Judgment;Summary — ECLI:EU:C:2024:329
Date: 2024-04-18
Language of the case: Hungarian
Court formation: Seventh Chamber
Subject matter: Agriculture and Fisheries;General provisions;Wine
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-79/23 – 1 
Case C-79/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 February 2023 
Referring court: 
Fővárosi Törvényszék (Hungary) 
Date of the decision to refer: 
24 January 2023 
Applicant: 
FJ 
Defendant: 
Agrárminiszter 
  
Subject matter of the main proceedings 
The concept of a finding within the meaning of Article 35 of Regulation 
No 1290/2005 and the application, more than seven years after the irregularity 
affecting the claimant was detected, of the recovery or refusal of the aid under the 
single area payment scheme. 
Subject matter and legal basis of the request 
Subject matter: interpretation of Article 35 of Regulation No 1290/2005, on the 
financing of the common agricultural policy, in relation to Article 58, third 
paragraph, of Regulation No 1122/2009. 
Legal basis: Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/23 
 
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Questions referred for a preliminary ruling 
1. Is the concept of a finding as defined in Article 35 of Regulation (EC) 
No 1290/2005, on the financing of the common agricultural policy, 
applicable when it comes to interpreting and applying Article 58, third 
paragraph, of Regulation (EC) No 1122/2009? 
2. If the answer to the preceding question referred is yes, must the concept of a 
finding as defined in Article 35 of Regulation No 1290/2005 be interpreted 
as meaning that the calendar year of the primary administrative or judicial 
finding is to be regarded as the calendar year in which the authority handling 
the administrative procedure initiated on the basis of the claim: 
– carries out the first evidence-gathering action in which it establishes 
the existence of an irregularity, which, in the present case, is the year 
in which the report containing the conclusions of the on-the-spot check 
was written, or 
– takes the first decision with regard to the substance of the matter on the 
basis of that evidence-gathering action, or 
– in the context of the procedure, takes the final and definitive decision 
determining the exclusion? 
3. Does the fact that the written assessment that constitutes the finding may 
subsequently be withdrawn or adjusted as a result of the interested party’s 
right of appeal under the regulations and not as a consequence of changes in 
the administrative or judicial procedure have a bearing on the answer to the 
preceding question referred? 
4. If the calendar year of the finding is that of the first evidence-gathering 
action and, as is the case in this case, that action consisted of an on-the-spot 
check carried out on different occasions, must the concept of first evidence-
gathering action in relation to Article 35 of Regulation No 1290/2005 be 
interpreted such that it equates to the first on-the-spot check by the authority 
or the final on-the-spot check, in which the observations and evidence 
provided by the interested party were also taken into account? 
5. If the answer to the first question referred is no, is there, on that account, any 
change in the previously defined content of the finding which must be taken 
into account for the purposes of Article 58, third paragraph, of Regulation 
No 1122/2009? 
Provisions of European Union law relied on 
Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down 
detailed rules for the implementation of Council Regulation (EC) No 73/2009 as 
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regards cross-compliance, modulation and the integrated administration and 
control system, under the direct support schemes for farmers provided for [in] 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, recitals 92 and 101 and Article 58, third paragraph; 
Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed 
rules for the application of Council Regulation (EC) No 1290/2005 as regards the 
accreditation of paying agencies and other bodies and the clearance of the 
accounts of the EAGF and of the EAFRD, Article 5b; 
Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the 
common agricultural policy, Article 35. 
Provisions of national law relied on 
Article 60(1) of the a mezőgazdasági, agrár-vidékfejlesztési, valamint halászati 
támogatásokhoz és egyéb intézkedésekhez kapcsolódó eljárás egyes kérdéseiről 
szóló 2007. évi XVII. törvény (Law XVII of 2007, on specific aspects of the 
procedure for granting aid and other measures relating to agriculture, rural 
development and fisheries; ‘the Aid Act’) provides as follows: 
‘Except where provided otherwise in a directly applicable EU act, the body 
responsible for promoting agriculture and rural development shall refuse payment 
of the aid due to the beneficiary up to the amount owed by the beneficiary in 
relation to aid measures and the debt will thereby be regarded as settled. Where 
the amount of the aid to which the beneficiary is entitled does not cover the 
entirety of the debts registered against him or her, those debts must be settled in 
order of maturity.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 14 May 2013, the applicant submitted a claim under the single area payment 
scheme to the Magyar Államkincstár (Public Treasury, Hungary; ‘the first-level 
administrative authority’), relating to the year 2013. On the basis of that claim, the 
first-level administrative authority carried out on-the-spot checks on two 
occasions in 2013 and, subsequently, on two other occasions in 2014. 
2 By a decision of 30 September 2014, the first-level administrative authority 
rejected the applicant’s claim and excluded the applicant from receiving aid up to 
an amount of HUF 3 834 105. By a decision of 23 June 2016, the second-level 
administrative authority overturned the decision of 30 September 2014 on the 
basis that it did not comply with the requirement to provide reasoning and it 
ordered the first-level administrative authority to initiate a new procedure. In the 
new procedure, the first-level administrative authority issued a decision which 
was once again overturned by the second-level administrative authority. In the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-79/23 
 
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procedure repeated for the second time, the first-level administrative authority, by 
a decision of 27 January 2020, rejected the applicant’s claim and excluded the 
applicant from receiving aid up to an amount of HUF 4 253 460. 
3 On 15 May 2020, the applicant submitted a claim under the single area payment 
scheme to the first-level administrative authority, relating to the year 2020. The 
first-level authority granted the applicant a payment by way of an advance and, 
subsequently, by a decision of 21 October 2020, ordered that the full amount of 
the advance be recovered, holding that that was the legal consequence (refusal of 
the payment) to be borne by the applicant in relation to the aid for previous years. 
4 By a decision of 2 February 2021, the defendant upheld the first-level decision, 
holding that the penalty imposed in the decision of 27 January 2020 could be 
implemented within a period of three calendar years, in accordance with 
Article 58, third paragraph, of Regulation No 1122/2009 and Article 60(1) of the 
Aid Act, such that it could still be applied in the first-level decision of 21 October 
2020. 
5 The applicant brought a claim against that decision, in which he does not contest 
the first-level decision, but rather confines himself to expressing his 
dissatisfaction with the fact that the defendant considered the calendar year of the 
finding to be that in which, at the end of repeated procedures, a decision was 
issued against which no appeal was brought. However, between the submission of 
the aid claim and the checks immediately following it (2013) and the 
pronouncement on that claim in a definitive decision (2020) a period of seven 
years elapsed. 
The essential arguments of the parties in the main proceedings 
6 In his claim, the applicant did not question the facts, but rather confined himself 
to arguing that the defendant made an error in its interpretation of the rule. In his 
opinion, the interpretation which the defendant gives to Article 58, third 
paragraph, of Regulation No 1122/2009, and on which it bases its decision of 
27 January 2020, is arbitrary and contrary to law, since it does not take into 
consideration the meaning of the concept contained in Article 35 of Regulation 
No 1290/2005. The finding took place at the time when the authority carried out 
the on-the-spot checks in relation to the claim for 2013, that is, when the report for 
those checks was written. In that regard, it is a matter of record that the first on-
the-spot check was carried out in 2013 and the final one in 2014. 
7 If the finding does not take place at the time of the on-the-spot checks, but rather 
when the decision is taken at the end of the procedure followed on the basis of 
such checks, then, according to the applicant, the finding in the present case 
occurred at the time when the first decision was taken, that is, 30 September 2014, 
since no fact-finding was carried out subsequently. In accordance with Article 58, 
third paragraph, of Regulation No 1122/2009, any amount of the penalty that has 
not been recovered in the three calendar years following 2014 is to be cancelled 
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and, due to the cancellation of the balance, recovery in relation to the remaining 
amounts can no longer be required. The fact that the defendant has taken a 
decision in accordance with the law seven years later is a circumstance that can be 
attributed to it and, therefore, for which it is responsible. 
8 The defendant stressed that it cannot depart from the technical opinion of the 
first-level authority. The penalty was established in the decision of 27 January 
2020 and, therefore, 2020 must be regarded as the year of the finding. The 
defendant made its pronouncement regarding the refusal of the aid, in accordance 
with the law, on 21 October 2020, within the time limit of three years. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 It is the responsibility of the referring court to determine whether, applying the 
definition of the concept contained in Article 35 of Regulation No 1290/2005, the 
calendar year of the finding, for the purposes of Article 58, third paragraph, of 
Regulation No 1122/2009, must be regarded as that in which the defendant took 
the first written measure, that is, when the report containing the conclusions of the 
on-the-spot check was written, or that in which the first pronouncement regarding 
the claim took place, that is, when the first-level decision in the main procedure 
was taken, or, as this party argues, that in which it takes its final decision in which 
it pronounces definitively on the claim for aid. 
10 The legal basis of this matter consists of two EU regulations; the resolution of the 
dispute therefore requires an interpretation of the EU law directly applicable in the 
case and such an interpretation falls within the jurisdiction of the Court of Justice. 
It is the only disputed matter in the proceedings and, therefore, it is relevant. 
11 The referring court has not found any pronouncement in the case-law of the Court 
of Justice of the European Union in which the Court has interpreted the concept of 
a finding, as defined in Article 35 of Regulation No 1290/2005, in relation to 
Article 58, third paragraph, of Regulation No 1122/2009. 
12 The correct application of EU law is not so clear as to exclude all reasonable 
doubt, in the absence of [relevant] legal practice in the Member State and given 
the complexity of the facts in this case. The interpretation of Article 35 of 
Regulation No 1290/2005 is not unambiguous, since there are various acts in the 
procedure to which, for a single claim, the concept of a finding could be applied. 
13 With regard to the first question referred, the referring court notes that it may be 
deduced from Article 35 of Regulation No 1290/2005 that the concept of a finding 
only applies in relation to the provisions of the chapter of that regulation entitled 
‘Irregularities’. 
14 However, the recitals of Regulation No 1122/2009 and the provisions of 
Article 58 of that regulation refer to Regulation No 1290/2005 and to Regulation 
No 885/2006, which establishes the provisions applicable to Regulation 
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No 1290/2005, which confirms that the EU legislator intended Article 35 of 
Regulation No 1290/2005 to apply to recovery with regard to any penalty imposed 
for an irregularity detected in relation to agricultural aid. 
15 With regard to the second question referred, the referring court considers that, in 
so far as they are evidence-gathering actions, the on-the-spot checks carried out in 
relation to the claim for 2013 may be regarded as a finding. However, between the 
first on-the-spot check, carried out on 12 June 2013, and the final on-the-spot 
check, carried out on 16 September 2014, more than a year elapsed. 
16 On the other hand, the decision of 30 September 2014 may also be regarded as a 
finding, since it is the first administrative or judicial written assessment of the 
competent authority which, on the basis of actual facts, concludes that an 
irregularity has been committed, and, moreover, Article 35 of Regulation 
No 1290/2005 mentions a primary finding and also that the fact that such a finding 
may be adjusted or withdrawn is irrelevant. 
17 According to the interpretation proposed by the defendant, the year of the finding 
is that in which the definitive administrative decision, bringing the procedure 
initiated on the basis of the applicant’s aid claim to an end, was taken. In that 
regard, it should be asked whether that interpretation is consistent with the intent 
of the legislator, expressly stated in recitals 92 and 101 of Regulation 
No 1122/2009 in relation to the reduction of and exclusion from receiving aid, to 
ensure that the principles of gradation and proportionality, and also the principle 
of good faith, are observed. 
18 The fact that, in the recovery of the aid, the applicant has to bear the consequences 
of numerous irregularities in the authority’s decision may be incompatible with 
those principles, since the recovery takes place once the time limit of three 
calendar years has been greatly exceeded. The referring court considers that the 
legislator did not intend to deprive an applicant excluded from receiving the aid of 
the possibility of obtaining it within a foreseeable period of time. 
19 As far as the third question referred is concerned, the referring court notes that 
national law provides for a right of appeal against all written assessments that 
could be classified as findings. So, the question arises of whether the possibility 
that, as a result of the appeal, the finding may be adjusted or withdrawn excludes 
the written assessment being classified as a finding, and also whether the 
possibility of adjustment or withdrawal only has a bearing on the definition of the 
concept of a finding if it is due to a change in the regulations. 
20 With its fourth question referred, the referring court likewise seeks clarification 
regarding whether, in the event that various evidence-gathering actions of the 
same kind take place, the action that must be classified as a finding is that which 
took place first in time or that which, on the basis of actual facts, showed that an 
irregularity had been committed. 
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21 Finally, in relation to the fifth question referred, the referring court wishes to 
know, to the extent that the definition appearing in Article 35 of Regulation 
No 1290/2005 cannot be used for the purposes of the application of Article 58, 
third paragraph, of Regulation No 1122/2009, in what year must the irregularity 
be considered to have been discovered.