Judgment;Summary — ECLI:EU:C:2024:395
Date: 2024-05-08
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Agriculture and Fisheries;Financial provisions;Own resources
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-734/22 – 1 
Case C-734/22 
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: 
29 November 2022 
Referring court: 
Oberster Gerichtshof (Supreme Court, Austria) 
Date of the decision to refer: 
17 October 2022 
Appellant on a point of law: 
Republic of Austria, represented by the Finanzprokuratur 
(Representative of the Federal Finance Ministry) 
Respondent to the appeal on a point of law: 
GM 
  
Subject matter of the main proceedings 
Area-related funding for environmentally friendly forms of management awarded 
to funding applicants under private law contracts for multiannual commitments – 
On-the-spot checks – Failure to comply with the conditions of funding – Expiry of 
the limitation period for recovery claims – Interruption of the limitation periods by 
means of extrajudicial demands for payment? 
Subject matter and legal basis of the request 
Interpretation of Article 3 of Regulation (EC, Euratom) No 2988/95, Article 267 
TFEU  
Questions referred 
1. Is Article 3 of Council Regulation (EC, Euratom) No 2988/95 of 
18 December 1995 on the protection of the European Communities financial 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-734/22 
 
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interests (OJ 1995 L 312, p. 1) directly applicable to claims by which the Republic 
of Austria seeks to recover aid it granted under a contract to funding applicants 
within the framework of an agri-environmental aid programme under Council 
Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural 
development by the European Agricultural Fund for Rural Development 
(EAFRD) (OJ 2005 L 277, p. 1) by means of private-law remedies because the 
recipient infringed contractual obligations? 
2. If the answer to the first question is in the affirmative, must the third 
subparagraph of Article 3(1) of the regulation referred to in Question 1 be 
interpreted as meaning that there is an interruption of the limitation period by the 
investigation or legal proceedings also when the party who issued the aid, after 
making its first extrajudicial claim for repayment, asks the recipient of the aid 
again, if need be several times, to make the repayment, and issues an extrajudicial 
demand for payment instead of asserting its repayment claim in court? 
3. If the answer to the first question is in the negative, is the application of a 
limitation period of 30 years provided for by national civil law in respect of the 
recovery claims referred to in Question 1 compatible with EU law, in particular 
with the principle of proportionality?’ 
Provisions of European Union law relied on 
Articles 1 and 3 of Council Regulation (EC, Euratom) No 2988/95 of 
18 December 1995 on the protection of the European Communities financial 
interests 
Provisions of national legislation  
Paragraphs 1336, 1478 and 1489 of the Allgemeines Bürgerliches Gesetzbuch 
(General Civil Code, ABGB)  
Sonderrichtlinie des Bundesministers für Land- und Forstwirtschaft, Umwelt und 
Wasserwirtschaft (BMLFUW) für das Österreichische Programm zur Förderung 
einer umweltgerechten, extensiven und den natürlichen Lebensraum schützenden 
Landwirtschaft (Special Directive of the Federal Minister for Agriculture, 
Forestry, Environment and Water Management for the Austrian programme to 
promote an environmentally friendly, extensive and habitat protecting agriculture) 
(SRL-ÖPUL 2007). 
Brief summary of the facts and procedure 
1 The Österreichische Programm für umweltgerechte Landwirtschaft (Austrian 
Programme for environmentally friendly agriculture) (the ÖPUL) 2007 was run by 
the appellant Republic of Austria during the period at issue (from 2007 to 2013) as 
FINANZPROKURATUR 
 
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an agri-environmental measure under Council Regulation (EC) No 1698/2005 of 
20 September 2005 on support for rural development by the European 
Agricultural Fund for Rural Development (EAFRD) and co-financed by the 
European Union. Agrarmarkt Austria GmbH (AMA) was responsible for its 
administration in the name and on behalf of the appellant. 
2 The funding was awarded under contracts with the funding applicants. Under the 
ÖPUL, area-related funding was granted for environmentally friendly forms of 
management, applicants for which had to make multiannual commitments. 
3 The respondent participated in the ÖPUL as a farm manager for the period of 
seven years from 2007 to 2013. After carrying out on-the-spot checks on 5 and 
9 December 2013 and 9 January 2014, the appellant applied for reimbursement of 
the grants issued for the claim years 2008 to 2010 and 2012 to 2013, amounting to 
EUR 44 751.58, due to alleged differences between the areas applied for and the 
areas actually eligible. It alleged that, in so far as the areas applied for, but no 
longer eligible in 2012 and 2013 (the areas lost) had already been included in the 
ÖPUL in the previous years, the commitment period of seven years had been 
infringed. Consequently, the appellant also requested that the funding granted in 
respect of the areas lost for the claim years 2008 to 2012 also be repaid. An 
assessment report and recovery notifications of 26 March 2014 and 26 June 2014 
were sent by AMA to the respondent. Subsequently, he received payment 
reminders of 11 May 2015 (served on 12 May 2015) and of 12 November 2015 
(served on 16 November 2015) and a demand for payment with the threat of ‘legal 
steps’ of 16 December 2015 (served on 22 December 2015). By an action brought 
on 26 April 2019, the appellant requested payment of the sum of EUR 44 751.58, 
together with progressive interest of 2.880% per annum above the base rate 
applicable from 30 April 2014. 
4 The court of first instance, the Landesgericht für Zivilrechtssachen Wien 
(Regional Court for Civil Matters, Vienna, Austria), limited the subject matter of 
the proceedings to the question of limitation and ruled by interlocutory judgment 
of 21 December 2020 that the appellant’s claim was not time-barred. In law, it 
affirmed that Article 3 of Regulation No 2988/95 was applicable to all the claims 
made. It held that the four-year limitation period had begun on 1 January 2014 and 
had been interrupted by the recovery notifications and demands for payment, with 
the result that the claims were not time-barred. 
5 The appeal court, the Oberlandesgericht Wien (Higher Regional Court, Vienna, 
Austria), upheld the respondent’s appeal on a point of law on 20 September 2021 
and dismissed the application on the ground that it was time-barred. In law, it 
considered that Regulation 2988/95 was not applicable to civil claims. The law of 
limitation under Austrian national civil law had to be applied. The claims were 
time-barred under Paragraph 1489 of the ABGB. 
6 The Oberster Gerichtshof (Supreme Court) has to rule on the appeal on a point of 
law brought by the appellant by means of which it sought the restoration of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-734/22 
 
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judgment at first instance; in the alternative, the appellant submits an application 
seeking the setting aside of the judgment under appeal. 
The essential arguments of the parties in the main proceedings 
7 The appellant submits that the SRL-ÖPUL 2007 is largely determined by EU 
regulations. The level of reductions or recovery claims when there are differences 
in area are directly set out in Article 16 of 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. That regulation also refers to the requirements of the EU 
integrated administration and control system (IACS). The fact that, in the event of 
non-compliance with the multiannual commitment period, the entire aid granted 
during the commitment period must be repaid corresponds to Article 39(3) in 
conjunction with Article 88(4) of Regulation (EC) No 1698/2005. 
8 The appellant submits that the limitation period of four years laid down in 
Article 3(1) of Regulation (EC, Euratom) No 2988/95 began after the end of the 
commitment period, that is to say, on 1 January 2014. It was interrupted by the 
procedural measures adopted by AMA, namely the service of the assessment 
report and the service of the recovery notification and the payment reminders, 
which reset the limitation period on each occasion. The claims are therefore not 
time-barred. Furthermore, under Article 3(3) of Regulation (EC, Euratom) 
No 2988/95, Member States may provide for a longer limitation period. Certain 
recovery claims are to be classified, under Austrian civil law, as claims for 
enrichment. Consequently, the limitation period of 30 years laid down in 
Paragraph 1478 of the ABGB applies. The obligation to pay interest under item 
1.12.2.5. of the SRL-ÖPUL 2007 is based (in principle) on Article 5(1) of 
Regulation (EU) No 65/2011, with the result that the limitation periods provided 
for in Article 3 of Regulation (EC, Euratom) No 2988/95 also apply to the right to 
interest. 
9 The respondent applies for the action to be dismissed. He argues (inter alia) that 
the claims are time-barred. Item 1.12. of the SRL-ÖPUL 2007 does not set out its 
own rules on limitation, so reference must be made to other sources of law. He 
classifies the recovery claims as contractual penalties within the meaning of 
Paragraph 1336 of the ABGB. The limitation period of three years from 
knowledge of the damage and of the perpetrators of damage, laid down in 
Paragraph 1489 of the ABGB, is applicable to those. The limitation period began 
to run at the latest on the date of the recovery letters of 26 March 2014 and 
26 June 2014, with the result that, on the date on which the action was brought, 
the limitation period had already expired. Regulation (EC, Euratom) No 2988/95 
was not applicable because it concerns only the claims to be pursued through legal 
remedies governed by public law. Even if Regulation (EC, Euratom) No 2988/95 
were to be applicable, service of the assessment report, recovery notifications and 
FINANZPROKURATUR 
 
5 
payment reminders could not be classified as acts relating to investigation or legal 
proceedings; they therefore did not have the effect of interrupting the limitation 
period. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 Question 1: The question as to whether Article 3 of Regulation (EC, Euratom) 
No 2988/95 is directly applicable is of crucial importance for settling the present 
dispute. If Article 3 of Regulation No 2988/95 is directly applicable to the 
assessment of the limitation period for the claims made, the respondent is barred 
from relying on the shorter limitation period of three years laid down in 
Paragraph 1489 of the ABGB. For its part, the appellant would not be able to rely 
on the limitation period of 30 years laid down in Paragraph 1478 of the ABGB, 
since the principle of proportionality precludes, in the context of exercise by the 
Member States of the power which they are given by Article 3(3) of Regulation 
No 2988/95, application of a 30-year limitation period to proceedings relating to 
recovery of wrongly received aid (judgment of 5 May 2011, C-201/10 and 
C-202/10, Ze Fu Fleischhandel and Vion Trading, EU:C:2011:282, paragraph 47). 
11 Question 2: The second question referred for a preliminary ruling seeks to 
determine, as regards private-law subsidies, whether the provider of a subsidy that 
has already completed its investigations and has made an extrajudicial claim to 
recover the subsidy from the recipient can interrupt, by means of payment 
reminders, and, therefore, in the context of the absolute time limit laid down in the 
fourth subparagraph of Article 3(1) of Regulation (EC, Euratom) No 2988/95, 
extend the limitation period although a judicial claim is not precluded by it 
requiring a longer period to clarify matters of fact. 
12 Question 3: The Court of Justice of the European Union has held, specifically with 
regard to the ÖPUL, that, in so far as Community law does not contain any rules 
to the contrary, there is nothing to prevent the Republic of Austria from 
implementing national aid programmes by means of acts of private law such as 
contracts. However, the application of those rules of national law must not 
jeopardise the scope and effectiveness of that Community law (judgment of the 
Court of Justice of the European Union of 19 September 2002, Martin Huber, 
C-336/00, EU:C:2002:509, paragraph 61 et seq.). Question 3 seeks to determine 
whether, where a national programme constitutes an agri-environmental measure 
within the meaning of Regulation (EC) No 1698/2005 and is designed such that it 
falls within the realm of private law, the limitation periods laid down by national 
civil law must be assessed in the light of the principle of proportionality under EU 
law.