Opinion of the Advocate General — ECLI:EU:C:2015:368
Date: 2015-06-04
Language of the case: Lithuanian
Subject matter: Accession;Agriculture and Fisheries
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Lithuania

Summary records of these meetings are available for consultation in English at the following Internet address: http://ec.europa.eu/agriculture/committees/direct-payments-pre-2013-reform_en.htm. 22 – See, to that effect, judgment in Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraphs 40 and 41) and the Opinion of Advocate General Cruz Villalón in Gauweiler and Others (C‑62/14, EU:C:2015:7, point 72). According to that judgment, the conclusions of a committee established under EU law, which are not binding on national authorities, cannot be examined in proceedings under Article 267 TFEU. 23 – 31/86 and 35/86, EU:C:1988:211. 24 – See, to that effect, judgment in LAISA and CPC España v Council (31/86 and 35/86, EU:C:1988:211, paragraph 14). 25 – Regulation of 11 July 2012 amending Council Regulation (EC) No 73/2009 as regards the application of direct payments to farmers in respect of the year 2013 (OJ 2012 L 204, p. 11). 26 – Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded (OJ 2005 L 157, p. 203) of 21 June 2005. 27 – Recitals 2 and 7 in the preamble to Regulation No 671/2012. 28 – See footnote 7 of this Opinion. 29 – T‑333/09, EU:T:2012:449. 30 – As regards the different terms used in the Lithuanian versions of those regulations, see points 134 to 142 of this Opinion. 31 – The wording of that article in Regulation No 73/2009 was slightly amended compared to the wording used in the 2003 Act of Accession. Thus, the final subparagraph of Article 132(2) of Regulation No 73/2009 is worded as follows: ‘shall not exceed the level of direct support a farmer would be entitled to receive under the corresponding direct payment then applicable to the Member States in the Member States other than the new Member States’. 32 – Some language versions use different expressions in Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009 (in particular, the Estonian and Finnish versions), while in several other versions, the expressions used are the same. I would observe that, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment in Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 40). Accordingly, these isolated linguistic variations are not capable of affecting the finding as to the interpretation of Article 10(1) of Regulation No 73/2009. 33 – The reports are available for consultation in English at the following Internet addresses: http://ec.europa.eu/agriculture/cap-funding/beneficiaries/direct-aid/pdf/annex1-2005_en.pdf and http://ec.europa.eu/agriculture/cap-funding/beneficiaries/direct-aid/pdf/annex2-2005_en.pdf. 34 – The World Trade Organisation (WTO) and the Organisation for Economic Cooperation and Development (OECD) have developed different methods for classifying and measuring levels of agricultural support. These methods, particularly the WTO’s Aggregate Measurement of Support (AMS) and the OECD’s Producer Support Estimate (PSE) may be used to classify and compare the levels of support in each country. However, these different systems were created for different objectives and produce widely varying results (see, to that effect, the study by Effland, A.: ‘Classifying and Measuring Agricultural Support: Identifying Differences Between the WTO and OECD Systems’, EIB-74, US Department of Agriculture, Economic Research Service, March 2011. This study is available for consultation at the following Internet address: http://www.ers.usda.gov/media/129064/eib74.pdf). These systems cannot in themselves be used for the purpose of interpreting the concept of ‘level’ used in Regulation No 73/2009. 35 – Emphasis added. 36 – It should be recalled that the CAP was reformed at the same time as the accession negotiations with the EU-10 Member States. 37 – Recitals 24 and 25 in the preamble to Regulation No 1782/2003. 38 – See the Commission document concerning the SPS, which is available for consultation in French at the following Internet address: http://ec.europa.eu/agriculture/direct-support/pdf/factsheet-single-payment-scheme_fr.pdf. For the different schemes implemented in the 28 Member States, see the map at the following Internet address: http://ec.europa.eu/agriculture/direct-support/images/map-direct-payments_en.gif. 39 – This scheme gives Member States considerable scope in terms of choice. Thus, as academic writers have pointed out, ‘taking into account Regulation [No 1782/2003] as well as the body of detailed rules on application, the result is a set of approximately 500 [a]rticles and 50 annexes covering two “decoupled systems” (the single payment system and the simplified system for new Member States), seventeen coupled systems (six of which are transitional), two decoupling models (historic and regional), six methods of regionalisation (historic, flat rate, hybrid, static or dynamic and the variant for new Member States), the option of deferred decoupling for milk premiums, the possibility of differentiation for areas of permanent pasture or herbaceous crops; 10 options for partial recoupling of certain crops; the possible non-application of decoupling for a transitional period of three years; the power not to decouple certain support schemes and finally, dulcis in fundo, at least six different types of payment entitlement within the framework of the single payment scheme’ (Bianchi, D., La politique agricole commune (PAC). Toute la PAC, rien d’autre que la PAC, Bruylant, Brussels, 2006, p. 294). 40 – That is to say, the scheme prior to the reductions applied, in particular, by way of phasing-in or modulation. 41 – Even after that date, Member States applying the SAPS may, under Article 36 of 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 Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608), decide to continue to apply that scheme until 31 December 2020. According to the Commission information note of 13 November 2014 concerning the decisions taken by Member States for the implementation of the new direct support system (available for consultation in English at the following Internet address: http://ec.europa.eu/agriculture/direct-support/direct-payments/docs/implementation-decisions-ms_en.pdf), the 10 Member States that apply the SAPS, including the Republic of Bulgaria and Romania, have all decided to continue to apply this scheme until 2020. 42 – The adjustment mechanism, introduced for 2013, is, however, applicable in the EU-10 Member States without any specific rules (see point 49 of this Opinion). 43 – Since the modulation percentage in 2011 was only 9% for the EU-15 Member States and the level of direct payments in the EU-10 Member States was 80% of the level applicable in the EU-15 Member States, it is clear that the levels of direct payments in the EU-15 and EU-10 Member States in 2011 were still very different. 44 – The final subparagraph of Article 132(2) of Regulation No 73/2009 contains the phrase ‘taking into account, from 2012, the application of Article 7 in conjunction with Article 10’. 45 – See point 59 of this Opinion. 46 – This interpretation stems directly from Article 10(2) of Regulation No 73/2009, the validity of which was not called in question in these proceedings. According to working document DS2011/14/REV2, the difference between the level of direct payments resulting from the phasing-in mechanism in the EU-10 Member States and the level of direct payments observed in the EU-15 Member States, taking account of all reductions made pursuant to Article 7(1) of that regulation, was zero in 2012, the levels in the EU-15 and EU-10 Member States equalling 90%. Since the percentage to be taken into account is zero, the modulation rate for amounts between EUR 5 000 and EUR 300 000 is also zero. Thus, the gradual modulation rate — namely the reduction increased by 4 percentage points — for amounts exceeding EUR 300 000 is 4%. 47 – Implementing Decision C(2012) 4391 only concerns the Republic of Lithuania, which applies the SAPS. The consideration of this interpretation, which is already apparent from Working Document DS2011/14/REV2, is therefore focused on its effects for the EU-10 Member States applying the SAPS. 48 – According to the Commission, this sectoral approach was applied in 2012 in all of the Member States that chose the SAPS, including the Republic of Lithuania. In the Commission’s view, within the framework of the SAPS, CNDPs have their own specific features, as they allow Member States to support sectors that would not otherwise receive any support in those Member States. When a Member State chooses the SAPS, all payments made within the framework of European support schemes are combined so that they can be shared out equally depending on the number of hectares eligible for support, with the result that all farmers receive a uniform amount per hectare across the whole of the national territory. However, payments made within the framework of the SPS are more differentiated, as a Member State may give more support to some sectors, differentiating the amounts relating to payment entitlements. 49 – Judgments in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55 and the case-law cited); IBV & Cie (C‑195/12, EU:C:2013:598, paragraphs 49 and 50); and Feakins (C‑335/13, EU:C:2014:2343, paragraph 47). 50 – Judgments in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 25); IBV & Cie (C‑195/12, EU:C:2013:598, paragraph 51); and Feakins (C‑335/13, EU:C:2014:2343, paragraph 49). 51 – See, to that effect, judgments in Poland v Council (C‑273/04, EU:C:2007:622, paragraphs 87 and 88) and Poland v Commission (C‑335/09 P, EU:C:2012:385, paragraphs 100 and 101). 52 – It should be noted that the EU-10 Member States applying the SAPS retained the possibility of granting complementary aid even after the phasing-in period. Recital 8 in the preamble to Regulation No 671/2012 is worded as follows: ‘The new Member States were allowed to grant [CNDPs] as a consequence of the phasing-in of direct payments in those Member States. Such possibility will no longer be available in 2013, when the schedule for the gradual introduction of direct payments in the new Member States will be complete. In the new Member States applying the [SAPS], [CNDPs] have played an important role in supporting the income of farmers in specific sectors. … For that reason, and in order to avoid a sudden and substantial decrease of support in 2013 in those sectors benefiting, until 2012, from [CNDPs] … it is appropriate to provide, in those Member States, for the possibility to grant, subject to authorisation by the Commission, transitional national aids to farmers in 2013.’ The possibility of granting such transitional national aid was further extended by Regulation No 1307/2013 for the period 2015-2020. 53 – See point 104 of this Opinion. 54 – Judgments in Bavaria and Bavaria Italia (C‑343/07, EU:C:2009:415, paragraph 81) and Panellinios Syndesmos Viomichanion Metapoiisis Kapnou (C‑373/11, EU:C:2013:567, paragraph 40). 55 – Judgments in Jippes and Others (C‑189/01, EU:C:2001:420, paragraph 80); Spain v Commission (C‑304/01, EU:C:2004:495, paragraph 23); Unitymark and North Sea Fishermen’s Organisation (C‑535/03, EU:C:2006:193, paragraph 55); Bavaria and Bavaria Italia (C‑343/07, EU:C:2009:415, paragraph 82); and Panellinios Syndesmos Viomichanion Metapoiisis Kapnou (C‑373/11, EU:C:2013:567, paragraph 41). 56 – Judgment in Premis Medical (C‑273/09, EU:C:2010:809, paragraph 30). 57 – In particular, the Bulgarian, German, French, Lithuanian and Dutch versions. 58 – The Spanish, Czech, Danish, Estonian, Greek, English, Italian, Latvian, Maltese, Polish, Portuguese, Romanian, Slovakian, Slovenian, Finnish and Swedish versions. 59 – Emphasis and strikethrough added. The Lithuanian corrigendum of 18 February 2010 (OJ 2010 L 43, p. 7) contained an error. Although the reference to the year 2012 was inserted at the end of the provision, it was not deleted from the beginning of the sentence. Accordingly, the Lithuanian version of the final subparagraph of Article 132(2) of Regulation No 73/2009 had to be corrected a second time on 15 May 2013 (OJ 2013 L 130, p. 60). 60 – Emphasis and strikethrough added. 61 – Either the word ‘dydis’ as such or its declined form ‘dydžio’. 62 – See, inter alia, judgment in Ivansson and Others (C‑307/13, EU:C:2014:2058, paragraph 40). 63 – See, inter alia, judgment in France v Council (C‑479/07, EU:C:2009:131).