Opinion of the Advocate General — ECLI:EU:C:2021:684
Date: 2021-09-02
Language of the case: Romanian
Subject matter: Agriculture and Fisheries;General provisions;Agricultural structures;Wine
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-116/20 — 1 
In Case C-116/20 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 February 2020 
Referring court: 
Curtea de Apel Timișoara (Romania) 
Date of the decision to refer: 
6 February 2020 
Appellant: 
S. C. Avio Lucos SRL 
Respondents: 
Agenția de Plăți și Intervenție pentru Agricultură — Centrul 
Județean Dolj 
Agenția de Plăți și Intervenție pentru Agricultură (APIA) — Aparat 
Central 
  
Subject matter of the dispute in the main proceedings 
Appeal against the judgment of the Tribunalul Dolj (Regional Court, Dolj, 
Romania) of 25 February 2019 dismissing the action for annulment of the report 
by which the Agenția de Plăți și Intervenție pentru Agricultură (Agency for 
payments and measures for agriculture; ‘APIA’ — Dolj District Centre) 
established that the applicant owed a debt to the State under Article 73(1) of 
Regulation (EC) No 796/2004 
Subject and legal basis of the request for a preliminary ruling 
The Curtea de Apel Timișoara (Court of Appeal, Timișoara, Romania) is seeking, 
pursuant to Article 267 TFEU, an interpretation of Article 2 of Council Regulation 
(EC) No 73/2009 of 19 January 2009, and a determination as whether certain 
provisions of national law conform to EU law, in particular Regulation (EC) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-116/20 
 
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No 73/2009 and Council Regulation (EC) No 1122/2009 of 30 November 2009 
laying down detailed rules for the implementation of Council Regulation (EC) 
No 73/2009. 
Questions referred 
(1) Does [EU] law applicable to financial support relating to the agricultural 
year 2014 — in particular Regulation (EC) No 73/2009 and Regulation 
No 1122/2009 — preclude the introduction, through national legislation, of an 
obligation to provide proof of the right to use an area of land for the purpose of 
obtaining financial support relating to area schemes? 
(2) In so far as the abovementioned [EU] law does not preclude the national 
legislation referred to in Question 1, does [EU] law (including the principle of 
proportionality) preclude — in the particular case where the right to exploit the 
agricultural area has been justified by the beneficiary by submitting a concession 
contract for an area of pastureland (under which the applicant acquired the right to 
exploit the pastureland at his own risk and for his benefit, in return for a fixed 
sum) — national legislation which imposes, for such a concession contract to be 
valid, the condition that the future concessionaire must be only a keeper or owner 
of animals? 
(3) Does the activity of a beneficiary under an area scheme who — after 
concluding a concession contract for pastureland for the purpose of obtaining the 
right to exploit that area and obtaining rights to aid in the agricultural year 
2014 — subsequently concludes a cooperation contract with livestock farmers by 
which he permits use, free of charge, of the land granted for the purposes of 
grazing animals, and the beneficiary retains the right to use the land but 
undertakes not to hinder grazing and to clean up the pastureland, fall within the 
definition of agricultural activity set out in Article 2 of Regulation No 73/2009? 
(4) Does [EU] law preclude an interpretation of a national legal provision, such 
as Article 431(2) of the Code of Civil Procedure — on the status of res judicata of 
a final judicial decision — to the effect that a final judicial decision finding a 
payment application ineligible on the ground of failure to comply with national 
law as regards the requirement relating to the lawfulness of the right to exploit/use 
the land in respect of which an area scheme has been applied for in the 
agricultural year 2014 (in a dispute in which annulment of the decision imposing 
multiannual penalties has been sought), and which prevents analysis of the 
conformity of that national requirement with [EU] law applicable in the 
agricultural year 2014 in a new dispute in which the lawfulness of the measure 
recovering the sums unduly paid to the applicant is examined, in respect of the 
same agricultural year 2014, and the measure is based on the same facts and the 
same national legislation which were analysed in the earlier final judicial 
decision? 
AVIO LUCOS 
 
3 
Provisions of EU law relied on 
Article 2 of 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; recital 61 and Article 71 of Council 
Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural 
development by the European Agricultural Fund for Rural Development 
(EAFRD). 
The first paragraph of Article 80 of 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. 
Provisions of national law relied on 
Ordonanța de urgență a Guvernului nr. 125/2006 pentru aprobarea schemelor de 
plăți directe și plăți naționale directe complementare, care se acordă în agricultură 
începând cu anul 2007, și pentru modificarea articolului 2 din Legea nr. 36/1991 
privind societățile agricole și alte forme de asociere în agricultură, publicată în 
Monitorul Oficial al României, Partea I, nr. 1.043 din 29 decembrie 2006, 
aprobată cu modificări și completări prin Legea nr. 139/2007, cu modificările și 
completările ulterioare (Government Emergency Order No 125/2006 approving 
direct payments schemes and complementary national direct payments granted for 
agriculture as from 2007 and amending Article 2 of Law No 36/1991 on 
agricultural companies and other forms of association in the field of agriculture, 
published in the Official Journal of Romania, Part I, No 1043, of 29 December 
2006, as subsequently amended and supplemented), Article 7(1)(f), under which: 
‘(1) To receive payments under single area payment schemes, applicants must be 
registered in the Registrul fermierilor (Register of Farmers), managed by the 
Agenția de Plăți și Intervenție pentru Agricultură (Agency for payments and 
measures for agriculture), must submit an application for payment within the time 
limit imposed, and must satisfy the following general conditions: 
… 
(f) documents demonstrating lawful use of the land in respect of which the 
application has been submitted must be presented; 
Ordonanța de urgență a Guvernului nr. 34/2013 privind organizarea, administrarea 
și exploatarea pajiștilor permanente și pentru modificarea și completarea Legii 
fondului funciar nr. 18/1991, publicată în Monitorul Oficial al României, Partea I, 
nr. 267 din 13 mai 2013, aprobată cu modificări și completări prin Legea nr. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-116/20 
 
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86/2014 (Government Emergency Order No 34/2013 on the organisation, 
management and exploitation of permanent pastures, amending and 
supplementing Law No 18/1991on land ownership, published in the Official 
Journal of Romania, Part I, No 267 of 13 May 2013, as approved, amended and 
supplemented by Law No 86/2014), Article 2(d), under which: 
‘For the purposes of this Emergency Order, the following definitions shall apply: 
… 
(d) user of pastures and grassland shall mean a livestock farmer, a natural/legal 
person registered in the Registrul național al exploatațiilor (National register of 
holdings; ‘the RNE’) who carries on specific activities falling within the category 
covering the use of pastures and grassland, in accordance with the statistical 
classification of economic activities in the European Union for plant and animal 
production, who holds the legal right to use an agricultural area and who exploits 
the land as pasture by grazing flocks of animals owned by him, or by mowing it at 
least once a year’; 
Codul de procedură civilă aprobat prin Legea nr. 134/2010 (Code of Civil 
Procedure approved by Law No 134/2010), Article 431(2), under which: 
‘Either party may challenge the earlier judgment in a different dispute if it is 
connected with the resolution of that dispute’. 
Succinct presentation of the facts and the main proceedings 
1 The applicant, S. C. Avio Lucos SRL, submitted a single area payment application 
in respect of 2014, registered with the APIA — Dolj District Centre, for a total 
area 341.70 hectares. By way of evidence of the right to use the land it deposited 
the concession contract concluded on 28 January 2013 with the Consiliul Local al 
Comunei Podari (Podari Municipal Council) pursuant to Government Emergency 
Order No 34/2013, by which it obtained the concession to an area of 341.70 
hectares, being land of Podari Municipal Council, the private property of the local 
authority. 
2 Under the concession contract, S. C. Avio Lucos SRL has the right to exploit 
directly, at its own risk and under its own responsibility, the assets received by 
way of concession, has the right to use and collect the fruits of the assets covered 
by the concession, according to the nature thereof and in accordance with the 
objectives laid down in the concession contract. It is required to ensure that the 
land is exploited by grazing and may not grant a sub concession for, or lease, the 
land covered by the concession. 
3 Following the conclusion of the concession contract, S. C. Avio Lucos SRL 
entered, on 30 January 2013, into a joint venture contract with four natural 
persons who are the owners of animals. 
AVIO LUCOS 
 
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4 Under that contract, the parties are to enter into a partnership to exploit the pasture 
on the municipal land covering an area of 341.70 hectares, which is the private 
property of the municipality of Podari, as identified in the concession contract. 
The land will in fact be exploited by the partners who are natural persons 
providing the company S. C. Avio Lucos SRL with animals (cows, sheep, goats 
etc.) in the number owned and specified in the contract, for the purpose of 
continuous grazing on the land referred to above. The provision of the animals is 
not conditional on the transfer of the right of ownership of the animals to S. C. 
Avio Lucos SRL and the natural persons remain the legal owners thereof.  
5 For its part, S. C. Avio Lucos SRL provides, for free, permanent and 
unconditional pasture, the municipal land covering area of 341.70 hectares, access 
to the pasture being free, permanent and not subject to any payment requirement 
or other benefit in return. The company will, on an annual basis, at its own 
expense, clean up the pastureland, uproot weeds and remove excess water from 
the land, thereby ensuring optimal conditions for the restoration of the pasture. 
6 Following the submission of the application, the APIA — Dolj District Centre, 
granted financial support for the 2014 financial year, in relation to an area of 
341.70 hectares, totalling RON 529 340.24. After the applicant had collected that 
sum, the APIA — Dolj District Centre, re-examined the applications for support 
and found that at the time the concession contract was concluded, the applicant 
was not entitled to grant a concession in respect of grassland in the public domain 
or in the private sector of the municipalities, since it was not a livestock farmer, as 
is clear from the joint venture contract. Therefore, APIA — Dolj District Centre, 
adopted: 
(a) the decision of 28 December 2015 which provided for multiannual 
penalties to be imposed on the applicant totalling RON 555 729.59, pursuant to 
the third paragraph of Article 58 of Regulation (EC) No 1122/2009, on the ground 
of over-declaration of the areas in respect of which it had applied for financial 
support relating to the single area payment scheme and agri-environmental 
payments. 
(b) the report of 31 January 2017, contested in the present case, establishing 
that the applicant owes a debt to the State totalling RON 529 340.24, under 
Article 73(1) of Regulation (EC) No 796/2004, consolidated version. 
7 The applicant challenged the report of 31 January 2017 before the Tribunalul Dolj 
(Regional Court, Dolj), which dismissed the action on 12 December 2017. The 
appeal lodged against that judgment was allowed by the Curtea de Apel Craiova 
(Court of Appeal, Craiova) and the case was referred back to the court ruling on 
the substance for reconsideration. By civil judgment of 25 February 2018, the 
Tribunalul Dolj dismissed the application, ruling, in essence, that a copy of the 
document identifying the agricultural holding had not been submitted together 
with the single payment application and that the applicant had failed to provide 
proof of its status as livestock farmer and that the land is used. The applicant also 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-116/20 
 
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appealed against that judgment, the case being registered with the Curtea de Apel 
Craiova and subsequently transferred to the Curtea de Apel Timișoara. 
The essential arguments of the parties to the main proceedings 
8 In essence, the applicant has asked the appeal court to declare that the judgment of 
the court at first instance is unlawful and unfounded, alleging that the court ruling 
on the merits: (i) failed to set out which eligibility criteria were not fulfilled and 
which rules are applicable to such applications; (ii) failed to carry out an analysis 
of the case from the point of view of EU law, despite an express request to do so, 
and; (iii) did not analyse the eligibility criteria in accordance with the definitions 
set out in the EU regulations referred to in the decision which was at issue in the 
proceedings, but rather in the light of certain concepts of national law which have 
no equivalent in EU law. 
9 In the appeal arguments were also raised regarding: (i) fulfilment of the eligibility 
criteria set out in the case-law of the Court of Justice of the European Union in 
Case C-375/08 (which sets out the principle that the actual use to which an area is 
put is the overriding consideration), in Case C-61/09 (concerning the possibility of 
using areas under an atypical contract where the area farmed preserves the nature 
of the eligible area) and in Joined Cases C-333/15 and C-334/15 (concerning the 
absence of any eligibility requirement that the applicant should be a keeper of 
animals who carries on livestock farming activities, the judgment establishing 
what are in fact the eligibility criteria) and the provisions of EU law (Article 2 of 
Regulation No 73/2009) which contain definitions of the concepts relevant to the 
resolution of the case, and (ii) the claim that the relevant provisions of national 
law are inconsistent with those contained in the instruments of the European 
Union. 
10 The respondent raised, inter alia, a plea alleging res judicata in respect of the 
decision of the Curtea de Apel Craiova of 29 October 2018, which dismissed the 
action brought by the appellant against the judgment of the Tribunalul Dolj of 
24 April 2018, dismissing the action for annulment of the decision of 
28 December 2015 adopted by the APIA — Dolj District Centre (imposing 
multiannual penalties on the appellant). The Curtea de Apel Craiova ruled that the 
court ruling on the merits was right to find that S.C. Avio Lucos SRL had failed to 
provide proof of eligibility, as expressly provided for in the legislation, since it is 
not a livestock farmer, does not own animals registered in the RNE, and was 
unable to provide proof of use of the land, and therefore over-declared the land. 
Brief summary of the grounds for the reference 
11 The referring court considers that an answer from the Court of Justice is necessary 
as to whether EU law precludes national legislation which requires proof of the 
right to use or exploit an area of land for the purpose of obtaining financial 
support relating to area schemes. As regards other legislation, namely Council 
AVIO LUCOS 
 
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Regulation (EC) No 1254/1999, the referring court notes that the Court of Justice 
held that ‘the Community legislation — and, in particular, … Regulation (EC) 
No 1254/1999 … — does not make the eligibility of an application for special 
premiums for male bovine animals or payments for extensification conditional 
upon the production of a valid legal document attesting to the aid applicant’s right 
to use the forage areas to which the application relates. However, subject to 
compliance with the objectives pursued by the Community legislation, as well as 
the general principles of Community law and, in particular, the principle of 
proportionality, the Community legislation does not preclude Member States from 
imposing, under their national legislation, a requirement to produce such a 
document’ (judgment of 24 June 2010, Pontini and Others, C-375/08, 
paragraph 90). 
12 The national court also considers that it is necessary to establish the compatibility 
with EU law of the requirement that the beneficiary under an area scheme must be 
a keeper or owner of animals in order to be granted an area of pasture where the 
applicant contends that such a requirement is incompatible with EU law and the 
defendant has not indicated any provision of EU law which justifies it. 
13 Furthermore, in the light of the reference to the definition of agricultural activity 
set out in Article 2 of Regulation (EC) No 73/2009, it is necessary to determine 
whether the activity actually carried out by the appellant falls within that 
definition. 
14 Finally, as regards the status of res judicata relied on by the respondent, it entails a 
prohibition on ruling on an application which has already been determined by a 
final judicial decision which is presumed to be correct. Therefore, a person may 
bring a claim before the courts only once and, after a final judgment has been 
delivered in the case, any dissatisfaction on the part of the party concerned as to 
the final outcome can be resolved only by invoking legal remedies against final 
judgments thus delivered and not by bringing similar claims before the courts. 
15 Whilst stressing that the merits of the plea relating to the status of res judicata will 
be established after a reply to the questions set out above has been received from 
the Court of Justice, the Curtea de Apel Timișoara starts from the premiss that if it 
were to be concluded that the plea relating to the status of res judicata raised by 
the appellant is well founded, that should lead to a finding that the issues relating 
to the legal effects of the concession contract concluded by the appellant, and the 
consequence of the appellant not having the status of livestock farmer for the 
purpose of the application for the sums available under area schemes, were the 
subject of final judicial decisions, and points out that, in the present case, 
annulment was sought of a measure adopted in respect of the agricultural year 
2014 other than that contested in the case in which the Curtea de Apel Craiova 
gave a final judgment.