Judgment;Summary — ECLI:EU:C:2022:212
Date: 2022-03-24
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Agriculture and Fisheries
Procedure: Reference for a preliminary ruling
Origin: Belgium

Anonymised version 
Translation  C-726/20 – 1 
Case C-726/20 
Request for a preliminary ruling 
Date lodged: 
29 December 2020 
Referring court: 
Conseil d’État (Belgium) 
Date of the order for reference: 
4 December 2020 
Applicant: 
CT 
Ferme de la Sarte SPRL 
Defendant: 
Région wallonne 
  
CONSEIL D’ÉTAT, JUDICIAL BRANCH  
Administrative Litigation Division 
XVth CHAMBER 
JUDGMENT 
[OMISSIS] of 4 December 2020 
[OMISSIS] 
  1. CT, 
 2. Private Limited Company Ferme de la Sarte, 
with an address for service at [OMISSIS] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-726/20 
 
2  
Anonymised version 
Liège, 
 
v 
 
Région wallonne, represented 
by its Government, 
with and address for service at [OMISSIS] 
Brussels. 
 
I. The application 
By application lodged electronically on 25 January 2019, CT and Ferme de la 
Sarte sprl sought annulment of ‘the decisions of the Walloon Region – 
Department of Agriculture – Directorate for Agricultural Structures of 
26 November 2018 and 30 November 2018 declaring the action that had been 
brought admissible and unfounded, and as a result refusing to grant an application 
for set-up aid and aid for investment’. 
II Procedure 
[OMISSIS] [Or. 2] [OMISSIS] 
[procedural issues without relevance for the reference for a preliminary ruling] 
III. Facts 
1. In order to become part of the family agricultural holding, the first applicant 
acquired 25.20% of the shares of the second applicant and was appointed to the 
position of manager. On 23 February 2018 he concluded a takeover agreement 
with his father in respect of the holding. 
2. On 9 March 2018, the Comité d’installation (Set-up Committee) informed 
the first applicant that it considered that he had the equivalent of two years’ 
experience. 
3. On 21 March 2018, the second applicant submitted three applications for 
aid: 
- an application for set-up aid (undivided partial takeover of 63 shares in the 
company);  
- an application for investment aid in respect of a storage barn; [Or. 3]  
- an application for investment aid for the purchase of a cylinder mower. 
4. On 20 and 28 June 2018, the Director of the Directorate for Agricultural 
Structures of the Department of Agriculture decided that the three applications for 
aid were not eligible for aid. The correspondence notifying those decisions 
FERME DE LA SARTE 
 
3 
Anonymised version 
mentioned the possibility of submitting an appeal to the Director of the Walloon 
Paying Agency. 
5. On 31 July 2018, the applicants lodged an appeal with the Walloon Paying 
Agency against the three decisions referred to above. 
6. On 24 September 2018, the Walloon Paying Agency held a hearing of the 
first applicant. 
7. On 26 November 2018, the Director of the Walloon Paying Agency took the 
decision to refuse the application for aid for setting-up by takeover. 
That is the first contested act, the grounds for which are as follows: 
‘··· 
Whereas, with regard to business start-up aid for young farmers, recital 17 of 
Regulation No 1305/2013 explains that: 
“A farm and business development measure should facilitate the initial 
establishment of young farmers and the structural adjustment of their agricultural 
holding after the initial setting up”. 
The description of that support scheme in the “Programme wallon de 
développement rural” (Walloon Rural Development Programme), listed as sub-
measure “6.1- Business start-up aid for young farmers”, in point 8.2.3.3.1.6.1 of 
that programme, explains inter alia that: 
“The purpose of the sub-measure is to grant financial aid to young people setting 
up whilst ensuring that they do so under the best possible conditions, that is to say, 
that they have suitable occupational skills and an appropriate business plan for 
their holdings. 
The support consists of financial aid for taking over, in whole or in part, an 
existing holding or for creating a new holding. 
··· 
The average set-up costs for an agricultural holding in Wallonia were 
EUR 225,000 during the period 2012-2014. They have steadily increased over 
recent years, and so the flat-rate aid of EUR 70,000 provided for in respect of that 
measure represents an average aid of 30% of the set-up costs.”; 
Whereas this means that the business start-up support scheme for young farmers, 
organised in the Walloon Region and approved by the European Commission, is 
designed to provide partial funding for a young farmer to set up on an agricultural 
holding, by creating or taking over the latter, at a flat rate of EUR 70,000 and not 
to provide aid for existing holdings to develop an activity which is unrelated to 
agriculture; 
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-726/20 
 
4  
Anonymised version 
Whereas the applicant’s business plan expressly mentions that the holding is being 
taken over and the investment being made in order to further the activities of 
producing turf rolls and green roofs. Whereas the business plan [Or. 4] mentions 
that the set-up aid is intended for the purchase of a mower for turf production, 
making for “faster mowing”, which will free up time for the new activity of 
“growing plants for green roofs”, the building of a storage shed “to provide 
temporary storage for the turf rolls harvested”, and “starting the growing of new 
plant crops (thanks to the well-equipped greenhouse) in order to embark on the 
production of green roofs”; 
Whereas the applicant added at his hearing that “the applications for investment 
relate only to turf”; whereas EV added that “only the hectares dedicated to the 
production of turf” would be taken over; whereas FD explained that “it concerns 
ultimately anything that is not typical farming”; whereas those statements are 
confirmed by the letter by which they brought their appeal, which states that the 
part of the holding that CT is taking over represents only “32[.]71 hectares of the 
174[.]57 [hectares] of DS 2017 (declaration of area 2017), which is less than 
20%”; whereas that corresponds to the information given in the declarations of 
area for the preceding years, which give in respect of “non-edible horticultural 
crops” – the term used by EV to describe the production of turf or sedum as he 
stated at the hearing – a total of 35.55 hectares in 2018 and 31.1 hectares in 2017; 
Whereas it is therefore shown that the aid for setting up by takeover and the aid 
for investment are not intended here for the takeover of an agricultural holding but 
for the development of a secondary activity on a holding that is unrelated to 
agriculture, namely the production of turf or of green roofs; 
Those applications therefore fall outside the scope of Articles 17 and 19 of 
Regulation No 1305/2013 as they have been implemented by the Walloon Region;  
Whereas the fact alone that Ferme de la Sarte SPRL is currently engaged in 
agricultural activity does not mean that those applications can be granted, since 
the aid applied for by CT for the takeover is not, in itself, intended for the 
takeover or development of the agricultural activity of the holding, but for the 
creation on the holding of a parallel activity that is unrelated to agriculture’. 
8. On 30 November 2018, the Director of the Walloon Paying Agency also 
took decisions not to grant the other two applications for investment aid. Those 
are the second and third contested acts, the grounds for which are as follows: 
‘Whereas recital 15 of Regulation (EU) No 1305/2013 explains as follows with 
regard to investment aid: 
“In order to improve the economic and environmental performance of agricultural 
holdings and rural enterprises, to improve the efficiency of the agricultural 
products marketing and processing sector, including the setting up of small scale 
processing and marketing facilities in the context of short supply chains and local 
markets, to provide infrastructure needed for the development of agriculture and 
FERME DE LA SARTE 
 
5 
Anonymised version 
forestry and to support non-remunerative investments necessary to achieve 
environmental aims, support should be provided for physical investments 
contributing to these aims.” 
[OMISSIS] [Or. 5] [OMISSIS] [citation of Article 17(1)(a) to (d) of Regulation 
No 1305/2013] 
Whereas it can be inferred from Article 17 of Regulation No 1305/2013 and from 
the description of its objectives in recital 15 of that regulation, that investment aid 
is designed to improve agricultural production, develop, modernise or adapt the 
holding, or support it in acquiring machinery that is non-remunerative but 
beneficial for the environment. Whereas each of those objectives is related to 
agricultural production or at least to the agricultural character of the holding. 
Whereas it cannot therefore be held that such aid is intended for the acquisition of 
an investment that is unrelated to agricultural activity; 
Whereas turf production and the production of green roofs are not mentioned in 
Annex I to the Treaty on the Functioning of the European Union. Whereas those 
types of production are not designed to produce foodstuffs, directly or indirectly. 
Whereas the investment applications are not, moreover, intended for the 
acquisition of machinery that is non-productive but beneficial to the environment, 
they are, on the contrary, intended for the purchase of machinery that is 
productive but for production that is not related to agricultural activity. Whereas 
the investment applications cannot therefore be considered to be related to 
agricultural activity; 
Whereas the fact alone that Ferme de la Sarte SPRL is currently engaged in 
agricultural activity does not mean that those applications can be granted, since 
the aid applied for by CT for the investments is not, in itself, intended for the 
takeover or development of the agricultural activity of the holding, but for the 
creation on the holding of a parallel activity that is unrelated to agriculture’. 
IV. Admissibility 
IV.1 [OMISSIS] 
[OMISSIS] [Or. 6] [OMISSIS] 
IV.2. Assessment 
[OMISSIS] [Or. 7] [OMISSIS] 
[examination of the plea of inadmissibility put forward by the defendant on 
grounds that the three contested acts lack any connection] 
Since the connection is established, the action is admissible in so far as it is 
directed against the three contested acts. 
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-726/20 
 
6  
Anonymised version 
V. Third plea – First part 
V.1. Arguments of the parties 
The third plea alleges infringement of Article 38 of the Treaty on the Functioning 
of the European Union (TFEU) and Annex I thereto, of Article 17 of Regulation 
(EU) No 1305/2013 of the European Parliament and of the Council of 
17 December 2013 on support for rural development by the European Agricultural 
Fund for Rural Development (EAFRD), of Articles 11 and 33 of the Order of the 
Walloon Government of 10 September 2015 on aid for development and 
investment in the agricultural sector, Articles 9 and 10 of the Ministerial Order of 
10 September 2015 implementing the abovementioned order of the Walloon 
Government of 10 September 2015, of Articles 20 and 21 of the Charter of 
Fundamental Rights of the European Union, of Articles 10 and 11 of the 
Constitution, of the general legal principle of proportionality and of manifest error 
of assessment. 
In the first part of the plea, the applicants consider that the contested acts wrongly 
state that the production of turf, and of other crops such as sedum, does not 
constitute agricultural production as referred to in Annex I to the TFEU. They 
argue that horticultural production in the broad sense is covered by the list in the 
abovementioned Annex I. They state that Article 38 TFEU seeks to define 
agricultural products and that that provision gives a double definition of them: 
first, a definition that may be described as conceptual and, secondly, a definition 
that may be described as analytical by reference to an enumerative list. They 
consider that the contested acts give a restrictive analysis of that provision since 
they limit agricultural products to those which relate to food, within the general 
meaning of the term. They note that Chapter 6 of the abovementioned Annex I 
refers to ‘Live trees and other plants; bulbs, roots and the like; cut flowers and 
ornamental foliage’ and that in the event of difficulty of interpretation, the 
conceptual definition may be adopted. They consider that a plant product as 
referred to in Chapter 6 means a product interpreted as being a product of the soil, 
which is envisaged by Article 38 TFEU in its conceptual definition. They contend 
that if the opposing party maintains its interpretation of that provision, it may be 
necessary to make a reference to the Court of Justice of the European Union for a 
preliminary ruling. [Or. 8]  
The opposing party responds that the plea is inadmissible since it alleges 
infringement of Articles 20 and 21 of the Charter of Fundamental Rights of the 
European Union but the applicants fail to explain in what way those provisions are 
infringed. It considers that, contrary to what the applicants contend, turf is not 
referred to in Annex I to the TFEU since it is not covered by ‘Live trees and other 
plants; bulbs, roots and the like; cut flowers and ornamental foliage’. It considers, 
based on the information appearing on the European Commission’s official 
website, that ‘live plants and floriculture products’ only includes ‘live trees, 
shrubs and bushes and other goods commonly supplied by nursery gardeners or 
florists for planting or ornamental use’. It concludes that there is therefore no need 
FERME DE LA SARTE 
 
7 
Anonymised version 
to refer a question to the Court of Justice of the European Union for a preliminary 
ruling. 
The applicants respond that they maintain the submissions made in their 
application for annulment. They do not see how it is possible to distinguish turf 
from live plants and floriculture products, since turf is a live plant requiring 
horticultural work and may be intended for ornamental use. They therefore 
consider that the explanations given by the opposing party are unconvincing and 
that the latter dismisses too readily the possibility of referring to the Court of 
Justice of the European Union a question on whether turf production can be 
regarded as being an agricultural and/or horticultural activity. 
In their recent pleadings, the parties refer to their earlier pleadings. 
V.2. Assessment 
Article 17 of Regulation (EU) No 1305/2013 of the European Parliament and of 
the Council of 17 December 2013 on support for rural development by the 
European Agricultural Fund for Rural Development (EAFRD) and repealing 
Council Regulation (EC) No 1698/2005 provides as follows: 
‘Investments in physical assets’ 
1. Support under this measure shall cover tangible and/or intangible 
investments which: 
(a) improve the overall performance and sustainability of the agricultural 
holding; 
(b) concern the processing, marketing and/or development of agricultural 
products covered by Annex I to the TFEU or cotton, except fishery products; the 
output of the production process may be a product not covered by that Annex; 
where support is provided in the form of financial instruments, the input may also 
be a product not covered by that Annex on condition that [Or. 9] the investment 
contributes to one or more of the Union priorities for rural development;  
(c) concern infrastructure related to the development, modernisation or 
adaptation of agriculture and forestry, including access to farm and forest land, 
land consolidation and improvement, and the supply and saving of energy and 
water; or 
(d) are non-productive investments linked to the achievement of agri- 
environment-climate objectives as pursued under this regulation, including 
biodiversity conservation status of species and habitat as well as enhancing the 
public amenity value of a Natura 2000 area or other high nature value systems to 
be defined in the programme. 
2. Support under point (a) of paragraph 1 shall be granted to farmers or groups 
of farmers. 
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-726/20 
 
8  
Anonymised version 
In the case of investments to support farm restructuring, Member States shall 
target the support to farms in accordance with the SWOT analysis carried out in 
relation to the Union priority for rural development “enhancing farm viability and 
competitiveness of all types of agriculture in all regions and promoting innovative 
farm technologies and sustainable management of forests”. 
3. Support under points (a) and (b) of paragraph 1 shall be limited to the 
maximum support rates laid down in Annex II. Those maximum rates may be 
increased for young farmers, for collective investments, including those linked to 
a merger of Producer Organisations, and for integrated projects involving support 
under more than one measure, for investments in areas facing natural and other 
specific constraints as referred to in Article 32, for investments linked to 
operations under Articles 28 and 29 and for operations supported in the 
framework of the EIP for agricultural productivity and sustainability in 
accordance with the support rates laid down in Annex II. However, the maximum 
combined support rate may not exceed 90%. 
4. Support under points (c) and (d) of paragraph 1 shall be subject to the 
support rates laid down in Annex II. 
5. Support may be granted to young farmers setting up for the first time in an 
agricultural holding as head of the holding in respect of investments to comply 
with Union standards applying to agricultural production, including occupational 
safety. Such support may be provided for a maximum of 24 months from the date 
of setting up as set out in the rural development programme, or until the actions 
defined in the business plan referred to in Article 19(4) are completed. 
6. Where Union law imposes new requirements on farmers support may be 
granted for investments to comply with those requirements for a maximum of 
12 months from the date on which they become mandatory for the agricultural 
holding’. 
Article 38 TFEU provides as follows: 
‘1. The Union shall define and implement a common agriculture and fisheries 
policy. 
The internal market shall extend to agriculture, fisheries and trade in agricultural 
products. “Agricultural products” means the products of the soil, of stockfarming 
and of fisheries and products of first-stage processing directly related to these 
products. References to the common agricultural policy or to agriculture, and the 
use of the term “agricultural”, shall be understood as also referring to fisheries, 
having regard to the specific characteristics of this sector. [Or. 10]  
2. Save as otherwise provided in Articles 39 to 44, the rules laid down for the 
establishment and functioning of the internal market shall apply to agricultural 
products. 
FERME DE LA SARTE 
 
9 
Anonymised version 
3. The products subject to the provisions of Articles 39 to 44 are listed in 
Annex I. 
4. The operation and development of the internal market for agricultural 
products must be accompanied by the establishment of a common agricultural 
policy’. 
Annex I to the TFEU includes, in Chapter 6, ‘Live trees and other plants; bulbs, 
roots and the like; cut flowers and ornamental foliage’. 
Commission Implementing Regulation (EU) 2018/1602 of 11 October 2018 
amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and 
statistical nomenclature and on the Common Customs Tariff includes the 
following note concerning the nomenclature in Chapter 6 of Annex I to the TFEU: 
‘Subject to the second part of heading 0601, this chapter covers only live trees and 
goods (including seedling vegetables) of a kind commonly supplied by nursery 
gardeners or florists for planting or for ornamental use’. That nomenclature does 
not mention turf among live trees and other plants; bulbs, roots and the like; cut 
flowers and ornamental foliage. 
In its judgment of 4 October 2018, the Court of Justice of the European Union 
held as follows: 
‘108. Second, it must also be noted that, where there is no judicial remedy against 
the decision of a national court, that court is in principle obliged to make a 
reference to the Court within the meaning of the third paragraph of Article 267 
TFEU where a question of the interpretation of the FEU Treaty is raised before it 
(judgment of 15 March 2017, Aquino, C-3/16, EU:C:2017:209, paragraph 42). 
109. Moreover, the obligation to make a reference laid down in that provision is 
intended in particular to prevent a body of national case-law that is not in 
accordance with the rules of EU law from being established in any of the Member 
States (judgment of 15 March 2017, Aquino, C-3/16, EU:C:2017:209, 
paragraph 33 and the case-law cited). 
110. Indeed, that court is not under such an obligation when it finds that the 
question raised is irrelevant or that the provision of EU law in question has 
already been interpreted by the Court or that the correct application of EU law is 
so obvious as to leave no scope for any reasonable doubt, and the existence of 
such a possibility must be assessed in the light of the specific characteristics of EU 
law, the particular difficulties to which its interpretation gives rise and the risk of 
divergences in judicial decisions within the European Union (see, to that effect, 
judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, 
paragraph 21; of 9 September 2015, Ferreira da Silva e Brito and Others, 
C-160/14, EU:C:2015:565, paragraphs 38 and 39; and of 28 July 2016, 
Association France Nature Environnement, C-379/15, EU:C:2016:603, 
paragraph 50)’ (CJEU, judgment of 4 October 2018, European Commission v 
French Republic, C-416/17, EU:C:2018:811, paragraphs 108 to 110). [Or. 11]  
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-726/20 
 
10  
Anonymised version 
The decisive ground in the contested acts is based on an interpretation of 
Article 17 of Regulation (EU) No 1305/2013, cited above, excluding from the 
scope of that provision the production of turf or of green roofs. That interpretation 
is, however, challenged by the applicants, since the provision in question has not 
been the subject of an interpretation by the Court of Justice, and the correct 
interpretation of EU law is not so obvious as to leave no scope for any reasonable 
doubt. As this concerns an application for aid within the framework of the 
common agricultural policy, it is necessary to avoid the development of case-law 
relating to the concept of ‘agricultural product’ which would not be in accordance 
with the rules of EU law. 
Accordingly, the Conseil d’État considers it should refer a question to the Court 
for a preliminary ruling [OMISSIS] 
[wording of the question contained in the operative part] 
ON THOSE GROUNDS,  
THE CONSEIL D’ÉTAT HEREBY DECIDES: 
Article 1 
To reopen the proceedings. 
Article 2. 
To refer the following question to the Court of Justice of the European Union for a 
preliminary ruling: 
‘Is Article 17 of Regulation (EU) No 1305/2013 of the European Parliament and 
of the Council of 17 December 2013 on support for rural development by the 
European Agricultural Fund for Rural Development (EAFRD) and repealing 
Council Regulation (EC) No 1698/2005 to be interpreted as excluding from its 
scope the production of turf or of green roofs?’. [Or. 12]  
[OMISSIS] [procedural issues] 
Delivered at an open hearing of the XVth Chamber in Brussels, on 4 December 
2020, by [formation of the court]. 
[OMISSIS] [signatures of the Registrar and of the President of the Chamber]