Opinion of the Advocate General — ECLI:EU:C:2020:962
Date: 2020-11-25
Language of the case: Dutch
Subject matter: Agriculture and Fisheries
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-361/19 — 1 
Case C-361/19 
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: 
3 May 2019 
Referring court: 
College van Beroep voor het Bedrijfsleven (Netherlands) 
Date of the decision to refer: 
23 April 2019 
Applicant: 
De Ruiter vof 
Defendant: 
De Minister van Landbouw, Natuur en Voedselkwaliteit 
  
Subject of the action in the main proceedings 
The applicant has lodged an appeal against the defendant’s decision under the 
Uitvoeringsregeling rechtstreekse betalingen GLB (Implementing Regulation 
CAP Direct Payments; ‘Uitvoeringsregeling’) to apply a cross-compliance 
reduction of 5% to the direct payments to be granted to him for 2016. The cross-
compliance reduction is an administrative penalty imposed on the basis of EU 
legislation which is the subject of the question referred for a preliminary ruling.  
Subject and legal basis of the request for a preliminary ruling 
Request pursuant to Article 267 TFEU. 
In essence, the question referred for a preliminary ruling asks whether 
Article 99(1) of Regulation (EU) No 1306/2013 and Article 73(4)(a) of 
Implementing Regulation (EU) No 809/2014, are valid, in so far as, in those 
provisions, the year of the finding of non-compliance is decisive for the 
determination of the year for which the cross-compliance reduction is calculated, 
more particularly in a situation such as that in the main proceedings, where the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-361/19 
 
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year of the non-compliance with the cross-compliance rules is not the same as the 
year of the finding of non-compliance. 
Question referred for a preliminary ruling 
Are Article 99(1) of Regulation (EU) No 1306/2013 of the European Parliament 
and the Council of 17 December 2013 on the financing, management and 
monitoring of the common agricultural policy and Article 73(4)(a) of Commission 
Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down rules 
for the application of Regulation (EU) No 1306/2013 of the European Parliament 
and of the Council with regard to the integrated administration and control system, 
rural development measures and cross compliance valid, in so far as, in those 
provisions, the year of the finding of non-compliance is decisive for the 
determination of the year for which the cross-compliance reduction is calculated, 
in a situation where the year of the non-compliance with the cross-compliance 
rules is not the same as the year of the finding of non-compliance.  
Provisions of European Union law cited 
Articles 91, 92 and 99 of 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  
Article 39 of Commission Delegated Regulation (EU) No 640/2014 of 11 March 
2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament 
and of the Council with regard to the integrated administration and control system 
and conditions for refusal or withdrawal of payments and administrative penalties 
applicable to direct payments, rural development support and cross compliance  
Articles 73 and 74 of Commission Implementing Regulation (EU) No 809/2014 of 
17 July 2014 laying down rules for the application of Regulation (EU) 
No 1306/2013 of the European Parliament and of the Council with regard to the 
integrated administration and control system, rural development measures and 
cross compliance  
Provisions of national law cited 
Article 4.8 of the Uitvoeringsregeling rechtstreekse betalingen GLB 
(Implementing Regulation on CAP Direct Payments; ‘Uitvoeringsregeling’)  
Article 3.1 of the Regeling houders van dieren (Regulation on Animal-keepers) 
Article 2.36 of the Besluit houders van dieren (Decision on Animal-keepers) 
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Brief summary of the facts and the procedure in the main proceedings 
1 Following an ante-mortem inspection of a cow by a veterinarian at the applicant’s 
business on 3 December 2015, and a subsequent check by the Voedsel- en 
Warenautoriteit (Netherlands Food and Consumer Product Safety Authority; 
‘NVWA’), two reports were drawn up with findings about the applicant’s 
business. In those reports, the defendant stated that it had reason to impose a 
cross-compliance reduction of 5% on the applicant on the basis of the 
Uitvoeringsregeling rechtstreekse betalingen GLB (Implementing Regulation 
CAP Direct Payments; ‘Uitvoeringsregeling’). The cross-compliance reduction is 
an administrative penalty for non-compliance by farms with the requirements laid 
down by EU legislation that must be met in order to receive support (direct 
payments). 
2 That reduction was initially based on five, and ultimately on three, non-
compliances: two in the area of health and one in the area of animal welfare. The 
cross-compliance reduction was calculated by the defendant in relation to the 
direct payments for the year 2016.  
3 By decision of 16 February 2017 (the primary decision), the defendant set the 
cross-compliance reduction at 5%. By decision of 30 June 2017 (the contested 
decision), the defendant rejected the applicant’s objection as unfounded. The 
applicant then lodged an appeal with the referring court against the contested 
decision.  
Main submissions of the parties to the main proceedings  
4 There were two non-compliances (the first and the second) in the area of health, 
namely, the incorrect registration of the application of veterinary medicines and 
the failure to comply with the prescribed waiting period after the application of a 
veterinary medicine. In addition, there was an instance of non-compliance in the 
area of animal welfare (the third), namely, the lack of a dry and clean berth for 
calving. The referring court has disregarded the second non-compliance in the 
order for reference and in the statement of reasons for the question referred.  
5 Since it is established, according to the referring court, that the aforementioned 
instances of non-compliance could give rise to a cross-compliance reduction, the 
only question that remained to be answered was the basis on which it should be 
calculated.  
6 As regards the calculation of the cross-compliance reduction, the applicant 
submits that the defendant had erroneously set it at 5% of the direct payments to 
be granted to it for 2016. That argument gave rise to the question referred for a 
preliminary ruling.  
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Brief summary of the reasons for the referral 
7 The first non-compliance took place in 2015, whereas the third non-compliance 
and the finding of both non-compliances took place in 2016. For the first instance 
of non-compliance, the year of non-compliance and the year of the finding 
therefore do not coincide. 
8 For both the first and the third non-compliance with the cross-compliance rules, 
the defendant has determined a reduction of 3% on the basis of Article 39(1) of 
Regulation 640/2014. Since the two instances of non-compliance with the cross-
compliance rules were found in the same year (namely 2016) and relate to 
different areas of cross-compliance, namely, health and animal welfare, the 
defendant has added the two reductions together, and set the combined amount at 
the 5% maximum laid down in Article 74 of Regulation 809/2014.  
9 As laid down in Article 99(1) of Regulation 1306/2013 and Article 73(4)(a) of 
Regulation 809/2014, the defendant has calculated the cross-compliance reduction 
in relation to the direct payments for the year in which the non-compliances with 
the cross-compliance rules were found. The text of those provisions is clear — 
also in the French- and English-language versions — that the cross-compliance 
reduction is calculated on the basis of the payments for the year of the finding of 
non-compliance.  
10 However, the referring court has doubts about the validity of Article 99(1) of 
Regulation 1306/2013 and of Article 73(4)(a) of Regulation 809/2014, in so far as, 
in those provisions, the year of the finding of non-compliance is decisive for the 
determination of the year for which the cross-compliance reduction is calculated, 
in a situation where the year of non-compliance with the cross-compliance rules is 
not the same as the year of the finding of non-compliance. It finds support for this 
view in the judgment of the Court of Justice of 25 July 2018 in Case C-239/17 
(Teglgaard and Fløjstrupgård (ECLI:EU:C:2018:597), paragraphs 34 to 59).  
11 The referring court acknowledges that the judgment in Teglgaard and 
Fløjstrupgård relates to the precursors of the Regulations applicable here and thus 
to different Regulations, that there were differences between the language 
versions of those Regulations and that that case relates to the interpretation of 
those Regulations and, more specifically, to whether reductions of direct payments 
due to non-compliance with the cross-compliance rules are to be calculated on the 
basis of the payments granted or to be granted in the year during which that non-
compliance occurred or in the year of the finding of non-compliance. 
Nevertheless, the grounds on which the Court of Justice concludes in that case that 
reductions of direct payments due to non-compliance with the cross-compliance 
rules are to be calculated on the basis of the payments granted or to be granted in 
the year during which that non-compliance occurred may have the consequence 
that the choice of the Union legislature to take as its point of departure in the 
Regulations applicable here the year of the finding of non-compliance is contrary 
to the principles of equal treatment, proportionality and legal certainty to the 
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extent that the year of non-compliance with the cross-compliance rules is not the 
same as the year of the finding of non-compliance. After all, the Court of Justice 
has ruled that, if the year of the finding of non-compliance with the cross-
compliance rules is taken into account when calculating the reduction of direct 
payments, there is a risk that the amount of the payments to which the reduction is 
applied will be considerably higher than that of the year in which the non-
compliance with the cross- compliance rules occurred or, conversely, that the 
reduction applied is considerably lower when the amount of the direct payments 
has decreased between the year of the non-compliance and the year of the finding 
of non-compliance, that the link between the farmer’s behaviour and the resulting 
reduction or withdrawal is not always guaranteed and that it is difficult for the 
farmer to foresee the financial consequences to be borne (see point 47 et seq. of 
the Opinion of Advocate General Sharpston of 17 May 2018, 
ECLI:EU:C:2018:328, in particular points 87 to 101).  
12 Referring to the judgment of 22 October 1987 in Case 314/85 (Foto-Frost 
(ECLI:EU:C:1987:452)), the referring court states that, having regard to those 
doubts about the validity of the relevant provisions of EU law, it is required to 
request a preliminary ruling from the Court of Justice under Article 267 TFEU.  
13 Should the Court of Justice rule that Article 99(1) of Regulation 1306/2013 and 
Article 73(4)(a) of Regulation 809/2014 are invalid, in so far as, in those 
provisions, the year of the finding of non-compliance is decisive for the 
determination of the year for which the cross-compliance reduction is calculated, 
in a situation where the year of non-compliance with the cross-compliance rules is 
not the same as the year of the finding of non-compliance, that appears to have the 
consequence for the decision in the present case that the defendant incorrectly 
based the 5% reduction to the direct payments to be granted to the applicant for 
2016, as imposed by that decision, on the first non-compliance with the cross-
compliance rules, in 2015. On the basis — solely — of the third non-compliance 
with the cross-compliance rules in 2016, a cross-compliance reduction of 3% 
should have been determined, based on the direct payments to be granted to the 
applicant for 2016.  
14 The question then is whether there is a basis in European Union law for 
nevertheless imposing a cross-compliance reduction with regard to non-
compliance with cross-compliance rules in a situation where the year of non-
compliance with the cross-compliance rules is not the same as the year of the 
finding of non-compliance, as is the case here with regard to the first non-
compliance with the cross-compliance rules in 2015. Although that question is not 
at issue in the present dispute — after all, the decision only concerns the reduction 
of the direct payments in 2016 — the referring court is of the view that that 
question must be borne in mind when addressing the question referred for a 
preliminary ruling. The absence of such a basis would undermine the objective of 
Regulation 1306/2013 as regards compliance with the cross-compliance rules, as 
follows from recitals 53 and 54 of the preamble thereto, which links the full 
payment of direct payments to compliance with rules relating to land 
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management, agricultural production and agricultural activity. Those rules aim to 
incorporate basic standards concerning the environment, climate change, good 
agricultural and environmental condition of land, public health, animal health, 
plant health and animal welfare in the Common Agricultural Policy (see the 
judgment in Teglgaard and Fløjstrupgård, cited above, paragraph 40).