Nor, in adopting the said limitation, did the Commission infringe the Member States’ powers and discretion for defining the tree species that may be planted in order to create short rotation coppice. Regulation No 1307/2013, in particular Article 4(1)(k) and (2)(c), does not give Member States exclusive power to select which tree species may be used to establish ecological focus areas. Although the Member States may draw up a list of the tree species applicable to plantations of short rotation coppice, only those tree species meeting the conditions laid down in Regulation No 1307/2013 and the additional criteria laid down by the Commission in the exercise of its powers may be taken into account for qualifying agricultural land as ecological focus areas.

By adopting Article 45(8) of Regulation No 639/2014, supplementing Regulation No 1307/2013, which imposes an additional criterion in order for an area to qualify as ecological focus area, thereby excluding non-indigenous species of short rotation coppice on an area intended as an ecological focus area, the Commission does not exceed its authorising powers under Article 46(9)(a) of Regulation No 1307/2013, establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy. Under that provision, the Commission laid down a new criterion for determining which types of areas referred to in Article 46(2) of Regulation No 1307/2013 could be considered ecological focus areas. Neither Article 46(9)(a) of that regulation nor the other provisions in that regulation provide that that criterion could not relate to the species which could be planted. Furthermore, the limitation under Article 45(8) of Regulation No 639/2014 contributes towards the establishment of ecological focus areas in an efficient and coherent manner, having regard to the objective of safeguarding the biodiversity of those areas.

As is apparent from recital 44 of Regulation No 1307/2013, ecological focus areas should be established in order to safeguard and improve biodiversity on farms. In that regard, in taking into account species it considers to be the most suitable from an ecological perspective, that is to say, the most suitable species in terms of respect for balance in the natural environment and respect for the ecosystem of the area in question, the Commission chose, in Article 45(8) of Regulation No 639/2014, supplementing Regulation No 1307/2013, a criterion that contributes towards the safeguarding of biodiversity. The safeguarding of the balance of the area’s natural environment in the choice of species contributes towards the safeguarding of the farm’s biodiversity by impeding alterations to it. The Commission thus did not make a manifest error of assessment in taking into account the species that are most suitable from an ecological perspective for defining ecological focus area within the meaning of Regulation No 1307/2013. Taking that criterion into account is not contrary to that regulation or to its spirit.

The Commission could, without making a manifest error of assessment, consider that the planting of tree species which are clearly not indigenous as short rotation coppice did not guarantee that that coppice would safeguard or improve the biodiversity of the farm areas on which it was planted. The objective pursued through having ecological focus area is to safeguard or improve the biodiversity of farming areas. The safeguarding of biodiversity in those areas implies the safeguarding of their natural environment. The fact that the Commission required coppice made up of indigenous species will contribute towards the safeguarding of that environment and, therefore, of the biodiversity of the areas in question. A species in considered to be indigenous when it grows naturally in a region without having been imported. By contrast, the planting of species which are clearly not indigenous does not necessarily contribute towards the safeguarding of the natural environment or the ecosystem of agricultural land.

In that regard, the limitation under Article 45(8) of Regulation No 639/2014 is aimed at establishing ecological focus area on the basis of their direct effect on biodiversity, as it requires the use of indigenous species for establishing ecological focus area with short rotation coppice. That choice by the Commission cannot be regarded as being contrary to the spirit of the Regulation No 1307/2013, as that regulation provides for the possibility of taking measures directly affecting biodiversity. In the exercise of its discretion, the Commission could opt for a measure directly affecting biodiversity. Nor was it necessary to provide any particular explanation for a limitation having an indirect effect, as (i) there is no hierarchy between the two options, and (ii) there were, in the Member States, indigenous tree species that could make up short rotation coppice.

(see paras 29-31, 34, 35)