Judgment — ECLI:EU:C:2024:503
Date: 2024-06-13
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Accession;Agriculture and Fisheries;Cotton
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-731/22 – 1 
Case C-731/22 
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: 
25 November 2022 
Referring court: 
Bundesverwaltungsgericht (Federal Administrative Court, Austria) 
Date of the order for reference: 
25 November 2022 
Applicants: 
IJ and PO GesbR 
IJ 
Defendant Authority: 
Agrarmarkt Austria (AMA) 
  
Subject matter of the case in the main proceedings 
Aid law – Agricultural areas – Conditions for granting aid – Interpretation of the 
term ‘holding’ 
Subject matter and legal basis of the reference 
Interpretation of Regulation (EU) No 1307/2013; Art. 267 TFEU 
Question referred for a preliminary ruling 
Is Article 4(1), (b) and (c), read in conjunction with Article 33(1) of Regulation 
1307/2013 to be interpreted as meaning that an area is to be regarded as being 
managed by, and at the disposal of, the farmer if, although that area is owned by 
the farmer and the farmer also carries out the initial soil cultivation and crop 
cultivation, as well as the ongoing irrigation of the crop cultures, the area is 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-731/22 
 
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divided into parcels of different sizes and handed over – from the beginning of the 
season in April/early May until the end of the season in October – to various users 
for maintenance and harvesting in consideration for a fixed fee, but without the 
farmer being entitled to a direct share in the success of the harvest? 
Provisions of EU law cited 
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: 
Article 4, Article 32, and Article 33; 
Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 
supplementing Regulation (EU) No 1307/2013 of the European Parliament and of 
the Council establishing rules for direct payments to farmers under support 
schemes within the framework of the common agricultural policy and amending 
Annex X to that Regulation: Article 15. 
Provisions of national legislation cited 
Verordnung des Bundesministers für Land- und Forstwirtschaft, Umwelt und 
Wasserwirtschaft mit horizontalen Regeln für den Bereich der Gemeinsamen 
Agrarpolitik (Horizontale GAP-Verordnung) (Regulation of the Federal Minister 
for Agriculture, Forestry, Environment and Water Management laying down 
horizontal rules to be applied in the area of the common agricultural policy 
(Horizontal CAP Regulation)), BGBl. II No 100/2015: Paragraphs 20 and 23. 
Sonderrichtlinie des Bundesministers für Land- und Forstwirtschaft, Regionen 
und Wasserwirtschaft zur Umsetzung von Projektmaßnahmen im Rahmen des 
österreichischen Programms für ländliche Entwicklung 2014-2020 (Special 
Directive of the Federal Minister for Agriculture, Forestry, Regions and Water 
Management on the implementation of project measures within the framework of 
the Austrian Rural Development Programme 2014-2020:): Paragraph 17. 
Brief summary of the facts and procedure 
1 The applicants – that is to say a civil-law partnership (Gesellschaft bürgerlichen 
Rechts) until 2020 and a sole trader from 2021 onwards – submitted a single 
application (referred to as a ‘multiple application-areas’) from 2019 to 2021, in 
which they requested that a certain field be regarded as an arable area and applied 
for aid to granted in respect thereof. 
2 However, in the course of an on-site inspection, this field was determined by the 
authority to be a ‘recreational area’ ineligible for aid. On the basis of the now 
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contested amendment notices, no direct payments were granted in respect of this 
field for the application years 2019 to 2021, and penalties and recovery measures 
were ordered. 
3 In any event, the field is an arable area that is used exclusively for agricultural 
activities (cultivation of field vegetables). It is a ‘self-harvest area’ under the 
ownership of the applicant, who carries out the soil cultivation, the cultivation 
planning and the cultivation of the crop cultures in order to hand over the field, 
which is divided into parcels of different sizes, to different users at the beginning 
of the season (late April/early May, depending on the weather) for management. 
4 From the time of payment of a ‘seasonal fee’ and handover of the parcel for 
maintenance and harvesting, the right and obligation to maintain the parcel lies 
solely with the user. The applicant makes some gardening tools available to the 
users for general use. The users are required to comply with the guidelines for 
organic farming. Under the terms of the user agreement, users assume 
‘responsibility’ from the start of the season until the end of the season (26 October 
at the latest). This includes the regular removal of weeds, which must then be 
retained on the parcel as a mulch layer. In the event of a prolonged period of 
absence, the area must be maintained and harvested by a substitute user. 
5 The areas were thus under the care of the users on the reference date provided for 
under Article 33(1) of Regulation (EU) No 1307/2013, which was set for 9 June in 
Austria (Paragraph 23(1) of the Horizontal CAP Regulation). 
6 During the period in which the field is in use by the applicant’s customers, the 
applicant remains responsible for ensuring that the entire field is irrigated 
regularly, in a manner she deems fit. She also reserves the right to mow heavily 
weed-infested parcels, and to demand reimbursement of the incurred costs, in the 
event that the user fails to carry out appropriate maintenance. Harvesting is carried 
out by the users alone; however, the applicant does not give any harvest guarantee 
‘due to unpredictable natural conditions’. 
7 Under the terms of a current agreement with the users, the vegetables not 
harvested by the users are to be handed over to charitable organisations. This 
comprises 200 kg to 300 kg of vegetables, which are mainly root vegetables. 
8 The applicant herself also cultivates a parcel on the field in question, on which 
over 200 kg of vegetables have been harvested for several years. This parcel is of 
medium size (4 m x 8 m) and is intended to serve as a standard example for new 
customers. 
9 For the field in question – in respect of which direct payments were requested – 
the holding also received project support under Paragraph 17 (‘Diversification into 
non-agricultural activities’) of the Special Directive of the Federal Minister for 
Agriculture, Forestry, Regions and Water Management on the implementation of 
project measures within the framework of the Austrian Rural Development 
Programme 2014-2020. The objectives of this project support are to ‘strengthen 
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agricultural enterprises by means of additional non-agricultural income generated 
from selling products and services in accordance with market requirements’ and to 
‘generate non-agricultural income through the development of economic activities 
in rural areas using agricultural production factors’. Specifically, this involved 
subsidising equipment for soil cultivation and sowing, as well as the irrigation 
system, for the purposes of cultivating fine vegetables. 
Principal arguments of the parties to the main proceedings 
10 The applicant argues that the areas would be at her disposal on 9 June of each 
claim year (which is the reference date set in Austria under Article 33(1) of 
Regulation (EU) No 1307/2013). According to the applicant, the de facto transfer 
of a single crop management measure (namely the removal of weeds) to the user 
is, by its very nature, a marketing measure, in respect of which non-fulfilment 
could lead to poorer harvests or qualities. In the instant case, this would therefore 
constitute a speculative purchase (‘Hoffnungskauf’). In any event, the power of 
disposal over the areas would remain with the farmer. 
11 According to the applicant’s argument, such contracts have always been 
customary in the vegetable growing industry, the fruit growing industry (for 
example, pick-your-own strawberry farms) and in the timber industry. This model 
has been enshrined in the Allgemeines bürgerliches Gesetzbuch (Austrian General 
Civil Code, ‘the ABGB’) since as far back as 1812. According to both settled 
case-law and the user agreement, ownership of the harvested crop transfers at the 
time of harvesting, even if the parcel has been ‘made available’ for use prior to 
that time. Since self-harvest parcels are – in comparison to purely market-based 
fruit sales – an innovative sales concept involving direct sales to the end customer, 
the holding also qualified to receive diversification support from the AMA during 
the 2015/16 year. The concept was scrutinised at that time and found to be eligible 
for support; it was also subject to an on-site inspection by the AMA. According to 
the applicant’s submissions, the self-harvest parcels combine these traditional 
legal forms with the stakeholder involvement required by EU law (see Article 52 
et seq. of Regulation (EU) No 1305/2013). 
12 Even in the context of the normal arable farming, harvesting is mostly carried out 
by agricultural contractors. According to the applicant, she would carry out the 
soil cultivation, seedbed preparation and sowing, perform two hoeing passes, 
provide the irrigation, and carry out the post-harvest mulching. All seeds and 
planting material are also provided exclusively by the applicant. If this were not 
the case, then it would be almost impossible to assure the organic status in the 
event of an inspection. The applicant would provide professional irrigation 
throughout the year. Only certain maintenance work would be outsourced to the 
buyers of the harvested crop. According to the applicant’s submissions, this is the 
equivalent, from a legal perspective, of engaging a service provider. 
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13 With regard to the authority’s argument that this is a purely recreational activity 
(see below), the applicant submits that, in France, there are numerous examples of 
permacultures where – in a close combination of different vegetable varieties – 
considerable yields are achieved, which in some cases are higher than those 
achieved through conventional vegetable cultivation. She therefore rejects the 
contention that small-scale, manual vegetable cultivation would necessarily 
produce lower yields than large-scale mechanised cultivation. According to the 
Applicant, her customers have included both kindergartens and schools which did 
not perform the field cultivation work during ‘free time’. Similarly, parcels were 
also leased free of charge to four refugee families from Ukraine; according to the 
applicant, these families could work on their parcel throughout the day, since they 
were not engaged in any gainful employment. The applicant contends that, for 
many people, this is actually a matter of producing their own food and is not 
simply a meaningful leisure activity. 
14 According to the applicant’s argument, the adopted concept ensures that the 
organic vegetables produced do not enter the food retail industry via 
intermediaries, but instead reach the customers directly by means of self-
harvesting. The higher income generated by eliminating the intermediate trade and 
adopting alternative strategies for marketing the farms’ initial production serves to 
protect the income and economic health of the holdings. 
15 The defendant authority argues that there is an entitlement to aid if the relevant 
areas are at the disposal of the land manager on 9 June of the respective claim year 
(see Paragraph 23(1) of the Horizontal CAP Regulation, Article 33(1) of 
Regulation (EU) No 130[7]/2013). According to the case-law of the Court of 
Justice of the European Union, the areas would be deemed to be at the farmer’s 
disposal if there is evidence of actual use of those areas and the farmer has a 
sufficient degree of autonomy in conducting his or her agricultural activity. 
Hence, the farmer would have to be able to exercise a certain degree of decision-
making power when using the area concerned in order to be able to carry out his 
or her agricultural activity on this area (see judgment of 7 April 2022, Avio Lucos, 
C-116/20, EU:C:2022:273, judgment of 14 October 2010, Landkreis Bad 
Dürkheim, C-61/09, EU:C:2010:606, and judgment of 24 June 2010, Pontini and 
Others, C-375/08, EU:C:2010:365). According to the defendant authority, 
however, the field in question would not be at the applicant’s disposal on 9 June, 
since the applicant had made the ‘self-harvest parcels’ available to the customers 
from the time of handover for use. As of the handover date, the field was no 
longer actually used by the applicant; instead, the respective parcel was used by 
the respective customer. 
16 After the handover date, the applicant would not have sufficient autonomy to 
carry out the agricultural activity, since responsibility transferred to the customer 
at the time he or she took charge of a self-harvest parcel, and in any event from 
the end of April/beginning of May. According to the authority’s submissions, it is 
the customers who decide whether to maintain the parcel, whether the weeds are 
to be extracted or mowed, as well as whether or not to appoint a ‘substitute user’. 
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It is therefore the client’s exclusive responsibility to determine whether and how 
to maintain the parcel and, consequently, whether or not he or she will achieve 
crop yields and, if so, in what quality. 
17 According to the authority, the users carry out the harvesting and maintenance in 
their free time and hence the area is a recreational area according to 
Paragraph 20(3) of the Horizontal CAP Regulation. If the primary purpose of 
agricultural production under the Common Agricultural Policy (CAP) is to supply 
the population with agricultural products, then this would constitute a leisure 
activity – just as if it were a substitute for a private garden – through which 
agricultural products are produced in either large or small quantities, depending on 
the user’s preference. The authority contends that there is no systematic 
generation of products to supply the population. 
18 In response to the applicant’s argument that self-harvest parcels are legally 
identical to engaging a service provider, the authority contends that farmers pay a 
service provider for their service; this means that farmers merely have the work 
carried out on their behalf, on their account and at their risk. Under such an 
arrangement, the farmer would keep the harvest. In the case of the field in 
question, the Defendant authority submits that the situation is reversed: The users 
(= customers) of the parcels had to pay a fee in order to be allowed to use these 
parcels, in other words to maintain, weed and harvest them, etc. The customers 
kept the harvest. It therefore follows that the customers were not working in the 
name of, on the account of and at the risk of the applicant. 
19 In response to the objection that the transfer of use for self-harvesting is a 
traditional form of contract within the agricultural industry, the authority contends 
that, in the case of pick-your-own strawberry farms for example, the respective 
farmer cultivates the area. The customers (that is to say, pickers,) are merely 
allowed to pick the strawberries – usually at a favourable price. However, the 
pickers are not responsible for the pick-your-own strawberry farm. It is the farmer 
of the strawberry field who decides how to manage the pick-your-own strawberry 
farm and when harvesting can take place. 
Brief summary of the basis for the reference 
20 The reference for a preliminary ruling seeks to clarify the conditions under which 
aid may be claimed for an area of arable land. 
21 To this end, the concept of a ‘holding’ within the meaning of Regulation (EU) 
No 1307/2013 must be interpreted. Under this Regulation, ‘holding’ means all the 
units used for agricultural activities and managed by a farmer situated within the 
territory of the same Member State. 
22 Hence, the unit must firstly be used for an ‘agricultural activity’. This is 
particularly the case if agricultural products are grown on the unit. In the present 
case, there is no doubt that agricultural products (vegetables) are being grown. 
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23 Secondly, the unit must be ‘managed’ by the farmer. In this regard, the Court has 
already ruled that the agricultural activities on the areas in question must be 
carried out in the name and for the account of the farmer. In this specific case, it is 
doubtful whether this condition is fulfilled. 
24 Under Article 32 of Regulation (EU) No 1307/2013, any agricultural area of a 
holding that is used, at least predominantly, for an agricultural activity is eligible 
for aid. This is so in the case for the field in question, which is used as arable 
land – and not, for example, as a ‘recreational area’. 
25 On the other hand, it is doubtful whether the parcels are at the farmer’s disposal 
on 9 June of each claim year, as is required under Article 33 of Regulation (EU) 
No 1307/2013, read in conjunction with Paragraph 23 of the Horizontal CAP 
Regulation. 
26 When analysing the case-law pertaining to the issues of uncertainty, it is apparent 
that none of the judgments of the Court of Justice of the European Union that 
were considered match the specific details of the case. 
27 The statement that the agricultural activity must be carried out on the land 
concerned in the farmer’s name and on his behalf was cited in the judgment in 
Landkreis Bad Dürkheim, primarily in connection with the requirement that no 
third party carry out any agricultural activity on the disputed areas at the same 
time. In order to avoid the situation where a number of farmers claim allocation of 
the parcels concerned to their holding, it was necessary to emphasise in that 
judgment that these areas may not, during that period, be considered as allocated 
to other farmers’ holdings for the purposes of the single payment scheme. 
28 The requirement that the agricultural activity must be carried out in the farmer’s 
own name and on his or her own behalf is not fully met in the instant case of a 
‘self-harvest area’ because, although the applicant owns the areas, carries out the 
preparatory and clean-up work on them, and also ensures they are continuously 
irrigated, the users are charged only a fixed amount for this; the question of 
whether and to what extent a yield is generated has no bearing on the applicant’s 
operating results. 
29 The Avio Luco judgment appears to be more relevant. In that judgment, the Court 
considered it permissible for direct payments to be granted to a person who does 
not himself fully manage a particular grassland area, but passes it on free of 
charge to animal breeders to use for grazing, providing that, in so doing, he 
undertakes not to interfere with the grazing and to carry out maintenance 
measures, that is, measures to ensure the upkeep of the pastureland, such as the 
removal of poisonous weeds and excess water. In this respect, the concept of 
‘agricultural activity’ also includes the maintenance of pastureland in good 
agricultural and environmental condition. 
30 This approach also seems appropriate for the present case, in which the applicant 
maintains an area of arable land in a condition that is suitable for the cultivation of 
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crops by means of preparatory measures, continuous irrigation and, where 
necessary, the removal of weeds, and also cultivates the crops herself, even 
though she does not harvest them. In this case, the Applicant retains the power of 
disposal and also appears to retain a sufficient degree of autonomy in the exercise 
of the agricultural activity, since she can choose her own contract partners and 
also exerts influence on the success of the harvest during the vegetation period. By 
contrast, the fact that she receives only a lump sum payment and that the 
economic success is not directly linked to the harvest yield, would appear to be of 
secondary importance. This is particularly the case given that the adopted 
approach is intended specifically to ensure that agricultural production on the area 
in question will be economically viable for the applicant over the longer term and 
hence that she will simply be able to sustain it. 
31 Hence, in the view of the referring court, the more compelling arguments militate 
in favour of the field at issue in the present case being deemed an area that is 
eligible to receive aid in connection with the applicant’s holding.