Judgment;Summary — ECLI:EU:C:2022:360
Date: 2022-05-05
Language of the case: Dutch
Court formation: Tenth Chamber
Subject matter: Agriculture and Fisheries;Agricultural structures
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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:  
26 March 2021 
Referring court:  
College van Beroep voor het bedrijfsleven (Netherlands) 
Date of the decision to refer:  
23 March 2021 
Applicant:  
R. en R. 
Defendant:  
Minister van Landbouw, Natuur en Voedselkwaliteit 
  
Subject matter of the action in the main proceedings 
Appeal against the decision of the defendant to impose on the applicant, on the 
basis of the Uitvoeringsregeling rechtstreekse betalingen GLB (Implementing 
Regulation for CAP direct payments), a cross-compliance reduction of 3% of the 
direct payments applied for in 2018 due to the use of an unauthorised plant 
protection product.  
Subject matter and legal basis of the request for a preliminary ruling 
Management requirement 10 in Annex II to Regulation No 1306/2013 refers 
exclusively to Article 55, first and second sentences, of Regulation No 1107/2009, 
which provides that plant protection products must be used properly. The referring 
court seeks to ascertain, in essence, whether that management requirement must 
be interpreted as also covering the situation in which use is made of a plant 
protection product which is not authorised in the Member State concerned.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/21 
 
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Question referred for a preliminary ruling 
Must management requirement (SMR) 10, as laid down in Annex II to Regulation 
(EU) No 1306/2013 of the European Parliament and of the Council of 
17 December 2013 on the financing, management and monitoring of the common 
agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) 
No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) 
No 485/2008, which refers to Article 55, first and second sentences, of Regulation 
(EC) No 1107/2009 of the European Parliament and of the Council of 21 October 
2009 concerning the placing of plant protection products on the market and 
repealing Council Directives 79/117/EEC and 91/414/EEC, be interpreted as 
meaning that that management requirement also covers the situation in which use 
is made of a plant protection product which is not authorised in the Member State 
concerned pursuant to that latter regulation? 
Provisions of EU law cited 
Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant 
protection products on the market: Article 3  
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: Article 3; Annex III, 
management requirement 9  
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: Article 4; Annex II, management requirement 9  
Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 
21 October 2009 concerning the placing of plant protection products on the 
market and repealing Council Directives 79/117/EEC and 91/414/EEC: recitals 7, 
8 and 35; Articles 28 and 31, Article 55, first and second sentence, Article 83  
Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 
17 December 2013 on the financing, management and monitoring of the common 
agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) 
No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) 
No 485/2008: recitals 53, 54 and 59; Articles 91 to 93; Annex II, management 
requirement 10 
R. EN R. 
 
3 
Regulation (EU) No 1310/2013 of the European Parliament and of the Council of 
17 December 2013 laying down certain transitional provisions on support for rural 
development by the European Agricultural Fund for Rural Development 
(EAFRD), amending Regulation (EU) No 1305/2013 of the European Parliament 
and of the Council as regards resources and their distribution in respect of the year 
2014 and amending Council Regulation (EC) No 73/2009 and Regulations (EU) 
No 1307/2013, (EU) No 1306/2013 and (EU) No 1308/2013 of the European 
Parliament and of the Council as regards their application in the year 2014: 
recital 16  
Provisions of national law cited 
Uitvoeringsregeling rechtstreekse betalingen GLB (Implementing Regulation for 
CAP direct payments; ‘the Implementing Regulation’): Article 3.1(1); Annex 3, 
parts 10.1 and 10.2 
Wet gewasbeschermingsmiddelen en biociden (Law on plant protection products 
and biocidal products: ‘the Wgb’): Article 20(1) and (3) 
Brief summary of the facts and the procedure in the main proceedings  
1 On 20 March 2018, the applicant (R. en R.) submitted an application to the 
defendant (the Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for 
Agriculture, Nature and Food Quality)) for the making of direct payments.  
2 On 11 October 2018, the Netherlands Voedsel- en Warenautoriteit (Food and 
Consumer Product Safety Authority; ‘the NVWA’) established that the applicant 
had used the plant protection product MECOP PP-2. That plant protection product 
has mecoprop-P as its active ingredient. According to the website of the College 
voor de toelating van gewasbeschermingsmiddelen en biociden (Board for the 
Authorisation of Plant Protection Products and Biocides; ‘the Ctgb’), which is 
responsible for the implementation of the Wet gewasbeschermingsmiddelen en 
biociden, the authorisation for MECOP PP-2 had expired on 30 January 2016. The 
sell-by date (latest date by which the expired product could be sold) was set at 
30 July 2016 and the use-by date (the period within which the remaining stocks of 
the product could still be used) was set at 30 January 2017.  
3 By decision of 4 April 2019, the defendant, on the basis of the 
Uitvoeringsregeling rechtstreekse betalingen GLB, imposed a cross-compliance 
reduction of 3% on the direct payments payable to the applicant for the year 2018, 
on the ground that the applicant had used an unauthorised plant protection 
product. By decision of 21 August 2019 (‘the contested decision’), the defendant 
rejected as baseless the applicant’s objection to the decision to impose the cross-
compliance reduction.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/21 
 
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4 In the contested decision, the defendant stated that the applicant had failed to 
comply with a cross-compliance rule. In its view, the use of an unauthorised plant 
protection product comes under management requirement 10 as set out in 
Annex II to Regulation No 1306/2013.  
5 The applicant brought an appeal against the contested decision before the referring 
court.  
Main submissions of the parties to the main proceedings 
6 The applicant acknowledges that it used a plant protection product which was not 
authorised (or was no longer authorised) and had thus breached Article 28 of 
Regulation No 1107/2009. The applicant argues, however, that the defendant was 
wrong to impose on it a cross-compliance reduction, because the (improper) use 
of an unauthorised plant protection product does not come under management 
requirement 10, as set out in Annex II to Regulation No 1306/2013. The applicant 
argues that the use of an unauthorised plant protection product constitutes a breach 
of Article 28 of that regulation, which stipulates that a plant protection product 
may not be placed on the market or used unless it has been authorised. That does 
not mean that it has breached the management requirement set out in Article 55 of 
Regulation No 1107/2009. It is clear from Annex II to Regulation No 1306/2013, 
and more specifically from management requirement 10, that this must involve an 
infringement of Article 55, first and second sentences, of Regulation 
No 1107/2009. Article 28 of Regulation No 1107/2009 is not mentioned in 
Annex II to Regulation No 1306/2013, with the result that a breach of that 
provision does not constitute a breach of a cross-compliance rule. In addition, the 
applicant points out that Article 28 of Regulation No 1107/2009, on the one hand, 
and Article 55 of Regulation No 1107/2009, on the other hand, involve two 
different types of conduct and that both types of conduct can also constitute a 
separate infringement under Article 20 of the Wgb.  
7 The defendant relies on a more systematic interpretation of management 
requirement 10, to which Article 55 of Regulation No 1107/2009 is central. It 
takes the view that the (improper) use of an unauthorised plant protection product 
falls under management requirement 10. According to the defendant, Article 55 of 
Regulation No 1107/2009 gives rise to a general obligation to use all plant 
protection products properly. There is nothing to suggest that unauthorised plant 
protection products are exempt from this obligation. According to the defendant, 
an unauthorised plant protection product cannot, by definition, be used properly. 
Under Article 55 of Regulation No 1107/2009, a proper use implies, among other 
things, that the requirements laid down in accordance with Article 31 of 
Regulation No 1107/2009 are met. The content of the authorisation is regulated by 
Article 31 of Regulation No 1107/2009. The use of an unauthorised plant 
protection product does not fulfil the requirements of Article 31 of Regulation 
No 1107/2009, because those requirements are laid down solely for authorised 
plant protection products.  
R. EN R. 
 
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Brief summary of the reasons for the referral 
8 It is not in dispute between the parties that the authorisation for the plant 
protection product MECOP PP-2 expired with effect from 30 January 2016 and 
that, at the time of its use by the applicant, the maximum use-by period had 
expired. The applicant thus acknowledges that it acted in a manner contrary to 
Article 28 of Regulation No 1107/2009.  
9 Under Articles 91, 92 and 93 of Regulation No 1306/2013, the full payment of the 
direct payments applied for by a farmer such as the applicant is subject to 
compliance with the rules on cross-compliance. The question is whether the 
defendant was entitled to impose a cross-compliance reduction on the applicant on 
account of the use of an unauthorised plant protection product. Article 93(1) of 
Regulation No 1306/2013 provides that the rules on cross-compliance contain the 
statutory management requirements under EU law as listed in Annex II. It is thus 
that Annex II (and not the national Implementing Regulation) which is decisive 
for the question of whether cross-compliance rules are at issue here.  
10 In Annex II to Regulation No 1306/2013, management requirement 10 refers to 
Article 55, first and second sentences, of Regulation No 1107/2009; Article 28 of 
Regulation No 1107/2009 is not mentioned therein. Article 28 of Regulation 
No 1107/2009, which concerns authorisation for placing on the market and use 
and which features in Section 1, ‘Authorisation’, of Chapter III, provides that a 
plant protection product may not be placed on the market and used unless it has 
been authorised in the Member State concerned. Article 55, first and second 
sentences, of Regulation No 1107/2009, which concerns the use of plant 
protection products and which features in Section 2, ‘Use and information’, of 
Chapter III, provides that plant protection products must be used properly, which 
implies application of the principles of good plant protection practice and 
compliance with the conditions of use. From the wording of these provisions and 
their place in Chapter III of Regulation No 1107/2009, it can be deduced that the 
articles concern two distinct forms of conduct. The defendant’s view that 
Article 55 of Regulation No 1107/2009 contains a general obligation relating to 
the proper use of all plant protection products, seems difficult to reconcile with 
this. According to that view, the prohibition in Article 28 of Regulation 
No 1107/2009 of the use of an unauthorised plant protection product would be 
superfluous and thus meaningless, because such a prohibition would already be 
covered by Article 55 of Regulation No 1107/2009. Therefore, a literal 
interpretation of management requirement 10, as set out in Annex II to Regulation 
No 1306/2013, would imply that that management requirement does not cover the 
situation in which an unauthorised plant protection product is used. However, 
such an interpretation has the curious and possibly undesirable consequence that 
no cross-compliance reduction can be imposed in a situation in which a farmer has 
used an unauthorised plant protection product, whereas it can be imposed in the 
case of the improper use of an authorised plant protection product.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-189/21 
 
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11 Having regard to the objectives of the standards governing the use of plant 
protection products laid down by Regulation No 1107/2009 and the cross-
compliance objectives laid down by Regulation No 1306/2013, namely, the 
protection of the environment and of the health of humans, animals and plants and 
the development of sustainable agriculture, it is not logical that that cross-
compliance system should cover only the situation in which an authorised plant 
protection product is used and not also the situation in which an unauthorised 
plant protection product is used. An interpretation based on the objectives of 
Regulation No 1306/2013 and Regulation No 1107/2009 would imply that 
Management Requirement 10, as set out in Annex II to Regulation No 1306/2013, 
also covers the situation in which an unauthorised plant protection product is used. 
12 In that regard, the College van Beroep voor het bedrijfsleven (Administrative 
Court of Appeal for Trade and Industry) also refers to Regulation No 1782/2003 
and Regulation No 73/2009, the predecessors of Regulation No 1306/2013. There, 
management requirement 9 (which corresponds to management requirement 10 of 
Regulation No 1306/2013) refers to Article 3 of Directive 91/414. That latter 
article stipulated that only an authorised plant protection product may be used 
(paragraph 1) and that plant protection products must be used properly 
(paragraph 3). In the absence of an explanatory note relating to the amended 
approach adopted in Regulation No 1107/2009, it is not clear to the referring court 
whether the EU legislature took the view that a reference in management 
requirement 10 of Regulation No 1306/2013 to the first and second sentences of 
Article 55 of Regulation No 1107/2009 was sufficient to cover also the situation 
in which an unauthorised plant protection product is used, or whether, on the 
contrary, it was in fact the EU legislature’s intention not to cover that situation.  
13 Finally, the College van Beroep voor het bedrijfsleven points out that beneficiaries 
must be able to understand clearly their cross-compliance obligations, as is 
evident from recital 59 of Regulation No 1306/2013. It is questionable to what 
extent those obligations can be understood clearly by a farmer if the interpretation 
of management requirement 10 is based not so much on its wording as on the 
objectives and the context of Regulations No 1306/2013 and No 1107/2009.