CELEX: 62020CJ0116
Reference for a preliminary ruling
Agriculture
Common agricultural policy
Direct support schemes
Common rules
Single area payment scheme
Regulation (EC) No 73/2009
Article 2(c)
Concept of ‘agricultural activity’
Article 35
Regulation (EC) No 1122/2009
National legislation requiring the production of a legal document establishing the right to use the agricultural parcel made available to the farmer under a concession contract and making the validity of such a contract conditional on the future concessionaire having the status of breeder or owner of animals
Concessionaire of an area of pastureland who has concluded a cooperation contract with animal breeders
Res judicata

This request for a preliminary ruling concerns, first, the interpretation 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 (
OJ 2009 L 30, p. 16
), as amended by Regulation (EU) No 1310/2013 of the European Parliament and of the Council of 17 December 2013 (
OJ 2013 L 347, p. 865
) (‘Regulation No 73/2009’), second, the interpretation of Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Regulation No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for [by] that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (
OJ 2009 L 316, p. 65
) and, third, the principle of
res judicata
.
The request has been made in proceedings between, on the one hand, SC Avio Lucos SRL and, on the other hand, the Agenția de Plăți și Intervenție pentru Agricultură – Centrul județean Dolj (Agency for payments and measures for agriculture – Dolj District Centre, Romania) and the Agenția de Plăți și Intervenție pentru Agricultură (APIA) – Aparat Central (Agency for payments and measures for agriculture – Headquarters, Romania) (together, ‘the APIA’) concerning the request for reimbursement of the financial support granted by the APIA to Avio Lucos under the single area payment scheme in respect of the year 2014.
Legal context
European Union law
Regulation (EC) No 1254/1999
Article 12 of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (
OJ 1999 L 160, p. 21
), provided, in paragraph 2 thereof:
‘For determining the stocking density on the holding, account shall be taken of:
…
(b)
the forage area, meaning the area of the holding available throughout the calendar year for rearing bovine animals and sheep and/or goats. …
…’
That Article 12 was deleted by Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (
OJ 2003 L 270, p. 1
), before Regulation No 1254/1999 was itself repealed by Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (
OJ 2007 L 299, p. 1
).
Regulation No 1782/2003
Article 44 of Regulation No 1782/2003, entitled ‘Use of payment entitlements’, provided, in paragraphs 2 and 3 thereof:
‘2.   “Eligible hectare” shall mean any agricultural area of the holding taken up by arable land and permanent pasture except areas under permanent crops, forests or used for non agricultural activities.
3.   The farmer shall declare the parcels corresponding to the eligible hectare accompanying any payment entitlement. Except in case of force majeure or exceptional circumstances, these parcels shall be at the farmer’s disposal …’
Regulation No 1782/2003 was repealed by Regulation No 73/2009.
Regulation No 73/2009
Recitals 4, 7, 23 and 25 of Regulation No 73/2009 stated:
‘(4)
Furthermore, in order to avoid agricultural land being abandoned and to ensure that it is maintained in good agricultural and environmental condition, Regulation [No 1782/2003] established a Community framework within which Member States adopt standards taking account of the specific characteristics of the areas concerned, including soil and climatic conditions and existing farming systems, land use, crop rotation, farming practices and farm structures. This framework should be maintained. …
…
(7)
Regulation [No 1782/2003] recognised the positive environmental effect of permanent pasture. The measures in that Regulation aimed at encouraging the maintenance of existing permanent pasture to ensure against mass conversion to arable land should be maintained.
…
(23)
Experience of the application of the single payment scheme shows that decoupled income support was in a number of cases granted to beneficiaries whose agricultural activities formed only an insignificant part of their overall economic activities or whose business purpose was not or only marginally targeted at performing an agricultural activity. To prevent agricultural income support from being allocated to such beneficiaries and to ensure that Community support is entirely used to ensure a fair standard of living for the agricultural community, Member States should be empowered, where such allocation occurs, to refrain from granting such natural and legal persons direct payments under this Regulation.
…
(25)
The support schemes under the [common agricultural policy (CAP)] provide for direct income support, in particular with a view to ensuring a fair standard of living for the agricultural community. That objective is closely related to the maintenance of rural areas. In order to avoid any misallocation of Community funds, no support payments should be made to farmers who have artificially created the conditions required to obtain such payments.’
Article 2 of that regulation, entitled ‘Definitions’, provided:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(b)
“holding” means all the production units managed by a farmer situated within the territory of the same Member State;
(c)
“agricultural activity” means the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes, or maintaining the land in good agricultural and environmental condition as established in Article 6;
…
(h)
“agricultural area” means any area taken up by arable land, permanent pasture or permanent crops.’
Article 6 of that regulation, entitled ‘Good agricultural and environmental condition’, provided, in the first subparagraph of paragraph 1 thereof:
‘Member States shall ensure that all agricultural land, especially land which is no longer used for production purposes, is maintained in good agricultural and environmental condition. Member States shall define, at national or regional level, minimum requirements for good agricultural and environmental condition on the basis of the framework established in Annex III, taking into account the specific characteristics of the areas concerned, including soil and climatic condition, existing farming systems, land use, crop rotation, farming practices, and farm structures. Member States shall not define minimum requirements which are not foreseen in that framework.’
Article 19 of that regulation, entitled ‘Aid applications’, stated, in paragraph 1 thereof:
‘Each year, a farmer shall submit an application for direct payments indicating, where applicable:
(a)
all the agricultural parcels on the holding …;
(b)
the payment entitlements declared for activation;
(c)
any other information provided for by this Regulation or by the Member State concerned.’
Under Article 34 of Regulation No 73/2009, entitled ‘Activation of payment entitlements per eligible hectare’:
‘1.   Support under the single payment scheme shall be granted to farmers upon activation of a payment entitlement per eligible hectare. Activated payment entitlements shall give a right to the payment of the amounts fixed therein.
2.   For the purposes of this Title, “eligible hectare” shall mean:
(a)
any agricultural area of the holding, and any area planted with short rotation coppice (CN code ex06029041) that is used for an agricultural activity …
…
Except in the case of
force majeure
or exceptional circumstances, hectares shall comply with the eligibility condition throughout the calendar year.’
Article 35 of that regulation, entitled ‘Declaration of eligible hectares’, provided, in paragraph 1 thereof:
‘The farmer shall declare the parcels corresponding to the eligible hectares accompanying any payment entitlement. Except in the case of
force majeure
or exceptional circumstances, these parcels shall be at the farmer’s disposal on a date fixed by the Member State which shall be no later than the date fixed in that Member State for amending the aid application.’
Article 124 of that regulation, entitled ‘Area under the single area payment scheme’, provided, in paragraph 2 thereof:
‘For the purpose of granting payments under the single area payment scheme, all agricultural parcels corresponding to the criteria provided for in paragraph 1 … shall be eligible …
Except in the case of
force majeure
or exceptional circumstances, the parcels referred to in the first subparagraph shall be at the farmer’s disposal on the date fixed by the Member State which shall be no later than the date fixed in that Member State for amendment of the aid application.
The minimum size of eligible area per holding for which payments may be requested shall be 0.3 ha. However, any new Member State may decide, on the basis of objective criteria and after approval by the Commission, to set the minimum size at a higher level not exceeding 1 ha.’
Annex III to that regulation, entitled ‘Good agricultural and environmental condition referred to in Article 6’, referred, as regards the minimum level of maintenance, inter alia, to the following optional standard: ‘Minimum livestock stocking rates or/and appropriate regimes’.
Regulation No 73/2009 was repealed by Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Regulation No 73/2009 (
OJ 2013 L 347, p. 608
).
Regulation No 1122/2009
Recitals 8 and 28 of Regulation No 1122/2009 stated:
‘(8)
In order to ensure a proper implementation of the single payment scheme as provided for in Title III of Regulation [No 73/2009], the Member States should establish an identification and registration system according to which the payment entitlements have to be traceable …
…
(28)
Respect for the time limits for the submission of aid applications, for the amendment of area aid applications and for any supporting documents, contracts or declarations is indispensable to enable the national administrations to program and, subsequently, carry out effective controls on the correctness of the aid applications. …’
Article 12 of that regulation, entitled ‘Contents of the single application’, provided, in paragraph 1 thereof:
‘The single application shall contain all information necessary to establish eligibility for the aid, in particular:
…
(d)
particulars permitting identification of all agricultural parcels on the holding, their area expressed in hectares to two decimal places, their location and, where applicable, their use …’
Regulation No 1122/2009 was repealed by Commission Delegated Regulation (EU) No 640/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance (
OJ 2014 L 181, p. 48
).
Romanian law
Law No 72/2002 on animal breeding
Article 4 of legea zootehniei nr. 72/2002 (Law No 72/2002 on animal breeding (republished),
Monitorul Oficial al României
, Part I, No 235 of 2 April 2014) provided:
‘For the purposes of this Law, “animal breeder” shall mean natural or legal persons who keep as owners the species of animals referred to in Article 2, which are listed in the agricultural register.’
Article 5(1) of that law provided:
‘The rearing and use of animals shall be the activity of animal breeders, regardless of their legal status, for the purposes of obtaining products and animal products.’
OUG No 125/2006
Article 7(1)(f) of Ordonanța de urgență a Guvernului nr. 125/2006 pentru aprobarea schemelor de plăți directe și plăți naționale directe complementare, care se acordă în agricultură începând cu anul 2007, și pentru modificarea articolului 2 din Legea nr. 36/1991 privind societățile agricole și alte forme de asociere în agricultură (Government Emergency Order No 125/2006 approving direct payment schemes and complementary national direct payments granted for agriculture as from 2007 and amending Article 2 of Law No 36/1991 on agricultural companies and other forms of association in the field of agriculture), of 21 December 2006 (
Monitorul Oficial al României
, Part I, No 1043 of 29 December 2006), in the version thereof applicable to the dispute in the main proceedings (‘OUG No 125/2006’), provided:
‘In order to receive payments under single area payment schemes, applicants must be registered in the Register of Farmers, which is managed by the Agenția de Plăți și Intervenție pentru Agricultură [(Agency for payments and measures for agriculture, Romania)], submit their application for payment within the time limits prescribed and satisfy the following general conditions:
…
(f)
submit documents proving the lawful use of the land in respect of which the application has been lodged;
…’
Regulation of the Minister for Agriculture and Rural Development No 246/2008
Article 5(1) of Ordinul ministrului agriculturii si dezvoltării rurale nr. 246/2008 privind stabilirea modului de implementare, a condițiilor specifice și a criteriilor de eligibilitate pentru aplicarea schemelor de plăți directe și plăți naționale directe complementare în sectorul vegetal, pentru acordarea sprijinului aferent măsurilor de agromediu și zone defavorizate (Regulation of the Minister for Agriculture and Rural Development No 246/2008 concerning the drawing up of the method of implementation, specific conditions and eligibility criteria for the implementation of the complementary national direct payment schemes in the crop sector, for the grant of support relating to agro-environmental measures and disadvantaged areas), of 23 April 2008 (
Monitorul Oficial al României
, Part I, No 332 of 25 April 2008), in the version thereof applicable to the dispute in the main proceedings, stated the following:
‘The documents providing proof of the lawful use of municipal permanent pastureland, in accordance with Article 7(1)(f) of [OUG No 125/2006], are documents attesting to a right of ownership, concession or leasing contracts concluded between the municipal councils and animal breeders, which indicate the land used and certificate issued by the city council in accordance with the information contained in the agricultural register. Any agreement concluded before the present Regulation enters into force which concerns the use of municipal pastureland shall continue to be effective until the date on which the entitlement ends.’
Government Emergency Order No 34/2013
Article 2 of Ordonanța de urgență a Guvernului nr. 34/2013 privind organizarea, administrarea și exploatarea pajiștilor permanente și pentru modificarea și completarea Legii fondului funciar nr. 18/1991 (Government Emergency Order No 34/2013 on the organisation, management and exploitation of permanent grassland, amending and supplementing Law No 18/1991 on land ownership), of 23 April 2013 (
Monitorul Oficial al României
, Part I, No 267 of 13 May 2013), in the version thereof applicable to the dispute in the main proceedings, provided:
‘For the purposes of this Emergency Order:
…
(b)
“pastureland and grassland” mean agricultural land registered in title deeds under that category of use and intended for the production of fodder, grass and other herbaceous plants for animals, harvested by mowing or put to use by grazing;
(c)
“livestock unit (LSU)” means a standard unit of measurement established according to the feed requirements of each animal species, which allows for conversion between the various categories of animals;
(d)
“user of pastureland and grassland” means an animal breeder, who is a natural or legal person, registered in the National Register of Holdings and who carries out agricultural activities specific to the category of use of the pastureland and grassland, in accordance with the statistical classification of the economic activities within the European Union for crop and livestock production, and who has a legal right of use over the agricultural land and who puts the pastureland to use by means of grazing animals owned by him or by mowing at least once each year;
(e)
“National Register of Holdings (NRH)” means the collection of data in electronic format which includes the information identifying each holding in Romania …;
(f)
“meadow owners” means holders of rights of ownership or other rights
in rem
over such or persons who, under civil laws, have the status of the owners or keepers of meadows held in the right of another’.
Regulation of the Minister for Agriculture, Food and Forestry and of the Minister for Public Administration No 226/235/2003
Ordinul ministrului agriculturii, alimentaţiei şi pădurilor şi al ministrului administraţiei publice nr. 226/235/2003 pentru aprobarea Strategiei privind organizarea activității de imbunatatire și exploatare a pajiștilor la nivel național, pe termen mediu și lung (Regulation of the Minister for Agriculture, Food and Forestry and of the Minister for Public Administration No 226/235/2003 approving the strategy for the organisation of activities to improve and exploit meadows nationally in the medium and long term) (
Monitorul Oficial al României
, Part I, No 423 of 17 June 2003), in the version thereof applicable to the dispute in the main proceedings, included an Annex I, point 1 of Chapter VI of which was worded as follows:
‘The responsibilities of the meadow users
(a)
In order to use the meadows managed by municipal councils, cities or local authorities:
established associations of animal breeders and animal breeders who are natural or legal persons shall submit an application to the local council, …
(b)
Meadow users who conclude concession contracts shall satisfy the following minimum conditions:
–
they shall be registered with the [NRH];
–
they shall guarantee a minimum density of 0.3 LSU/ha for the land in respect of which the application is made;
–
they shall submit a grazing schedule in accordance with the provisions of point 8 of Chapter IV for the period of resumption of use of the meadow in respect of which the application is made.’
Code of Civil Procedure
Article 431 of the Codul de procedură civilă (Code of Civil Procedure) provides, in paragraph 2 thereof:
‘The parties may challenge the force of
res judicata
previously acquired in another dispute where there is a connection with the resolution of that dispute.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
Avio Lucos submitted to the APIA an application for financial support under the single area payment scheme in respect of the year 2014, concerning an area of 341.70 ha of pastureland. In order to prove its right to use the land, that company submitted a concession contract, concluded on 28 January 2013 with the Consiliul Local al Comunei Podari (Municipal Council of the Municipality of Podari, Romania), concerning a pasture situated within that municipality. Under that contract, as concessionaire, Avio Lucos had the right to exploit directly, at its own risk, the assets granted on concession. Furthermore, it was required to exploit the land granted on concession by grazing and was prohibited from leasing that land or granting a sub-concession over it.
Avio Lucos subsequently concluded, on 30 January 2013, a participative cooperation contract with four natural persons. Under that contract, Avio Lucos was to make the municipal pastureland taken on concession available to those natural persons and carry out annually, at its own expense, the necessary maintenance work, and those natural persons undertook, in return, to make their animals, in particular sheep, goats, cows and horses, available to Avio Lucos, so that the grazing of the land taken on concession would be carried out on a continuous and permanent basis.
Following the submission of an application to that effect, the APIA granted Avio Lucos an advance payment under the area aid schemes for the 2014 financial year, which totalled 529 340.24 Romanian lei (RON) (approximately EUR 107000).
However, following a re-examination of that application, the APIA found that, on the date on which the concession contract was concluded, Avio Lucos was not entitled to take on concession pastureland in the public domain or private sphere of the municipalities, on the ground that it did not have the status of breeder or owner of animals, in breach of the applicable national law.
In the light of that finding, the APIA, first, adopted a decision imposing, in accordance with the third paragraph of Article 58 of Regulation No 1122/2009, multiannual penalties on Avio Lucos, which totalled RON 555 729.59 (approximately EUR 112000). That decision has been the subject of a number of administrative and judicial appeals, which were dismissed.
Second, the APIA established that Avio Lucos owed a debt to the State totalling RON 529 340.24 (approximately EUR 107000), which corresponds to the amount which had already been paid to it under the single area payment scheme in respect of the year 2014.
Avio Lucos challenged that decision before the Tribunalul Dolj (Regional Court, Dolj, Romania), which dismissed its action. Avio Lucos brought an appeal against that judgment before the Curtea de Apel Craiova (Court of Appeal, Craiova, Romania), which set aside that judgment and referred the case back to the Tribunalul Dolj (Regional Court, Dolj). By judgment of 25 February 2018, that court dismissed the action. Avio Lucos brought an appeal against that judgment and the case is now pending before the Curtea de Apel Timişoara (Court of Appeal, Timişoara, Romania), the referring court.
The referring court states that the question whether EU law precludes national legislation which requires a person to prove the right to use or to exploit an area of land, or to have the status of breeder or owner of animals in order to take pastureland on concession, with a view to obtaining financial support relating to area payment schemes is not without uncertainty. In addition, the question arises as to whether the activity actually carried out by Avio Lucos falls within the scope of Article 2 of Regulation No 73/2009. Lastly, the referring court, which notes the existence of two final judicial decisions finding the applications for payment under the single area payment scheme to be ineligible in respect of the year 2014 because they did not comply with national law as regards the requirement relating to the lawfulness of the right to exploit or to use the land, harbours doubts as to whether EU law precludes an application of the principle of
res judicata
which prevents the national court which has jurisdiction from examining the conformity with EU law of requirements imposed by national law in a new dispute concerning the lawfulness of the debt on the basis of which the sums unduly paid to Avio Lucos are recovered.
In those circumstances, the Curtea de Apel Timișoara (Court of Appeal, Timișoara) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Does [EU] law applicable to financial support relating to the agricultural year 2014 – in particular [Regulation No 73/2009] and Regulation No 1122/2009 – preclude the introduction, through national legislation, of an obligation to provide proof of the right to use an area of land for the purpose of obtaining financial support relating to the area schemes?
(2)
In so far as the abovementioned [EU] law does not preclude the national legislation referred to in Question 1, does [EU] law (including the principle of proportionality) preclude – in the particular case where the right to exploit the agricultural area has been justified by the beneficiary by submitting a concession contract for an area of pastureland (under which the applicant acquired the right to exploit the pastureland at his own risk and for his benefit, in return for a fixed sum) – national legislation which imposes, for such a concession contract to be valid, the condition that the future concessionaire must be only a [breeder] or owner of animals?
(3)
Does the activity of a beneficiary under an area scheme who – after concluding a concession contract for pastureland for the purpose of obtaining the right to exploit that area and obtaining rights to aid in the agricultural year 2014 – subsequently concludes a cooperation contract with [animal breeders] by which he permits use, free of charge, of the land granted for the purposes of grazing animals, and the beneficiary retains the right to use the land but undertakes not to hinder grazing and to clean up the pastureland, fall within the definition of agricultural activity set out in Article 2 of Regulation No 73/2009?
(4)
Does [EU] law preclude an interpretation of a national legal provision, such as Article 431(2) of the Code of Civil Procedure – on the status of
res judicata
of a final judicial decision – to the effect that a final judicial decision finding a payment application ineligible on the ground of failure to comply with national law as regards the requirement relating to the lawfulness of the right to exploit/use the land in respect of which an area scheme has been applied for in the agricultural year 2014 (in a dispute in which annulment of the decision imposing multiannual penalties has been sought), and which prevents analysis of the conformity of that national requirement with [EU] law applicable in the agricultural year 2014 in a new dispute in which the lawfulness of the measure recovering the sums unduly paid to the applicant is examined, in respect of the same agricultural year 2014, and the measure is based on the same facts and the same national legislation which were analysed in the earlier final judicial decision?’
Consideration of the questions referred
Admissibility
In its written observations, the Romanian Government submits that the request for a preliminary ruling is inadmissible in its entirety, since the referring court has information at its disposal enabling it to resolve the dispute before it. In particular, according to that government, the referring court should have analysed, as a matter of priority, the rules relating to the principle
res judicata
pro veritate habetur
, referred to in Article 431(2) of the Code of Civil Procedure, and dismissed the action brought by Avio Lucos. In that regard, that government adds that, in so far as that provision is applicable to the dispute in the main proceedings, the first three questions are devoid of purpose.
Avio Lucos, for its part, submits that the first and second questions are not relevant to the resolution of the dispute in the main proceedings, since they relate not to the applicant’s eligibility for the single area payment, but to the question of the validity of the concession contract at issue in the main proceedings.
It should be noted that, according to settled case-law, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court of Justice is, in principle, bound to give a ruling (judgment of 15 July 2021, The Department for Communities in Northern Ireland,
C‑709/20
,
EU:C:2021:602
, paragraph
and the case-law cited).
It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 15 July 2021, The Department for Communities in Northern Ireland,
C‑709/20
,
EU:C:2021:602
, paragraph
and the case-law cited).
In the present case, first, the consideration that Article 431(2) of the Code of Civil Procedure should lead the referring court to dismiss the action pending before it does not establish that the interpretation of the rules of EU law whose interpretation is sought by that court is manifestly unrelated to the dispute in the main proceedings. In the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly distinct, and it falls exclusively to the latter to interpret national legislation (judgment of 15 January 2013, Križan and Others,
C‑416/10
,
EU:C:2013:8
, paragraph
and the case-law cited).
Second, as regards the alleged irrelevance of the first and second questions, it must be recalled that Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation of EU law to the Court (judgment of 15 January 2013, Križan and Others,
C‑416/10
,
EU:C:2013:8
, paragraph
and the case-law cited). As is apparent from paragraph 33 of the present judgment, that court considers that an answer to the question whether EU law precludes national legislation which requires a person to prove the right to use or to exploit an area of land or to have the status of breeder or owner of animals in order to be able to claim a concession on pastureland and, where appropriate, obtain financial support under an area payment scheme is necessary in order to resolve the dispute before it.
It follows that the questions referred by the referring court are admissible.
The first question
By its first question, the referring court asks, in essence, whether Regulations No 73/2009 and No 1122/2009 must be interpreted as precluding national legislation which makes the grant of support under the single area payment scheme subject to an obligation on the applicant to prove that he has a ‘right to use’ the agricultural area covered by that application.
It must be borne in mind that, under Article 34(1) of Regulation No 73/2009, support under the single payment scheme is to be granted to farmers upon activation of a payment entitlement per eligible hectare.
In accordance with Article 35(1) of that regulation, the farmer is required to declare the parcels corresponding to the eligible hectares accompanying any payment entitlement and, except in the case of
force majeure
or exceptional circumstances, those parcels must be ‘at the farmer’s disposal’ on a date fixed by the Member State concerned. Similarly, under Article 124(2) of that regulation, for the purpose of granting payments under the single area payment scheme, all agricultural parcels corresponding to the criteria provided for in paragraph 1 of that article, which, except in the case of
force majeure
or exceptional circumstances, must be ‘at the farmer’s disposal’ on the date fixed by that Member State, are eligible.
Since Regulation No 73/2009 does not specify the basis on which the areas concerned must be ‘at the farmer’s disposal’, in interpreting that provision, in accordance with the Court’s settled case-law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgments of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraph
, and of 29 July 2019, Pelham and Others,
C‑476/17
,
EU:C:2019:624
, paragraph
and the case-law cited).
In the first place, as regards the wording of Article 35(1) of that regulation, it should be noted that, in everyday language, the fact that an area is at the farmer’s disposal means, in principle, that the farmer is in a position to use it at his convenience, so as to enable him, in practice, to carry out an agricultural activity on it.
As regards, in the second place, the context in which that provision occurs, it is apparent from paragraph 43 of this judgment that support under the single payment scheme is to be granted to farmers upon activation of a payment entitlement per ‘eligible hectare’, a concept which, according to Article 34(2) of Regulation No 73/2009, designates any agricultural area of the holding that is used for an agricultural activity.
Those terms are themselves defined in that regulation. Thus, Article 2(b), (c) and (h) of that regulation define the concept of a ‘holding’ as being ‘all the production units managed by a farmer situated within the territory of the same Member State’, that of ‘agricultural activity’ as being ‘the production, rearing or growing of agricultural products …, or maintaining the land in good agricultural and environmental condition’ and, lastly, that of an ‘agricultural area’ as being ‘any area taken up by arable land, permanent pasture or permanent crops’.
In that regard, as regards the requirement, laid down in Article 2(b) of Regulation No 73/2009, that a production unit must be ‘managed’ by a farmer, the Court has already held that the concept of ‘management’ does not imply that the farmer has unlimited power over the area in question when using it for agricultural purposes. However, the farmer must enjoy a degree of autonomy with regard to that area sufficient for the carrying-out of his agricultural activity, that being a matter for the referring court to assess, taking into account all the circumstances of the case (see, to that effect, judgments of 14 October 2010, Landkreis Bad Dürkheim,
C‑61/09
,
EU:C:2010:606
, paragraphs
and
, and of 2 July 2015, Demmer,
C‑684/13
,
EU:C:2015:439
, paragraph
).
The farmer must therefore be able to exercise a certain degree of decision-making power when using the area concerned (judgment of 14 October 2010, Landkreis Bad Dürkheim,
C‑61/09
,
EU:C:2010:606
, paragraph
) for the purposes of carrying out his agricultural activity on that area.
In the third place, as regards the objectives pursued by the rules in question, recital 23 of Regulation No 73/2009 states that the purpose of that regulation is to prevent direct aid from being granted to beneficiaries whose agricultural activities form only an insignificant part of their overall economic activities or whose business purpose is not or only marginally targeted at performing an agricultural activity. In addition, it is apparent from Article 39(1)(b) TFEU, the substance of which is set out in recital 25 of that regulation, that the support schemes under the CAP provide for direct income support, which is intended to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture.
Thus, it must be held, as the Advocate General observed in point 50 of his Opinion, that support under the single area payment scheme is intended to ensure a fair standard of living for farmers who genuinely carry out an agricultural activity and, accordingly, actually have at their disposal an agricultural area on which that activity is carried out.
In the light of the wording of Article 35(1) of Regulation No 73/2009, the context in which that provision occurs and the objective pursued by the rules of which it is part, it must be held that, for the purposes of determining whether a parcel is ‘at the farmer’s disposal’, within the meaning of that provision, that regulation does not require that farmer to produce a formal legal document establishing his ‘right to use’ the area in question; the demonstration of the actual use of that area and of sufficient autonomy on the part of that farmer for the purposes of carrying out his agricultural activity on that area are sufficient for that purpose.
That interpretation is borne out, first, by the case-law of the Court relating to the concept of ‘agricultural area of the holding’, to which reference is made in Article 44(2) and (3) of Regulation No 1782/2003. In that regard, the Court has held that, since those provisions do not specify the nature of the legal relationship on the basis of which the area concerned is used by the farmer, it cannot be inferred from those provisions that the parcels in question must be at the farmer’s disposal pursuant to a lease or other similar transaction (judgment of 14 October 2010, Landkreis Bad Dürkheim,
C‑61/09
,
EU:C:2010:606
, paragraph
).
Second, that interpretation is supported by the case-law of the Court relating to the concept of ‘area of the holding available’ in Article 12(2)(b) of Regulation No 1254/1999, the Court having held that that provision does not make the eligibility of an aid application conditional upon production of a valid legal document attesting to the applicant’s right to use the forage areas covered by that application. On the contrary, it is the actual use of the forage area which constitutes one of the eligibility conditions for the grant of the premiums concerned (see, to that effect, judgment of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraphs
and
).
However, even if the obligation to prove the ‘right to use’ an agricultural area is not imposed by EU law, it is still necessary to examine whether EU law precludes Member States from providing for such an obligation in their national legislation.
In that regard, it must be borne in mind that it is apparent from Article 19(1) of Regulation No 73/2009 that each year the farmer is to submit an application for direct payments indicating, where applicable, all the agricultural parcels on the holding, the payment entitlements declared for activation and any other information provided for by that regulation or by the Member State concerned.
In addition, Article 12(1)(d) of Regulation No 1122/2009, which lays down detailed rules for the implementation of Regulation No 73/2009, in particular as regards cross-compliance, modulation and the integrated administration and control system under the direct support schemes for farmers provided for in the latter regulation, provides that the single application is to contain all the information necessary to establish eligibility for the aid, especially the particulars permitting identification of all agricultural parcels on the holding, their area, their location and, where applicable, their use.
Regulation No 1122/2009 further states, in recital 8 thereof, that, in order to ensure a proper implementation of the single payment scheme as provided for in Title III of Regulation No 73/2009, Member States should establish an identification and registration system according to which the payment entitlements have to be traceable. As is apparent, in essence, from recital 28 of Regulation No 1122/2009, the submission within the time limits of ‘any supporting documents, contracts or declarations’ must enable the national administrations to program and, subsequently, carry out effective controls on the correctness of the aid applications.
As regards such supporting documents, the Court has already had occasion to rule, in the light of the EU legislation on aid schemes and the detailed rules for implementing the integrated administration and control system under the direct support schemes for farmers prior to the adoption of Regulation No 1122/2009, that the Member States enjoy a measure of discretion as regards the supporting documents and the evidence to be required from an applicant in relation to the areas covered by the application.
The Court has thus held that, in the light of that discretion, it is permissible for the Member States to lay down more detailed rules as to the evidence to be submitted in support of an aid application by referring, in particular, to the usual practices in their territory in the field of agriculture as regards the enjoyment and use of the forage areas, and the legal documents to be produced in respect of that use (judgment of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraph
).
The Court has also held that the Member States have a measure of discretion when choosing the national measures which they consider necessary in order to prevent and penalise irregularities and fraud effectively (judgment of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraph
).
The Court added, however, that the exercise by Member States of their discretion in respect of the evidence to be provided in support of an aid application is subject to certain limits, particularly as regards the possibility of requiring the applicant to produce a valid legal document attesting to his right to use the areas covered by that application. In that context, the national legislation which gives effect to that discretion must be consistent with the objectives pursued by EU law on direct financial support for farmers and with the general principles of EU law, in particular the principle of proportionality, in accordance with which measures implemented through provisions must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, to that effect, judgments of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraphs
and
, and of 17 December 2020, Land Berlin (Payment entitlements in connection with the CAP),
C‑216/19
,
EU:C:2020:1046
, paragraph
).
While it is for the national court to verify, in each individual case, whether that principle has been complied with (see, to that effect, judgment of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraph
), in accordance with the Court’s settled case-law, the Court has jurisdiction to give the national court full guidance on the interpretation of EU law in order to enable it to determine the issue of compatibility for the purposes of the case before it (judgment of 11 June 2020, Subdelegación del Gobierno en Guadalajara,
C‑448/19
,
EU:C:2020:467
, paragraph
and the case-law cited).
In that regard, in the first place, as the Advocate General observed in point 57 of his Opinion, the introduction of an obligation, such as that referred to in Article 7(1)(f) of OUG No 125/2006, to submit documents proving the lawful use of the land covered by the payment application appears appropriate for ensuring that the objectives of the CAP, referred to in paragraphs 51 and 52 of this judgment, will indeed be pursued. Such an obligation is intended, inter alia, to prevent an applicant for support under the single payment scheme from unlawfully making use of land belonging to others, with the aim of circumventing the EU legislation relating to that scheme (see, by analogy, judgment of 24 June 2010, Pontini and Others,
C‑375/08
,
EU:C:2010:365
, paragraph
).
In the second place, as regards the question whether that national legislation goes beyond what is necessary to achieve that objective, the issue of proportionality must be examined by taking into consideration, in particular, the objectives of the CAP, which necessitates that those objectives be weighed against the objective pursued by that legislation (see, to that effect, judgment of 23 December 2015, Scotch Whisky Association and Others,
C‑333/14
,
EU:C:2015:845
, paragraphs
and
).
In the present case, it should be noted that Article 5(1) of Regulation of the Minister for Agriculture and Rural Development No 246/2008, in the version thereof applicable to the dispute in the main proceedings, states that ‘the documents providing proof of the lawful use of municipal permanent pastureland, in accordance with Article 7(1)(f) of [OUG No 125/2006], are documents attesting to a right of ownership, concession or leasing contracts concluded between the municipal councils and animal breeders, which indicate the land used and certificate issued by the city council in accordance with the information contained in the agricultural register’ and, accordingly, seems to concern only the establishment of proof of the lawful use of municipal permanent pastureland, which is a matter for the referring court to determine. As regards pastureland both in the public domain and in the private sphere of regional administrative authorities, in this case municipalities, it may be considered that a formal document attesting to the ‘right to use’ will, in principle, be established between the parties, with the result that the obligation to produce such a document does not appear, in such a specific case, to be disproportionate.
In the light of all the foregoing considerations, the answer to the first question is that Regulations No 73/2009 and No 1122/2009 must be interpreted as not precluding national legislation which makes the grant of support under the single area payment scheme subject to an obligation on the applicant to prove that he has a ‘right to use’ the agricultural area covered by that application, provided that it is consistent with the objectives pursued by the EU legislation concerned, as well as with the general principles of EU law, in particular the principle of proportionality.
The second question
By its second question, the referring court asks, in essence, whether Regulations No 73/2009 and No 1122/2009 must be interpreted as precluding, in the specific case in which the right to use an agricultural area has been justified by the beneficiary of support under the single area payment scheme through the submission of a concession contract in respect of pastureland in the public domain of a regional administrative authority, national legislation which makes the validity of such a contract conditional on the future concessionaire having the status of breeder or owner of animals.
It should be noted at the outset that it is apparent from the information contained in the request for a preliminary ruling that the obligation on the concessionaire of pastureland to have the status of breeder or owner of animals is not, as such, a condition of eligibility for financial support under the single area payment scheme at issue in the main proceedings. It appears that, under Article 7(1) of OUG No 125/2006, applicants must be registered in the Register of Farmers managed by the APIA, must submit their application for payment within the time limit, and must satisfy the general conditions laid down by that provision, which do not include such an obligation.
However, it is apparent from the documents before the Court that that obligation stems from the provisions of Annex I to Regulation of the Minister for Agriculture, Food and Forestry and of the Minister for Public Administration No 226/235/2003, in the version thereof applicable to the dispute in the main proceedings.
Since that obligation does not stem from EU law and falls within the discretion of the Member States, it is for the referring court, in accordance with the case-law referred to in paragraphs 61, 63 and 64 of the present judgment, to determine whether such a requirement is consistent with the objectives pursued by the EU legislation concerned, as well as with the general principles of EU law, in particular the principle of proportionality.
In that regard, the Romanian Government stated, in its written observations, in essence, that the Romanian legislature, in the light of the specific situation of agriculture in Romania, faced with issues such as land abandonment, an ageing agricultural community, low numbers of young farmers and high numbers of small holdings, a high percentage of which is made up of semi-subsistence holdings, made the choice to make the conclusion of concession contracts relating to pastureland in the public domain of regional administrative authorities conditional on the concessionaire having the status of keeper or owner of animals. Such a choice, which constitutes a condition not of eligibility for the area payment scheme, but of the validity of such concession contracts, falls within the discretion of that legislature.
By imposing that condition, the Romanian legislature thus intended to ensure a fair standard of living for the agricultural community by making it easier for the greatest number of owners or keepers of animals to enjoy direct access to pastureland which belongs to the regional administrative authorities, while avoiding giving the benefit of such access to operators who carry out agricultural activities by way of an intermediary. The APIA added, in its response to questions put by the Court for written response, that, for the majority of animal breeders, the only source of feed for their animals in the summer is the vegetation obtained from the meadows, so that it is important for animal breeders to be able to take on concession the meadows of the areas where they live and breed their animals.
As the Advocate General observed, in essence, in point 68 of his Opinion, such an objective is consistent with the objectives pursued by the relevant EU law. As is apparent from paragraph 52 of this judgment, support under the single area payment scheme is intended to ensure a fair standard of living for farmers who genuinely carry out an agricultural activity and, accordingly, actually have at their disposal an agricultural area on which that activity is carried out.
Furthermore, subject to the checks which it is for the referring court to carry out, the obligation to be an owner or breeder of animals appears, as is apparent from paragraph 74 of this judgment, to be appropriate for attaining the objective sought by the Romanian legislature of making it easier for the greatest number of those owners or breeders to enjoy direct access to pastureland which belongs to the regional administrative authorities, in a context in which, as has been observed in that paragraph, the sole source of feed for farm animals in summer is the vegetation obtained from the meadows.
Furthermore, since that obligation relates solely to a person’s possibility of taking on concession pastureland in the public domain of the regional administrative authorities, the national legislation at issue does not appear to go beyond what is necessary to achieve that objective, which it will be for the referring court to ascertain, taking into account the requirements laid down in the case-law cited in paragraph 66 of this judgment.
In the light of the foregoing considerations, the answer to the second question is that Regulations No 73/2009 and No 1122/2009 must be interpreted as not precluding, in the specific case in which the right to use an agricultural area has been justified by the beneficiary of support under the single area payment scheme through the submission of a concession contract in respect of pastureland in the public domain of a regional administrative authority, national legislation which makes the validity of such a contract conditional on the future concessionaire having the status of breeder or owner of animals.
The third question
By its third question, the referring court asks, in essence, whether Article 2(c) of Regulation No 73/2009 must be interpreted as meaning that the concept of ‘agricultural activity’ covers an activity by which a person takes pastureland on concession and subsequently concludes a cooperation contract with animal breeders, under which those breeders graze their animals on the land granted on concession, and the concessionaire retains the right to use the land, but undertakes not to restrict the grazing activity and takes responsibility for the maintenance of the pastureland.
The concept of ‘agricultural activity’ is defined in Article 2(c) of Regulation No 73/2009 as, on the one hand, the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes and, on the other hand, maintaining the land in good agricultural and environmental condition as established in Article 6 of that regulation.
It appears to be common ground in the dispute in the main proceedings that Avio Lucos’ activity does not fall within the first situation, relating to the production, rearing or growing of agricultural products. As the Advocate General stated in point 73 of his Opinion, the animals made available to Avio Lucos by the breeders under Article 8 of the participative cooperation contract at issue in the main proceedings have always been kept, reared and used for grazing by those breeders.
As regards the second situation, concerning the maintenance of land in good agricultural and environmental condition, Article 6(1) of Regulation No 73/2009 provides that Member States are, first, to ensure that all agricultural land is maintained in good agricultural and environmental condition and, second, to define, at national or regional level, minimum requirements for good agricultural and environmental condition on the basis of the framework established in Annex III to that regulation, taking into account the ‘specific characteristics of the areas concerned’, that article adding that those Member States are not to define minimum requirements which are not foreseen in that framework.
In that regard, the Romanian Government stated, in its written observations, that the Romanian legislature had imposed the ‘minimum livestock stocking rates and/or appropriate regimes’ optional standard, expressly referred to and authorised by the provisions of that Annex III. That legislature thus provided, under the cross-compliance system, as from 2012, for ‘permanent pastureland to be maintained by ensuring a minimum level of grazing of 0.3 LSU/ha and/or by mowing that pastureland at least once each year’.
In its written observations, the Commission also observed that, according to the notification made by Romania concerning the implementation of the minimum standards for good agricultural and environmental condition in respect of the 2014 application year, ‘farmers are obliged to undertake the following with a view to implementing the standard relating to the minimum livestock stocking rates and/or appropriate regimes: cut the grass at least once each year and/or ensure a minimum level of grazing (minimum of 0.3 animals per hectare) in order to maintain the land (permanent pasture) in a good state’.
In the present case, it is apparent from the order for reference that, under Article 7 of the participative cooperation contract concluded between Avio Lucos and the animal breeders, Avio Lucos ‘undertakes, on an annual basis and at its own expense, to clean up the pastureland, uproot toxic weeds and remove excess water from the land, thereby ensuring optimal conditions for the restoration of the pasture’. Subject to the checks which it is for the referring court to carry out, it appears that such an activity falls within one of the alternative activities mentioned in the notification referred to in the preceding paragraph and, accordingly, falls within the concept of ‘agricultural activity’ within the meaning of Article 2(c) of Regulation No 73/2009.
Such an interpretation is, moreover, consistent with the objectives of that regulation, as set out in particular in recitals 4 and 7 thereof, concerning the maintenance of pastureland in good agricultural and environmental condition, since the positive environmental effect of permanent pasture has been recognised.
In the light of the foregoing considerations, the answer to the third question is that Article 2(c) of Regulation No 73/2009 must be interpreted as meaning that the concept of ‘agricultural activity’ covers an activity by which a person takes pastureland on concession and subsequently concludes a cooperation contract with animal breeders, under which those breeders graze their animals on the land granted on concession, and the concessionaire retains the right to use the land, but undertakes not to restrict the grazing activity and takes responsibility for the maintenance of the pastureland, provided that such maintenance meets the conditions laid down by the optional standard referred to in Annex III to that regulation.
The fourth question
By its fourth question, the referring court asks, in essence, whether EU law must be interpreted as precluding the application, in the legal order of a Member State, of the principle of
res judicata
which, in a dispute between the same parties concerning the lawfulness of a measure for recovery of the sums paid to an applicant for support under a single area payment scheme, prevents the court hearing the case from examining the conformity with EU law of national requirements relating to the lawfulness of the right to use the agricultural area covered by the aid application, on the ground that that recovery measure is based on the same facts and on the same national legislation as those analysed in a previous judicial decision which has become final.
As the referring court observes, that question arises from the fact that the APIA relied on the force of
res judicata
attaching to two final judgments which dismissed Avio Lucos’ actions seeking, first, annulment of the decision imposing multiannual penalties on that company in respect of the year 2014, which is referred to in paragraph 30 of this judgment, and, second, annulment of a report establishing irregularities in respect of that year. Those two measures were based on the APIA’s decision that Avio Lucos had to be excluded from payment under the area aid scheme on the ground that, since it did not have the status of animal breeder, it had failed to prove that it was lawfully using the municipal pastureland at issue in the main proceedings.
The referring court notes, in that regard, that, in the light of the national legal literature on Article 431(2) of the Code of Civil Procedure, the objection based on the force of
res judicata
attaching to a final decision can be validly raised in judicial proceedings only if the legal relationship relied on in those proceedings is not only identical to that previously examined in the proceedings which gave rise to that final decision, but is also expressly or implicitly included in those previous proceedings. Thus, the force of
res judicata
would also operate in cases in which the new proceedings put the court in the position of having to restate or contradict, in full or in part, the legal relationship which it upheld or which was rejected in the earlier judgment. In the present case, the judgments referred to in the preceding paragraph settled disputes between the same parties, namely the APIA and Avio Lucos, and related to the same facts, namely the application for a single area payment in respect of the year 2014.
As a preliminary point, it should be noted that, as is apparent from the answer given to the first and second questions, provided that it is consistent with the objectives pursued by the EU legislation concerned, as well as with the general principles of EU law, in particular the principle of proportionality, EU law does not preclude the introduction, under national law, of an obligation to prove the ‘right to use’ an agricultural area for the purposes of obtaining direct support under the single area payment scheme, or, in the specific case in which the right to use an agricultural area has been justified by the beneficiary through the submission of a concession contract in respect of pastureland belonging to a regional administrative authority, national legislation which imposes, for such a concession contract to be valid, the condition that the future concessionaire may be only a breeder or owner of animals.
Attention should be drawn to the importance, both in the legal order of the European Union and in national legal systems, of the principle of
res judicata
. In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become final after all rights of appeal have been exhausted or after expiry of the time limits provided for in that regard can no longer be called into question (judgments of 3 September 2009, Fallimento Olimpiclub,
C‑2/08
,
EU:C:2009:506
, paragraph
; of 17 October 2018, Klohn,
C‑167/17
,
EU:C:2018:833
, paragraph
; and of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
Therefore, EU law does not require a national court to disapply domestic rules of procedure conferring the authority of
res judicata
on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law (see, to that effect, judgments of 3 September 2009, Fallimento Olimpiclub,
C‑2/08
,
EU:C:2009:506
, paragraph
; of 26 January 2017, Banco Primus,
C‑421/14
,
EU:C:2017:60
, paragraph
; and of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
Thus, EU law also does not require a national judicial body automatically to go back on a judgment having the force of
res judicata
in order to take into account the interpretation of a relevant provision of EU law adopted by the Court (judgment of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
In the present case, the referring court is not being asked to go back on a decision having the force of
res judicata
. On the other hand, that court observes that the dispute in the main proceedings is based on the same legal relationship as that which gave rise to the two final judgments referred to in paragraph 89 above, so that, in accordance with the principle of
res judicata
, as interpreted by national law, those judgments cannot be contradicted by the judgment to be delivered in the main proceedings.
In that regard, it is appropriate to recall that it is for the national courts to interpret, as far as it is possible, the provisions of national law in such a way that they can be applied in a manner which contributes to the implementation of EU law (judgment of 11 November 2015, Klausner Holz Niedersachsen,
C‑505/14
,
EU:C:2015:742
, paragraph
and the case-law cited).
In addition, the requirement to interpret national law in conformity with EU law includes the obligation, on national courts, including those ruling as courts of last instance, to change their established case-law where necessary if that case-law is based on an interpretation of national law that is incompatible with EU law. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has been interpreted by other courts in a manner that is incompatible with EU law or is applied in such a manner by the relevant national authorities (see, to that effect, judgment of 4 March 2020, Telecom Italia,
C‑34/19
,
EU:C:2020:148
, paragraphs
and
and the case-law cited).
In the present case, it must be observed, as the Advocate General observed in point 89 of his Opinion, that the subject matter of the judgments referred to in paragraph 89 of this judgment, on the one hand, and the judgment to be delivered in the present case, on the other, does not appear to be the same, since, even though they concern the same facts, they concern the lawfulness of different administrative decisions.
In any event, it is for the referring court to ascertain whether, according to national law, the force of
res judicata
attaching to those decisions covers elements of the present case and, if required, to examine the consequences laid down by that law (see, by analogy, judgment of 4 March 2020, Telecom Italia,
C‑34/19
,
EU:C:2020:148
, paragraph
).
In the absence of EU legislation in this area, the rules implementing the principle of
res judicata
are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. Those rules must not, however, be less favourable than those governing similar domestic situations (the principle of equivalence) nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order (the principle of effectiveness) (judgments of 4 March 2020, Telecom Italia,
C‑34/19
,
EU:C:2020:148
, paragraph
, and of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
In that regard, the Court has already held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its operation and its particular features, viewed as a whole, before the various national bodies. For those purposes, account must be taken, where appropriate, of the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure (judgment of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
As regards the case in the main proceedings, the interpretation of the principle of
res judicata
as set out in paragraph 90 of this judgment appears to prevent not only a judicial decision which has the force of
res judicata
from being called into question, even if that decision were to include an infringement of EU law, but also, in civil judicial proceedings relating to the same facts, any finding relating to the same legal relationship as that which gave rise to the two final judgments from being made.
As the Advocate General observed, in essence, in point 92 of his Opinion, that interpretation of the principle of
res judicata
would therefore have the result that, where a previous decision of a court that has become final is based on an interpretation that is contrary to EU law, the incorrect application of EU law would be repeated in every decision adopted by the civil courts and tribunals concerning the same legal relationship, and there would be no possibility of correcting an interpretation that was in breach of EU law (see, by analogy, judgment of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
Such obstacles to the effective application of the rules of EU law cannot reasonably be justified by the principle of legal certainty and must therefore be considered to be contrary to the principle of effectiveness (see, by analogy, judgment of 2 April 2020, CRPNPAC and Vueling Airlines,
C‑370/17 and C‑37/18
,
EU:C:2020:260
, paragraph
and the case-law cited).
In the light of the foregoing considerations, the answer to the fourth question is that EU law must be interpreted as precluding the application, in the legal order of a Member State, of the principle of
res judicata
which, in a dispute between the same parties concerning the lawfulness of a measure for recovery of the sums paid to an applicant for support under a single area payment scheme, prevents the court hearing the case from examining the conformity with EU law of national requirements relating to the lawfulness of the right to use the agricultural area covered by the aid application, on the ground that that recovery measure is based on the same facts between the same parties and on the same national legislation as those analysed in a previous judicial decision which has become final.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1.
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, as amended by Regulation (EU) No 1310/2013 of the European Parliament and of the Council of 17 December 2013, and Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Regulation No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for [by] that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector, must be interpreted as not precluding national legislation which makes the grant of support under the single area payment scheme subject to an obligation on the applicant to prove that he has a ‘right to use’ the agricultural area covered by that application, provided that it is consistent with the objectives pursued by the EU legislation concerned, as well as with the general principles of EU law, in particular the principle of proportionality.

2.
Regulation No 73/2009, as amended by Regulation No 1310/2013, and Regulation No 1122/2009 must be interpreted as not precluding, in the specific case in which the right to use an agricultural area has been justified by the beneficiary of support under the single area payment scheme through the submission of a concession contract in respect of pastureland in the public domain of a regional administrative authority, national legislation which makes the validity of such a contract conditional on the future concessionaire having the status of breeder or owner of animals.

3.
Article 2(c) of Regulation No 73/2009, as amended by Regulation No 1310/2013, must be interpreted as meaning that the concept of ‘agricultural activity’ covers an activity by which a person takes pastureland on concession and subsequently concludes a cooperation contract with animal breeders, under which those breeders graze their animals on the land granted on concession, and the concessionaire retains the right to use the land, but undertakes not to restrict the grazing activity and takes responsibility for the maintenance of the pastureland, provided that such maintenance meets the conditions laid down by the optional standard referred to in Annex III to that regulation.

4.
EU law must be interpreted as precluding the application, in the legal order of a Member State, of the principle of
res judicata
which, in a dispute between the same parties concerning the lawfulness of a measure for recovery of the sums paid to an applicant for support under a single area payment scheme, prevents the court hearing the case from examining the conformity with EU law of national requirements relating to the lawfulness of the right to use the agricultural area covered by the aid application, on the ground that that recovery measure is based on the same facts between the same parties and on the same national legislation as those analysed in a previous judicial decision which has become final.

[Signatures]
(
*1
)	Language of the case: Romanian.