Judgment;Summary — ECLI:EU:C:2024:573
Date: 2024-07-04
Language of the case: Spanish
Court formation: Eighth Chamber
Subject matter: Accession;Agriculture and Fisheries;Agricultural structures;Cotton
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-708/22 – 1 
Case C-708/22 
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: 
16 November 2022 
Referring court: 
Tribunal Supremo (Spain) 
Date of the decision to refer: 
21 October 2022 
Applicant: 
Asociación Española de Productores de Vacuno de Carne 
(ASOPROVAC) 
Defendant: 
Administración General del Estado 
  
Subject matter of the main proceedings 
Annulment proceedings – Royal Decree 41/2021 – First final provision, 
paragraph 5 – Royal Decree 1075/2014 – Article 11(2) and (3) – Agricultural 
activity – Permanent grassland – Production – Grazing of animals belonging to the 
holding – Maintenance of agricultural areas 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – Common 
Agricultural Policy (CAP) – Aid – Compatibility of a national provision with 
European Union law – Regulation (EU) No 1307/2013 – Articles 4 and 32(2) – 
Regulation (EU) No 1306/2013 – Article 60 – Artificial creation of conditions for 
obtaining aid – Charter of Fundamental Rights – Articles 20 and 21 – 
Infringement of the principles of the primacy of EU law, the hierarchy of norms, 
legitimate expectations and legal certainty 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-708/22 
 
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Questions referred for a preliminary ruling 
(1) Are Articles 4 and 32(2) of Regulation (EU) No 1307/2013 of the European 
Parliament and of the Council of 17 December 2013 and Article 60 of Regulation 
(EU) No 1306/2013 of the European Parliament and of the Council of 
17 December 2013 to be interpreted as precluding a national provision like Real 
Decreto 41/2021 (Royal Decree 41/2021) which, in order to prevent the creation 
of artificial conditions in relation to the grant of a concession of permanent public 
common pastureland to beneficiaries who do not use that pastureland, provides 
that grazing activity is to be permitted only if it is carried out with animals 
belonging to the holding? 
(2) Is Article 60 of Regulation (EU) No 1306/2013, relating to the creation of 
artificial conditions for obtaining support, to be interpreted as precluding a 
national provision like Royal Decree 41/2021, which establishes a presumption 
that the conditions for access to support were artificially created in cases where 
the agricultural activity of grazing on permanent public common pastureland is 
carried out with animals which do not belong to the aid applicant’s own holding? 
(3) Is Article 4(1)(c) of Regulation (EU) No 1307/2013 to be interpreted as 
precluding a national provision like Real Decreto 1075/2014 (Royal Decree 
1075/2014) of 19 December, pursuant to which the grazing of agricultural areas 
may not be classified as the maintenance of those areas in a state suitable for 
grazing? 
(4) Is Article 4(1)(c) of Regulation (EU) No 1307/2013 to be interpreted as 
precluding a national provision like Royal Decree 1075/2014 of 19 December, 
pursuant to which persons who merely hold a non-exclusive grazing right over 
farmland that is not owned by them, and who assign that right to a third party so 
that the latter may use the pastureland to graze livestock, do not carry out an 
agricultural activity as provided for in Article 4(1)(c)(i)? 
(5) Is Article 4(1)(b) and (c) of Regulation (EU) No 1307/2013 to be interpreted 
as precluding a national provision like Royal Decree 1075/2014 of 19 December, 
pursuant to which persons who merely hold a non-exclusive grazing right over 
common farmland which is not owned by them cannot be treated as managers of 
the pastureland to which that grazing right applies for the purposes of carrying out 
the maintenance of those agricultural areas in a state suitable for grazing? 
Provisions of European Union law and case-law relied on 
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: 
Articles 4 and 32(2) 
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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: Article 60 
Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 
supplementing Regulation (EU) No 1307/2013 and amending Annex X to that 
Regulation: Article 4 
Regulation (EU) 2020/127 of the European Parliament and of the Council of 
29 January 2020 amending Regulation (EU) No 1306/2013 as regards financial 
discipline as from financial year 2021 and Regulation (EU) No 1307/2013 as 
regards flexibility between pillars in respect of calendar year 2020 
Regulation (EU) 2020/2220 of the European Parliament and of the Council of 
23 December 2020 laying down certain transitional provisions for support from 
the European Agricultural Fund for Rural Development (EAFRD) and from the 
European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and 
amending Regulations (EU) No 1305/2013, (EU) No 1306/2013 and (EU) 
No 1307/2013 as regards resources and application in the years 2021 and 2022 
and Regulation (EU) No 1308/2013 as regards resources and the distribution of 
such support in respect of the years 2021 and 2022 
Charter of Fundamental Rights of the European Union (‘the Charter’): Articles 20 
(equality before the law) and 21 (non-discrimination) 
Judgment of 7 April 2022, Avio Lucos (C-116/20, EU:C:2022:273) 
Judgment of 7 April 2022, Avio Lucos (C-176/20, EU:C:2022:274) 
Order of 26 November 2021, Agrárminiszter (C-273/21, not published, 
EU:C:2021:967) 
Judgment of 12 September 2013, Slancheva sila (C-434/12, EU:C:2013:546) 
Provisions of national law relied on 
Real Decreto 41/2021, de 26 de enero, por el que se establecen las disposiciones 
específicas para la aplicación en los años 2021 y 2022 de los Reales Decretos 
1075/2014, 1076/2014, 1077/2014 y 1078/2014, todos ellos de 19 de diciembre, 
dictados para la aplicación en España de la Política Agrícola Común (Royal 
Decree 41/2021 of 26 January 2021 laying down specific provisions for the 
application in 2021 and 2022 of Royal Decrees 1075/2014, 1076/2014, 1077/2014 
and 1078/2014, all of 19 December 2014, enacted for the application of the 
Common Agricultural Policy in Spain; ‘RD 41/2021’): first final provision, 
paragraph 5 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-708/22 
 
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Real Decreto 1075/2014, de 19 de diciembre, sobre la aplicación a partir de 2015 
de los pagos directos a la agricultura y a la ganadería y otros regímenes de ayuda, 
así como sobre la gestión y control de los pagos directos y de los pagos al 
desarrollo rural (Royal Decree 1075/2014 of 19 December 2014 on the application 
from 2015 of direct payments to agriculture, livestock farming and other support 
schemes and on the management and control of direct payments and payments for 
rural development; ‘RD 1075/2014’): Article 11(2) and (3) 
Constitución Española (Spanish Constitution): Article 14 (equality) 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 1 March 2021, the Asociación Española de Productores de Vacuno de Carne 
(ASOPROVAC; Spanish Association of Beef Cattle Producers) filed an 
administrative action against RD 41/2021, seeking the annulment of paragraph 5 
of the first final provision of that R[oyal]D[ecree] (‘the contested provision’), 
which amends Article 11(2) and (3) of RD 1075/2014. 
2 In accordance with the original version of that article, an aid applicant was 
required to indicate in respect of each parcel of land whether that parcel was 
intended for cultivation or was to be subject to maintenance. In the case of 
maintenance, if a parcel was pastureland, it was necessary to state whether 
maintenance was to be effected by means of grazing or other techniques. The list 
of maintenance activities is set out in Annex IV to RD 1075/2014. 
3 Following the amendment of Article 11(2) and (3) of RD 1075/2014 by RD 
41/2021, that provision now provides, inter alia, that it is necessary to indicate 
whether pastureland is to be used for a production activity by way of grazing and, 
in the case of permanent public common pastureland, that only production based 
on the grazing of animals from the aid applicant’s own holding is permitted and 
none of the maintenance activities listed in Annex IV to RD 1075/2014 are 
allowed. 
The essential arguments of the parties in the main proceedings 
4 The applicant submits that the contested provision is automatically void for the 
following reasons: 
– Infringement of Articles 4 and 32 of Regulation No 1307/2013 and Article 4 of 
Delegated Regulation No 639/2014 and infringement of the case-law of the 
Court of Justice on the eligibility of permanent grassland for the receipt of 
direct support: the Spanish State may not lay down eligibility conditions for 
grassland which are not stipulated by EU legislation and which are contrary to 
that legislation, such as the new requirement that grassland must actually be 
grazed and, furthermore, must be grazed by animals from the aid applicant’s 
own holding (that is, which is used for the applicant’s own livestock farming) 
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where that grassland is public common pastureland, as though the support were 
coupled support. 
– Infringement of Article 60 of Regulation No 1306/2013 and infringement of the 
case-law of the CJEU on the artificial creation of conditions for access to aid: 
the contested provision has introduced an irrebuttable presumption of fraud 
which aims to exclude intensive beef cattle farmers from the support scheme, 
based on the underlying view that they do not deserve to receive area-related 
direct aid, even though they have been in receipt of such aid since 2000 without 
ever having been required to graze their animals on areas of permanent 
pastureland that are part of their holdings. 
– Infringement of Articles 20 and 21 of the Charter and of Article 14 of the 
Spanish Constitution, which guarantee equality before the law and the 
prohibition of discrimination in matters which fall within the competence of the 
European Union: discriminatory treatment has been established as between 
Spanish and European beef cattle farmers and also as between Spanish farmers 
themselves, since the grazing of animals from the aid applicant’s own holding 
is required only on public common pastureland and not on privately owned 
pastureland. 
– Infringement of the principles of legitimate expectations and legal certainty: the 
contested provision was enacted after the EU legislation had been applicable 
for six years, when the Commission had ordered Member States to ensure the 
continuation, in 2021 and 2022, of the aid which farmers had been receiving 
without amending the eligibility conditions for such aid which were applicable 
in the period 2014-2020, since the reform of the CAP will be delayed and only 
budgetary adjustment measures have been approved in that respect under 
Regulation 2020/127. The Spanish State has failed to comply with those 
requirements without any legal basis and without any reasons of urgency or 
necessity existing. 
– Infringement of the principles of the reservation of law, the conferral of 
powers, the hierarchy of norms and the primacy of EU law: the Spanish State – 
which only has powers to implement EU legislation – has breached those 
principles by limiting, under RD 41/2021, the possibility of declaring grassland 
on the basis of its ownership (public or private) and use (exclusive or 
common). 
5 The Administración del Estado (State Administration), the defendant, argues, 
essentially, as follows: 
– EU regulations are directly applicable but it may be necessary for Member 
States to enact implementing measures (see Regulation No 1307/2013 
(Article 4(1)(c)(ii) and (iii) and (h), and (2)) and Regulation No 1306/2013 
(Articles 4(1), 5, 7(1) and 58(1) and (2)). In fulfilment of that obligation, the 
Spanish government published, inter alia, RD 1075/2014 and has gradually 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-708/22 
 
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inserted into it the amendments required to ensure the correct application of the 
CAP. In that connection, RD 41/2021 is a consequence of the adoption of 
Regulation 2020/2220. 
– The extension of the application of the current CAP does not limit the 
government’s powers to include the necessary amendments in RD 1075/2014. 
Moreover, the Kingdom of Spain, as an EU Member State, has an obligation to 
adopt those amendments under Article 58(1) of Regulation No 1306/2013. 
– Following the amendment inserted by RD 41/2021, Article 11(2) of RD 
1075/2014 is compatible with the EU legislation where it states that, inter alia, 
the agricultural production activity provided for in Article 4(1)(c)(i) of 
Regulation No 1307/2013 may be carried out only on parcels of public 
common pastureland through the grazing of animals belonging to the farmer’s 
holding. 
– As regards the artificial creation of conditions for access to support, in 
accordance with paragraph 29 of the judgment of the Court of Justice in Case 
C-434/12, there is no rebuttable presumption in the present case that beef cattle 
farmers have artificially created the conditions for receipt of CAP support but 
rather a finding of this fact as admitted in the application. 
– The applicant’s claim that the defendant misused its powers in adopting RD 
41/2021, through which, in the applicant’s submission, the defendant does not 
seek to ensure the correct application of EU legislation but rather to apply in 
advance the strategic plan that the Spanish government has allegedly prepared 
for the time when the new CAP is approved, in order to exclude the beef cattle 
farming sector from the CAP support scheme, is wholly unfounded. 
– RD 41/2021 does not create discriminatory treatment contrary to Articles 20 
and 21 of the Charter and Article 14 of the Spanish Constitution, since it only 
requires the grazing of animals from the applicant’s own holding on public 
common pastureland and not on privately owned pastureland. In that respect, it 
should be recalled that grazing is not permitted as an agricultural activity for 
the maintenance of an agricultural area in a state suitable for grazing under any 
circumstances, irrespective of whether the pastureland concerned is public or 
private, owned by the aid applicant or a third party. Accordingly, there is no 
discrimination between beef cattle farmers who hold grazing rights on public, 
common grassland and the holders of grazing rights on private grassland: 
neither is entitled to declare that they carry out the maintenance of those 
grasslands through grazing. While it is the case that, as far as private 
pastureland is concerned, the provision does not stipulate that the agricultural 
production activity must be carried out using animals from the applicant’s own 
holding or exclude the possibility that the maintenance tasks listed in Annex IV 
to RD 1075/2014 may be performed on that pastureland, the reason for this is 
the different body of rules applicable to each type of pastureland. No 
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discrimination exists because, in all cases, the aid applicant is required actually 
and genuinely to carry out an agricultural activity on common pastureland. 
– The claim in the application of infringement of the principles of the hierarchy 
of norms and the primacy of EU law is based on a false premiss which consists 
of the presumption that the Spanish legislation conflicts with the EU 
legislation. Since there is no such conflict, there is no infringement of the 
principle of the hierarchy of norms or of the principle of the primacy of EU 
law. 
– As regards infringement of the principles of legal certainty and legitimate 
expectations, the argument put forward by the applicant is again based on a 
false premiss, which consists of the presumption that RD 41/2021 lays down 
conditions for the receipt of CAP support that differ from and are additional to 
those laid down by the EU legislation. However, in fact, the aim of the 
amendments inserted into RD 1075/2014 by RD 41/2021 is purely to interpret 
or clarify Regulation No 1307/2013; it has been expressly stated that a correct 
interpretation of the EU provision does not permit the holders of grazing rights 
over public common pastureland to declare a production activity other than 
grazing with their own animals and that they may not declare agricultural 
maintenance activities in respect of such areas. 
– It is unacceptable that a person (whether or not a farmer or a beef cattle farmer) 
who has been granted grazing rights over public common pastureland, and who 
merely assigns those grazing rights to a third party so that that person can use 
the grassland to graze their cattle, should be entitled to have a legitimate 
expectation that, by doing so, he or she is carrying out an agricultural activity 
which qualifies him or her to receive CAP support. Ultimately, the conduct of 
beef cattle farmers described in the application has always been contrary to EU 
legislation. And if this has actually been put into practice, the competent public 
authorities should commence the appropriate procedures to scrutinise the 
irregularities committed. 
– The issue in these proceedings is whether or not Article 11(2) and (3) of RD 
1075/2014, as amended, is compatible with the EU legislation. For that 
purpose, it will be necessary to interpret the concepts of eligible hectare, 
agricultural area, permanent grassland and agricultural activity for the purposes 
of receipt of area-related direct aid, as laid down in Articles 4 and 32 of 
Regulation No 1307/2013, in addition to the reference to the prohibition on 
creating artificial conditions for access to aid laid down in Article 60 of 
Regulation No 1306/2013. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The Tribunal Supremo (Supreme Court) considers that the reference for a 
preliminary ruling is essential because the answers to the questions raised for the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-708/22 
 
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purpose of adjudicating on the main proceedings are not apparent from the case-
law of the Court of Justice examined below. 
7 Although the order in Case C-273/21 dealt with the interpretation of 
Article 32(2)(a) and (b) of Regulation (EU) No 1307/2013, the issue raised 
differed from that in the present case. Those proceedings concerned an area 
classified under Hungarian law as an aerodrome but on which no activity relating 
to an aerodrome was carried out. The Court found that that area should be 
classified as an agricultural area used for agricultural purposes since it was in fact 
used as permanent pastureland for livestock. 
8 In the judgment in Case C-116/20, there was a certain similarity between the facts 
of that case (see, inter alia, paragraphs 26 to 31 of the judgment) and those of the 
present case. However, those proceedings examined the particular circumstances 
of an aid applicant who was refused aid on the grounds that he did not meet 
certain conditions imposed by the Romanian national measure whereas, in the 
present case, an action has been brought directly against a particular legislative 
provision, not a measure enacted in implementation of a legislative provision. 
Moreover, the questions resolved by the Court of Justice in that case related to the 
interpretation of Regulation (EU) No 73/2009, repealed by Regulation 
No 1307/2013 which is applicable to this case. Therefore, the reasoning set out in 
that judgment (particularly in paragraphs 75, 76, 85, 86 and 87) do not definitively 
dispel the uncertainties of the Tribunal Supremo (Supreme Court) about the 
correct interpretation of Articles 4 and 32 of Regulation No 1307/2013 and 
Article 60 of Regulation No 1306/2013. 
9 In the preliminary-ruling proceedings in Case C-176/20, as in the present case, the 
interpretation concerned Articles 4 and 32 of Regulation No 1307/2013 and 
Article 60 of Regulation No 1306/2013 (in conjunction with recitals 4 and 16 of 
Delegated Regulation No 639/2014). However, in Case C-176/20, the 
interpretation of those provisions related to facts which are not exactly the same as 
the facts of this case. That case (see paragraph 49 of the judgment) dealt with the 
determination of whether the concept of ‘active farmer’ covers a legal person who 
has concluded a concession contract relating to an area of pastureland belonging 
to a municipality and who grazes on that land animals which have been loaned to 
it, free of charge, by natural persons who own those animals. On the other hand, 
this case is aimed at determining whether or not persons who merely hold a non-
exclusive grazing right over common farmland which does not belong to them can 
be treated as ‘managers’ of the pastureland to which those grazing rights relate for 
the purposes of carrying out the maintenance of those agricultural areas in a state 
suitable for grazing and, also, whether or not it is possible to consider that, in such 
cases, where those persons assign that right to a third party so that that person can 
use the grassland to graze cattle, they are carrying out an agricultural activity as 
provided for in Article 4(1)(c)(i) of Regulation No 1307/2013. In addition, as 
regards the interpretation of Article 60 of Regulation (EU) No 1306/2013, 
significant differences also exist between the present case and the case examined 
in that judgment, because in that judgment – unlike in the present case – reference 
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was made, as facts to be taken into account, to the conclusion, in breach of the 
applicable national law, of the concession contract and to the content of the loan-
for-use contracts at issue in the main proceedings, in particular if it were apparent 
from them that the grazing of the animals loaned was carried out not by Avio 
Lucos, but by the owners of those animals.