COMMUNICATION FROM THE COMMISSION TO THE COUNCIL on force majeure and exceptional circumstances in Regulation (EU) 2021/2116 of the European Parliament and of the Council on the financing, management and monitoring of the common agricultural policy
Date: 2024-05-30
Institutions: Directorate-General for Agriculture and Rural Development, European Commission
Subjects: administrative sanction, agricultural expenditure, aid to agriculture, common agricultural policy, eligibility criteria, financial aid, general legal principle, infringement of EU law, natural disaster, reimbursement of aid

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.5.2024  COM(2024) 225 final  COMMUNICATION FROM THE COMMISSION TO THE COUNCIL on force majeure and exceptional circumstances in Regulation (EU) 2021/2116 of the European Parliament and of the Council on the financing, management and monitoring of the common agricultural policy  
 
 
1. 

INTRODUCTION 

The purpose of this Communication is to provide clarity regarding the use of the concept 
of  force  majeure  and  exceptional  circumstances  in  Regulation  (EU) 2021/2116  of  the 
European Parliament and of the Council on the financing, management and monitoring of 
the common agricultural policy (1). 

This  Communication  builds  upon  the  principles  outlined  in  Commission  notice  C(88) 
1696  concerning  'force  majeure  in  European  agricultural  law' (2),  taking  into  account 
pertinent developments since its publication. 

Specifically,  this  Communication  provides  clarifications  on  Article  3(2)  of  Regulation 
(EU) 2021/2116  which  allows  for  the  application  of  force  majeure  and  exceptional 
circumstances on an area basis instead of on the basis of a case-by-case assessment. 

This  Communication  is  intended  to  assist  national  administrations  in  effectively 
implementing  the  said  provision,  thereby  ensuring  its  uniform  application  across  the 
Union and providing certainty for farmers as regards their CAP support.  

2.  FORCE MAJEURE AS A GENERAL PRINCIPLE OF UNION LAW 

2.1.  What is force majeure? 

The concept of force majeure (3) in Union law shares similar principles, conditions and 
requirements with the corresponding concept in the national laws of Member States, but 
it has an independent character in Union law (4). While the concept of force majeure was 
originally considered a concretisation of the principle of proportionality used to facilitate 
sound  administration,  the  case  law  has  gradually  acknowledged  that  force  majeure  is  a 
general principle of Union law (5). 

The case law of the Court of Justice defines the notion of force majeure as follows: “It is 
apparent  from  settled  case-law,  established  in  various  spheres  of  EU  law,  that  the 
concept of force majeure must be understood as referring to abnormal and unforeseeable 
circumstances which were outside the control of the party by whom it is pleaded and the 

(1)  Regulation (EU) 2021/2116 of the European Parliament and of the Council of 2 December 2021 on the 
financing,  management  and  monitoring  of  the  common  agricultural  policy  and  repealing  Regulation 
(EU) No 1306/2013 (OJ L 435, 6.12.2021, p. 187). 

(2)  C(88) 1696, OJ [1988] C 259/10. 

(3)  References in the Communication to force majeure are to be understood as references to force majeure 
and exceptional circumstances. The consequences of force majeure and exceptional circumstances are 
the same, and therefore it is not necessary to distinguish them. 

(4)  Case C-314/06 Pipeline Méditerranée et Rhône, EU:C:2007:817, paragraph 22. 

(5)  Case  T-251/04  Greece  v  Commission,  EU:T:2006:165,  paragraph  46;  Case  T-220/04  Spain  v 
Commission,  EU:T:2007:97,  paragraphs  164-165;  Case  T-352/05  Greece  v  Commission, 
EU:T:2011:540,  paragraph  199;  Case  C-509/11  ÖBB-Personenverkehr,  EU:C:2013:613,  paragraphs 
49-51; Case C-203/12 Billerud Karlsborg et Billerud Skärblacka, :EU:C:2013:664, paragraph 31; Case 
T-614/13  Romonta  v  Commission,  EU:T:2014:835,  paragraph  48;  Case  T-629/13  Molda  v 
Commission,  EU:T:2014:834,  paragraph  46;  Case  T-631/13  Raffinerie  Heide  v  Commission, 
EU:T:2014:830, paragraph 45; Case C-113/19 Luxaviation, EU:C:2020:228, paragraph 55. 

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consequences  of  which  could  not  have  been  avoided  in  spite  of  the  exercise  of  all  due 
care”. (6) 

Force majeure may excuse an operator from certain legal consequences which, under the 
applicable rules, would normally flow from non-compliance with an obligation. 

2.2.  Elements of force majeure 

The notion of force majeure contains two elements: (i) an objective element relating to 
abnormal  circumstances  unconnected  with  the  operator  in  question  and  beyond  its 
control;  and  (ii)  a  subjective  element  involving  the  obligation  to  guard  against  the 
consequences  of  the  abnormal  event  by  taking  all  appropriate  steps  without  making 
unreasonable sacrifices (7). 

Regarding the objective element, abnormal circumstances are those that are unpredictable 
or,  at  the  very  least,  of  such  a  degree  of  improbability  that  a  normal,  diligent  operator 
would  consider  such  a  risk  of  it  to  be  negligible.  For  instance,  theft,  fluctuations  in 
market trends and fraudulent or negligent acts of co-contractants and third parties do not 
constitute abnormal circumstances (8). 

Regarding  the  subjective  element,  it  involves  the  obligation  of  an  operator  to  protect 
against  the  consequences  of  an  abnormal  event  by  taking  all  the  appropriate  measures, 
with  the exception of those involving  excessive sacrifices. In particular,  operators must 
carefully survey the development of their operations and react quickly when they notice 
any  anomalies (9).  Sufficient  diligence  requires  continuous  action  aimed  at  identifying 
and  assessing  potential  risks  and  the  ability  to  take  appropriate  and  effective  steps  in 
order to avoid them (10). 

3.  FORCE  MAJEURE  AND  EXCEPTIONAL  CIRCUMSTANCES 

IN  REGULATION 

(EU) 2021/2116 

The  concept  of  force  majeure  does  not  have  the  same  scope  in  the  various  spheres  of 
application  of  Union  law;  rather,  its  meaning  must  be  determined  by  reference  to  the 
legal context in which it is to operate (11). The concept of force majeure adopted by the 
agricultural  regulations  takes  into  account  the  particular  nature  of  the  public-law 
relationships between operators and the national administration, as well as the objectives 
of those regulations (12). 

(6)  Case C-640/15, Vilkas, EU:C:2017:39, paragraph 53. 

(7)   Case C-660/17 P RF v Commission, EU:C:2019:509, paragraph 37. 

(8)   Case  296/86  McNicholl,  EU:C:1988:125,  paragraphs  11-15;  Case  C-334/13  Nordex  Food, 
EU:C:2014:2294, paragraph 57; Joined Cases T-61/00 and T-62/00  APOL and AIPO v Commission, 
EU:T:2003:60, paragraphs 74-75, 77 and 79-81. 

(9)   Case C-660/17 P RF v Commission, EU:C:2019:509, paragraph 38. 

(10)  Case C-602/15 P Monster Energy v EUIPO, EU:C:2016:331, paragraph 35. 

(11)  Case C-640/15, Vilkas, EU:C:2017:39, paragraph 30. 

(12)  Case C-208/01 Parras Medina, EU:C:2002:593, paragraph 18. 

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Force majeure, as a general principle of Union law, may be pleaded even in the absence 
of express provisions providing for such a possibility in the applicable Union legislation, 
albeit  provided  this  would  not  be  in  conflict  with  the  essential  objectives  of  that 
legislation. Certain provisions of Union agricultural law make reference to possible cases 
of  force  majeure  and  exceptional  circumstances  to  be  recognised  by  the  national 
competent  authorities  (e.g.,  Article  3  of  Regulation  (EU) 2021/2116),  others  contain 
explicit  exemptions  in  cases  of  force  majeure  and  exceptional  circumstances  (e.g., 
Article 59 and 84 of Regulation (EU) 2021/2116). 

3.1.  Non-exhaustive list of cases 

Article  3  of  Regulation  (EU) 2021/2116  lays  down  a  non-exhaustive  list  of  situations 
which  can  be  considered  by  national  authorities  as  circumstances  of  force  majeure  or 
exceptional circumstances. 

The  list  in  Article  3(1)  of  Regulation  (EU) 2021/2116  is  not  exhaustive.  The  examples 
given provide a valuable reference to other situations which may be considered to qualify 
as  force  majeure  or  exceptional  circumstances.  It  should  be  noted  that  the  list  of 
examples  refers  to  unforeseeable  events  of  an  objective  and  non-economic  nature  and, 
moreover, that occur at the level of the individual holding (and only exceptionally, in the 
cases of paragraph 2, at the level of a whole area). 

3.2.  Application of force majeure 

3.2.1.  General 

The  application  of  the  force  majeure  provision  is  the  responsibility  of  Member  States. 
Member States should take the decision to apply force majeure in the light of the relevant 
circumstances,  based  on  relevant  evidence  and  in  the  light  of  Union  agricultural  law, 
including  the  case  law  of  the  Court  of  Justice.  Force  majeure  is  an  exception  to  the 
general rule of strict respect of obligations. Therefore, it is to be interpreted and applied 
in a restrictive manner. It is normally to be applied on a case-by-case basis. 

Recital  6  of  Regulation  (EU) 2021/2116  refers  to  the  need  for  national  competent 
authorities to take decisions on force majeure or exceptional circumstances on a case-by-
case basis, on the basis of relevant evidence. In the absence of specific requirements in 
Union law on the procedure, the evidence to be presented and the time limits (13), it is for 
the Member States to decide on these parameters, provided that the procedural rules they 
adopt  for  this  purpose  are  not  less  favourable  than  those  governing  similar  domestic 
situations (principle of equivalence) (14) and, second, that they do not render in practice 

(13)  In contrast to Article 4 of Commission Delegated Regulation (EU) No 640/2014 that laid down certain 
general  rules  on  the  procedure  and  time  limits  for  the  application  of  force  majeure,  Commission 
Delegated Regulation 2022/127 and Commission Implementing Regulation (EU) 2022/128 do not laid 
down any general rules on force majeure. 

Article 23 of Delegated Regulation (EU) 2022/127 and Article 51 of Implementing Regulation (EU) 
2022/128 lay downs rules on the application of force majeure for securities, which are not concerned 
by the content of this Communication. 

(14)  Case  C-33/76,  Rewe-Zentralfinanz 
ECLI:EU:C:1976:188, paragraph 5. 

eG 

v  Landwirtschaftskammer 

für 

das 

Saarland, 

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impossible  or  excessively  difficult  the  exercise  of  the  rights  conferred  on  farmers  by 
Union law (principle of effectiveness) (15). 

3.2.2.  Article 3(2) of Regulation (EU) 2021/2116 

While Member States would apply force majeure normally on a case-by-case basis and 
upon  request  of  the  concerned  farmer,  the  co-legislator  has  provided  in  Article  3(2)  of 
Regulation  (EU) 2021/2116  that  in  the  case  of  severe  natural  disasters  or  severe 
meteorological  events  that  gravely  affect  a  well-determined  area,  the  Member  State 
concerned may consider that whole area to be gravely affected by that disaster or event. 

Member States making use of this possibility may decide that, where it is clear that the 
farmers in the area are affected by an abnormal event whose consequences could not be 
prevented with all due care, those farmers are covered by force majeure, without a need 
for  individual  requests  or  verification  that  the  conditions  for  force  majeure  are 
individually fulfilled. Member States need, however, to determine the area at stake and 
the population  affected  by  the  event  in  the area  in  a manner that reasonably allows the 
presumption  that  the  conditions  of  force  majeure  are  individually  met  by  the  farmers 
concerned. 

To this end, Member States must first confirm the occurrence of a severe natural disaster 
or a severe meteorological event and delimit the geographical area that has been gravely 
affected  by  the  event.  For  this  delimitation,  Member  States  could  rely,  for  instance,  on 
satellite  data  or  data  of  equivalent  value  of  the  area  concerned,  without  the  need  for 
satellite data at the level of the individual holdings. 

Certain  severe  natural  disasters  or  severe  meteorological  events,  such  as  flooding,  may 
uniformly affect  farmers in a delimited area and therefore it  could be not necessary  for 
Member States to take into account other considerations to presume that all the farmers 
in the delimited area are covered by force majeure. However, other types of disasters or 
events may require considering additional factors, such as the slope gradient, soil type, or 
type  of  crops  grown,  to  define  the  population  affected  by  it  without  the  need  for 
individual  verification.  This  could  be  the  case,  for  instance,  for  frost  which  may  not 
affect all crops in the same manner, or continuous rainfall, that may have different effects 
on areas with a slope or soils with different water retention capacities. 

Furthermore,  it  is  important  to  note  that  such  events  may  not  uniformly  affect  the 
different farming practices and/or obligations that farmers have to comply with in order 
to receive CAP payments. Certain obligations may still be viable within the affected area 
and population considered to be covered by force majeure by the Member State. 

Finally, in line with the concept of force majeure, in the determination of the population 
affected,  Member  States  should  also  consider  the  subjective  element  of  force  majeure, 
that is, whether farmers affected by the severe natural disaster or severe meteorological 
event  could  have  reasonably  taken  effective  measures  to  avoid  the  situation  of  non-
compliance  caused  by  the  event,  excluding  those  involving  excessive  sacrifices. 
However, it is important to recognise that in most instances of severe natural disasters or 
severe  meteorological  events,  farmers  are  unlikely  to  have  had  the  possibility  to  take 
such effective measures. Therefore, only in situations where it would have been feasible 

(15)  Case C-8/81, Becker v Finanzamt München II, ECLI:EU:C:1982:7, paragraph 23. 

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for  farmers,  without  unreasonable  sacrifices,  to  mitigate  the  consequences  of  the  event 
should they be excluded from force majeure. 

The  streamlined  option  under  Article  3(2)  of  Regulation  (EU) 2021/2116  therefore 
reduces the administrative burden for farmers and national authorities by eliminating the 
need  for  a  case-by-case  assessment  or  individual  requests,  thus  facilitating  a  swift 
response by Member States. 

This approach enables Member States to presume that the conditions of force majeure are 
individually  met  by  the  farmers  in  the  determined  population  in  the  delimited  area, 
thereby  exempting  the  authorities  from  the  need  for  a  case-by-case  assessment. 
Nonetheless,  this  approach  should  not  be  misconstrued  as  implying  that  farmers  who 
have not been prevented from respecting their obligations by the event can abusively rely 
on the force majeure exception to be exempted from penalties or to be eligible for aid. 

3.2.3.  Legal effect of the application of force majeure 

As  explained  above,  force  majeure  may  excuse  an  operator  from  certain  legal 
consequences that would result from non-compliance with an obligation. It is important 
to note that force majeure can only apply to non-compliance with obligation(s) or a part 
thereof  due  to  the  event,  and  only  during  the  timeframe  where  the  event  (or  its 
consequences) prevents from compliance with the said obligation. 

In  particular,  in  accordance  with  Articles  59  and  84  of  Regulation  (EU) 2021/2116,  no 
penalties are to be imposed and the beneficiary is to retain the right to receive aid where 
the non-compliance is due to force majeure or exceptional circumstances in accordance 
with Article 3 of the same Regulation. 

However,  force  majeure  may  not  be  used  to  authorise  operators  not  to  comply  with 
obligations for a determined period of time. This is to say, Member States may not, on 
the basis of the principle of force majeure as such, authorise derogations from obligations 
laid  down  in  Regulation  (EU) 2021/2115  of  the  European  Parliament  and  of  the 
Council (16), nor provide that no penalties would apply for future non-compliances with 
obligations laid down in that Regulation. Likewise, force majeure may also not be used 
to provide adjustments to obligations and commitments laid down in the respective CAP 
Strategic  Plan  as  approved,  for  example  as  regards  the  requirements  linked  to 
environmental protection and climate change. 

4.  CONCLUSION 

The foregoing considerations can be summarised as follows: 

•  The  concept  of  force  majeure  refers  to  abnormal  circumstances,  outside  the 
control of an operator, the consequences of which could not have been avoided in 
spite of the exercise of all due care. 

(16)  Regulation  (EU)  2021/2115  of  the  European  Parliament  and  of  the  Council  of  2  December  2021 
establishing rules on support for strategic plans to be drawn up by Member States under the common 
agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund 
(EAGF)  and  by  the  European  Agricultural  Fund  for  Rural  Development  (EAFRD)  and  repealing 
Regulations (EU) No 1305/2013 and (EU) No 1307/2013 (OJ L 435, 6.12.2021, p. 1). 

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•  Force majeure excuses an operator from certain legal consequences which, under 
the  applicable  rules,  would  normally  result  from  non-compliance  with  an 
obligation. 

•  The  application  of  force  majeure  is  a  Member  State’s  decision.  The  decision 
should  be  taken  by  the  competent  authorities,  based  on  relevant  evidence  and 
applying  the  concept  of  force  majeure  in  the  light  of  Union  agricultural  law, 
including  the case law of the Court of Justice. Force majeure, as an  exception, 
must be interpreted and applied restrictively. 

•  The decision on whether a situation is  recognised as a case of  force  majeure is 
normally  to  be  taken  on  a  case-by-case  basis.  However,  in  the  case  of  severe 
natural  disasters  or  severe  meteorological  events  affecting  an  area,  Member 
States may  presume that  the farmers  in  that  area  are covered by the concept  of 
force  majeure  provided  that  the  determination  of  the  area,  the  determination  of 
the  population  of  farmers  therein  and,  where  relevant,  the  determination  of  the 
affected  obligations,  are  undertaken  in  such  a  way  as  to  permit  the  conclusion 
that  the  conditions  of  force  majeure  are  individually  met  by  the  farmers 
concerned. 

This Communication contains a Commission’s interpretation aimed at assisting Member 
States  in  the  application  of  Union  law.  Under  the  Treaty  on  the  Functioning  of  the 
European  Union,  it  is  only  for  the  European  Court  of  Justice  to  provide  a  definitive 
interpretation of the applicable Union law. 

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