Judgment;Summary — ECLI:EU:C:2021:850
Date: 2021-10-14
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: Agriculture and Fisheries;Environment;Agricultural structures
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-373/20 - 1 
Case C-373/20 
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: 
6 August 2020 
Referring court: 
Wojewódzki Sąd Administracyjny w Szczecinie (Regional 
Administrative Court, Szczecin, Poland) 
Date of the decision to refer: 
18 June 2020 
Applicant: 
A.M. 
Defendant: 
Dyrektor Z. Oddziału Regionalnego Agencji Restrukturyzacji i 
Modernizacji Rolnictwa 
  
Subject matter of the proceedings before the referring court 
Action before the referring court, in which the farmer A.M. has alleged 
infringement of Article 2(c) of [Commission] Regulation [(EC)] No 1120/2009 
through the misinterpretation thereof resulting in a finding that a part of his lands 
do not constitute permanent pasture as a result of the crop rotation occurring on 
that part of his lands and the incorrect finding that the fact of the flooding of the 
land is irrelevant in the case, whereas demonstrating periodic flooding is essential 
for establishing whether there has been crop rotation and interruption of 
agricultural use and, accordingly, whether agri-environmental payments should be 
granted and, if so, in what amounts. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-373/20 
 
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Subject matter and legal basis of the question referred for a preliminary 
ruling 
The subject matter of the question referred for a preliminary ruling is the 
interpretation of the definition of ‘permanent pasture’ set out in Article 2(c) of 
Commission Regulation (EC) No 1120/2009 and the financial consequences of the 
interpretation of that term used by the national authorities in the context of making 
agri-environmental payments to a farmer and the interruption of the continuity of 
the five-year period for the implementation of an agri-environmental programme. 
That question has been submitted on the basis of Article 267 of the Treaty on the 
Functioning of the European Union. 
Question referred 
Is the national authorities’ interpretation of the definition of ‘permanent pasture’ – 
set out in Article 2(c) of Commission Regulation (ΕC) No 1120/2009 of 
29 October 2009 laying down detailed rules for the implementation of the single 
payment scheme provided for in Title III of Council Regulation (EC) No 73/2009 
establishing common rules for direct support schemes for farmers under the 
common agricultural policy and establishing certain support schemes for farmers 
(OJ 2009 L 316, p. 1) – as meaning that the natural periodic flooding of meadows 
and pastures situated in a special environmental protection zone (Natura 2000 
Area; Ińsko Landscape Park) makes those areas of land subject to ‘crop rotation’, 
resulting in an interruption of the period of five years (or more) of not being 
subject to that ‘crop rotation’, with the result that it also constitutes a ground for 
withdrawing or reducing agri-environmental payments to the farmer, as well as 
further financial consequences connected with the interruption of the continuity of 
the five-year period for the implementation of an agri-environmental programme, 
correct? 
Provisions of EU law relied on 
Commission Regulation (ΕC) No 1120/2009 of 29 October 2009 laying down 
detailed rules for the implementation of the single payment scheme provided for 
in Title III of Council Regulation (EC) No 73/2009 establishing common rules for 
direct support schemes for farmers under the common agricultural policy and 
establishing certain support schemes for farmers (OJ 2009 L 316, p. 1) – 
Article 2(c) 
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 2009 L 316, p. 65) – Article 2 
A.M. 
 
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Council Regulation (EC) No 73/2009 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, (EC) No 378/2007 and repealing Regulation 
(EC) No 1782/2003 (OJ 2009 L 30, p. 16) – Article 6, Article 146(2) 
Council Regulation (EC) No 1782/2003 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) – recitals 3 and 4 
Commission Regulation (EU) No 65/2011 of 27 January 2011 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 2011 L 25, p. 8) – 
Article 7(1) 
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) – Article 4(1)(h) as amended by Regulation (EU) 
2017/2393 of the European Parliament and of the Council of 13 December 2017 
Provisions of national law relied on 
Ustawa z dnia 7 marca 2007 r. o wspieraniu rozwoju obszarów wiejskich z 
udziałem środków Europejskiego Funduszu Rolnego na rzecz Rozwoju Obszarów 
Wiejskich w ramach Programu Rozwoju Obszarów Wiejskich na lata 2007-2013 
(Law of 7 March 2007 on support for rural development involving funds provided 
by the European Agricultural Fund for Rural Development under the 2007-2013 
Rural Development Programme) – Article 5(1)(14), Article 18a 
Rozporządzenie Ministra Rolnictwa i Rozwoju Wsi z dnia 13 marca 2013 r. w 
sprawie szczegółowych warunków i trybu przyznawania pomocy finansowej w 
ramach działania „Program rolnośrodowiskowy” objętego Programem Rozwoju 
Obszarów Wiejskich na lata 2007-2013 (Regulation of the Minister for 
Agriculture and Agricultural Development of 13 March 2013 concerning the 
detailed conditions and procedure for the grant of financial aid within the 
framework of the ‘Agri-Environmental Programme’ included in the 2007-2013 
Rural Development Programme) – §§1, 2, 4, 38 
Rozporządzenie nr 14/2005 Wojewody Zachodniopomorskiego z dnia 27 lipca 
2005 r. w sprawie Ińskiego Parku Krajobrazowego (Regulation No 14/2005 of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-373/20 
 
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Governor of West Pomerania Province of 27 July 2005 concerning Ińsko 
Landscape Park) – §3.1 
Rozporządzenie nr 36/2005 Wojewody Zachodniopomorskiego z dnia 10 
listopada 2005 r. w sprawie planu ochrony Ińskiego Parku Krajobrazowego 
(Regulation No 36/2005 of the Governor of West Pomerania Province of 
10 November 2005 concerning the Ińsko Landscape Park protection plan) – §2.1, 
§3.1, §4 
Succinct presentation of the facts, the main proceedings, and the essential 
arguments of the parties 
1 In 2009 the farmer A.M. began the implementation of the five-year 2009-2013 
agri-environmental programme within the framework of Package 2 (organic 
farming, Option 2.3 – permanent pasture, declared surface area: 45.37 ha) and 
Package 3 (extensive permanent pasture, Option 3.1.2 – extensive management of 
meadows and pastures in Natura 2000 areas, declared surface area: 20 ha). 
2 Between 2009 and 2011 that farmer received payments for the declared surface 
areas. In 2012 the authority of first instance (Kierownik Biura Powiatu P. Agencji 
Restrukturyzacji i Modernizacji Rolnictwa) (P., Head of the Local Office of the 
Agency for Restructuring and Modernisation of Agriculture) – on the basis of the 
farmer’s application, which reduced the declared surface areas for the payments 
by 9.83 ha having regard to the long-standing flooding of those areas making it 
impossible to mow the meadows and pastures within the required timeframes – in 
a (final) decision issued concerning the grant of agri-environmental payments for 
2012, declared that the acreage qualifying for the payments was 35.51 ha for 
Option 2.3 and 17.18 ha for Option 3.1.2. The farmer received payments in 
reduced amounts. In 2013, in respect of which the dispute has arisen in the present 
case, the farmer submitted an application for agri-environmental payments, 
declaring the surface areas in packages as for the years 2009 to 2011, indicating 
that the exclusion of 9.83 ha from the surface areas in 2012 should not have an 
effect on the declaration in 2013, because the exclusion was not his fault, as he 
had mowed the meadows and pastures sooner than required, that is, in October 
2012, which was confirmed by an inspection by the authority of first instance on 
15 October 2012. 
3 The administrative authorities of first and second instance have issued six 
decisions in the matter, and in addition the case has already been decided twice by 
the Wojewódzki Sąd Administracyjny w Szczecinie (Regional Administrative 
Court, Szczecin, Poland). The case has currently come before that court for a third 
time. In the sixth decision issued in the case, the authority of first instance took 
the view that, in relation to the 9.83 ha, there was an interruption of the continuity 
of use of the land as permanent pasture, and although it is possible to restore it to 
agricultural production within a relatively short period, nevertheless that land 
cannot be regarded as permanent pasture until it has been used for a period of not 
A.M. 
 
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less than five years to grow grasses or other herbaceous forage naturally (self-
seeded) or through cultivation (sown) without crop rotation. That authority 
therefore considered that the farmer had applied crop rotation, which was the 
result of the flooding of the areas of land included in the permanent pasture. For 
his part, the authority of second instance (Dyrektor Z. Oddziału Regionalnego 
Agencji Restrukturyzacji i Modernizacji Rolnictwa) (Z., Director of the Regional 
Office of the Agency for Restructuring and Modernisation of Agriculture) 
approved the assessment of the authority of first instance as to the interruption of 
the continuity of use and the application of crop rotation to the permanent pasture, 
caused by the flooding and, regardless of that assessment, additionally expressed 
the view that in 2012 the farmer had failed to notify the authority of first instance, 
within a period of 10 working days from the date on which he would have been in 
a position to do so, of the occurrence of a case of ‘force majeure’, as referred to in 
Article 47(2) of Commission Regulation (EC) No 1974/2006, whereby land which 
was even only periodically flooded was not used agriculturally in 2012. 
4 As a result of that assessment the authorities found that in terms of Option 3.1.2 
the surface area determined amounted to 17.19 ha as compared to the declared 20 
ha, as a result of which – on the basis of the first subparagraph of Article 16(5) of 
Commission Regulation (EU) No 65/2011 – it was necessary to grant the farmer 
payments for acreage reduced by twice the difference found in the implementation 
of Option 3.1.2, and in terms of Option 2.3 – on the basis of the second 
subparagraph of Article 16(5) of that regulation – it was necessary to refuse to 
grant payments. 
Succinct presentation of the reasons for the reference 
5 The referring court is faced with the need to decide whether the periodic flooding 
declared in the application for agri-environmental payments of plots of land which 
are situated in a special environmental protection zone (Natura 2000, Ińsko 
Landscape Park, the natural habitats listed in 14 categories in Annex I to Council 
Directive 92/43/EEC) and for that very reason are subject to natural periodic 
flooding, which is caused, inter alia, by constraints in the field of drainage and 
water retention resulting from Rozporządzenie nr 36/2005 Wojewody 
Zachodniopomorskiego z dnia 10 listopada 2005 r. w sprawie planu ochrony 
Ińskiego Parku Krajobrazowego (Regulation No 36/2005 of the Governor of West 
Pomerania Province of 10 November 2005 concerning the Ińsko Landscape Park 
protection plan), constitutes the introduction of ‘crop rotation’ to agricultural 
crops and, as a result, makes it impossible to recognise the areas of land subjected 
to crop rotation as ‘permanent pasture’ within the meaning of Article 2(c) of 
Commission Regulation (EC) No 1120/2009, which also results in the withdrawal 
or reduction of agri-environmental payments to the farmer, and also has further 
financial consequences connected with the interruption of the continuity of the 
five-year period for the implementation of the agri-environmental programme and 
the need for repayment, in whole or in part, of payments collected, including for 
the years 2009 to 2012. The grounds for demanding repayment, in whole or in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-373/20 
 
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part, of the agri-environmental payments paid out, including for preceding years, 
are provisions of EU and national law, that is, Article 18(2) of Commission 
Regulation (EC) No 65/2011, which applies in the area, as can be seen from the 
title of that act, which governs the detailed rules for the implementation of 
Council Regulation (EC) No 1698/2005 as regards the implementation of control 
procedures. In Article 6(1)(a) of Commission Regulation (EC) No 65/2011 it was 
clearly stated that the provisions of that regulation applied to support granted in 
accordance with Article 36 of Council Regulation (EC) [No] 1698/2005, that is, 
also to agri-environmental payments. Further concrete expression is given to that 
rule in provisions of national law, that is, in § 39 et seq. of Rozporządzenie 
Ministra Rolnictwa i Rozwoju Wsi z dnia 13 marca 2013 r. w sprawie 
szczegółowych warunków i trybu przyznawania pomocy finansowej w ramach 
działania „Program rolnośrodowiskowy” objętego Programem Rozwoju 
Obszarów Wiejskich na lata 2007-2013 (Regulation of the Minister for 
Agriculture and Agricultural Development of 13 March 2013 concerning the 
detailed conditions and procedure for the grant of financial aid within the 
framework of the ‘Agri-Environmental Programme’ included in the 2007-2013 
Rural Development Programme). 
6 On the other hand, the issue of the non-declaration by the farmer of the occurrence 
of ‘force majeure’ caused by flooding is irrelevant for resolving the dispute 
concerning the payments for 2013, because it concerns circumstances relevant to 
the accounts for 2012. 
7 Before a decision can be issued in the case, in order to clarify doubts as to the 
interpretation of Article 2(c) of Commission Regulation (EC) No 1120/2009 the 
referring court considers it necessary to refer a question to the Court of Justice of 
the European Union for a preliminary ruling, because it cannot clarify the 
fundamental issue, that is, whether permanent pasture loses its nature and purpose 
through being subjected to crop rotation, interpreted in the way the national 
authorities interpret that concept, that is, through flooding. 
8 After 2013, the definition of the term ‘permanent pasture’ used in Article 2(c) of 
Commission Regulation (EC) No 1120/2009 underwent further modifications, 
namely under Article 4(1)(h) of Regulation (EU) No 1307/2013 of the European 
Parliament and of the Council, which was subsequently amended by Regulation 
(EU) 2017/2393 of the European Parliament and of the Council. Those 
amendments of the definition of ‘permanent pasture’ do not, however, remove the 
referring court’s doubts and do not clarify the issue of crop rotation, especially 
since, following the last of those amendments – according to the choice of the 
Member State – ploughing may or may not have an effect on the occurrence of 
crop rotation. Those amendments thus do not have an effect on the interpretation 
of that definition as worded in 2013. 
9 The Court has dealt many times in its case-law with the issue of the interpretation 
of the definition of ‘permanent pasture’, inter alia in the judgment [of 
11 November 2010, Grootes (C-152/09, EU:C:2010:671)], in which it assessed 
A.M. 
 
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the existence of a causal link between the change of use of an area from arable 
land to permanent pastureland and participation in an agri-environmental measure, 
and in the judgments [of 15 May 2019, Greece v Commission (C-341/17 P, 
EU:C:2019:409), and of 13 February 2020, Greece v Commission (C-252/18 P, 
EU:C:2020:95)], in which it assessed whether the decisive criterion for 
designating an agricultural area as permanent pasture is the kind of vegetation (the 
presence of ligneous plants or of shrubs), or the actual use of that area for 
agricultural activity which is typical of permanent pasture. Therefore, those 
rulings do not help to clarify the doubts of the referring court. 
10 In the judgment [of 14 October 2010, Landkreis Bad Dürkheim (C-61/09, 
EU:C:2010:606)], in which the issue of the taking into account of certain areas for 
the allocation of payment entitlements to a farmer in the context of the single 
payment scheme was in dispute, the Court found that: ‘Article 44(2) of Council 
Regulation (EC) [No] 1782/2003 … must be interpreted as not precluding an area 
from being eligible for aid where, while it is admittedly also used for agricultural 
purposes, the overriding objective is landscape management and nature 
conservation. In addition, the fact that the farmer is subject to the instructions of 
the nature conservation authority does not deprive an activity which meets the 
definition referred to in Article 2(c) of that regulation of its agricultural character’. 
The Court recalled in that ruling – referring to the judgment [of 16 July 2009, 
Horvath (C-428/07, EU:C:2009:458)] – that environmental protection, one of the 
essential objectives of the European Union, must be regarded as forming part of 
the common agricultural policy (paragraph 39), and that it would be illogical if an 
agricultural area ceased to be eligible for support where it is used for nature and 
landscape conservation (paragraph 40), and therefore considered that the fact that 
an area has an overriding nature and landscape conservation objective does not 
deprive it of its agricultural character for the purposes of Article 44(2) of 
Regulation No 1782/2003 where, as in that case, the land is actually being used as 
arable land or pasture (paragraph 41). 
11 Only in the judgment [of 2 October 2014, Grund (C-47/13, EU:C:2014:2248)], 
has the Court of Justice, resolving the doubts of the national court in a matter of 
direct payments, addressed the issue of the effect of the ploughing of land and the 
sowing therein of a variety of herbaceous forage other than that which was 
previously cultivated there on the classification of that land as permanent pasture 
and raised – in interpreting the definition of ‘permanent pasture’ set out in 
Article 2(c) of Commission Regulation (EC) No 1120/2009 of 29 October 2009 – 
the issue of crop rotation. In that ruling the Court found that the succession of 
various kinds of herbaceous forage does not constitute crop rotation, and therefore 
does not exclude the classification of the land concerned as permanent pasture. 
12 The issue of crop rotation was addressed a little more broadly by Advocate 
General Sharpston in her Opinion of 30 April 2014 in [Grund (C-47/13, 
EU:C:2014:293)] (see, in particular, points 43 and 46 and footnote 25 of that 
Opinion). The line of argument put forward by the Advocate General relating to 
the meaning of the term ‘crop rotation’, although useful from a cognitive point of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-373/20 
 
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view, does not, however, clarify the issue of whether the flooding of meadows and 
pastures situated in areas covered by special legal protection means that there is 
crop rotation and as a result that the areas of land concerned are deprived of the 
features of permanent pasture. 
13 In the case-law of the Polish administrative courts, the definition of ‘permanent 
pasture’ set out in Article 2(c) of Commission Regulation (EC) No 1120/2009, 
reproduced in a provision of national law, that is, in § 4(2) of Rozporządzenie 
Ministra Rolnictwa i Rozwoju Wsi z dnia 13 marca 2013 r. (Regulation of the 
Minister for Agriculture and Agricultural Development of 13 March 2013), has 
been addressed many times, but usually in the context of the occurrence of cases 
of ‘force majeure’ and the need for notification of the occurrence of such a case 
within the time limit. However, the issue that has arisen in the case pending before 
the referring court has not been addressed in the existing case-law of the national 
courts. That issue has also not been resolved in the existing case-law of the Court 
of Justice. Furthermore, the referring court is not aware that a court or tribunal of 
another Member State of the European Union has referred a question to the Court 
of Justice for a preliminary ruling concerning an issue identical to the issue of the 
application of EU law in the case at hand. As a result, the referring court has 
decided that there is a need to refer a question for a preliminary ruling in the 
present case. 
14 According to the referring court, a proper interpretation of the definition of 
‘permanent pasture’ set out in Article 2(c) of Commission Regulation (EC) 
No 1120/2009 is necessary in order to give a decision in this case. A proper 
interpretation will enable the referring court to resolve the issue of whether the 
periodic flooding of meadows and pastures situated in specially protected natural 
areas constitutes crop rotation and deprives such areas of land of the features of 
permanent pasture and, as a result, excludes such areas of land from the agri-
environmental payments for 2013 (and gives rise to a need for repayment of 
payments received for the years 2009 to 2012 in separate proceedings). 
15 According to the referring court, a circumstance such as the periodic flooding of 
meadows and pastures situated in areas specially protected by law on the basis of 
their natural values (which causes the periods for mowing or grazing to be 
postponed beyond the periods established in the provisions of national law cited 
and the fulfilment of those requirements by the farmer to take place at a later date) 
should not be classified as the introduction of crop rotation by the farmer. 
Additional justification for that position is provided in the Opinion of Advocate 
General Mazák of 11 May 2010 in [Landkreis Bad Dürkheim (C-61/09, 
EU:C:2010:265)] (see point 20 of that Opinion). 
16 The referring court also submits for consideration by the Court of Justice the 
appointment in the case of one or more experts for the purpose of determining the 
purpose and most important features of crop rotation for the purposes of 
agronomy, and whether the periodic flooding of meadows and pastures situated in 
A.M. 
 
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areas specially protected by law on the basis of their natural values is included in 
that purpose or those important features.