition of the non-compliance found.
Commission Regulation No 1122/2009
19. Commission Regulation (EC) No 1122/2009 (9) repealed and replaced Regulation No 796/2004 with effect from 1 January 2010. (10) Article 70 was entitled ‘General principles and definition’ and provided so far as relevant to this Opinion:
‘…
4. Non-compliances shall be deemed to be “determined” if they are established as a consequence of any kind of controls carried out in accordance with this Regulation or after having been brought to the attention of the competent control authority or, where applicable, the paying agency, in whatever other way.
…
8. For the application of reductions, the percentage of the reduction shall be applied to the total amount of:
(a) the overall amount of direct payments that has been, or has to be, granted to the farmer concerned following aid applications he has submitted or will submit in the course of the calendar year of the finding …
…’ (emphasis added).
20. Article 71 was entitled ‘Application of reductions in the case of negligence’ and provided in its first paragraph:
‘… where a non-compliance determined results from the negligence of the farmer, a reduction shall be applied. That reduction shall, as a general rule, be 3% of the total amount as referred to in Article 70(8).
However, the paying agency may, on the basis of the assessment provided by the competent control authority in the evaluation part of the control report in accordance with Article 54(1)(c), [(11)] decide either to reduce that percentage to 1% or to increase it to 5% of that total amount or, in the cases referred to in the second subparagraph of Article 54(1)(c), not to impose any reductions at all.’
21. Article 72 was entitled ‘Application of reductions and exclusions in cases of intentional non-compliance’. Article 72(1) provided that ‘where the non-compliance determined has been committed intentionally by the farmer, the reduction to be applied to the total amount referred to in Article 70(8) shall, as a general rule, be 20% of that total amount.’
22. Article 86(1) stated:
‘Regulation (EC) No 796/2004 is repealed with effect from 1 January 2010.
However, it shall continue to apply in respect of aid applications relating to marketing years or premium periods starting before 1 January 2010.’
Directive 91/676
23. Among the legislation that gave rise to a cross-compliance requirement at the material time was Council Directive 91/676/EEC. (12) Article 1 states that the objective of that directive is to reduce and prevent water pollution caused or induced by nitrates from agricultural sources.
National law
24. Directive 91/676 was implemented in Denmark, so far as is here relevant, by the Gødningsanvendelsesloven (the Danish Law on fertiliser application).
25. The EU rules on cross-compliance were implemented in Denmark through a number of national regulations. According to the referring court, all the versions of those regulations in force at the material time were worded to the effect that reductions in the aid payable were to be calculated based on the calendar year in which the finding of non-compliance was made (‘the year of the finding’). (13)
Facts, procedure and the questions referred
26. The two test cases for this reference concern farmers that have been found to have breached their cross-compliance requirements by over-fertilising their fields in, respectively, the periods 2006/2007 and 2007/2008 (Mr Gert Teglgaard), and 2006/2007 and 2008/2009 (Fløjstrupgård I/S).
27. Mr Teglgaard’s and Fløjstrupgård’s non-compliance was discovered after police searched the premises of, and seized documents belonging to, a fertiliser importer that had sold fertiliser to a large number of farmers without notifying the Plantedirektoratet (the Plant Agency). The fertiliser in question had not been registered in the farmers’ fertiliser accounts. The search and seizure took place in November 2009.
28. The Plantedirektoratet sent out consultation letters on 4 January 2011. The Danish authorities treat that as the date of the ‘finding’ of non-compliance.
29. Initially, the body responsible for agricultural payments (at the relevant time, the NaturErhvervsstyrelsen (known in English as the AgriFish Agency) made decisions in 2011 and 2012 reducing the aid payments to the farmers in question, including Mr Teglgaard and Fløjstrupgård. The aid reductions imposed by those initial decisions were based on the aid amounts payable for each of the years in which the farmers actually breached their cross-compliance obligations (‘the year of the breach’) — that is to say, for Mr Teglgaard the aid years 2007 and 2008 and for Fløjstrupgård the aid years 2007 and 2009. (14)
30. In 2012, the AgriFish Agency became aware of the following statement that the Commission had made to the Court of Auditors commenting on that institution’s ‘audit scope and approach’ for the audit of market and direct support for agriculture in the Annual Report concerning the financial year 2011: (15)
‘Farmers not respecting the [cross-compliance] requirements are entitled to receive their payments, but are sanctioned on the basis of the severity, extent, permanence and repetition of the non-compliance found as well as negligence or intent of the farmer concerned. This is also shown by the fact that payments can be made before the cross-compliance controls have been completed and that penalties arenot applied on the payments made in respect of the calendar year when the farmer failed to comply with the requirements, but rather on the payments made in respect of the calendar year of the findings by the national authorities’ (emphasis added).
31. In subsequent correspondence between the competent Danish authorities and the Commission, the Commission formally indicated by a letter dated 7 February 2013 that aid reductions sanctioning breaches of cross-compliance requirements were to be calculated based on the total aid payable for the year of the finding.
32. The AgriFish Agency then reopened the earlier cases relating to reductions of aid and issued new decisions in 2013 (‘the 2013 decisions’) in which it based the aid reductions on the amount of aid paid in the year of the finding, namely 2011.
33. For some of the farmers, including Mr Teglgaard and Fløjstrupgård, who had increased their farmed area between the year(s) of the breach and the year of the finding, the 2013 decisions resulted in greater aid reductions. In Mr Teglgaard’s case, the new decision gave rise to an aid reduction that was 1 908 483.02 Danish crowns (DKK) (approximately EUR 256 157) greater than the reduction to be applied under the initial decision. For Fløjstrupgård, the new decision resulted in an aid reduction that was 105 396.53 DKK (approximately EUR 14 146) greater than under the initial decision.
34. Mr Teglgaard and Fløjstrupgård filed complaints against the 2013 decisions with the Fødevareministeriets Klagecenter (Complaints Centre of the Ministry of Environment and Food), which by decisions of 22 June 2015 and 12 December 2014, respectively, upheld the AgriFish Agency’s 2013 decisions.
35. Mr Teglgaard and Fløjstrupgård then brought actions for annulment against the 2013 decisions before the referring court, which has stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 267 TFEU:
‘(1) In a situation where a farmer does not comply with the statutory management requirements and the good agricultural and environmental conditions in a calendar year, and a reduction is therefore to be applied to the farmer’s direct payments: see Article 6(1) of [Regulation No 1782/2003], read in conjunction with Article 66(1) of Regulation No 796/2004, is the aid reduction then to be calculated on the basis of the farmer’s direct payments:
(a) in the calendar year in which the non-compliance occurs, or
(b) in the (subsequent) calendar year of the determination/finding of the non-compliance?
(2) Is the result the same under the subsequent rules set out in Article 23(1) of [Regulation No 73/2009], read in conjunction with Article 70(4) and 8(a) of Regulation No 1122/2009?
(3) In a situation where a farmer does not comply with the statutory management requirements and the good agricultural and environmental conditions in 2007 and 2008, but the non-compliance is first determined/found in 2011, is it then [Regulation No 1782/2003], read in conjunction with Regulation No 796/2004, that applies in the calculation of the aid reduction, or is it [Regulation No 73/2009], read in conjunction with Regulation No 1122/2009, that applies?’
36. Written observations were submitted by Mr Teglgaard and Fløjstrupgård, the Austrian and Danish Governments and the European Commission. With the exception of the Austrian Government, those parties attended the hearing on 15 March 2018 and presented oral argument.
Analysis
The third question
37. By its third question, which I shall address first, the referring court asks for guidance as to which set of rules should apply where a farmer failed to comply with cross-compliance requirements in 2007 and 2008 and where the non-compliance was discovered in 2011: (i) Regulation No 1782/2003, read in conjunction with Regulation No 796/2004; or (ii) Regulation No 73/2009, read in conjunction with Regulation No 1122/2009.
38. As far as the two Council regulations are concerned, the original version of Article 6 of Regulation No 1782/2003 applied from 1 January 2005 and the amended version of Article 6 applied from 1 April 2008. (16) Regulation No 1782/2003 was repealed by Regulation No 73/2009, which applied from 1 January 2009 as far as the pertinent provisions are concerned. Article 23 of that regulation in substance repeats the amended version of Article 6(1) of Regulation No 1782/2003.
39. According to Article 2(e) of Regulation No 1782/2003 and Article 2(e) of Regulation No 73/2009 (which are worded almost identically and to the same effect in the eleven original language versions), ‘payments in a given calendar year’ means ‘the payments granted or to be granted in respect of the year/years concerned, including all payments in respect of other periods starting in that calendar year/years’.
40. The amended version of Article 6(1), third subparagraph, of Regulation No 1782/2003 provided that for the year 2008, the calendar year should correspond to the period of 1 April to 31 December 2008 as far as the two preceding subparts of Article 6(1) were concerned.
41. Consequently, the original version of Article 6(1) of Regulation No 1782/2003 is the version applicable to payments granted in respect of the calendar year 2007, including payments in respect of other periods starting in that year.
42. For the calendar year 2008, the original version of Article 6(1) applied to aid granted in respect of the period from 1 January to 31 March 2008, including payments in respect of other periods starting during that three month period, which is to be interpreted as constituting a specific period or a separate ‘calendar year’. (17)
43. For payments granted in respect of the period 1 April to 31 December 2008, including payments in respect of other periods starting in that nine month period, it is the amended version of Article 6(1) that is applicable.
44. Turning to the Commission regulations: Article 81 of Regulation No 796/2004 provides that it applies to ‘aid applications relating to marketing years or premium periods starting as of 1 January 2005’. Regulation No 1122/2009 repealed Regulation No 796/2004. Article 86 of Regulation No 1122/2009 specifically states:
‘1. Regulation (EC) No 796/2004 is repealed with effect from 1 January 2010.
However, it shall continue to apply in respect of aid applications relating to marketing years or premium periods starting before 1 January 2010.’
45. Article 2(25) of Regulation No 1122/2009 defined ‘premium period’ to mean ‘the period to which aid applications refer irrespective of the moment of their submission’.
46. Thus, in accordance with the wording of the relevant provisions, the aid reductions at issue in the main cases which relate to marketing years or premium periods starting after 1 January 2005 and before 1 January 2010 are governed by Regulation No 796/2004.
The first question
47. By its first question, the referring court seeks clarification as to the proper interpretation of Article 6(1) of Regulation No 1782/2003 and the provisions of Regulation No 796/2004 implementing that provision. More specifically, it asks whether Article 6(1) should be construed to mean that aid reductions sanctioning breaches of the cross-compliance requirements should be calculated based on the total direct aid payable for the year of the breach, or for the year of the finding.
48. I shall look first at the original version of Regulation No 1782/2003. I shall then consider whether the position was altered by the amendment to Article 6(1) of that regulation introduced by Regulation No 146/2008, before turning to the detailed implementing rules enacted by the Commission (Regulation No 796/2004). That order of analysis respects the hierarchical relationship between the Council regulation and the Commission’s implementing regulation.
Regulation No 1782/2003
49. Ten of the eleven original language versions (18) of Article 6(1) of Regulation No 1782/2003, prior to amendment, made it clear that the reduction to be made in respect of any non-compliance should be applied to the year of the breach. Thus, for example, the English-language version provided for the reduction to be applied to ‘the total amount of direct payments to be granted in the calendar year in which the non-compliance occurs’. The Danish, Dutch, Finnish, Greek, Italian, Portuguese, Spanish and Swedish versions all explicitly provide for the same result, (19) which also follows, though less explicitly, from the German language version (logically, the ‘betreffenden Kalenderjahr’ relates to the time when a given act or omission causes the non-compliance in question). (20)
50. Only one language version of Article 6(1) — the French — contained the contradictory indication that the reduction should be applied to the year of the finding. (21)
51. It is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions, as such an approach would be incompatible with the requirement of the uniform application of EU law. (22)
52. Here, it is clear that the French language version is at odds with all the other original language versions. For that reason, it cannot be used (as the Commission appeared to suggest at the hearing) as the sole basis for interpreting Article 6(1). However, assuming that the French text is not simply a translation error, the presence of that divergent text means that a purely literal interpretation of that provision based on the other 10 language versions cannot, in itself, be definitive. Where there is divergence between the language versions of an EU legal text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (23) Due regard must also be paid to any constraints on interpretation imposed by the need to comply with general principles of EU law, notably the principle of equality and the principle of proportionality. (24) I shall consider those important constraints later in this Opinion. (25)
Purpose
53. Recital 2 of Regulation No 1782/2003 states that the ‘full payment of direct aid should be linked to compliance with rules relating to agricultural land, agricultural production and activity’ and that the ‘Member States should withdraw direct aid in whole or in part on the basis of criteria which are proportionate, objective and graduated’ if those standards are not met. Article 6(1) itself requires that the non-compliance must be ‘directly attributable to the individual farmer’ in order for the reductions to apply.
54. The purpose of the relevant provisions of Regulation No 1782/2003, as originally enacted, was therefore to establish a set of rules that provided for a direct link between non-compliance and reductions in the aid payable. (26)
55. Is that purpose best served by calculating the sanction for non-compliance on the basis of the aid payable in the year of the breach or in the year of the finding?
56. The use of specified percentage reductions only maintains the intended direct link with the breach that is being sanctioned if those percentage reductions are calculated on the basis of the aid payment that would otherwise be due for the year in which the breach occurred. If the percentage reduction is instead applied to the year of the finding and that year is different from the year of the breach, the sanction will only continue to be (for example) a 3% reduction in aid if it so happens that the aid payment due for the year of the finding is, by chance, identical to the aid payment that was due for the year of the breach. Such a sanction cannot plausibly be described as having been calculated ‘on the basis of criteria which are proportionate, objective and graduated’. (27)
57. Looking more broadly at the purpose of the rules: the purpose of the cross-compliance requirements and the sanctions that apply for non-compliance is to compel farmers receiving aid under the direct payment aid schemes to respect, year after year, existing legislation relating to agricultural land, production and activity. (28) That purpose is, it seems to me, best achieved by associating the sanction directly and clearly with the year of breach.
58. Here, it is important to realise that the year of the finding is, in a sense, determined arbitrarily. I accept that, where there have been on-the-spot checks, irregularities may indeed often be discovered in the same year as the year of breach. If so, of course, the result of calculating the percentage reduction will be exactly the same irrespective of whether one takes the direct aid payable in the year of the breach or the direct aid payable in the year of the finding as the basis for the calculation. The two are identical. However, where an irregularity comes to light as the result of a different check (as in the cases giving rise to the present references), the year of the finding is the year in which the competent authorities happen to discover that a breach has occurred. There seems no logical basis for maintaining that a reduction of X% in the direct aid that would otherwise be payable for a subsequent year that bears no direct relationship to the year of the breach preserves a ‘proportionate, objective and graduated’ link between the breach and the sanction.
59. The Commission sought to suggest that using the year of the breach as the basis runs into the difficulty that, where the year of the finding is subsequent to the year of the breach, the aid payment has already been made.
60. Here, it is important to make a distinction between the computation of a reduction and its imputation to an aid payment that would otherwise be made to a farmer. Historical farm payment data are kept by the competent national authorities: usually, these days, on computerised systems. As the Commission admitted at the hearing in answer to questions from the Court, it is therefore perfectly possible to perform the computation of the reduction on the basis of the historical claim for direct aid in the year of the breach; and then to impute that reduction to the next outstanding claim for aid. A simple example suffices to illustrate the point and to highlight the desirability of using that process.
61. Suppose that in year 1 farmer A applies for and duly receives EUR 10 000 in direct aid. In year 2 he increases his holding and therefore applies for and receives direct aid of EUR 20 000. Subsequently, in year 3, it is established that he was in fact negligently in breach of a cross-compliance requirement in year 1. At the time that finding is made, farmer A has an outstanding application (for his year 3 direct aid) — this time, for EUR 30 000, because he has again increased the size of his holding.
62. The Commission’s detailed implementing rules specify a 3% reduction in the aid due as the sanction for a negligent breach of cross-compliance obligations (Article 66 of Regulation No 796/2004). Self-evidently, that sanction cannot be imputed to the direct aid for year 1, because the farmer has already received that aid. However, nothing prevents the amount of the sanction being computed by reference to the direct aid that was due for year 1 (resulting in a sanction of EUR 300 — that is, 3% of EUR 10 000) and then being imputed to the direct aid payment that the farmer is still to receive for year 3. Thus, in year 3 farmer A will receive EUR 30 000 less EUR 300, i.e. EUR 29 700.
63. That process correctly sanctions, with a 3% reduction, farmer A’s negligent conduct in year 1. If the sanction is both calculated on the basis of, and imputed to, the direct aid due in year 3, the result is to apply a sanction (calculated as 3% of EUR 30 000, which is EUR 900) that does not correspond to 3% of the direct aid due in the year when the negligent breach of the cross-compliance requirement was committed. Instead, that negligent conduct is sanctioned at a rate of 9%.
64. I therefore take the view that Article 6(1) of Regulation No 1782/2003, as originally enacted, should be construed to mean that the aid reductions for non-compliance with the cross-compliance requirements should be calculated on the basis of the direct aid payable for the calendar year in which the non-compliance occurred.
Regulation No 146/2008
65. Article 6(1) of Regulation No 1782/2003 was amended by Regulation No 146/2008 with effect from 1 April 2008. After modification, the English language version read:
‘Where the statutory management requirements or good agricultural and environmental conditions are not complied with at any time in a given calendar year (hereinafter “the calendar year concerned”), and the non-compliance in question is the result of an act or omission directly attributable to the farmer who submitted the aid application in the calendar year concerned, the total amount of direct payments to be granted … to that farmer, shall be reduced or cancelled …’
66. The amended version does not refer explicitly to the year of the finding in any of the 11 original language versions and the linguistic discrepancies between the French text and the ten other language versions of the text prior to amendment appear to have been resolved.
67. There is no indication in the recitals of Regulation No 146/2008 (or indeed in those of Regulation No 73/2009, which subsequently replaced and repealed the amended Regulation No 1782/2003) that any change was intended as regards calculation of the reductions to be applied to direct aid payments to sanction breaches of cross-compliance requirements.
68. The Commission notes that fact (29) and expressly submits that Article 6 of Regulation No 1782/2003 should therefore bear the same meaning before and after its amendment by Regulation No 146/2008.
69. I agree with the submission that the original and the amended versions should bear the same meaning. It seems to me that a straightforward reading of the amended text again points to the direct link that should exist between non-compliance and the resulting sanction. As the Austrian Government has rightly stressed in its written observations on the first question referred, that direct link can only be assured by calculating the percentage reduction to be applied to the direct aid that the farmer in default would otherwise receive by reference to the aid due in the year of the breach. Neither the text nor the teleology point to the alternative reading favoured by the Commission.
70. I therefore conclude that the amended version of Article 6(1) should, like the original version, be construed as requiring reductions in direct aid to sanction breach of cross-compliance requirements to be computed on the basis of the total direct aid payable in the year of the breach.
71. Against that background, I now turn to examine the relevant provisions of the Commission’s implementing regulation.
Commission Regulation No 796/2004
72. Article 66 of Regulation No 796/2004 states in all eleven original language versions that the reduction in direct payments for negligent non-compliance with the cross-compliance requirements should be applied to the year of the finding of non-compliance.
73. On the strength of that drafting, the Commission invites the Court to construe Article 6(1) of Regulation No 1782/2003 in the light of the wording it chose for the Commission implementing regulation and its intentions in selecting that wording.
74. The Court has, however, consistently held that an implementing regulation (tertiary legislation) adopted on the basis of an enabling provision in a Council regulation (secondary legislation) may not derogate from the provisions of the Council regulation, to which it is subordinate. (30) The relevant parts of Regulation No 796/2004 were promulgated on the basis of Articles 7 and 144 of Regulation No 1782/2003. The Commission was therefore bound by the provisions of Regulation No 1782/2003 — in particular, by the principle laid down in Article 6(1) thereof — when enacting the detailed rules to give effect to that principle. It could not lawfully lay down rules that contradicted Regulation No 1782/2003. The vires (delegated powers) that it enjoyed to legislate by way of tertiary regulation were circumscribed by what had been specified in the (hierarchically superior) secondary legislation adopted by the Council.
75. I have already indicated that, in my view, Article 6(1) of Regulation No 1782/2003 prescribes the year of the breach as the year that should be used for the computation of the percentage reduction in direct aid to sanction that breach. The text of Article 66(1) of Regulation No 796/2004, if read intelligently, is perfectly capable of bearing a meaning that is compatible with that requirement.
76. I have already drawn attention, at point 60 above, to the crucial distinction between computation and imputation. Article 66(1) says that ‘a reduction shall be applied on the overall amount of direct payments … that has been, or has to be, granted to the farmer concerned following aid applications he has submitted or will still submit in the course of the calendar year of the finding’ (emphasis added). The Commission invites the Court to read the word ‘applied’ as meaning both ‘computed’ and ‘imputed’. However, there is no linguistic reason, so far as I am aware, that compels such a reading. ‘Applied’ is a rather abstract and general word. It can (I readily concede) be taken to mean ‘computed’ (synonymous with, ‘calculated on the basis of’); and that is clearly how the Commission wishes it to be read. But ‘applied’ can equally well mean simply ‘imputed to’ (after having been ‘computed’, or ‘calculated’, on a different basis). And there is, in my view, no good reason for saying that ‘applied’ must necessarily mean both ‘computed’ and ‘imputed’ if that runs counter to the sense of what the measure should be seeking to achieve (as would however be the case if that combined interpretation were adopted here).
77. It is true that the concluding words of the first subparagraph of Article 66(1) refer to ‘3% of that overall amount,’ which would seem to refer back to the payment due in the calendar year of the finding. It seems to me, in the light of the reading that I believe to be the correct reading of the (hierarchically superior) Council regulation, that the words that I have italicised must necessarily fall away.
78. Since the Commission firmly maintained its preferred reading of the legislation in response to questions from the Court at the hearing, it behoves me to examine with care the additional justifications that it advanced in support of its interpretation.
79. The Commission argues, first, that on-the-spot checks concerning cross-compliance are mandatory whereas administrative control (such as applied in the cases giving rise to the present reference) is optional. (31) For that reason, the year of the breach and the year of the finding are normally the same.
80. The Danish Government takes issue with the Commission on the facts and puts forward material suggesting that the two years do not always necessarily coincide.
81. Self-evidently, where the year of the breach and the year of the finding are the same, it will not matter which is taken as the basis for computing the percentage reduction in the aid payment to sanction breach of the cross-compliance obligations. Where the two years are not the same, however, the choice of year for the computation may matter a great deal. (32) The Commission’s argument therefore misses the point.
82. Secondly, the Commission refers to administrative convenience. Put charitably, its argument is that it is easiest to take the same year as the basis for computing the deduction to be made and for that year to be the period for which that deduction should then be imputed.
83. When questioned by the Court at the hearing, however, the Commission accepted that the competent authorities in the Member States would hold historical records of aid payments, probably in computerised form, and that it would not be very difficult to compute the deduction by reference to the year of the breach and then to impute it to the year of the finding. The Commission also accepted that, where there was no pending application for aid in the year of the finding (for example, because the person responsible for the breach had since ceased to farm), it might well be possible to compute the deduction by reference to the year of the breach and then seek recovery of the aid overpaid in that year as a debt owing to the competent authorities. That seems to me to dispose of the Commission’s argument on administrative convenience.
84. Thirdly, the Commission relied on the intention that it had in framing the implementing Regulation as guidance for how Regulation No 1782/2003 should be interpreted. I have already discussed and rejected that line of reasoning. (33)
85. I conclude that those arguments provide no compelling reason for taking a different view of how the Council regulation (and, by necessary implication, the Commission’s implementing regulation) should be interpreted.
86. There is, moreover, a greater and more fundamental objection to the position advanced by the Commission.
Principle of equality
87. The second subparagraph of Article 40(2) TFEU provides that the common organisation of agricultural markets ‘shall exclude any discrimination between producers or consumers within the Union’. That wording clearly prohibits discrimination between producers of the same product. However, it does not refer in such clear terms to the calculation of reductions in aid paid to farmers pursuant to Regulation No 1782/2003. That said, the prohibition of discrimination laid down in the Treaty is merely a specific enunciation of the general principle of equality (or equal treatment) which is one of the fundamental principles of EU law. That principle requires that similar situations shall not be treated differently unless differentiation is objectively justified. (34)
88. Does the interpretation of Regulation No 1782/2003 advanced by the Commission in Regulation No 796/2004 and in the written guidance that it gave to the AgriFish Agency in the letter of 7 February 2013, which requires the aid reductions to be calculated based on the aid amounts for the year of the finding, comply with the principle of equality?
89. In my view, the answer is clearly ‘no’. I shall illustrate that by the following example.
90. Suppose that farmers A, B and C are farming identical farms and that each is entitled to EUR 10 000 of direct aid for year 1. They each commit exactly the same breach of their cross-compliance requirements in year 1 but the breaches remain undiscovered in that year.
91. In year 2, farmer A ceases farming and transfers his holding to another farmer. Farmer B continues to farm the same holding and to claim the same amount (EUR 10 000) of direct aid. Farmer C sets about increasing the size of his holding and accordingly starts to claim more direct aid.
92. In year 3, the breaches are discovered. The competent national authorities duly make ‘findings’ regarding the non-compliances and issue determinations reducing the direct aid for each farmer by 3% calculated — as the Commission insists should be the case — on the basis of each farmer’s total entitlement to direct aid in year 3.
93. As a result, farmer A (who has no claim for direct aid in year 3, because he has ceased farming) is subject to a direct payment reduction of 3% x zero. He escapes scot free. Farmer B, who is still farming the same area as in year 1 and is entitled to EUR 10 000 of direct payments for year 3, is subject to a reduction in his direct payments of 3% x EUR 10 000, or EUR 300. The sanction imposed on him is, fortuitously, the same as it would have been had the year of the breach been taken as the year of calculation for the 3% reduction in aid. (I say ‘fortuitously’ because it just so happens that the size of his holding and his entitlement to direct aid are the same in year 3 as they were in year 1.) Farmer C has increased his holding very substantially indeed and is entitled to EUR 100 000 of direct payments in year 3. As a consequence, his sanction for non-compliance in year 1 is a reduction of EUR 3 000 applied to his direct payments for year 3.
94. It will be seen that the result of applying the Commission’s methodology is to impose vastly different sanctions on the three farmers A, B and C (EUR 0, EUR 300 and EUR 3 000 respectively) in respect of exactly the same breach of the cross-compliance requirements in year 1. The Commission has advanced no reasons compatible with the aims of the legislation that would begin to justify such a result. Rather, identical behaviour is sanctioned very differently for reasons that have nothing to do with the actual non-compliance and that are equally foreign to the purposes of the legislation being enforced.
95. The Commission, aware of these difficulties, invokes the principle of proportionality to solve the injustice thus created. I therefore now turn to examine the argument that it advances on the basis of that principle.
Principle of proportionality
96. Measures implemented through provisions of EU law should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it. (35) As will be apparent from the example that I have just given, calculating the percentage reduction sanction on the basis of the direct aid payable in the year of the finding fails to satisfy that requirement. It is not ‘appropriate for attaining the objectives pursued’ by Regulation No 796/2004. It fails to sanction non-compliance where the farmer has no claim to aid under the direct payments scheme in that subsequent year (farmer A in my example). Conversely, it sanctions certain occurrences of non-compliance more severely than necessary (and, it would appear, more severely than intended) (farmer C in my example). Only when the year of the breach and the year of the finding happen to coincide does that methodology maintain the desired direct link between the breach of the cross-compliance rules and the sanction imposed for that breach.
97. In its written observations, the Commission accepts that the principle of proportionality may be infringed in such circumstances. It suggests as a solution that the direct payments for the year of non-compliance may be used instead in these limited cases as the basis of calculation. As I understand it, the Commission thus argues that the correct methodology is to use the year of the finding as the basis for computing the sanction; but that where that general rule gives rise to a result that is obviously incorrect, the principle of proportionality may be prayed in aid to redress the situation.
98. When questioned at the hearing, the Commission was unable to point to an instance in the Court’s case-law where the Court has endorsed the use of the principle of proportionality in that way so as to cure a structural defect brought about by the choice of a particular methodology. I am likewise unaware of any case that supports that novel proposition.
99. At the hearing the Danish Government emphasised — rightly, in my view — that the methodology for calculating the sanction must, above all, satisfy two criteria. It must have clarity, so that it can readily be applied by the competent national authorities to a very large number of individual cases; and it must provide legal certainty to both the individual farmer and to the national administration. It is hard to think of an arrangement more inimical to those two objectives than one in which, where the result generated by applying the standard methodology is ‘sufficiently’ unacceptable (whatever precisely that may mean), the whole basis of calculation is then changed at the discretion of the busy authorities administering the scheme.
100. Finally, I should also record the Commission’s argument that it would not be necessary to have recourse to the use of the proportionality principle as a corrective where there had been intentional non-compliance with the rules, because ‘fraus omnia corrumpit’. However, the EU legislator made specific provision for a different (higher) percentage to be applied to sanction cases of intentional non-compliance than is applicable to negligent non-compliance. (36) Against that background, I find the Commission’s argument difficult to understand and in any event unconvincing.
101. I therefore strongly advise the Court not to have recourse to this — in my eyes, questionable — use of the proportionality principle to resolve the difficulties to which the Commission’s preferred methodology clearly gives rise; but rather to endorse the interpretation of Regulation No 1782/2003 and Regulation No 796/2004 that avoids creating those difficulties in the first place.
Answer to the first question referred
102. I therefore conclude that Article 6(1) of Regulation No 1782/2003, both in its original version and as amended by Regulation No 146/2008, should be construed as meaning that the percentage reductions in direct aid payments to sanction breaches of the cross-compliance requirements should be computed on the basis of the direct aid payable for the calendar year in which the non-compliance occurred. Article 66(1) of Regulation No 796/2004 should be construed as meaning that the reduction in direct aid payments to sanction breaches of the cross-compliance requirements should be computed by reference to the year of the breach and should then be imputed — that is, applied — to the aid payable in the year of the finding.
The second question
103. By its second question, the referring court asks whether the answer that the Court gives to the first question would also apply under Article 23(1) of Regulation No 73/2009 and Articles 70(4) and 70(8)(a) of Regulation No 1122/2009. I can deal with that question shortly.
104. Article 23 of Regulation No 73/2009 reproduces almost verbatim the text of Article 6(1) of Regulation No 1782/2003 as amended by Regulation No 146/2008. Perusal of the preamble to Regulation No 73/2009 does not disclose an intention on the part of the legislator to alter the principle contained in the amended version of Article 6 of Regulation No 1782/2003 when replacing it by Article 23 of Regulation No 73/2009.
105. The analysis that I have set out above in respect of Article 6 of Regulation No 1782/2003, in both its original and amended versions, therefore holds good for Article 23 of Regulation No 73/2009.
Commission Regulation No 1122/2009
106. Article 70 of Regulation No 1122/2009, ‘General principles and definition’, provided in paragraph 4, that ‘non-compliances shall be deemed to be “determined” if they are established as a consequence of any kind of controls carried out in accordance with this Regulation or after having been brought to the attention of the competent control authority or, where applicable, the paying agency, in whatever other way’ and in paragraph 8 that the ‘percentage of the reduction shall be applied to the total amount of … the overall amount of direct payments that has been, or has to be, granted to the farmer concerned following aid applications he has submitted or will submit in the course of the calendar year of the finding …’.
107. For the reasons that I have set out in points 74 to 101 above in respect of the corresponding rule in Article 66(1) of Regulation No 796/2004, Article 70 of Regulation No 1122/2009 should, in order to comply with the principle set out in Article 23 of Regulation No 73/2009, be construed as meaning that the reduction in direct aid payments to sanction breaches of the cross-compliance requirements should be computed by reference to the year of the breach and should then be imputed — that is, applied — to the aid payable in the year of the finding.
108. The answer to the second question referred should therefore be that Article 23 of Regulation No 73/2009 should be construed as meaning that the percentage reductions in direct aid payments to sanction breaches of the cross-compliance requirements should be computed on the basis of the direct aid payable for the calendar year in which the non-compliance occurred. Article 70 of Regulation No 1122/2009 should be construed as meaning that the reduction in direct aid payments to sanction breaches of the cross-compliance requirements should be computed by reference to the year of the breach and should then be imputed — that is, applied — to the aid payable in the year of the finding.
Conclusion
109. In the light of all the above considerations I am of the opinion that the Court should answer the questions referred by the Østre Landsret (High Court of Eastern Denmark, Denmark) as follows:
Question 3:
Article 6(1) of 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 as originally enacted applies to payments granted in respect of the calendar year 2007, including payments in respect of other periods starting in that year.
Article 6(1) of Regulation No 1782/2003, as originally enacted, applies to payments granted in respect of the period from 1 January to 31 March 2008, including payments in respect of other periods starting in that three month period.
For payments granted in respect of the period 1 April to 31 December 2008, including payments in respect of other periods starting in that nine month period, Article 6(1) Regulation No 1782/2003, as amended by Council Regulation (EC) No 146/2008 of 14 February 2008, applies.
By virtue of Article 86 of Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, Commission Regulation (EC) No 796/2004 of 21 April 2004 applies to aid applications relating to marketing years or premium periods starting before 1 January 2010.
Question 1:
Article 6(1) of Regulation No 1782/2003, both in its original version and as amended by Regulation No 146/2008, should be construed as meaning that the percentage reductions in direct aid payments to sanction breaches of the cross-compliance requirements should be computed on the basis of the direct aid payable for the calendar year in which the non-compliance occurred. Article 66(1) of Regulation No 796/2004 should be construed as meaning that the reduction in direct aid payments to sanction breaches of the cross-compliance requirements should be computed by reference to the year of the breach and should then be imputed — that is, applied — to the aid payable in the year of the finding.
Question 2:
Article 23 of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003, should be construed as meaning that the percentage reductions in direct aid payments to sanction breaches of the cross-compliance requirements should be computed on the basis of the direct aid payable for the calendar year in which the non-compliance occurred. Article 70 of Regulation No 1122/2009 should be construed as meaning that the reduction in direct aid payments to sanction breaches of the cross-compliance requirements should be computed by reference to the year of the breach and should then be imputed — that is, applied — to the aid payable in the year of the finding.