Judgment;Summary — ECLI:EU:C:2019:500
Date: 2019-06-13
Language of the case: French
Court formation: Fifth Chamber
Subject matter: Agriculture and Fisheries;State aids;Competition;Fruit and vegetables
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-505/18 - 1 
Case C-505/18 
Request for a preliminary ruling 
Date lodged: 
30 July 2018 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
26 July 2018 
Appellant: 
Société coopérative agricole COPEBI SCA 
Respondent: 
Etablissement national des produits de l’agriculture et de la mer 
(FranceAgriMer) 
    
... [formal requirements] 
The société coopérative agricole (Agricultural Cooperative Society) (SCA) 
COPEBI brought an application before the tribunal administratif de Nîmes 
(Administrative Court, Nîmes) for cancellation of the collection order of 29 March 
2013 issued against it by the établissement national des produits de l’agriculture et 
de la mer (National Office for Agricultural and Fisheries Products) 
(FranceAgriMer), in order to recover the sum of EUR 5 042 768.78, 
corresponding to the repayment of state aid paid to it between 1998 and 2002 and 
interest thereon. By judgment No 1301517 of 20 January 2015, the tribunal 
administratif de Nîmes (Adminstrative Court, Nîmes) dismissed that application. 
By judgment No 15MA00981 of 18 April 2016, the cour administrative d’appel 
de Marseille (Administrative Court of Appeal, Marseilles) dismissed the appeal 
brought by SCA COPEBI against that judgment. 
... SCA COPEBI requests that the Conseil d’État (Council of State): 
1. set aside that judgment; 
EN 
REQUEST FOR A PRELIMINARY RULING OF 30. 7. 2018 – CASE C-505/18  
 
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2. ruling on the substance of the case, uphold its appeal; 
3. in the alternative, refer the case to the Court of Justice of the European 
Union for a preliminary ruling on the interpretation of the decision of the 
European Commission of 28 January 2009; [Or. 2] 
... 
SCA COPEBI submits that the Administrative Court of Appeal, Marseilles, has: 
... [plea in law dismissed by the referring court itself in paragraph 2]; 
– ... [plea relating to domestic law rejected by the referring court itself in 
paragraph 3]; 
– ... [plea in law dismissed by the referring court itself in paragraph 4]; 
– erred in law in rejecting the plea alleging that FranceAgriMer’s claim, even if 
genuine, was time-barred at the time recovery of the claim was sought. 
... FranceAgriMer claims that the appeal should be dismissed. It submits that the 
grounds of appeal raised by the company are unfounded. 
... 
[Or. 3] 
... 
... [national formal and procedural requirements] 
1. It is apparent from the documents in the file submitted to the court 
adjudicating on the substance that the office national interprofessionnel des fruits, 
des légumes et de l’horticulture (National Fruit, Vegetables and Horticulture 
Trade Board) (ONIFLHOR), the predecessor in title of FranceAgriMer, 
introduced, between 1998 and 2002, an economic incentive for the conclusion of 
supply contracts with industries processing what are known as ‘whiteheart 
cherries’, intended for industrial uses, in the form of financial assistance with each 
marketing year concerned. That aid was intended for producer groups which made 
deliveries, in respect of the relevant harvest of whiteheart cherries to processing 
factories under multi-annual contracts concluded pursuant to an inter-trade 
agreement. The aid paid by ONIFLHOR passed through the Comité économique 
bigarreau industrie (Economic Committee for the Whiteheart Cherry Industry) 
(CEBI), which transferred the funds to its members, including SCA COPEBI, 
which received a total of EUR 2 823 708.83. Following a complaint, the European 
Commission, by Decision 2009/402/EC of 28 January 2009 on the ‘contingency 
plans’ in the fruit and vegetable sector implemented by France, stated that the aid 
paid to the French fruit and vegetable sector was intended to facilitate the sale of 
French produce by manipulating the sales price or the quantities available on the 
SOCIÉTÉ COOPÉRATIVE AGRICOLE COPEBI 
 
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markets, and that such interventions constituted State aid introduced in breach of 
EU law and required its recovery. That decision was confirmed by two judgments 
of the General Court of the European Union of 27 September 2012, France v 
Commission (T-139/09), and Fédération de l’organisation économique fruits et 
légumes (Fedecom) v Commission (T-243/09). Following those judgments, the 
French authorities undertook to recover the aid unlawfully paid to producers of 
whiteheart cherries for industrial uses, including SCA COPEBI, against which 
FranceAgriMer issued a collection order on 29 March 2013 for the recovery of 
EUR 5 042 768.78, corresponding to the repayment of public aid paid between 
1998 and 2002 and interest accrued. By judgment of 20 January 2015, the tribunal 
administratif de Nîmes (Administrative Court, Nîmes) rejected the company’s 
application for the annulment of that collection order. By judgment of 18 April 
2016, which the company seeks to have set aside, the cour administrative d’appel 
de Marseille (Administrative Appeal Court, Marseilles) dismissed the appeal 
lodged against that judgment. 
2. ... [plea relating to domestic law rejected by the referring court itself]. 
[Or. 4] 
3. ... [plea relating to domestic law rejected by the referring court itself]. 
4. ... [plea relating to domestic law rejected by the referring court itself]. 
5. ... SCA COPEBI submits that the [Administrative Appeal Court, Marseilles,] 
erred in law in holding that the claim of FranceAgriMer was not time-barred when 
it sought to recover it and that the collection order at issue was legally justified, 
while the aid that it received was not covered by the decision of the European 
Commission of 28 January 2009. 
6. Although the European Commission’s decision of 28 January 2009 
generally concerns the fruit and vegetable market, which is covered by the 
common organisation of the market in fruit and vegetables, governed at the 
material time by Council Regulations (EEC) No 1035/72 of 18 May 1972 and 
then (EC) No 2200/96 of 28 October 1996 on the common organisation of the 
market in fruit and vegetables, to which the sector of whiteheart cherries for 
industrial uses belongs, and although it is clear from the judgment of the Court, 
which is not disputed on this point, that CEBI received the contested aid ‘to 
facilitate the sale of French produce by manipulating the sales price or the 
quantities available on the market’, as the Commission stated in paragraph 72 of 
its decision, CEBI is not one of the eight economic agricultural committees 
referred to in paragraph 15 of that decision and the aid in question, unlike the 
financing mechanism described in paragraph 24 to 28 of the decision, is not 
financed by voluntary contributions from producers, known as ‘sectoral 
contributions’, but only by subsidies from ONIFLHOR. Furthermore, although the 
annual amounts of aid paid by ONIFLHOR to producers of whiteheart cherries for 
industrial uses through CEBI are actually included in the amounts listed in the 
table in paragraph 29 of the Commission decision, those amounts were 
REQUEST FOR A PRELIMINARY RULING OF 30. 7. 2018 – CASE C-505/18  
 
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communicated by the French authorities and there is nothing in the decision to 
suggest that they have formally been endorsed by the European Commission. 
Thus, as the General Court observed in paragraph 31 of its judgment of 27 
September 2012, Producteurs de légumes de France v Commission, that table 
only appears in the part of the decision intended to describe the aid in question 
and not in the part concerning the recovery procedure. [Or. 5] 
7. The legality of the collection order issued by FranceAgriMer against 
COPEBI SCA, which is based on the requirement to recover the aid covered by 
the European Commission’s decision of 28 January 2009, thus depends on the 
answer to the question whether that decision must be interpreted as covering the 
aid paid by ONIFLHOR to CEBI and allocated to producers of whiteheart cherries 
for industrial uses by the producer groups which are members of that committee, 
even though CEBI is not one of the eight economic agricultural committees 
referred to in paragraph 15 of the decision of 28 January 2009 and the aid in 
question, unlike the financing mechanism described in paragraphs 24 to 28 of that 
decision, was financed only by subsidies from ONIFLHOR and not also by 
voluntary contributions from producers, known as ‘sectoral contributions’. 
8. That question raises a serious problem of interpretation of EU law. It is 
therefore necessary to refer the matter to the Court of Justice of the European 
Union and to stay the appeal proceedings brought by SCA COPEBI. 
HAS DECIDED AS FOLLOWS: 
Article 1: The following question is to be referred to the Court of Justice of the 
European Union: 
Is European Commission Decision 2009/402/EC of 28 January 2009 concerning 
the ‘contingency plans’ in the fruit and vegetable sector implemented by France 
(C 29/05 (ex NN 57/05)) to be interpreted as covering aid paid by the office 
national interprofessionnel des fruits et légumes et de l’horticulture) 
(ONIFLHOR) (National Fruit, Vegetables and Horticulture Trade Board) to the 
comité économique agricole du bigarreau d’industrie (CEBI) (Economic 
Committee for the Whiteheart Cherry Industry) and allocated to producers of 
whiteheart cherries for industrial uses by the producer groups which are members 
of that committee, even though CEBI is not one of the eight economic agricultural 
committees referred to in paragraph 15 of the decision and the aid in question, 
unlike the financing mechanism described in paragraphs 24 to 28 of that decision, 
was financed only by subsidies from ONIFLHOR and not also by voluntary 
contributions from producers, known as sectoral contributions? 
Article 2: The appeal proceedings brought by SCA COPEBI are stayed, pending a 
ruling from the Court of Justice of the European Union on the question set out in 
Article 1. 
... [Or. 6] 
SOCIÉTÉ COOPÉRATIVE AGRICOLE COPEBI 
 
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... [internal procedure]