# C_2018072EN.01002402.xml

| 26.2.2018 | EN | Official Journal of the European Union | C 72/24 |
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26.2.2018

EN

Official Journal of the European Union

C 72/24

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Judgment of the Court (Seventh Chamber) of 20 December 2017 (request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) — Austria) — Erzeugerorganisation Tiefkühlgemüse eGen v Agrarmarkt Austria

(Case C-516/16) (1)

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((Reference for a preliminary ruling - Agriculture - Common organisation of the markets - Operational programme in the fruit and vegetables sector - Regulation (EC) No 1234/2007, as amended by Regulation (EC) No 361/2008 - Articles 103b, 103d and 103 g - EU financial aid - Regulation (EU) No 543/2011 - Article 60 and point 23 of Annex IX - Investments on the holdings and/or premises of the producer organisations - Concept - Legitimate expectations - Legal certainty))

(2018/C 072/32)

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Erzeugerorganisation Tiefkühlgemüse eGen

Applicant:

Defendant: Agrarmarkt Austria

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, in so far as it refers to investments made ‘on holdings and/or premises of producer organisations’, must be interpreted as meaning that:






  — | the mere fact that an investment made in the context of an operational programme covered by Article 60(1) of that regulation is located on land which is owned by a third party, and not the producer organisation concerned, is not, in principle, under point 23 of Annex IX, a ground for non-eligibility of aid for the expenditure incurred, by that producer organisation, in respect of that investment; |
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1.

Point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, in so far as it refers to investments made ‘on holdings and/or premises of producer organisations’, must be interpreted as meaning that:

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the mere fact that an investment made in the context of an operational programme covered by Article 60(1) of that regulation is located on land which is owned by a third party, and not the producer organisation concerned, is not, in principle, under point 23 of Annex IX, a ground for non-eligibility of aid for the expenditure incurred, by that producer organisation, in respect of that investment;

| — | point 23 of Annex IX relates to investments made on holdings and/or premises which are, in law and in fact, under the exclusive control of that producer organisation, so that any use of those investments for the benefit of a third party be excluded. |
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point 23 of Annex IX relates to investments made on holdings and/or premises which are, in law and in fact, under the exclusive control of that producer organisation, so that any use of those investments for the benefit of a third party be excluded.

| 2. | The principle of the protection of legitimate expectations must be interpreted as not precluding, in circumstances such as those at issue in the case in the main proceedings, the competent national authority, first, refusing payment of the amount of the financial aid which had been requested by a producer organisation for an investment finally considered to be ineligible for that aid pursuant to point 23 of Annex IX to Implementing Regulation No 543/2011 and, second, requesting the producer organisation to reimburse the aid already received for that investment. |
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2.

The principle of the protection of legitimate expectations must be interpreted as not precluding, in circumstances such as those at issue in the case in the main proceedings, the competent national authority, first, refusing payment of the amount of the financial aid which had been requested by a producer organisation for an investment finally considered to be ineligible for that aid pursuant to point 23 of Annex IX to Implementing Regulation No 543/2011 and, second, requesting the producer organisation to reimburse the aid already received for that investment.

| 3. | In circumstances such as those at issue in the case in the main proceedings, EU law must be interpreted as meaning that, in the absence of a temporal limitation of the effects of the present judgment, it does not preclude the principle of legal certainty being taken into account in order to exclude the recovery of aid unduly paid, provided that the conditions laid down be the same as for the recovery of purely national financial payments, that the interests of the European Union be taken fully into account and that the good faith of the beneficiary of the aid be established. |
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3.

In circumstances such as those at issue in the case in the main proceedings, EU law must be interpreted as meaning that, in the absence of a temporal limitation of the effects of the present judgment, it does not preclude the principle of legal certainty being taken into account in order to exclude the recovery of aid unduly paid, provided that the conditions laid down be the same as for the recovery of purely national financial payments, that the interests of the European Union be taken fully into account and that the good faith of the beneficiary of the aid be established.

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(1)  OJ C 462, 12.12.2016.

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