Opinion of the Advocate General — ECLI:EU:C:2013:698
Date: 2013-10-24
Language of the case: Dutch
Subject matter: Agriculture and Fisheries;Animal feedingstuffs
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, it must be said that the criteria listed in Article 8(2) of the Netherlands Policy Rules governing the rules on cross-compliance under the Common Agricultural Policy may be referred to for the purpose of presuming, rebuttably, that there has been an intentional breach of the requirements of Articles 4 and 5 of and Annexes III and IV to Regulation (EC) No 1783/2003. The interpretation and application of those criteria must not, however, undermine the condition of ‘intentional’ non-compliance. C – The third question referred for a preliminary ruling 49. By its third question the Raad van State wishes to know whether a non-compliance can be attributed to a farmer as intentional if the work resulting in the non-compliance was carried out by a third party on his instructions. A number of systems of attribution may be envisaged in this regard. A system whereby the beneficiary of the aid was held responsible for every non-compliance on his holding, or at least for every non-compliance culpably occasioned by the person acting on his behalf, irrespective of his own personal fault, would be particularly effective. Limiting attribution to culpable non-compliances by the beneficiary in person would be much more generous to the farmers concerned. I will show below that a middle way between these extremes must be chosen. 1. The text 50. According to Article 51(1) of Regulation No 1698/2005, the reduction of or exclusion from payments is conditional on the requirements not being respected ‘as a result of an action or omission directly attributable to’ the beneficiary. 51. Under Article 22 of Regulation No 1975/2006, inter alia Article 65(2) of Regulation No 796/2004 is to apply with regard to reductions or exclusions to be applied following the determination of non-compliances. That provision stipulates as a condition for the attribution of an act or omission to a farmer that he ‘committed the non-compliance’. 52. The direct attribution of the non-compliance which this provision requires and the necessity that the beneficiary of the aid committed it suggest that only a non-compliance by the beneficiary in person justifies a reduction of the aid. The French version of Article 65(2) of Regulation No 796/2004 is however rather less restrictive in its formulation, requiring only that the beneficiary has directly caused the non-compliance (‘être à l’origine’). 53. The different language versions of a provision of European Union law must be given a uniform interpretation. In the case of divergence between the versions, the provision must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms a part. (30) Where the language versions differ, a provision must also be interpreted on the basis of the real intention of its author. (31) 2. Legislative history 54. The prerequisite contained in Article 51(1) of Regulation No 1698/2005 that the non-compliance must be ‘a result of an action or omission directly attributable to’ the individual farmer was formulated in Article 6(1) of Regulation No 1782/2003 when the link between agricultural support and environmental standards, known as ‘cross-compliance’, was introduced. 55. Although the German and Dutch versions of Article 51(1) of Regulation No 1698/2005, which we are looking at here, differ slightly from the formulation in Article 6(1) of Regulation No 1782/2003, the English and French versions of those provisions in particular show that they are basically intended to have the same content. It must therefore be assumed that the divergences in the German and Dutch versions are due only to a less coherent translation and are not intended to alter the content. 56. In the legislative procedure for Regulation No 1782/2003, the Commission proposed that payments should be reduced or cancelled for every case of non-fulfilment of basic requirements. (32) This proposal can still be discerned in the second recital in the preamble to the regulation, where the payment of direct aid is linked to compliance with the rules, although direct attribution is not mentioned. Only the amount withdrawn is to be determined on the basis of criteria which are proportionate, objective and graduated. 57. By contrast, in the Council the Member States set great store by direct responsibility of the beneficiary. (33) It must therefore be assumed that, with the formulation applicable today, the legislature wished to prevent aid payments being reduced irrespective of the farmer’s personal responsibility. 58. Recital 45 in the preamble to Regulation No 1698/2005 may be understood as confirming this approach. It states that a penalty system should be set up where beneficiaries receiving payments do not meet the mandatory requirements provided for in Regulation No 1782/2003 on all of their holding, taking into account the severity, extent, permanence and repetition of non-compliance. If, on the other hand, the non-compliance does not originate with the beneficiary, there is no cause for a penalty. 59. The requirement that the non-compliance be directly attributable to the individual farmer was made explicit by Article 65(2) of Regulation No 796/2004. In the original versions of the German, Danish, English, Italian, Dutch and Swedish texts, the farmer had to have committed the non-compliance himself for it to be attributed to him. That could have been taken to mean that only non-compliances by the farmer personally allow the subsidies to be reduced. 60. Later, however, the word ‘himself’ was deleted from those language versions in order to make clear that the farmer concerned can also be held liable ‘where the farmer did not act himself in the strict sense’. (34) As the Netherlands Government stresses, the beneficiary’s responsibility is not therefore confined to non-compliances committed by him in person. 61. Considered together, the origin of Article 51(1) of Regulation No 1698/2005 and the origin of Article 65(2) of Regulation No 796/2004 point to the conclusion that a non-compliance is to be penalised only on the basis of the personal responsibility of the aid beneficiary, but that he need not have committed the non-compliance in person. 3. Systematic considerations 62. The hierarchical relationship between Article 51(1) of Regulation (EC) No 1698/2005 and Article 65(2) of Regulation No 796/2004 allows the responsibility of the aid beneficiary to be more closely defined (see under a) below). On the other hand, neither later additions to the system (see under b)) nor general principles (see under c)) nor the risk of abuse (see under d)) require the beneficiary’s liability to be extended. a) Fault 63. The considerations so far argue predominantly for reductions to be limited to non-compliances that lie within the responsibility of the aid beneficiary. Positive criteria for establishing such responsibility are provided by the provisions that link reductions in aid to intent and negligence. 64. While it is true that the two basic regulations, Regulation No 1698/2005 and Regulation No 1782/2003, contain no provisions to that effect, Article 23 of Regulation No 1975/2006 nevertheless refers, for the implementation of Article 51 of the former regulation, to Articles 66 and 67 of Regulation No 796/2004. These are concerned with the calculation of reductions and exclusions for negligent and intentional non-compliances respectively. 65. Although negligence and intent are explicitly mentioned only in connection with the assessment of penalties, it must be inferred from the context that both criteria, each taken individually, also constitute grounds for the penalty. The system of reductions and exclusions under Article 51 of Regulation No 1698/2005 is therefore based on the principle of fault. The beneficiary is liable for culpable non-compliances committed either negligently or intentionally. 66. This is confirmed by recitals 56 and 57 in the preamble to Regulation No 796/2004. According to the first of these recitals, the system of reductions and exclusions with regard to cross-compliance obligations (in the field of environmental law) aims in particular to set an incentive for farmers to respect the already existing legislation in the different fields of cross-compliance. The system should therefore intervene only in the case of non-compliances which were within the farmer’s control. That means intentional or negligent non-compliances, as recital 57 confirms. 67. The mere fact that work is carried out by other persons does not preclude fault on the part of the farmer in such a case. Such fault may in particular reside in the choice, instruction or supervision of the contractor (culpa in eligendo, instruendo vel custodiendo). 68. The aid beneficiary must normally ensure that the person carrying out farm work for him has the necessary skills and knowledge to avoid non-compliances. In particular, he must not give any instructions that will inevitably result in a breach of the requirements, but must formulate the instructions in such a way that the work does not result in non-compliances. And he must give the service provider adequate supervision, so that non-compliances can be prevented if necessary. 69. With regard to the present case, it would be understandable for the Netherlands authorities to assume intentional non-compliance given the long-established, settled policy that the spreading of manure should be low in emissions. It would then be up to the aid beneficiary to refute that assumption. To that end he could, for example, demonstrate that he had engaged a reliable and experienced contractor, that he had instructed him to spread the manure in a manner that was low in emissions, and that he had supervised him adequately and informed him of the particular conditions on his land. If the farmer were unable to demonstrate that he had fulfilled his obligations completely, he would in most cases be guilty only of negligence. In the event of manifest non‑compliances such as engaging a contractor who is known to be unreliable and failing to provide adequate supervision, it may however be more appropriate to assume his acceptance of the possibility that requirements might be breached, in other words intent. b) Attribution in the case of transfer of land 70. Nor can an extension of attribution in the main proceedings be based on the Langestraat case, (35) which is mentioned in the request for a preliminary ruling. 71. In that case, the Court of Justice confirmed that non-compliance with cross-compliance rules by the person to whom or from whom the agricultural land was transferred must be attributed in full to the farmer submitting the aid application. (36) 72. That decision is, however, based on the second subparagraph of Article 23(1) of Regulation (EC) No 73/2009. (37) That provision is not applicable to the present case for reasons of time alone. Above all, however, it is concerned with another specific situation, namely the transfer of land. c) Attribution on the basis of the principle of respondeat superior 73. The Netherlands Government nevertheless tries to establish a more extensive responsibility with the principle of respondeat superior, according to which a person who engages third parties to carry out works is responsible for those third parties. 74. I am not aware of the existence of any such general rule in European Union law, and the Netherlands Government itself has not advanced anything to substantiate it. 75. So far as the laws of the Member States are concerned, Netherlands civil law seems to have such a rule both for the law of contract and for non-contractual law, in other words the law of tort. (38) 76. A comparison of the legal systems of the Member States reveals differences, however. The principle of attributing the misconduct of auxiliary persons irrespective of any fault on the principal’s part is basically alien to the laws of many Member States in the field of tort. In those States a principal is not therefore liable for the misconduct of his auxiliary personnel in the same way as for his own, but only in so far as he has made a wrong choice or failed to perform proper supervision, for example. (39) 77. The position in contract law is different. If a person makes use of a third party in order to fulfil a contractual obligation, for the great majority of Member States it must be assumed that their legal orders provide solutions whereby the culpable behaviour of the obligor’s agent towards the contract partner is attributed to the obligor. He is therefore liable for the misconduct of the third party acting for him in the same way as for his own. (40) 78. Liability for persons employed to perform obligations is therefore a generally recognised rule of contract law. On the other hand, the aid granted to Van der Ham is based not on a contract concluded according to the principles of personal autonomy but on an act of the public authorities. This legal relationship is none the less similar to a contract in so far as, like a contract, it establishes a bond of mutual obligations where the continued granting of aid on the one part is linked to compliance with the requirements for such aid on the other. 79. Accordingly, the principle of a person being liable for his contractual assistant seems applicable by analogy, since its ratio is that the person who uses an assistant to fulfil an obligation, thereby gaining the advantage of extending his radius of action, should also bear the disadvantage arising from any misconduct on the part of that assistant. The intention is consequently to avoid the contractual partner being placed at a disadvantage as regards liability for a breach of obligation on the part of the obligor. 80. This consideration cannot, however, in any way alter the fact that the European Union legislature did not include the principle of respondeat superior in the provisions for the reduction of agricultural aid for non‑compliance with the cross-compliance rules. On the contrary, in Article 51 of Regulation (EC) No 1698/2005 it expressly adopted the criterion of whether the non-compliance is directly attributable to the beneficiary of the aid, and in Articles 65 to 67 of Regulation No 796/2004 it laid down rules for that attribution in the sense of responsibility for fault. 81. It would therefore be incompatible with the principle of legal certainty to accept that the aid beneficiary were responsible for persons acting on his behalf, regardless of personal culpability. That principle requires that rules of law must be clear and precise and their application must be foreseeable by those subject to them. That applies all the more in the case of rules liable to entail adverse financial consequences. (41) d) The risk of abusive practices 82. Finally, the necessity of fault cannot be refuted by the Netherlands Government’s argument that a narrow interpretation of a farmer’s liability might encourage abusive practices. 83. There would certainly be a considerable risk of abuse if the beneficiary’s responsibility were confined to non-compliances committed in person, as the wording would allow if interpreted very narrowly, because in that case the requirements could be circumvented by a simple division of labour. 84. However, abuse is not encouraged by limiting beneficiaries’ responsibility to culpable non-compliances. Every abuse would necessarily involve fault on the beneficiary’s part. 4. Conclusion for the third question 85. A failure to comply with the cross-compliance requirements by persons engaged to carry out work on behalf of a farmer in receipt of aid on the basis of Regulation No 1698/2005 are therefore to be attributed to the farmer only if he himself is at fault, and such fault may in particular reside in the selection, instruction or supervision of those other persons. V – Conclusion 86. I therefore propose that the Court answer the request for a preliminary ruling as follows: (1) An intentional non-compliance within the meaning of Article 23 of Regulation (EC) No 1975/2006 and Article 67(1) of Regulation (EC) No 796/2004 requires at the least that the offender is conscious of the possibility of non-compliance and accepts that possibility. (2) The criteria listed in Article 8(2) of the Netherlands Policy Rules governing the rules on cross-compliance under the Common Agricultural Policy may be referred to for the purpose of presuming, rebuttably, that there has been an intentional breach of the requirements of Articles 4 and 5 of and Annexes III and IV to Regulation (EC) No 1783/2003. The interpretation and application of those criteria must not, however, undermine the condition of ‘intentional’ non-compliance. (3) A failure to comply with the requirements of Articles 4 and 5 of and Annexes III and IV to Regulation (EC) No 1782/2003 by persons engaged to carry out work on behalf of a farmer in receipt of aid on the basis of Regulation (EC) No 1698/2005 are to be attributed to the farmer only if he himself is at fault, and such fault may in particular reside in the selection, instruction or supervision of those other persons. 2 – Original language: German. 3 – See for example Case C‑266/00 Commission v Luxembourg [2001] ECR I‑2073; Case C‑322/00 Commission v Netherlands [2003] ECR I‑11267; Case C‑416/02 Commission v Spain [2005] ECR I‑7487; Case C‑526/08 Commission v Luxembourg [2010] ECR I‑6151; Case C‑11/12 Maatschap L.A. en D.A.B. Langestraat en P. Langestraat-Troost [2012] ECR; and Case C‑113/12 Brady [2013] ECR. 4 – Council Regulation 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). 5 – Council Regulation of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1). 6 – Commission Regulation of 7 December 2006 laying down detailed rules for the implementation of Council Regulation No 1698/2005 as regards the implementation of control procedures as well as cross-compliance in respect of rural development support measures (OJ 2006 L 368, p. 74), as amended by Commission Regulation (EC) No 1396/2007 of 28 November 2007 correcting Regulation (EC) No 1975/2006 laying down detailed rules for the implementation of Council Regulation (EC) No 1698/2005, as regards the implementation of control procedures as well as cross-compliance in respect of rural development support measures (OJ 2007 L 311, p. 3). 7 – Commission Regulation of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulations (EC) No 1782/2003 and (EC) No 73/2009, as well as for the implementation of cross-compliance provided for in Council Regulation (EC) No 479/2008 (OJ 2004 L 141, p. 18), as amended by Commission Regulation (EC) No 380/2009 of 8 May 2009 (OJ 2009 L 116, p. 9). 8 – Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1). 9 – Commission Regulation of 9 June 2009 amending Regulation (EC) No 1975/2006 laying down detailed rules for the implementation of Council Regulation (EC) No 1698/2005, as regards the implementation of control procedures as well as cross-compliance in respect of rural development support measures (OJ 2009 L 145, p. 25). 10 – Commission Regulation of 11 February 2005 amending and correcting Regulation (EC) No 796/2004 laying down detailed rules for the implementation of cross‑compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2005 L 42, p. 3). 11 – Commission Regulation (EC) of 7 April 2008 amending Regulation (EC) No 795/2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, and Regulation (EC) No 796/2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 (OJ 2008 L 95, p. 63). 12 – See inter alia Case C‑243/09 Fuß [2010] ECR I‑9849, paragraphs 39 and 40, and Case C‑342/12 Worten [2013] ECR, paragraphs 30 and 31. 13 – Commission Regulation (EC) No 484/2009 of 9 June 2009 amending Regulation (EC) No 1975/2006 (OJ L 145, p. 25). 14 – 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 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 (OJ L 316, p. 65). 15 – See inter alia Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43; and Case C‑467/08 Padawan [2010] ECR I‑10055, paragraph 32. 16 – Case C‑72/11 Afrasiabi and Others [2011] ECR I‑14285. 17 – Council Regulation of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1). 18 – ‘Sciemment et volontairement’. 19 – .Afrasiabi and Others, cited in footnote 15, paragraph 64. 20 – ‘Wissentlich und vorsätzlich’. 21 – ‘Knowingly and intentionally’. 22 – ‘Bewust en opzettelijk’. 23 – See Case C‑367/09 SGS Belgium and Others [2010] ECR I‑10761, paragraph 57. 24 – .SGS Belgium and Others, cited in footnote 22. 25 – See Advocate General Mayras in his Opinion of 29 October 1975 in Case 26/75 General Motors [1975] ECR 1367, 1388. 26 – Cited in footnote 15, paragraph 64. See also Case C‑221/04 Commission v Spain [2006] ECR I‑4515, paragraph 71, for deliberate action. 27 – Joined Cases C‑430/93 and C‑431/93 van Schijndel and van Veen [1995] ECR I‑4705, paragraph 17; Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 95; Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 67; Case C‑1/06 Bonn Fleisch [2007] ECR I‑5609, paragraph 41; and Joined Cases C‑608/10, C‑10/11 and C‑23/11 Südzucker [2012] ECR, paragraph 62. 28 – Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7). 29 – .Commission v Spain (otters), cited in footnote 25. 30 – Case 19/67 van der Vecht [1967] ECR 345, 354; Case 30/77 Bouchereau [1977] ECR 1999, paragraphs 13 and 14; Case C‑56/06 Euro Tex [2007] ECR I‑4859, paragraph 27; and Case C‑426/05 Tele2 Telecommunication [2008] ECR I‑685, paragraph 25. 31 – Case 29/69 Stauder [1969] ECR 419, paragraph 3; Case 55/87 Moksel Import und Export [1988] ECR 3845, paragraph 49; Case C‑268/99 Jany and Others [2001] ECR I‑8615, paragraph 47; Case C‑188/03 Junk [2005] ECR I‑885, paragraph 33; and Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54. 32 – Article 6 of the Proposal for a Council Regulation establishing common rules for direct support schemes under the common agricultural policy and support schemes for producers of certain crops, COM(2003) 23, p. 23. 33 – Non-paper 1 ‘Annexe III and Article 6’, Council document 9971/03 ADD 1 of 3 June 2003. 34 – See Article 2(3) of and recital 18 in the preamble to Regulation (EC) No 239/2005, cited in point 9. The French version originally required the non-compliance to be caused directly by the farmer; following the correction, the causation need not be ‘direct’. In other language versions, such as the Estonian and Polish versions, the word ‘himself’ has been retained, however. These must be editing mistakes. 35 – Cited in footnote 2. 36 – .Maatschap L.A. en D.A.B. Langestraat en P. Langestraat-Troost, cited in footnote 2, paragraph 44. 37 – Council Regulation of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006 and (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16). 38 – See respectively Article 6:76 and Articles 6:170, 6:171 and 6:172 of the Netherlands Burgerlijk Wetboek (Civil Code). 39 – See, for example, for German law Paragraph 831 of the Bürgerliches Gesetzbuch, for Austrian law Article 1315 of the Allgemeines Bürgerliches Gesetzbuch or for Spanish law Article 1903 of the Código Civil. 40 – See in detail Ranieri, Europäisches Obligationenrecht, 3rd edition (2009), pp. 796 ff. See also Article III‑2:106 of the Draft Common Frame of Reference (DCFR) (‘A debtor who entrusts performance of an obligation to another person remains responsible for performance’) and the references in relation to the law of the Member States in Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR), pp. 762-3, which may be accessed at http://ec.europa.eu/justice/contract/files/european-private-law_en.pdf. 41 – See Case C‑288/07 Isle of Wight Council and Others [2008] ECR I‑7203, paragraph 47; Case C‑201/08 Plantanol [2009] ECR I‑8343, paragraph 46 and the case-law cited; and, specifically on agricultural aid, Case 117/83 Könecke [1984] ECR 3291, paragraph 11; Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15; and Case C‑172/89 Vandermoortele v Commission [1990] ECR I‑4677, paragraph 9.