Johannes Demmer v Fødevareministeriets Klagecenter.
Date: 2015-07-02
49. Regulation No 1782/2003 was replaced by Regulation No 73/2009 with effect from 1 January 2009. Under Article 34(2)(a) of Regulation No 73/2009, any agricultural area of the holding that is used for an agricultural activity — or, where the area is used also for non-agricultural activities, predominantly used for agricultural activities — is to be regarded as an eligible hectare.
50. Given the period that is relevant for the facts in the main proceedings, namely 2005 to 2009, both regulations are applicable ratione temporis . It should be remembered, however, that there is a discrepancy between the wording of Article 44(2) of Regulation No 1782/2003 and that of Article 34(2)(a) of Regulation No 73/2009.
52. However, given that it is not unusual for an agricultural area to be used for both agricultural and non-agricultural activities and there is nothing in the travaux préparatoires  for Regulation No 73/2009 to indicate an intention on the part of the legislature to alter the definition of ‘eligible area’ as defined in Regulation No 1782/2003, Article 34(2)(a) of Regulation No 73/2009, read in the light of Article 3c of Regulation No 795/2004, must be read as being the result of the Union legislature’s objective of clarifying the concept.
53. In those circumstances, the first and second questions must be considered in the light of the concept of ‘eligible hectare’ as defined in Article 34(2)(a) of Regulation No 73/2009 for the entire 2005-2009 period.
54. Therefore, in order to be eligible for the aid in question, the area at issue in the main proceedings must be an agricultural area, be part of a farmer’s holding and be used for agricultural activities or, where the area is used as well for non-agricultural activities, predominantly used for agricultural activities.
56. In the dispute in the main proceedings, it is common ground that the areas in question were used by Mr Demmer with a view to harvesting grass for the production of feed pellets. It should be clarified in that regard that, as they were being used as ‘permanent pasture’ within the meaning of Article 2(2) of Regulation No 796/2004, which it is for the referring court to ascertain, those areas must be categorised as ‘agricultural’. Classification as ‘permanent pasture’ within the meaning of that provision and, consequently, as an ‘agricultural area’ depends on the actual use of the land in question (see, to that effect, judgment in Landkreis Bad Dürkheim , C‑61/09, EU:C:2010:606, paragraph 37).
58. Secondly, in order to be ‘eligible’ within the meaning of Article 44(2) of Regulation No 1782/2003 and Article 34(2)(a) of Regulation No 73/2009, the agricultural area at issue in the main proceedings must be part of the holding of the farmer concerned. The Court has held in that regard that that is the case where the farmer has the power to manage that holding for the purposes of an agricultural activity, that is to say, where the farmer enjoys a degree of autonomy with regard to that area sufficient for the carrying-out of his or her agricultural activity (judgment in Landkreis Bad Dürkheim , C‑61/09, EU:C:2010:606, paragraphs 58 and 62).
61. In the circumstances of the dispute in the main proceedings, it must again be remembered that, although the concept of management does not imply that the farmer has unlimited power over the area in question when using it for agricultural purposes, he is nevertheless not fully subject to the instructions of the lessor (see, to that effect, judgment in Landkreis Bad Dürkheim , C‑61/09, EU:C:2010:606, paragraphs 61 and 63).
65. It is, moreover, irrelevant for the purposes of Article 44(2) of Regulation No 1782/2003 and Article 34(2)(a) of Regulation No 73/2009 that the pursuit of such an activity fulfils legal requirements aimed at ensuring air traffic safety in the airport area concerned (see, to that effect, judgment in Landkreis Bad Dürkheim , C‑61/09, EU:C:2010:606, paragraph 47).
87. In that assessment, it is nevertheless for the referring court to take account of the overall circumstances of the dispute in the main proceedings including the question whether, prior to the changes to the register of agricultural parcels of land which took place in 2008, there was an administrative practice in Denmark of systematically recognising areas such as those at issue in the main proceedings as eligible for the aid concerned. If so, it must be presumed that Mr Demmer could not have detected the error referred to in paragraph 83 of this judgment (see, to that effect, judgment in Vonk Noordegraaf , C‑105/13, EU:C:2014:1126, paragraph 50).