# C_2019230EN.01000801.xml

| 8.7.2019 | EN | Official Journal of the European Union | C 230/8 |
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8.7.2019

EN

Official Journal of the European Union

C 230/8

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Judgment of the Court (Tenth Chamber) of 8 May 2019 (request for a preliminary ruling from the Riigikohus — Estonia) — Mittetulundusühing Järvelaev v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)

(Case C-580/17) (1)

(Reference for a preliminary ruling - Common agricultural policy - Support for rural development by the European Agricultural Fund for Rural Development (EAFRD) - Regulation (EC) No 1698/2005 - Applicability ratione temporis - Article 72 - Durability of investment operations - Substantial modification to a co-financed investment operation - Asset acquired by means of an investment operation co-financed by the EAFRD and leased by the beneficiary of the funding to another - Financing, management and monitoring of the common agricultural policy - Regulation (EC) No 1306/2013 - Articles 54 and 56 - Obligation of the Member States to recover sums unduly paid as a result of irregularity or negligence - Concept of ‘irregularity’ - Initiation of recovery proceedings)

(2019/C 230/09)

Language of the case: Estonian

Referring court

Riigikohus

Parties to the main proceedings

Applicant: Mittetulundusühing Järvelaev

Defendant: Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)

Operative part of the judgment

| 1. | The durability of an investment operation which, as in the case in the main proceedings, was approved and co-financed by the European Agricultural Fund for Rural Development (EAFRD) in the 2007-2013 programming period must be assessed according to Article 72 of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development. Where the recovery of sums unduly paid under that operation takes place after the programming period has come to an end, namely after 1 January 2014, recovery must be based on Article 56 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008. |
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1.

The durability of an investment operation which, as in the case in the main proceedings, was approved and co-financed by the European Agricultural Fund for Rural Development (EAFRD) in the 2007-2013 programming period must be assessed according to Article 72 of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development. Where the recovery of sums unduly paid under that operation takes place after the programming period has come to an end, namely after 1 January 2014, recovery must be based on Article 56 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008.

| 2. | A lease by the beneficiary of funding, such as that at issue in the main proceedings, which was paid as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) under the Leader axis referred to in Regulation No 1698/2005, of an asset acquired by means of that funding to another who uses it in connection with the same activity as that which the beneficiary of the funding was to exercise may amount to a substantial modification to the co-financed investment operation within the meaning of Article 72(1) of that regulation, which is for the referring court to ascertain in the light of all the elements of fact and of law at issue against the alternative conditions referred to in Article 72(1)(a) and (b) thereof. For the purposes of finding that there has been undue advantage given to a firm or public body within the meaning of Article 72(1)(a) of that regulation, it is for the competent national authority, to determine, subject to review by the relevant national courts, what the undue advantage specifically is. Whilst relevant, whether or not, in the light of the factual and legal situation, the actual user of the funding would have obtained the funding if it had itself submitted a funding application is not conclusive for the purposes of applying Article 72(1)(a) thereof. |
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2.

A lease by the beneficiary of funding, such as that at issue in the main proceedings, which was paid as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) under the Leader axis referred to in Regulation No 1698/2005, of an asset acquired by means of that funding to another who uses it in connection with the same activity as that which the beneficiary of the funding was to exercise may amount to a substantial modification to the co-financed investment operation within the meaning of Article 72(1) of that regulation, which is for the referring court to ascertain in the light of all the elements of fact and of law at issue against the alternative conditions referred to in Article 72(1)(a) and (b) thereof. For the purposes of finding that there has been undue advantage given to a firm or public body within the meaning of Article 72(1)(a) of that regulation, it is for the competent national authority, to determine, subject to review by the relevant national courts, what the undue advantage specifically is. Whilst relevant, whether or not, in the light of the factual and legal situation, the actual user of the funding would have obtained the funding if it had itself submitted a funding application is not conclusive for the purposes of applying Article 72(1)(a) thereof.

| 3. | Article 72(1) of Regulation No 1698/2005 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires the beneficiary of funding paid as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) to retain and use itself the asset acquired by means of that investment operation for at least five years from the payment of the final instalment of the funding. |
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3.

Article 72(1) of Regulation No 1698/2005 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires the beneficiary of funding paid as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) to retain and use itself the asset acquired by means of that investment operation for at least five years from the payment of the final instalment of the funding.

| 4. | The first paragraph of Article 56 of Regulation No 1306/2013 must be interpreted as meaning that failure, by the beneficiary of funding awarded as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) falling within the Leader axis referred to in Regulation No 1698/2005, to carry out a part of the operation set out by the beneficiary in its application for funding which was one of the criteria on the basis of which the applications for funding were assessed for the purpose of ranking them, despite the fact that that criterion was not required by the relevant national legislation, amounts to an irregularity within the meaning of that provision, provided that the failure to perform such a factor resulted in a substantial modification within the meaning of Article 72(1) of Regulation No 1698/2005 to the investment operation, which is for the referring court to ascertain. |
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4.

The first paragraph of Article 56 of Regulation No 1306/2013 must be interpreted as meaning that failure, by the beneficiary of funding awarded as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) falling within the Leader axis referred to in Regulation No 1698/2005, to carry out a part of the operation set out by the beneficiary in its application for funding which was one of the criteria on the basis of which the applications for funding were assessed for the purpose of ranking them, despite the fact that that criterion was not required by the relevant national legislation, amounts to an irregularity within the meaning of that provision, provided that the failure to perform such a factor resulted in a substantial modification within the meaning of Article 72(1) of Regulation No 1698/2005 to the investment operation, which is for the referring court to ascertain.

| 5. | Article 56 of Regulation No 1306/2013 must be interpreted as not precluding a recovery procedure for funding unduly paid from being initiated before the end of the five-year period from the managing authority’s financing decision. That provision must also be interpreted as not precluding such a recovery procedure from being continued where, in the course of the procedure, the beneficiary of the funding remedies the failure which justified the initiation of that procedure. |
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5.

Article 56 of Regulation No 1306/2013 must be interpreted as not precluding a recovery procedure for funding unduly paid from being initiated before the end of the five-year period from the managing authority’s financing decision. That provision must also be interpreted as not precluding such a recovery procedure from being continued where, in the course of the procedure, the beneficiary of the funding remedies the failure which justified the initiation of that procedure.

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(1)  OJ C 412, 4.12.2017.

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