1 This request for a preliminary ruling concerns the interpretation of Article 3(b) and (c) of Council Regulation (EEC) No 2080/92 of 30 June 1992 instituting a Community aid scheme for forestry measures in agriculture (OJ 1992 L 215, p. 96), and of the principle of proportionality.
2 The request has been made in proceedings between CS and the Instituto de Financiamento da Agricultura e Pescas, IP (Institute for the Financing of Agriculture and Fisheries, IP, Portugal) (‘the IFAP’) concerning the legality of a decision of the IFAP ordering the repayment of the premiums received by CS in respect of the aid for afforestation of agricultural land established by Regulation No 2080/92.
3 Regulation No 2080/92 was repealed by Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80), with effect from 2 July 1999. However, in the light of Article 55(3) of the latter regulation, Regulation No 2080/92 continued to apply to actions approved by the Commission under that regulation before 1 January 2000, with the result that the dispute in the main proceedings remains governed by the provisions of that regulation.
4 The first to third and fifth recitals of Regulation No 2080/92 state: ‘Whereas the afforestation of agricultural land is especially important both from the point of view of soil use and the environment and as a contribution to reducing the shortage of forestry products in the Community and as an accompaniment to the Community’s policy for controlling agricultural production; Whereas experience in matters of afforestation of agricultural land by farmers shows that existing aid schemes for promoting afforestation are insufficient; whereas afforestation of agricultural land withdrawn from agricultural production in recent years has proved unsatisfactory; Whereas, therefore, the measures provided for in Title VIII of Council Regulation (EEC) No 2328/91 of 15 July 1991 on improving the efficiency of agricultural structures [(OJ 1991 L 218, p. 1)] should be replaced by measures which provide more effective encouragement for afforestation of agricultural land; … Whereas a degressive premium for the first five years to alleviate the cost of maintenance of new woodlands may contribute significantly towards the encouragement of afforestation’.
5 Article 1 of that regulation, entitled ‘Purpose of the aid scheme’, provides: ‘A Community aid scheme part-financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) is hereby instituted in order to: - accompany the changes to be introduced under the market organisation rules, - contribute towards an eventual improvement in forest resources, - contribute towards forms of countryside management more compatible with environmental balance, - combat the greenhouse effect and absorb carbon dioxide. This Community aid scheme shall promote: (a) afforestation as an alternative use of agricultural land; (b) the development of forestry activities on farms.’
6 Article 2 of Regulation No 2080/92, entitled ‘Aid scheme’, provides, in paragraph 1: ‘The aid scheme may comprise: (a) aid for afforestation costs; (b) an annual premium per hectare afforested to cover maintenance cost in the first five years; (c) an annual premium per hectare to cover losses of income resulting from afforestation of agricultural land; (d) investment aid for the improvement of woodlands by the provision of shelterbelts, firebreaks, waterpoints and forest roads, and for the improvement of cork oak stands.’
7 Article 3 of that regulation, entitled ‘Amount of aid’, states, in points (b) and (c) of the first paragraph thereof: ‘The maximum eligible amounts of aid as referred to in Article 2 shall be as follows: … (b) in the case of maintenance costs: - [EUR] 250 per hectare per year for the first two years and [EUR] 150 per hectare per year for the following years in the case of the planting of conifers, - [EUR] 500 per hectare per year for the first two years and [EUR] 300 per hectare per year for the following years in the case of the planting of broadleaves or mixed planting comprising not less than 75% of broadleaves. … (c) in the case of the premium to compensate for income losses: - [EUR] 600 per hectare per year if the afforestation is undertaken by a farmer or a group of farmers who worked the land before its afforestation, - [EUR] 150 per hectare per year if the afforestation is undertaken by another party as referred to in Article 2(2)(b), for a maximum period of 20 years from the date of first afforestation’.
8 Article 4 of Regulation No 2080/92, entitled ‘Aid programmes’, provides: ‘1. Member States shall implement the aid scheme referred to in Article 2 by means of national or regional multiannual programmes covering the objectives laid down in Article 1 and which set out in particular: - the amounts and duration of the aid referred to in Article 2 on the basis of actual expenditure on afforestation and the maintenance of species or types of trees used for afforestation or on the basis of loss of income, - the conditions for granting aid, in particular for afforestation, - … 2. Member States may also devise zonal afforestation plans reflecting the diversity of environmental situations, natural conditions and agricultural structures. Zonal afforestation plans shall be concerned in particular with: - the setting of an afforestation objective, - conditions in respect of the location and grouping of areas which may be afforested, - forestry practices to be complied with, - selection of species of trees adapted to local conditions.’
9 Article 5 of the Portaria 199/94 do Ministério da Agricultura (Order No 199/94 of the Ministry of Agriculture) of 6 April 1994 (Diário da República, 1st Series, No 80, of 6 April 1994), in the version applicable to the facts in the main proceedings (‘Ministerial Order No 199/94’), entitled ‘Annual premiums’, provides: ‘Without prejudice to the following article, beneficiaries of the aid for afforestation of agricultural land referred to in the previous article will be entitled to two annual premiums per hectare afforested to: (a) cover, in the first five years, the cost of maintenance of the woodlands included in the investment project; (b) cover losses of income resulting from afforestation of agricultural land.’
10 Article 6 of Ministerial Order No 199/94, entitled ‘Beneficiaries’, states: ‘1 - As regards the aid provided for in this order: (a) aid for afforestation of agricultural land may be granted to all natural or legal persons; (b) aid for the improvement of woodlands may be granted to farmers and associations thereof; (c) a premium to cover the cost of maintenance of woodlands may be granted to all beneficiaries of aid for afforestation of agricultural land; (d) a premium to cover losses of income may be granted to all private-law, natural or legal persons who receive afforestation aid, except those who cease their activity in accordance with Council Regulation (EEC) No 2070/92 of 30 June 1992 [amending Regulation (EEC) No 3493/90 laying down general rules for the grant of premiums to sheepmeat and goatmeat producers (OJ 1992 L 215, p. 63)]. 2 - As regards fast-growing species cultivated on the basis of a felling cycle of less than 16 years, aid is granted only for afforestation of agricultural land and only to farmers practising farming as a main occupation.’
11 Article 7 of that ministerial order, entitled ‘Undertakings by beneficiaries’, provides: ‘For the purposes of the award of the aid provided for in this order, beneficiaries must undertake, in particular: (a) to comply with the cultivation practices set out in the management plan associated with the investment project; (b) to ensure that, in the year following the year of the restocking, the reforestation displays the minimum densities set out in Annex C; (c) to maintain and protect the stands of trees planted or improved, and the infrastructure therein, for a minimum period of 10 years or, in the case of payment of the premium for losses of income, for as long as that premium is granted. …’
12 Article 26 of Ministerial Order No 199/94, entitled ‘Partial payment of premiums’, provides: ‘Where part of the reforestation is destroyed for reasons not attributable to the beneficiary, the premiums provided for in this order will continue to be paid in proportion to the plot that remains in good vegetative condition.’
13 On 4 March 1997, the IFAP and CS concluded a contract under which it was agreed that CS was to receive aid for afforestation of agricultural land under Regulation No 2080/92. That contract, which concerned five plots, provided for the payment of initial aid to cover the costs of afforestation, annual maintenance premiums and annual premiums for loss of income.
14 In accordance with Clause C.7. of the general terms and conditions of the contract, which reproduced the provisions of Article 7(b) of Ministerial Order No 199/94, CS was required ‘to ensure that, in the year following the year of the restocking, the reforestation undertaken displays the minimum densities established by law’ (‘the minimum reforestation density requirement’).
15 In addition, Section E of those general terms and conditions, entitled ‘Termination and unilateral amendment’, was worded as follows: ‘E.1. The IFAP may unilaterally terminate or amend this contract if the beneficiary fails to comply with any of his or her obligations or if, for a reason attributable to the beneficiary, any of the conditions governing the grant of aid of these general terms and conditions is not or is no longer met. E.2. The IFAP may also unilaterally alter the amount of the aid payable under this contract, provided that the alteration is justified in the light of the specific circumstances surrounding implementation of the investment or maintenance of the forest. E.3. In particular, in the event of the partial destruction of the forest, the premiums for maintenance and loss of income will be reduced in proportion to the area that has been destroyed, provided that the destruction is for reasons not attributable to the beneficiary.’
16 In 2006, the IFAP found that three of the five plots covered by the contract referred to in the preceding paragraph did not meet the minimum reforestation density requirement. Accordingly, by decision of 11 September 2006, the IFAP ordered, in accordance with Clause E.2. of the general terms and conditions, the unilateral amendment of the contract and demanded repayment of a principal sum of EUR 3 992.08, plus statutory and regulatory interest, corresponding to the difference between, on the one hand, the premiums for maintenance and loss of income unduly paid in respect of those three plots for the years 1998 and 1999 and, on the other hand, the premiums for maintenance and loss of income to be paid in respect of the other two plots for the years 2003 to 2005. However, the IFAP did not, in view of CS’s efforts to afforest those plots, call into question the initial aid paid to cover the costs of afforestation.
17 CS challenged that decision before the Tribunal Administrativo de Círculo de Lisboa (District Administrative Court, Lisbon, Portugal), explaining that she had made every effort to ensure that the planted area had the legally required density and that the failure to comply with that requirement was due not to fault on her part but to adverse weather conditions.
18 By judgment of 26 May 2017, that court annulled the decision of 11 September 2006 after finding that the premiums for loss of income concerning the years 1998 and 1999 had not been unduly received by CS. That court ordered the IFAP to pay the premiums for loss of income concerning the years 2003 to 2005 and the maintenance premiums concerning the years 2003 and 2004.
19 The IFAP brought an appeal against that judgment before the Tribunal Central Administrativo do Sul (South Central Administrative Court, Portugal). By judgment of 9 May 2019, that court dismissed the appeal, holding that the minimum reforestation density requirement constituted a best endeavours obligation and not an obligation to achieve a result and that, consequently, it was for the IFAP, in order to be able to demand repayment of the premiums, to prove fault on the part of CS as regards the means used.
20 The IFAP brought an appeal before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), the referring court.
21 That court has doubts as to whether Article 7(b) of Ministerial Order No 199/94 complies with the general rules and principles of the European Union.
22 In the first place, it asks whether the minimum reforestation density requirement laid down in that provision must be regarded as a best endeavours obligation or an obligation to achieve a result. In that regard, it has doubts as to the interpretation adopted by the appeal court that payment of premiums for maintenance and loss of income is always due where the beneficiary has afforested the land and made every effort to comply with that requirement.
23 In the second place, assuming that that requirement constitutes an obligation to achieve a result, the Supremo Tribunal Administrativo (Supreme Administrative Court) is uncertain whether the programme established by the Portuguese legislature complies with the principle of proportionality. More specifically, that court seeks to ascertain whether the principle of proportionality precludes the interpretation of Articles 7 and 26 of Ministerial Order No 199/94, according to which the partial destruction of a stand on account of the occurrence of adverse weather conditions in the years following the year of the restocking evaluation results in partial payment of premiums (for plots that comply with the minimum reforestation density requirement), whereas the occurrence of similar weather conditions in the evaluation year itself, which have the same effects, results in total loss of entitlement to premiums.
24 In the third and last place, the referring court refers to the fact that the scheme initially established by Ministerial Order No 199/94 was amended in 2012, which is such as to cast doubt on the proportionality of the initial scheme. Those amendments consist in reducing the minimum reforestation density threshold laid down in Annex C and changing the ‘all or nothing’ system that existed until then for granting premiums based on the number of trees in the year following the year of the restocking. Compliance with minimum reforestation densities is now assessed during the year following completion of the investment and during the award of the maintenance premium. Furthermore, where the plants are destroyed for reasons not attributable to the beneficiary, the new rules provide that the premiums will continue to be paid in proportion to the plot that remains in good vegetative condition.
25 In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) May repayment of the maintenance costs and premiums for loss of income provided for in points (b) and (c), respectively, of the first paragraph of Article 3 of Regulation No 2080/92 … be required where the beneficiary proves that … the afforestation conditions required by the national aid programme were not met for reasons beyond his or her control and he or she made every effort to achieve the outcome? (2) Is the outcome produced by the interpretation of Article 7(b), in conjunction with Article 26, of [Ministerial Order No 199/94], according to which the occurrence of adverse weather conditions in the years following the evaluation year (which is the year following the year of the restocking) results in partial repayment of the premiums, whereas where the same outcomes, caused by the same adverse weather conditions, occur in the year following the year of the restocking, this results in total loss of entitlement to premiums, consistent with the rules of EU law? (3) Must the outcome established in Article [7(b)] of Ministerial Order No 199/94, which results in total loss of the beneficiary’s entitlements to premiums for maintenance and loss of income where the reforestation density established in Annex C is not achieved, with no scope for a proportional reduction in payment of the aforementioned premiums where the outcome can be attributed to external factors such as the weather, be considered contrary to the principle of proportionality as a general principle of EU law, as appears to be implied (a contrario sensu) by the judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244, paragraphs 29 and 35)?’
26 By its three questions, which it is appropriate to examine together, the referring court asks, in essence, whether points (b) and (c) of the first paragraph of Article 3 of Regulation No 2080/92 and the principle of proportionality must be interpreted as precluding the imposition, on the beneficiary of maintenance premiums and premiums for loss of income paid in respect of a multi-annual undertaking to afforest agricultural land entered into by him or her, of an obligation to repay those premiums where a condition for the grant thereof laid down by national legislation, relating to the presence of a minimum reforestation density, is not satisfied during the implementation of that undertaking because of the occurrence of adverse weather conditions.
27 As a preliminary point, it should be noted that, as is apparent from Article 1 of Regulation No 2080/92, read in the light of the first to third recitals thereof, that regulation instituted an aid scheme for the afforestation of agricultural land intended, inter alia, to promote afforestation as an alternative use of agricultural land while facilitating the development of forestry activities on farms, to contribute towards forms of countryside management more compatible with environmental balance, to combat the greenhouse effect, to absorb carbon dioxide and to contribute towards an eventual improvement in forest resources.
28 Thus, that regulation pursues agricultural policy objectives seeking to support the forestry sector and an objective of environmental protection, objectives which, by their nature, have a multi-annual dimension and require that effective and sustainable afforestation of agricultural land be achieved.
29 In that context, in the first place, it is clear from Article 2(1)(b) and (c) of Regulation No 2080/92 that the aid scheme for the afforestation of agricultural land instituted by that regulation may comprise, inter alia, an annual premium to cover the costs of maintenance of the afforested areas in the first five years and an annual premium to cover losses of income resulting from afforestation of agricultural land, those premiums being paid ‘per hectare afforested’.
30 Next, points (b) and (c) of the first paragraph of Article 3 of Regulation No 2080/92 merely sets the maximum eligible amounts of those premiums on the basis of the afforestation area (in hectares) and the maximum period during which those premiums may be paid. In that regard, while point (b) of the first paragraph of that article, read in the light of the fifth recital of that regulation, provides that the payment of maintenance premiums may be staggered over a five-year period provided that the newly planted areas are maintained, point (c) of the first paragraph thereof states that the premium for loss of income may be granted for a maximum period of 20 years from the date of first afforestation.
31 Article 4(1) of Regulation No 2080/92 leaves it to the Member States to implement the aid scheme in question by means of national or regional multi-annual programmes the detailed rules of which they are to lay down. In that context, the Member States are to specify, inter alia, the amounts and duration of the aid on the basis of actual expenditure on afforestation and the maintenance of species or types of trees used for afforestation or on the basis of loss of income, as well as the conditions for granting aid for afforestation.
32 It follows from a combined reading of those provisions that, although Regulation No 2080/92 does not directly lay down the conditions governing the grant of the various afforestation premiums, it links the grant of those premiums to effective afforestation of the areas covered by the undertaking throughout the duration of that undertaking.
33 Consequently, the mere finding that a condition for the grant of maintenance premiums and premiums for loss of income is not satisfied is sufficient to render the grant of those premiums unjustified and therefore devoid of legal basis. Therefore, such premiums which have been paid cannot be regarded as being due, even though the beneficiary has made every effort to satisfy the requirement of a minimum reforestation density such as that laid down in Article 7(b) of Ministerial Order No 199/94.
34 That interpretation is supported by the objectives pursued by Regulation No 2080/92, as set out in paragraphs 27 and 28 above. Support for the forestry sector and environment protection, which is part of the more general perspective of combating the greenhouse effect through the absorption of carbon dioxide, require that effective afforestation of agricultural land be achieved.
35 That interpretation is also supported by the general scheme of Regulation No 2080/92. First, by leaving to the Member States, in accordance with Article 4(1) of that regulation, the task of laying down the conditions for granting afforestation aid in their multi-annual programmes and, second, by affording those States, under Article 4(2) of that regulation, in the context of zonal afforestation plans, the possibility of taking account of the diversity of environmental situations and of selecting species of tree adapted to local geographical and hydrographical conditions, the EU legislature did not intend to make the success of afforestation operations dependent solely on the due care of the beneficiary.
36 It follows that the EU rules require that the conditions for granting afforestation aid be satisfied throughout the period of implementation of a multi-annual undertaking in order for premiums for maintenance and loss of income to be duly paid, without it being possible for the beneficiary of those premiums to justify a failure to satisfy one of those conditions, such as the minimum reforestation density requirement, solely by showing that he or she exercised due care.
37 That said, in the second place, it should be noted that Regulation No 2080/92 does not contain any provision relating to the consequences to be drawn from a failure to satisfy one of the conditions for the grant of the premiums referred to in Article 2 of that regulation, in particular where that failure is caused by force majeure.
38 However, according to settled case-law, even in the absence of an express provision in the applicable legislation, it remains possible for the beneficiary of premiums to rely on the occurrence of force majeure (see, to that effect, judgments of 19 April 1988, Inter-Kom, 71/87, EU:C:1988:186, paragraphs 10 and 15, and of 7 December 1993, Huygen and Others, C‑12/92, EU:C:1993:914, paragraph 31).
39 In the field of agricultural legislation, although the concept of ‘force majeure’ is not predicated on absolute impossibility, it nevertheless requires the failure to satisfy a condition for the grant of aid to be the result of abnormal and unforeseeable circumstances, outside the control of the operator concerned, the consequences of which, in spite of the exercise of all due care, could not have been avoided (see, to that effect, judgment of 17 December 2015, Szemerey, C‑330/14, EU:C:2015:826, paragraph 58). Furthermore, as an exception, it must be interpreted strictly.
40 Since the determination of the existence of such circumstances constitutes an assessment of fact, it is for the referring court to ascertain whether the case at issue in the main proceedings has such characteristics.
41 In the present case, it is apparent from the order for reference, first, that that court established, in a general manner, that the adverse weather conditions relied on by CS were the result of circumstances outside the control of CS and, second, that, despite having exercised all due care, she had been unable to avoid the consequences that those weather conditions had for the stand density of the plots. Nonetheless, in order for there to be a finding of ‘force majeure’ within the meaning of EU law, it remains for the referring court to ascertain whether those circumstances were abnormal and unforeseeable.
42 Thus, only an event having the characteristics of force majeure, namely an abnormal and unforeseeable event, would be capable of releasing the beneficiary from his or her obligation to repay the aid received on the ground of his or her failure to satisfy the minimum reforestation density requirement.
43 In the third place, as regards the question whether, as the referring court asks, the principle of proportionality precludes a national provision, such as Article 7(b) of Ministerial Order No 199/94, it should be stated that Regulation No 2080/92 does not contain any provision giving a Member State the possibility of reducing the payment of the premiums in question proportionately based on the occurrence of circumstances outside the control of the beneficiary. It is clear, however, from settled case-law that the national provisions adopted by a Member State in the exercise of its power to implement EU legislation must observe the general principles of EU law, which include the principle of proportionality (judgment of 28 October 2010, SGS Belgium and Others, C‑367/09, EU:C:2010:648, paragraph 40). That principle requires that measures implemented through national provisions be appropriate for attaining the objective pursued and not go beyond what is necessary to achieve it (judgment of 7 April 2022, Avio Lucos, C‑176/20, EU:C:2022:274, paragraph 42).
44 In the light of the considerations set out in paragraphs 33 and 42 above, according to which the beneficiary of premiums for maintenance and loss of income can justify the failure to satisfy one of the conditions for the grant of those premiums, such as the minimum reforestation density requirement, only by showing that an event constituting force majeure has occurred, it cannot be held that a national practice which, as in the present case, requires the repayment in full of the premiums corresponding to areas that do not satisfy such a requirement infringes the principle of proportionality. On the contrary, that practice is limited to ensuring in an appropriate and necessary manner that afforestation aid finances operations that comply with the afforestation programme concerned.
45 It is apparent from the settled case-law of the Court that the beneficiary of aid is required, in the event of a failure to comply with one of the conditions for the grant of that aid, to repay all the amounts already paid in respect of that aid, without the principle of proportionality being capable of precluding that repayment obligation (see, to that effect, judgment of 26 May 2016, Ezernieki, C‑273/15, EU:C:2016:364, paragraphs 41 to 46 and the case-law cited).
46 The argument based on the judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244), cannot call that interpretation into question. That judgment was delivered in a different legal context, in which the Court had to interpret the provisions of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1). In that judgment, the Court was asked whether an individual could be totally refused compensatory support in respect of Natura 2000 where a very small part of the area in respect of which the application for support was made was owned by a Member State and even though that regulation required that support be granted only for areas owned by private owners. After stating, in paragraph 29 of that judgment, that the national provisions adopted by that Member State in the exercise of its power to implement EU legislation were to observe the principle of proportionality, the Court held, in paragraphs 30, 33 and 35 of that judgment, that the national legislation that completely excluded a forest area from Natura 2000 support because part of that area was owned by that State did not reflect the actual ownership ratio proportionately and infringed that principle since the payments in question were to be made per hectare of forest.
47 Thus, the principle of proportionality does not preclude national legislation which provides for the total loss of entitlement to premiums for maintenance and loss of income where one of the conditions for the grant of those premiums is not satisfied by reason of the occurrence of circumstances outside the control of the beneficiary which do not have the characteristics of a case of force majeure.
48 In the fourth and last place, the referring court asks whether the principle of proportionality precludes the interpretation of Articles 7 and 26 of Ministerial Order No 199/94, according to which the partial destruction of a stand on account of the occurrence of adverse weather conditions in the years following the year of the restocking evaluation results in partial payment of premiums (for plots that comply with the minimum reforestation density requirement), whereas the occurrence of similar weather conditions in the evaluation year itself, which have the same effects, results in total loss of entitlement to premiums.
49 Having regard to the freedom enjoyed by the Member States to implement the aid programme, as provided for in Article 4 of Regulation No 2080/92, there is nothing to prevent a Member State from laying down a condition for granting aid of the kind laid down in Article 7(b) of Ministerial Order No 199/94 and from fixing the time when compliance with that condition is to be verified in the year following the year of the restocking.
50 Furthermore, no provision of Regulation No 2080/92 precludes a national provision such as Article 26 of that ministerial order, which provides that, where part of the reforestation is destroyed for reasons not attributable to the beneficiary, the premiums will be paid in proportion to the plot that remains in good vegetative condition, since that provision merely links payment of the premiums to continuing compliance with the minimum reforestation density requirement and is intended to prevent the total loss of entitlement to premiums for maintenance and for loss of income in the event of partial destruction of the reforestation.
51 In the light of all the foregoing considerations, the answer to the questions referred is that points (b) and (c) of the first paragraph of Article 3 of Regulation No 2080/92 and the principle of proportionality must be interpreted as not precluding the imposition, on the beneficiary of maintenance premiums and premiums for loss of income paid in respect of a multi-annual undertaking to afforest agricultural land entered into by him or her, of an obligation to repay those premiums where a condition for the grant thereof laid down by national legislation, relating to the presence of a minimum reforestation density, is not satisfied during the implementation of that undertaking because of the occurrence of adverse weather conditions.
52 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.