CELEX: 62009CJ0133
Agriculture
Common agricultural policy
Support schemes
Regulation (EC) No 1782/2003
Article 143ba
Separate sugar payment
Grant
Decision of the new Member States
Conditions
Objective and non-discriminatory criteria

This reference for a preliminary ruling concerns the interpretation of Article 143ba(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 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), as amended by Council Regulation (EC) No 319/2006 of 20 February 2006 (OJ 2006 L 58, p. 32, ‘Regulation
No 1782/2003’).
The reference has been made in proceedings between Mr Uzonyi and the Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve
(Central body of the Office for Agriculture and Rural Development, ‘the Hivatal’) concerning an application for a separate
sugar payment.

Legal context

Community law
The first subparagraph of Article 143ba(1) of Regulation No 1782/2003, headed ‘Separate sugar payment’ provides:
‘By way of derogation from Article 143b the new Member States applying the single area payment scheme may decide by 30 April
2006, to grant in respect of the years 2006, 2007 and 2008, a separate sugar payment to farmers eligible under the single
area payment scheme. It shall be granted on the basis of objective and non-discriminatory criteria such as:
–        the quantities of sugar beet, cane or chicory covered by delivery contracts concluded in accordance with Article 19 of Regulation
(EC) No 1260/2001,
–        the quantities of sugar or inulin syrup produced in accordance with Regulation (EC) No 1260/2001,
–        the average number of hectares under sugar beet, cane or chicory used for the production of sugar or inulin syrup and covered
by delivery contracts concluded in accordance with Article 19 of Regulation (EC) No 1260/2001
and in respect of a representative period which could be different for each product of one or more of the marketing years
2004/2005, 2005/2006 and 2006/2007 to be determined by Member States before 30 April 2006.’
Article 1(2) of Council Regulation (EC) No 2011/2006 of 19 December 2006 adapting Regulation (EC) No 1782/2003 establishing
common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for
farmers, Regulation (EC) No 318/2006 on the common organisation of the markets in the sugar sector and Regulation (EC) No
320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community, by reason of the accession
of Bulgaria and Romania to the European Union (OJ 2006 L 384, p. 1), which entered into force on 1 January 2007, replaced
the second sentence of the first subparagraph of Article 143ba(1) with the following:
‘It shall be granted in respect of a representative period which could be different for each product of one or more of the
marketing years 2004/2005, 2005/2006 and 2006/2007 to be determined by Member States before 30 April 2006, and on the basis
of objective and non-discriminatory criteria such as:
–        the quantities of sugar beet, cane or chicory covered by delivery contracts concluded in accordance with Article 19 of Regulation
(EC) No 1260/2001 or Article 6 of Regulation (EC) No 318/2006 as appropriate,
–        the quantities of sugar or inulin syrup produced in accordance with Regulation (EC) No 1260/2001 or Regulation (EC) No 318/2006
as appropriate,
–        the average number of hectares under sugar beet, cane or chicory used for the production of sugar or inulin syrup and covered
by delivery contracts concluded in accordance with Article 19 of Regulation (EC) No 1260/2001 or Article 6 of Regulation (EC)
No 318/2006 as appropriate.’
That amendment, which does not apply
ratione temporis
in the main proceedings, is relied on in those proceedings by the defendant as a factor for consideration when interpreting
Article 143ba of Regulation No 1782/2003.

National provisions
Article 2(1) of Decree (
Rendelet
) of the Ministry of Agriculture and Rural Development (FVM) No 48/2006 (VI.22) concerning the separate sugar payment granted
to farmers eligible under the single area payment scheme (
Magyar Közlöny
2006/75; ‘the Ministry of Agriculture and Rural Development Decree’) provides:
‘The following farmers shall be entitled to the payment:
(a)       those eligible for a single area payment under the specific legal provisions in the reference marketing year;
(b)       those who are entitled to deliver sugar beet during the reference period or have a contract based on the Slovenian sugar quota;
(c)       those who have complied with the obligations attaching to their sugar beet delivery rights.
…’
Delivery rights are based on the quantity of sugar beet needed to manufacture the quantity of sugar covered by the sugar quota
assigned to the Member State under Community law.
Article 5 of the Ministry of Agriculture and Rural Development Decree provides:
‘(1)      The following documentary evidence must be attached to the application for payment:
(a)       a document supplied by the Sugar Board showing the quantity (in tonnes) of the delivery rights (16%) assigned to the applicant
as at 1 July 2004 and 1 July 2005 (to be calculated on the basis of a standard yield of 140 kg/t);
(b)       a document supplied by the body administering the sugar beet processing quota showing the quantity (in tonnes) of ‘A’ and
‘B’ (16%) sugar beet delivered under cultivation contracts in marketing year 2004/2005 or 2005/2006 (the processors’ documents
are to be adjusted, where necessary, to take into account a standard sugar yield of 140 kg);
(c)       a document supplied by the relevant Regional Federation of Sugar Beet Producers showing that the applicant has complied with
the obligations attaching to its delivery rights;
(d)       any other documents providing evidence of eligibility.
(2)       In the case of members of a producer group, the processors shall certify the total quantity delivered by the producer group,
whilst the latter shall certify the quantities delivered by the individual members within the group.
…’

The main proceedings and the question referred for a preliminary ruling
On 28 June 2006, Mr Uzonyi, the applicant in the main proceedings, submitted an application to the Hivatal for a separate
sugar payment, for the year 2006, in respect of his sugar beet production delivered through an
integrátor
, a body which acts as an intermediary and coordinator and assists farmers belonging to it with their production activity.
Mr Uzonyi, however, could provide evidence of his sugar beet delivery rights and of his compliance with the obligations attaching
to those rights only in relation to the
integrátor
.
By decision of 18 April 2007, the Hivatal refused his application on the ground that he was not eligible for the assistance
because he had failed to supply the documentary evidence required under Article 5(1) of the Ministry of Agriculture and Rural
Development Decree.
Mr Uzonyi lodged a complaint against the decision refusing his application.
That complaint was rejected on 6 July 2007 by a decision of the Minister for Agriculture and Rural Development, the predecessor
to the Hivatal, the defendant in the main proceedings.
As grounds for that decision, it was stated that only farmers who have sugar beet delivery rights and who have complied with
the obligations attaching thereto are eligible for the payment. Thus, in so far as the documents annexed to the application
did not relate to the delivery rights, and compliance with the obligations attaching thereto, of the applicant himself but
to those of the
integrátor
, the requirements of Article 5(1) of the Ministry of Agriculture and Rural Development Decree were not met.
Mr Uzonyi brought an appeal against the decision rejecting his application before the referring court. He claimed there was
discrimination between sugar beet producers who delivered sugar beet themselves and those who delivered sugar beet through
integrátors
. He claimed application by analogy of Article 5(2) of the Ministry of Agriculture and Rural Development Decree, which relates
to deliveries of beet through producer groups.
The defendant in the main proceedings submits before the referring court that the objective and non-discriminatory criteria
are to be applied, not in relation to the persons eligible for payment who are covered by Article 143ba of Regulation No 1782/2003,
but as regards the representative period to which that provision refers. It finds confirmation of its submission in the amendment
made to Article 143ba of Regulation No 1782/2003 by Article 1(2) of Regulation No 2011/2006. It contends that that amendment
simply clarified the wording of the provision without altering the meaning. Both before and after the amendment, objective
and non-discriminatory criteria are therefore to be applied only in relation to the representative period.
The referring court considers that Articles 2 and 5 of the Ministry of Agriculture and Rural Development Decree exclude from
the payment those farmers who have not concluded a direct contract with the sugar manufacturer but have concluded a cultivation
contract with an
integrátor
having delivery rights based on the areas farmed by the producers belonging to it. Those farmers are not in a position to
prove that they themselves have delivery rights, as required by the Ministry of Agriculture and Rural Development Decree,
in order to obtain the payment.
The referring court points out that, in contrast, farmers who are members of a producer group and who have not concluded a
direct contract with the sugar manufacturer but have concluded a cultivation contract with a group which has delivery rights
based on the areas farmed by its members may obtain a separate sugar payment under the provisions in force of Article 5(2)
of the Ministry of Agriculture and Rural Development Decree by producing the documents supplied by that group.
In its view, account must be taken of the settled case-law of the Court of Justice according to which the second subparagraph
of Article 34(2) EC, which prohibits all discrimination in the context of the common agricultural policy, is merely a specific
expression of the general principle of equal treatment.
The referring court considers that the wording of the provision of EU law to be interpreted is unclear and, furthermore, that
that provision was subsequently amended. It adds that if the Court were to rule that under Article 143ba of Regulation No
1782/2003 producers of sugar beet delivering it through an
integrátor
are just as entitled to the separate sugar payment as producers who deliver the sugar beet themselves, such a payment could
then also be granted, in respect of 2006, to the applicant in the main proceedings and to many others who have brought proceedings
currently pending before the courts, by the application by analogy of Article 5(2) of the Ministry of Agriculture and Rural
Development Decree.
In those circumstances, the Fövárosi Bíróság (Budapest Municipal Court) decided to stay the proceedings and refer the following
question to the Court of Justice for a preliminary ruling:
‘Does it follow from the provision contained in Article 143ba(1) of Regulation (EC) 1782/2003 in the version in force until
31 December 2006, which stated that “[payment] shall be granted on the basis of objective and non-discriminatory criteria”,
that, as regards eligibility for the separate sugar payment under the single area payment scheme, it was not possible to draw
a distinction between farmers on the basis of whether they delivered the sugar beet for processing directly (themselves) or
indirectly (through an
integrátor
)?’

The question referred for a preliminary ruling
By its question, read in the light of the grounds of the order for reference, the national court is effectively seeking to
determine whether Article 143ba(1) of Regulation No 1782/2003 must be interpreted as precluding national provisions such as
those at issue in the main proceedings, which exclude from entitlement to a separate sugar payment a farmer not having delivery
rights who delivers sugar beet to a sugar manufacturer through an
integrátor
who does have such rights, while those provisions grant a separate payment to a farmer having delivery rights who delivers
sugar beet directly to a sugar manufacturer, and to a farmer not having delivery rights who is a member of a producer group
which does have delivery rights and who delivers sugar beet to a sugar manufacturer through that group.
In order to reply to that question it is necessary to establish whether such national provisions make for discrimination prohibited
under Article 143ba of Regulation No 1782/2003.
With regard to the contentions made by the defendant in the main proceedings, as a preliminary point, the Court finds that:
–        Article 143ba of Regulation No 1782/2003, in all languages and in the version applicable in the main proceedings, clearly
provides that the separate sugar payment is to be granted on the basis of objective and non-discriminatory criteria to farmers
eligible under the single area payment scheme;
–        none of the language versions of that article establishes a connection between objective and non-discriminatory criteria,
on the one hand, and determination of representative periods, on the other hand.
The subsequent amendment of Article 143ba under Article 1(2) of Regulation No 2011/2006 does not affect those findings.
Although it cannot be excluded that, by way of exception, an amending provision may be a factor for consideration when interpreting
an amended provision, such a possibility is excluded a priori where the earlier provision is clear in all language versions.
However, it is apparent that the amending provision relied on in the present case is not clear in all the available nineteen
versions of it. In six of those versions, namely the Danish, Estonian, French, Hungarian, Polish and Portuguese versions,
it contains differences in wording which give rise, at the very least, to uncertainty as to whether objective and non-discriminatory
criteria must be applied when granting the payment or when determining the representative period.
Furthermore, the thirteen other language versions, namely the versions in Spanish, Czech, German, Greek, English, Italian,
Latvian, Lithuanian, Dutch, Slovene, Slovak, Finnish and Swedish are worded as clearly as the provision to be interpreted.
The Court must therefore hold that Article 143ba of Regulation No 1782/2003 requires the new Member States to apply objective
and non-discriminatory criteria when granting a separate sugar payment.
Consequently, that article merely restates the principle of non-discrimination laid down in the second subparagraph of Article
34(2) EC.
In that regard, the Court has consistently held that the prohibition on discrimination in the context of the common agricultural
policy is merely a specific expression of the general principle of equal treatment, which requires that comparable situations
not be treated differently and different situations not be treated alike unless such treatment is objectively justified (see,
in particular, with regard to the second subparagraph of Article 34(2) EC, Case C‑313/04
Franz Egenberger
[2006] ECR I‑6331, paragraph 33; Case C‑33/08
Agrana Zucker
[2009] ECR I‑5035, paragraph 46, and Case C‑365/08
Agrana Zucker
[2010] ECR I‑0000, paragraph 42).
Regulation No 319/2006 inserted Article 143ba into Regulation No 1782/2003 in the version preceding the changes made by that
regulation.
It is clear from the second, sixth, seventh and ninth to eleventh recitals in the preamble to Regulation No 319/2006 that
its objective is to provide income support for ‘farmers’ who produce sugar beet and are eligible under the single area payment
scheme.
That regulation does not establish any connection between the granting of a separate sugar payment and whether the farmers
deliver the sugar beet to the sugar manufacturer directly or indirectly. Nor does it establish any connection between a separate
sugar payment and whether or not a farmer has delivery rights.
In the light of the objective of Regulation No 319/2006, farmers producing sugar beet are therefore in comparable situations
whether they deliver that product to a sugar manufacturer directly or indirectly and whether or not they themselves have delivery
rights under national provisions.
According to the interpretation of the national law applying in the main proceedings as given by the referring court and confirmed
by it in response to a request for clarification made by the Court because of the differences of interpretation of that law
that had appeared in the written observations lodged before it, a farmer belonging to an
integrátor
, who does not have delivery rights and who delivers sugar beet to a sugar manufacturer through an
integrátor
which does have delivery rights cannot be granted a separate sugar payment directly, unlike either a farmer having delivery
rights who delivers sugar beet himself or a farmer not having delivery rights who delivers beet to a sugar manufacturer through
a producer group to which he belongs which does have such rights.
It follows that national provisions such as those at issue in the main proceedings treat comparable situations differently.
It is therefore necessary to ascertain whether such difference in treatment is objectively justified.
In its written observations the Hungarian Government maintained that the
integrátor
is usually better placed to carry out the administrative work relating to the separate sugar payment. The procedure under
the national provisions is usually more favourable to the producer. It ensures that applications are dealt with more effectively
since the administration only has to rule on applications from
integrátors
and not on applications from all the producers belonging to
integrátors
.
During the oral procedure the Hungarian Government stated that, in its view, in order to meet the requirements of Article
143ba of Regulation No 1782/2003, an
integrátor
must itself be eligible under the single area payment scheme.
However, it should be noted that, according to the interpretation given by the referring court, the fact that a farmer belongs
to a producer group having delivery rights does not preclude that farmer being granted a separate sugar payment directly,
even though the farmer himself does not have delivery rights.
It thus appears that farmers who are members of a producer group may submit an application for a separate sugar payment themselves
without any objections being raised that it would be more efficient for the applications to be dealt with collectively. Such
objections are likely to be as valid for that category of farmers as for the category of farmers belonging to an
integrátor
who do not have delivery rights.
All the same, even if such objections might be raised against farmers who belong to an
integrátor
or are members of a group and do not themselves deliver to sugar manufacturers, they would not in any event constitute an
objective justification for treatment that drew a distinction between those two types of farmer and farmers who deliver to
the sugar manufacturer themselves.
In particular, those objections could not be raised if the conditions laid down for granting a separate payment upon application
by an intermediary ultimately had the effect of depriving the farmers concerned of entitlement to that payment, for example,
in circumstances where:
–        those farmers, if the intermediary failed to act, would not be allowed to make a direct application for a separate payment
in its stead;
–        submission of an application for a separate payment on behalf of the farmers by an intermediary was conditional upon the intermediary
itself being eligible under the single area payment scheme, although Article 143ba of Regulation No 1782/2003 makes that requirement
only in respect of a farmer claiming the separate payment and not in respect of an intermediary representing him.
It must therefore be held that a difference in treatment such as the one at issue in the main proceedings is not objectively
justified.
Consequently, the answer to the question referred for a preliminary ruling is that Article 143ba(1) of Regulation No 1782/2003
must be interpreted as precluding national provisions such as those at issue in the main proceedings which exclude from entitlement
to a separate sugar payment a farmer not having delivery rights who delivers sugar beet to a sugar manufacturer through an
integrátor
which does have such rights, although those provisions grant a separate payment to a farmer having delivery rights who delivers
sugar beet direct to a sugar manufacturer, and to a farmer not having delivery rights who is a member of a producer group
which does have delivery rights and who delivers sugar beet to a sugar manufacturer through that group.
In any event, it is for the national court to assess whether it is possible for it to give the national provisions an interpretation
which is consistent with the relevant Community law.

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 (Fourth Chamber) hereby rules:
Article 143ba(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 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, as amended by Council Regulation (EC) No 319/2006 of 20 February
2006, must be interpreted as precluding national provisions such as those at issue in the main proceedings which exclude from
entitlement to a separate sugar payment a farmer not having delivery rights who delivers sugar beet to a sugar manufacturer
through an
integrátor
which does have such rights, although those provisions grant a separate payment to a farmer having delivery rights who delivers
sugar beet direct to a sugar manufacturer, and to a farmer not having delivery rights who is a member of a producer group
which does have delivery rights and who delivers sugar beet to a sugar manufacturer through that group.
[Signatures]
*
Language of the case: Hungarian.