Articles 7(1), 10(1) and 121 of Regulation No 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, must be interpreted as meaning that the concept of ‘level of direct payments applicable in the Member States other than new Member States’ must be interpreted as meaning that that level was, in 2012, equal to 90% of the level of all direct payments and that the concept of ‘level of direct payments in the new Member States’ must be interpreted as meaning that that level was, in 2012, equal to that in the Member States of the European Community as constituted on 30 April 2004. The reference to the level of direct payments applicable in the Member States other than the new Member States, referred to in Articles 10 and 121 of Regulation No 73/2009, was introduced into EU law by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic in order to regulate the gradual introduction of direct payments into the new Member States. In that regard since the connection between the respective levels of direct payments in the two groups of Member States stems from that Act of Accession and, consequently, from provisions of primary law, it must be assumed in the interpretation of Regulation No 73/2009 in so far as it reflects the provisions set out in Annex II of that Act of Accession.

In those circumstances, it is not possible to accept an argument which contests the equivalence, within the meaning of Article 10 of Regulation No 73/2009, of the levels of direct payments applicable, respectively, in the Member States other than the new Member States and in the new Member States, due to the fact that the inapplicability of modulation to direct payments under EUR 5000 has the result that the amount of direct payments made in respect of 2012, in Member States other than the new Member States, despite the 10% modulation, is in fact more than the level of 90% of all direct payments, the level formally reached in the new Member States. As the level of direct payments applicable before modulation is 100% irrespective of the amounts actually paid in the various Member States, the overall modulation of 10%, provided for in Article 7(1) of Regulation No 73/2009, must be regarded as a reduction within the meaning of Article 10(1) of that regulation, which must be taken into account for the purposes of finding that the applicable levels of direct payments are equivalent. However, to take account of the nominal effects of those calculations, apart from raising the question of the number of farmers receiving less than EUR 5000, respectively, in the Member States other than the new Member States and in the new Member States, would highlight the issue of the considerable difference between the amounts of direct payments per hectare paid respectively, rendering it impossible to make an absolute comparison between the level of payments made in those two groups of Member States. The choice of the abstract criterion of applicable level of direct payments is of such a nature as to prevent such considerations.

(see paras 53, 59-63, operative part 1)