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Document 62024CC0237
Opinion of Advocate General Emiliou delivered on 23 April 2026.###
Opinion of Advocate General Emiliou delivered on 23 April 2026.
Opinion of Advocate General Emiliou delivered on 23 April 2026.
ECLI identifier: ECLI:EU:C:2026:343
- Date of document:
- 23/04/2026
- Form:
- Generaladvokatens forslag til afgørelse
- Advocate General:
- Emiliou
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 23 April 2026 (1)
Case C‑237/24 P
United Kingdom of Great Britain and Northern Ireland
v
European Commission
( Appeal – EAGF and EAFRD – Regulation (EU) No 1307/2013 – Article 9(2) – Expenditure excluded from European Union financing – Expenditure incurred by the United Kingdom of Great Britain and Northern Ireland – Concept of ‘active farmer’ )
I. Introduction
1. In its appeal, the United Kingdom of Great Britain and Northern Ireland (‘the United Kingdom’) asks the Court of Justice to set aside the judgment of the General Court (2) by which the latter dismissed an action for annulment brought by the United Kingdom (3) against a decision of the European Commission excluding from European Union financing certain expenditure incurred by it under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD). (4)
2. The EAGF and the EAFRD are the funding instruments of the common agricultural policy (CAP) established by the FEU Treaty. (5) Under the CAP, farmers, who face lower than average incomes compared to the rest of the EU economy and whose income is subject to uncertainties such as the weather and the climate, are granted direct payments as income support serving as a safety net. (6) Furthermore, those direct payments aim to guarantee food security within the European Union and to reward farmers for taking care of the countryside and the environment through their agricultural activity. (7)
3. The legal basis for direct payments to farmers within the framework of the CAP for the 2014 to 2022 period was Regulation (EU) No 1307/2013. (8) The granting of direct payments is carried out by the Commission and the national authorities of the respective Member States through shared management. (9) Within that system, it is for the national authorities to process applications for direct payments, execute payments and perform certain checks under the Commission’s supervision. (10)
4. Farmers wishing to obtain such direct payments must submit yearly applications and comply with a number of rules. (11) Under Regulation No 1307/2013 they were required, inter alia, to qualify as ‘active farmers’, within the meaning of Article 9 thereof.
5. The present appeal concerns the interpretation by the General Court of the first subparagraph of Article 9(2) of Regulation No 1307/2013. That provision establishes a presumption that an applicant for direct payment (‘the aid applicant’) who operates airports, railway services, waterworks, real estate services or permanent sport and recreational grounds (‘the list of exclusions’) is not eligible to receive aid under the CAP. It follows that under that presumption, such aid applicants are not regarded as active farmers within the meaning of that regulation. They can, however, rebut that presumption by submitting evidence that shows that their agricultural activity is in fact not only marginal, even though they are exercising one of the activities on the list of exclusions. (12) In the judgment under appeal, the General Court held that in order to determine whether an aid applicant (whether a natural person, a legal person or a group of natural or legal persons) exercises an activity on the list of exclusions which would trigger the presumption, the activities exercised by any ‘related company’ of the aid applicant must be taken into account, even though those ‘related companies’ are not themselves applying for direct payment. The General Court based its interpretation on the reference in the first subparagraph of Article 9(2) of Regulation No 1307/2013 to ‘groups of natural or legal persons’, which it considered would encompass ‘related companies’ in addition to the actual applicant for direct payment.
6. The United Kingdom contests the interpretation made by the General Court, claiming that it is only the activities exercised by the aid applicant itself and not those exercised by any other ‘related company’ that need to be assessed under the first subparagraph of Article 9(2) of Regulation No 1307/2013.
II. Legal framework
7. Recital 10 of Regulation No 1307/2013 reads as follows:
‘Experience acquired in the application of the various support schemes for farmers has shown that support was in a number of cases granted to natural or legal persons whose business purpose was not, or was only marginally targeted at an agricultural activity. To ensure that support is better targeted, Member States should refrain from granting direct payments to certain natural and legal persons unless such persons can demonstrate that their agricultural activity is not marginal. Member States should also have the possibility of not granting direct payments to other natural or legal persons whose agricultural activity is marginal. …’
8. Article 4(1)(a) of that same regulation, concerning ‘Definitions and related provisions’, defines the concept of ‘farmer’ as ‘a natural or legal person, or a group of natural or legal persons, regardless of the legal status granted to such group and its members by national law, whose holding is situated within the territorial scope of the Treaties, as defined in Article 52 TEU in conjunction with Articles 349 and 355 TFEU, and who exercises an agricultural activity’.
9. Article 9 of Regulation No 1307/2013, entitled ‘Active farmer’, provides, in paragraphs 1 and 2:
‘1. No direct payments shall be granted to natural or legal persons, or to groups of natural or legal persons, whose agricultural areas are mainly areas naturally kept in a state suitable for grazing or cultivation and who do not carry out on those areas the minimum activity defined by Member States in accordance with point (b) of Article 4(2).
2. No direct payments shall be granted to natural or legal persons, or to groups of natural or legal persons, who operate airports, railway services, waterworks, real estate services, permanent sport and recreational grounds.
Where appropriate, Member States may, on the basis of objective and non-discriminatory criteria, decide to add to the list in the first subparagraph any other similar non-agricultural businesses or activities, and may subsequently decide to withdraw any such additions.
A person or group of persons falling within the scope of the first or second subparagraph shall, however, be regarded as an active farmer if it provides verifiable evidence, in the form that is required by Member States, which demonstrates any of the following:
(a) that the annual amount of direct payments is at least 5% of the total receipts that it obtained from non-agricultural activities in the most recent fiscal year for which such evidence is available;
(b) that its agricultural activities are not insignificant;
(c) that its principal business or company objects consist of exercising an agricultural activity.’
III. Factual background
10. The facts of the case are set out in paragraphs 2 to 11 of the judgment under appeal and, for the purposes of the present Opinion, can be summarised as follows.
11. In 2018, the Commission opened an inquiry to verify whether the United Kingdom complied with EU law when granting direct payments to farmers for the claim year 2017.
12. By letter of 14 June 2018, the Commission notified the United Kingdom of the results of its relevant on-the-spot checks. In that letter, the Commission noted that the control system put in place by the United Kingdom to verify the granting of aid under the CAP financed by the EAGF and the EAFRD did not comply with EU legislation. In addition, it asked the United Kingdom authorities to provide a detailed description of the corrective measures put in place.
13. By letter of 18 May 2021, and after having communicated the final conclusions of its inquiry, the Commission sent a summary report to the United Kingdom. It claimed, in particular, that the United Kingdom had infringed Article 9(2) of Regulation No 1307/2013 on account of the failure to take into account the entities connected to the aid applicants concerned as part of a group (‘the related companies’ (13)) when checking the active farmer status of the aid applicant and therefore proposed to apply a financial correction in the amount of EUR 2 686 358.72.
14. On 17 November 2021, the Commission adopted the decision at issue. The Commission found, inter alia, that there had been an infringement by the United Kingdom of the provisions concerning active farmer status for 2017 and decided to impose on it a financial correction in the amount of EUR 2 686 358.72. It therefore decided that, for that reason, the European Union would not reimburse the United Kingdom for expenditure incurred in the form of direct payments to farmers as part of the CAP in the amount stated above.
IV. Proceedings before the General Court and the judgment under appeal
15. By application lodged at the Registry of the General Court on 26 January 2022, the United Kingdom brought an action for annulment of the decision at issue, in so far as it excludes from EU financing certain expenditure which it incurred, in 2017, in the amount of EUR 2 686 358.72.
16. Before the General Court, the United Kingdom, supported by the Czech Republic, claimed in its single plea in law, in essence, that the Commission misinterpreted the meaning of Article 9(2) of Regulation No 1307/2013. The United Kingdom argued that that provision only prohibits direct payments from being made to aid applicants who themselves undertake one of the activities on the list of exclusions. According to the United Kingdom, the Commission was therefore wrong to exclude from EU financing the direct payments made by it to farmers on the basis that the United Kingdom did not sufficiently take into account the entities connected to an aid applicant who, hypothetically, might exercise one of the activities on the list of exclusions. In support of its action, the United Kingdom put forward a number of arguments relating to the wording, context and purpose of Article 9(2) of that regulation.
17. By the judgment under appeal, the General Court dismissed that action. It held, in simple terms, that the general understanding of the term ‘groups of natural or legal persons’ in the first subparagraph of Article 9(2) of Regulation No 1307/2013 includes ‘related companies’. That, in turn, led it to conclude that the aid applicant can also exercise one of the activities on the list of exclusions through one of its related companies, which therefore must be taken into account for the assessment of the active farmer status of the aid applicant. According to the General Court, such reasoning would not be precluded by the context in which Article 9(2) of Regulation No 1307/2013 appears. Furthermore, it would be supported by the objectives that that provision pursues.
V. Proceedings before the Court of Justice and the form of order sought
18. On 28 March 2024, the United Kingdom lodged its appeal against the judgment of the General Court. It asks the Court of Justice to: (i) set aside the operative part of the judgment under appeal; (ii) annul the decision at issue in so far as it excludes from EU financing certain expenditure incurred by the United Kingdom’s accredited paying agencies under the EAGF and under the EAFRD in the amount of EUR 2 686 358.72; and (iii) order the Commission to pay the costs.
19. The Commission submitted a response on 13 June 2024, by which it asks the Court to dismiss the appeal and order the United Kingdom to pay the costs.
20. The Czech Republic, intervener at first instance, lodged its response on 18 June 2024, by which it asks the Court to uphold the appeal.
21. By decision of the President of the Court of 13 June 2024, Hungary was granted leave to intervene in support of the United Kingdom and lodged its statement in intervention on 30 August 2024.
VI. Assessment
22. In support of its appeal, the United Kingdom relies on a single ground of appeal, alleging an error of interpretation, by the General Court, of Article 9(2) of Regulation No 1307/2013. As mentioned above, the first subparagraph of that provision establishes a presumption that an aid applicant who exercises an activity on the list of exclusions is not classified as an active farmer and is therefore not eligible to receive direct payments.
A. Arguments of the parties
23. The United Kingdom submits that the General Court wrongly held that the first subparagraph of Article 9(2) of Regulation No 1307/2013 prohibits the grant of direct payments to farmers who, although not themselves carrying out activities on the list of exclusions, form part of a wider group of entities in which one of those entities carries out one of those activities.
24. The United Kingdom argues that Article 9(2) of Regulation No 1307/2013 excludes only direct payments to farmers who directly, that is to say, themselves, exercise one of the activities on the list of exclusions. The General Court therefore erred in law when it concluded that related companies of the given aid applicant must be taken into account in order for the active farmer status of the latter to be determined. To support its ground of appeal, the United Kingdom puts forward five arguments. These can be grouped into three categories, relating respectively to the wording, context and objective of Article 9(2) of Regulation No 1307/2013.
25. First, with regard to the wording of Article 9(2) of Regulation No 1307/2013, the United Kingdom submits that it follows from a normal understanding of that provision that it only prohibits direct payments to three different categories of aid applicants: either ‘natural persons’ or ‘legal persons’, who themselves directly exercise an activity on the list of exclusions, or a ‘group of natural or legal persons’, which, considered as a whole, directly exercises such an activity. Consequently, where an individual company applies – independently of the group it belongs to – for a payment and does not, itself, carry out one of the activities on the list of exclusions, the mere fact that another company belonging to that same group carries out such an activity is irrelevant.
26. Second, the United Kingdom refers to Article 4(1)(a) of the same regulation, which defines the concept of ‘farmer’, in support of the abovementioned argument. It submits that the wording of the first subparagraph of Article 9(2) of Regulation No 1307/2013 is mirrored by the text of Article 4(1)(a) thereof, where the term ‘farmer’ is defined by reference to the same three categories (‘natural person’, ‘legal person’ and ‘group of natural or legal persons’). Direct payments under Regulation No 1307/2013 are made to a ‘farmer’ in all cases. It follows that it is always the farmer who is applying for the payment who, whether as a ‘natural or legal person’ or as a ‘group of natural or legal persons’, must not carry out one of the activities on the list of exclusions. In other words, the assessment must be carried out having regard only to the entity (whether a ‘natural person’, a ‘legal person’ or a ‘group of natural or legal persons’) that is designated as the aid applicant.
27. By its third argument, related again to the wording of the provision, the United Kingdom points out that the Commission’s interpretation would make the reference in Article 9(2) of Regulation No 1307/2013 to a ‘group of natural … persons’ redundant, because a natural person can never be owned by another natural or legal person, nor can they be associated with them in the way that companies can be connected with each other. If the EU legislative intention, by referring to ‘groups’ in that provision, was to cover, for the assessment of ‘active farmer’ status, related companies of the aid applicant, it would have sufficed to refer only to ‘groups of legal persons’.
28. In its fourth and fifth arguments, the United Kingdom refers to the objectives of Regulation No 1307/2013. According to that party, the General Court erred in stating in the judgment under appeal that the essential purpose of Article 9(2) of Regulation No 1307/2013 is ‘to avoid the risk of fraudulent use of the EU budget’. Rather, the purpose of that provision, according to the United Kingdom, is to ensure that payments are not made to persons whose agricultural activity is only marginal, as shown by recital 10 of Regulation No 1307/2013 and the last subparagraph of Article 9(2) thereof (fourth argument). Moreover, the objective of preventing the risk of fraudulent use of the EU budget would not, contrary to what the General Court held, require the refusal of payments to a company which genuinely exercises a non-marginal agricultural activity, on the basis that it forms part of a wider group of companies, some of which carry out activities on the list of exclusions (fifth argument).
29. The Commission observes, at the outset, that the subject matter of the appeal is difficult to identify because the arguments put forward by the United Kingdom in support of its single ground of appeal do not criticise the judgment under appeal but, rather, the decision at issue. Furthermore, in its view, some arguments do not specifically refer to errors of law committed by the General Court and are thereby inadmissible.
30. As regards the merits, the Commission argues that the General Court did not err in its interpretation of Article 9(2) of Regulation No 1307/2013. That interpretation is supported by the actual wording of Article 9(2) of Regulation No 1307/2013: first, the ordinary meaning of the term ‘group’ featuring in that provision includes a plurality of entities; second, there is nothing to indicate that the reference to ‘groups of natural or legal persons’ in the same provision is limited to the applicant for direct payments and not to other companies to which that applicant is related.
31. With regard to the context of Article 9(2) of Regulation No 1307/2013, and the United Kingdom’s reliance in that respect on Article 4(1)(a) of that regulation, the Commission accepts that both provisions use the same wording, namely ‘natural or legal person, or [groups] of natural or legal persons’. However, in the Commission’s view, this does not mean that Article 9(2) of Regulation No 1307/2013 refers only to a ‘farmer’ as defined in Article 4(1)(a) of that same regulation. Even if the reference to a ‘natural or legal person, or group of natural or legal persons’ in those two provisions were to be understood in the same way (as referring to a ‘farmer’), the Court’s recent judgment in Agrarmarkt Austria (14) (to which I will turn later) implies that, when considering the exercise of activities on the list of exclusions, those carried out by companies related to the applicant must also be taken into account.
32. Relying on the historical context of Regulation No 1307/2013 and, in particular, on the reasons for the adoption of Article 9(2) thereof, the Commission contends that the objective of better targeting support to farmers through direct payments, referred to in recital 10 thereof, necessarily requires that Article 9(2) be interpreted in a broader manner. Not taking into account an applicant’s related companies would entail the risk that the support granted does not, in fact, benefit that applicant, but related companies which exercise activities on the list of exclusions.
33. Furthermore, not considering the entities which are connected to the applicant as part of a group and which carry out non-agricultural activities would pose a risk of circumvention and a risk of unequal treatment of the respective aid applicants. This is because agricultural and non-agricultural activities could be divided amongst different entities within the same group so as to avoid the application of the presumption excluding aid applicants from direct payments provided for in the first subparagraph of Article 9(2).
34. The Czech Republic fully supports the arguments presented by the United Kingdom. It also points out that the interpretation of Article 9(2) of Regulation No 1307/2013 adopted by the General Court would lead to ‘absurd practical consequences’, because it would become irrelevant whether the applicant is an active farmer. The decisive factor would instead be whether the applicant is a member of a group that is predominantly agricultural. The Czech Republic further argued that it is not clear from the judgment under appeal what level of connection must exist between the aid applicant and its related companies. The interpretation adopted by the General Court thus leads to the imposition of an obligation – consisting of taking into account for the assessment of ‘active farmer’ status not only the aid applicant but also the companies related to it – that is not clear, precise and predictable, which is contrary to the principle of legal certainty.
35. Hungary supports the arguments put forward by the United Kingdom and the Czech Republic. It further points out that the aid applicant under Regulation No 1307/2013 must be someone who exercises rights over the holding (15) in question, thus the units used for agricultural activities and managed by the farmer. That is not the case for the farmer’s related companies, which, therefore, should not be taken into account for the interpretation of Article 9(2) thereof.
36. Lastly, as regards the concern expressed by the General Court in the judgment under appeal that not taking into account related companies could lead to an abusive practice circumventing the applicable rules, Hungary notes that if the exercise of an activity on the list of exclusions by a related company is not the result of deliberate abuse, then a connection between undertakings will not jeopardise the objective of the regulation.
B. Analysis
37. I am of the view that the United Kingdom’s appeal is admissible and well founded. In my analysis, I will first briefly examine subject-matter of the appeal and the (in-)admissibility of certain arguments (1), before turning to the meaning of the reference to the term ‘group’ in the first subparagraph of Article 9(2) of Regulation No 1307/2013 (2). By examining that term, I will show that it is meant to refer to a category of aid applicant, as argued by the United Kingdom, and does not include companies related to the aid applicant which are not applying for direct payment themselves. Lastly, I will turn to the issue of whether, for the assessment of the ‘active farmer’ status of one single natural or legal person applying for direct payment, it is nonetheless justified that companies related to that applicant are taken into account (3).
1. Subject matter of the appeal and (in)admissibility of certain arguments
38. According to Article 256(1) TFEU in conjunction with Article 58 of the Statute of the Court of Justice of the European Union, an appeal to this Court shall be limited to points of law. Articles 168 and 169 of the Rules of Procedure of the Court of Justice specify in that regard that an appeal shall contain, amongst other things, the pleas in law and legal arguments relied on, and shall identify precisely the points in the grounds of the decision of the General Court which are contested. Furthermore, according to the case-law of this Court, arguments that are difficult to understand and confusing must be set aside as manifestly inadmissible, since they do not enable the Court to perform its duties and review the legality of the decision at first instance. (16)
39. In the present proceedings, the United Kingdom submits a single ground of appeal relating to an error of law made by the General Court in its interpretation of Article 9(2) of Regulation No 1307/2013. The subject matter of the appeal itself – the alleged misinterpretation of Article 9(2) of Regulation No 1307/2013 by the General Court – is therefore easily identifiable.
40. Regarding the admissibility of certain arguments, I agree with the Commission that the third and fifth arguments submitted by the United Kingdom do not clearly indicate how they are linked to the judgment under appeal since they do not contain any references to paragraphs of the judgment under appeal. From my point of view, the lack of any indication of specific paragraphs of the judgment under appeal does not, however, affect the understanding of the fifth argument and how it is linked to the judgment under appeal. That argument supports the reasoning of the last part of the fourth argument, which does not explicitly refer to paragraph 105 of the judgment under appeal but does, however, include a literal citation from it.(17) From my understanding, the United Kingdom relies on the fifth argument further to emphasise that the only purpose of the first subparagraph of Article 9(2) of Regulation No 1307/2013 is to ensure that an aid applicant’s agricultural activities are not marginal, as also pointed out in the fourth argument. However, the same does not apply to the third argument, which, besides not referring to specific paragraphs of the judgment under appeal, can also not be linked to other arguments of the appeal concerning that requirement, and is therefore not understandable. I therefore agree with the Commission that that argument is clearly inadmissible.
41. In conclusion, I consider the appeal to be admissible, but will exclude from my analysis the third argument because of the reasons stated above.
2. The reference to a ‘group of natural or legal persons’ as a separate category of aid applicant
42. The General Court correctly pointed out in paragraph 69 of the judgment under appeal that there is no reference in Article 9(2) of Regulation No 1307/2013 to the term ‘related companies’. That article refers only to ‘natural or legal persons’ and ‘groups of natural or legal persons’.
43. To explain the scope of that term the General Court then went on to state that, ‘by its very nature, a “group” designates a group of entities related to each other within the same organisation. Thus, the term “group” must be interpreted as being similar to the term “grouping” and as referring to any association of natural or legal persons related to each other within a more or less structured single organisation. It follows that a group of natural or legal persons includes related companies.’
44. I wish to clarify in that regard that the primary issue in the present case is, contrary to what one might infer from the judgment under appeal and from what the Commission seems to argue, not one regarding the interpretation of the term ‘group of natural or legal persons’. Rather, the question is what the reference to that term entails and thus who can be identified as an ‘active farmer’ within the meaning of the Article 9(2) of Regulation No 1307/2013. In the following section, I will briefly show that the concept of a ‘group of natural or legal persons’ referred to in Article 9(2) of Regulation No 1307/2013 reflects a category of applicants that is separate from the categories of ‘natural persons’ and ‘legal persons’, as is apparent from its context.
45. The Commission argues that there is nothing in the first subparagraph of Article 9(2) of Regulation No 1307/2013 that indicates that the reference to ‘groups of natural or legal persons’ is limited to the applicant for direct payments and does not also encompass other entities connected to that applicant. Therefore, in the Commission’s view, the term ‘group’ is not limited to the applicant itself in the form of a ‘group’ but also extends to a number of related companies. That argument, however, seems to ignore the clear link between that provision and the definition of a ‘farmer’, provided for in Article 4(1)(a) of Regulation No 1307/2013.
46. Article 4(1)(a) of Regulation No 1307/2013 establishes three different categories of farmers, which are natural persons, legal persons and groups of natural or legal persons. Those same categories are, as all the parties to the proceedings observed, referred to in the first subparagraph of Article 9(2) of the same regulation. Under Regulation No 1307/2013, direct payments can only be granted to farmers. (18) It follows, naturally, that that provision refers to the same three categories of farmers and thus aid applicants under Regulation No 1307/2013. In light of that, giving a separate meaning to the concept of a ‘group of natural or legal persons’, which would include non-applicants, would be irreconcilable with the above context in which Article 9(2) operates.
47. I therefore agree with the argument submitted by the United Kingdom that the term ‘group of natural or legal persons’ must be interpreted in accordance with Article 4(1)(a) of Regulation No 1307/2013 and that it constitutes, besides a natural or legal person, a third possible category of farmers and consequently aid applicants.
48. The Commission contends that the use of the same wording in Article 4(1)(a) of Regulation No 1307/2013 and the first subparagraph of Article 9(2) of the same regulation is immaterial. However, as this Court held previously with regard to Article 9(1) of Regulation No 1307/2013 (19), the classification as a ‘farmer’ is a prerequisite to being considered an ‘active farmer’. (20) The same reasoning applies to the interpretation of the first subparagraph of Article 9(2) thereof, which is at issue here. Both provisions address the classification as an ‘active farmer’ and refer to ‘natural or legal persons, or to groups of natural or legal persons’ in that regard. The Commission’s argument in that respect is therefore unconvincing to me.
49. I also do not agree with the Commission’s argument that, since Article 4(1)(a) of Regulation No 1307/2013 and Article 9(2) thereof concern different issues (the definition of a ‘farmer’, on the one hand, and the classification as an ‘active farmer’, on the other), the same wording used in those two articles must be given a different meaning. It is clear that Article 9(2) is concerned more specifically with identifying the persons to be considered active farmers. This additional aspect of being an ‘active’ farmer is addressed in the list of exclusions so as to clarify which categories of farmers are not eligible for direct payments.
50. It follows that the term ‘group of natural or legal persons’ in the first subparagraph of Article 9(2) refers to a third category of aid applicants. Consequently, that term was not meant to include other companies related to the aid applicant but not applying, themselves, for direct payment. Furthermore, and as I will discuss now, there is nothing in the first subparagraph of Article 9(2) of Regulation No 1307/2013 that allows for the conclusion that companies related to the aid applicant may or even must be taken into account in the assessment of the ‘active farmer’ status of the aid applicant.
3. Consideration of ‘related companies’ for the assessment of ‘active farmer’ – status in Article 9(2) of Regulation No 1307/2013
51. After its interpretation of the term ‘group’, the General Court concluded in the second step of its reasoning that, in order to be excluded from a direct payment, ‘it follows from the wording of Article 9(2) of Regulation No 1307/2013 that the aid applicant, which may be a group of natural or legal persons, may carry out the activities on the list of exclusions directly or through a related company forming part of the same group applying for aid’. (21) Where the aid applicant is a natural or legal person forming part of a group, it held that ‘it may carry out the activities on the list of exclusions either directly or through a related company forming part of the same group’ (22) and consequently may be excluded from direct payment.
52. The first part of that reasoning concerning a situation in which the applicant itself consists of a group of natural or legal persons including related companies is not contested by the United Kingdom. Indeed, it follows from the above explanation that if the aid applicant consists of a ‘group of natural or legal persons’, the whole group must not carry out one of the activities on the list of exclusions.
53. The United Kingdom argues, however, that the General Court erred in law regarding the second part of its conclusion, in which it extended the same reasoning to situations where the aid applicant is a single natural or legal person, and forms part of a group, by requiring that activities carried out by other entities within the group (which are themselves not applicants for direct payments) be taken into account.
54. From my perspective, neither the wording and the context (a) nor the objectives (b) of Article 9(2) of Regulation No 1307/2013 allow for such a conclusion.
(a) Textual and contextual analysis
55. It is clear from the wording of the first subparagraph of Article 9(2) of Regulation No 1307/2013 (‘No direct payments shall be granted to natural or legal persons, or to groups of natural or legal persons, who operate airports, railway services, waterworks, real estate services, permanent sport and recreational grounds’ (23)), that it is with regard to the respective aid applicant that the exercise of activities on the list of exclusions must be assessed. (24)
56. The wording of the first subparagraph of Article 9(2) of Regulation No 1307/2013 requires a direct link between the aid applicant (natural or legal person or group of natural or legal persons) and the exercise of one of the activities on the list of exclusions. By contrast, that wording does not support the conclusion that such activities can be exercised indirectly through related companies in order to become relevant for the examination of ‘active farmer’ status. As has also been pointed out by the United Kingdom, such an interpretation would de facto amount to rewriting the first subparagraph of Article 9(2) of Regulation No 1307/2013. If the EU legislature wanted related companies of the applicant, which are not applying for direct payments, also to be taken into account for the assessment under the first subparagraph of Article 9(2) of Regulation No 1307/2013, that provision would have likely stated that expressly.
57. With regard to the context in which the first subparagraph of Article 9(2) of Regulation No 1307/2013 appears, the General Court acknowledged, in paragraph 96 of the judgment under appeal, the link between the concept of an ‘active farmer’, as defined in that provision, and the concept of a ‘farmer’, as defined in Article 4(1)(a) of that regulation. It thereby relied on the Court’s case-law according to which, as explained above, one must first qualify as a ‘farmer’ in order to be considered an ‘active farmer’. (25) The General Court however stated that it does not follow from that link between those two provisions that the exclusion from direct payment is triggered only when it is the aid applicant who directly carries out the activities on the list of exclusions. Such exclusion may also be triggered by the activities exercised by the companies related to the applicant. (26)
58. From my point of view, that reasoning of the General Court is problematic, in that it does not conclude that there is a requirement that one of the activities on the list of exclusions must be exercised directly by the applicant (irrespective of whether it is a legal person, a natural person or a group of natural or legal persons), and could lead, as argued by the Czech Republic, to outcomes that negatively affect the operation of the rules at issue. It would mean that an aid applicant that exercises an agricultural activity would be excluded from payment on the basis that it belongs to a group whose members are predominately engaged in activities on the list of exclusions. (27) Thus, the determining factor would only be what the focus of the business activities of the group as a whole is and not that of the business activities of the aid applicant itself. This is clearly in contradiction to recital 10 of Regulation No 1307/2013, which explicitly states that one of the regulation’s objectives is to ensure that payments are targeted more effectively at farmers who are engaged in more than just a marginal agricultural activity. I therefore agree with the argument raised by the United Kingdom in its appeal that such an interpretation of the General Court must be rejected.
59. The Commission further relies on the Court’s judgment in Agrarmarkt Austria (28) to justify the argument that related companies not applying for direct payments must be taken into account for the assessment of the exercise of one of the activities on the list of exclusions and, in connection with that, whether a given applicant can be excluded from ‘active farmer’ status.
60. In that judgment, the Court had to assess the concepts of a ‘holding managed’ by a farmer within the meaning of Article 4(1)(b) and (c) of Regulation No 1307/2013 and an area which is ‘at the farmer’s disposal’ within the meaning of Article 33(1) of that regulation for the purpose of receiving direct payments under that regulation. Those concepts had to be addressed in the judgment in relation to a situation where the parcels which make up the area owned by that farmer are handed over to users chosen by that farmer who, in return for a fixed fee, are responsible for the maintenance of those parcels and for the harvest, and where that farmer carries out the initial soil cultivation, crop cultivation and the ongoing irrigation of those parcels, and even maintains those parcels in the event that those users fail to do so.
61. The Court held that these circumstances did not preclude the agricultural area at issue from being considered a ‘holding managed’ by the farmer and an area ‘at [her] disposal’ within the meaning of Article 4(1)(b) and Article 33(1) of Regulation No 1307/2013, thereby relying on the overall responsibility that the farmer still held for the respective parcels. (29)
62. The Commission concludes from the judgment in Agrarmarkt Austria that an aid applicant can exercise an agricultural activity through others (in the specific case at issue, through the users of the parcels) and be classified as a ‘farmer’. Consequently, the same must apply to the exercise of one of the activities on the list of exclusions in the first subparagraph of Article 9(2) of Regulation No 1307/2013, which also can be done through others (the companies related to the aid applicant, which are not applying for direct payments but form part of the same group as the aid applicant).
63. That conclusion is, in my view, erroneous and misinterprets the judgment in Agrarmarkt Austria. As the Czech Republic correctly points out, the legal issues of that judgment differ from the present proceedings. In that case, the terms ‘holding managed’ by a farmer and ‘at the disposal’ of that farmer, who was herself the applicant for a direct payment, were at the core of the dispute and not the issue of the exercise of one of the activities on the list of exclusions. (30)
64. Furthermore, the factual background of that case differed substantially from the present case. There, it was apparent from the circumstances that the farmer concerned retained overall responsibility for the cultivation of the land and still held substantial rights over her holding. (31) That situation is not comparable with the scenario of the applicant’s related companies, where one of the related companies carries out an activity on the list of exclusions.
65. Lastly, I agree with the Czech Republic’s argument that the judgment in Agrarmarkt Austria appears rather to confirm the United Kingdom’s interpretation of Article 9(2) of Regulation No 1307/2013. In that judgment, the Court considered the aid applicant, the farmer, when assessing whether she could be classified as an active farmer, and as such receive direct payments. The specific circumstances of the case led it to conclude that that farmer still managed and held land, even though it was handed over for a certain period of time to users. Thus, it follows from that judgment that when examining whether a farmer can be considered an ‘active farmer’, it is only the aid applicant and no other connected entities that is the subject of analysis.
(b) Teleological analysis
66. The United Kingdom further submits that wider teleological considerations support its position.
67. The United Kingdom argues that the General Court wrongly stated in paragraph 104 of the judgment under appeal that the essential purpose of Article 9(2) of Regulation No 1307/2013 is ‘to avoid the risk of fraudulent use of the EU budget.’ In its view, its purpose is, rather, as stated in recital 10 of that regulation, to ensure that payments are not made to persons whose agricultural activity is only marginal. It further contends that the General Court did not explain why it constitutes a problem if, according to the interpretation adopted by the United Kingdom, the ‘applicant could distribute its activities across a number of related legal entities in order to circumvent the limits placed by that provision on the recognition of its active farmer status’, (32) given that the applicant itself would indeed still carry out non-marginal agricultural activities.
68. At the outset, I wish to point out that the United Kingdom seems in part to misread the judgment under appeal. In paragraph 104 of the judgment under appeal, to which the United Kingdom refers, the General Court precisely continued to explain in the judgment under appeal that the purpose of Article 9(2) of Regulation No 1307/2013 is also ‘to limit payments under the [CAP] only to those farmers who genuinely carry out a non-marginal agricultural activity’. (33)
69. In any event, I agree with the United Kingdom that even those two objectives – to protect the prevention of fraud and to ensure the better targeting of direct payments granted – do not justify taking into account the activities of related companies of the aid applicant. Those two objectives are not sufficient to disregard the wording and the context of the first subparagraph of Article 9(2) of Regulation No 1307/2013, given that the protection of the objectives is served otherwise, as I will explain below.
70. This follows, first, from the fact that the EU legislature provided in Article 60 of Regulation No 1306/2013 for a specific rule to address the circumvention of the conditions to be fulfilled to receive direct payments and thus fraudulent applications. Second, Regulation No 1307/2013 does not per se prohibit the exercise of activities on the list of exclusions by the aid applicant and exclude the latter from direct payment in such circumstances, as long as the applicant still exercises a non-marginal agricultural activity. Against that background, it is not necessary for the objective of better targeting support also to take into account the activities exercised by related companies.
71. As regards the first of the two abovementioned aspects, namely the prevention of fraud, Article 60 of Regulation No 1306/2013 provides that ‘no advantage provided for under sectoral agricultural legislation shall be granted in favour of a natural or legal person in respect of whom it is established that the conditions required for obtaining such advantages were created artificially, contrary to the objectives of that legislation’.
72. That provision illustrates two points: first, the EU legislature had the artificial creation of the conditions for obtaining payments under the sectoral agricultural legislation in mind, and specifically regulated it in Article 60 of Regulation No 1306/2013; and second, it did so for cases where such an artificial creation of the conditions, and thus circumvention of the limits posed by the applicable provisions, is established. The mere risk of such circumvention, therefore, does not suffice according to the intention of the EU legislature.
73. The Commission’s argument regarding the risk of fraudulent use of the EU budget is however based on two merely hypothetical scenarios. The Commission fears, first, that the applicant might benefit from the income generated by its related companies, which are exercising activities on the list of exclusions. The (indirect) origin of its own income from those non-agricultural activities would then classify the applicant’s agricultural activities as only marginal. (34) Second, the respective activities could be distributed across a number of related legal entities in order to circumvent the first subparagraph of Article 9(2) of Regulation No 1307/2013. Those potential risks do not, however, have to materialise in reality in all given cases. Therefore, from my point of view, their existence does not justify taking into account all companies related to the aid applicant for the assessment of his or her ‘active farmer’ status pursuant to the first subparagraph of Article 9(2) of Regulation No 1307/2013.
74. I agree with the Czech Republic and Hungary that the argument of the General Court that Article 60 of Regulation No 1306/2013 is insufficient to avoid the risk of EU budget fraud, (35) and that related companies must therefore be taken into account for the assessment of Article 9(2) of Regulation No 1307/2013, is not convincing. In the light of the Court’s settled case-law, (36) the mere distribution of activities among various companies might not necessarily create a situation falling under Article 60 of Regulation No 1306/2013. That provision requires, in addition to a combination of objective circumstances indicating that despite formal observance of the conditions laid down by the relevant rules, the purpose of those rules has not been achieved, (37) a subjective element consisting of the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it. (38) However, in my view, the scope of application of Article 60 of Regulation No 1306/2013, and more precisely the requirement of a subjective element, rather expresses the EU legislature’s intent that not every distribution of activities amongst different companies should be sanctioned and should exclude the applicant from direct payment. The regulation of the circumvention of the conditions for obtaining direct payments in Article 60 of Regulation No 1306/2013 does not therefore leave room for an extensive interpretation of the first subparagraph of Article 9(2) of Regulation No 1307/2013.
75. As regards the second aspect, namely the objective of better targeting support, it is clear, in the light of recital 10 of Regulation No 1307/2013, (39) that the EU legislature did not intend to prohibit any direct payment from being made to farmers who also engage in activities on the list of exclusions. It only wanted to ensure that those other activities do not form the main part of the activities exercised by the aid applicant.
76. The same follows from the last subparagraph of Article 9(2) of Regulation No 1307/2013, as the United Kingdom correctly pointed out. That subparagraph provides for the possibility, in points (a) to (c), for an aid applicant who engages in one of the activities on the list of exclusions to rebut the presumption and prove that he or she is not only marginally exercising an agricultural activity. Points (b) and (c) are of particular interest here, since they provide the aid applicant with the possibility to demonstrate ‘that its agricultural activities are not insignificant’ or ‘that its principal business or company objects consist of exercising an agricultural activity’. That provision therefore shows again that the mere exercise of an activity on the list of exclusions does not necessarily preclude the aid applicant from receiving direct payments. The only aspect that matters in that regard is that its own agricultural activity is not only marginal.
77. Against that background, it would appear contradictory that the mere exercise of one of the activities on the list of exclusions by a related company excludes the aid applicant itself from payment. The fact that related companies are potentially carrying out one of the activities on the list of exclusions has no influence on the assessment of the agricultural activity – substantial or marginal – of the aid applicant.
78. Furthermore, I wish to point out that the objectives relied on by the General Court are not the only ones which are relevant to establishing the proper interpretation of the provisions of Regulation No 1307/2013. According to recital 2 thereof, ‘one of the core objectives, and one of the key requirements, of the CAP reform [of which the regulation at issue forms part] is the reduction of the administrative burden’, which ‘should be taken firmly into account when shaping the relevant provisions for the direct support scheme’. Taking into account all companies related to the aid applicant would, in my view, go against that objective.
79. Lastly, I agree with the Czech Republic and Hungary that concluding to the contrary would raise certain issues with regard to the principle of legal certainty.
80. It follows from the Court’s settled case-law that the principle of legal certainty requires rules of law to be clear, precise and predictable in their effect, so that those concerned may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly. (40) This is particularly important when there is a risk of negative financial consequences. (41)
81. As pointed out by the Czech Republic, the General Court did not specify in the judgment under appeal the level of connection that must exist between the respective companies, the structuring of a corporate organisation that is required for the formation of a group, and whether and how relations between individual members are to be regulated.
82. In light of that, excluding from EU funding payments made by the national authorities of the Member States, on the basis of an a rather unclear and vague interpretation of a provision of EU law, is, from my point of view, difficult to reconcile with that principle of EU law.
83. In conclusion, I consider that the wording of the first subparagraph of Article 9(2) of Regulation No 1307/2013, the context of that provision and the objectives pursued by it preclude the taking into account of related companies of the aid applicant for the assessment of the active farmer status. The appeal must therefore be upheld, because the General Court erred in law when it interpreted the first subparagraph of Article 9(2) of Regulation No 1307/2013 as prohibiting direct payments to farmers who do not themselves undertake an activity on the list of exclusions but where companies related to them do so, thereby endorsing the Commission’s interpretation of that same provision in the decision at issue. The judgment under appeal should therefore be set aside.
VII. No need to refer the case back to the General Court
84. Under the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court is to quash the decision of the General Court if the appeal is well founded. It may itself give final judgment in the matter, where the state of the proceedings so permit, or refer the case back to the General Court for judgment.
85. As explained above, the success of the appeal is based on the error of law made by the General Court in its interpretation of the first subparagraph of Article 9(2) of Regulation No 1307/2013. The United Kingdom sought annulment of the contested decision at first instance because of that precise interpretation of the first subparagraph of Article 9(2) of Regulation No 1307/2013 adopted by the Commission, and argued that the Commission therefore wrongly excluded from European Union financing certain expenditure incurred by its accrediting paying agencies under the EAGF and under the EAFRD. The contested decision is therefore also invalid, because it relies on the same erroneous interpretation of the first subparagraph of Article 9(2) of Regulation No 1307/2013 and must be set aside. There is therefore no need to refer the case back to the General Court.
VIII. Costs
86. Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
87. Article 138(1) of those rules, applicable to appeal proceedings pursuant to Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
88. In the present case, the United Kingdom applied for costs. Since the appeal should be upheld and the action dismissed, the Commission should be ordered to pay the costs of these proceedings, both at first instance and on appeal.
IX. Conclusion
89. In the light of the foregoing considerations, I suggest that the Court of Justice:
– set aside the judgment of 31 January 2024, United Kingdom v Commission (T‑56/22, EU:T:2024:51);
– annul Commission Implementing Decision (EU) 2021/2019 excluding from European Union financing certain expenditure incurred by the United Kingdom under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) for the stated reason of weakness in the definition of ‘active farmer’;
– order the European Commission to pay the costs of proceedings both at first instance and on appeal.
1 Original language: English.
2 Judgment of 31 January 2024, United Kingdom v Commission (T‑56/22, ‘the judgment under appeal’, EU:T:2024:51).
3 The General Court held in the judgment under appeal that the United Kingdom had standing to bring proceedings on the basis of point (c) of the second paragraph of Article 90 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7) (‘the Withdrawal Agreement’).
4 Commission Implementing Decision (EU) 2021/2019 of 17 November 2021 (OJ 2021 L 413, p. 3; ‘the decision at issue’). I note in this regard that the General Court mistakenly used the incorrect decision number (2021/2020) in the judgment under appeal.
5 See, in that regard, Articles 38 to 44 TFEU.
6 See, in that regard, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The CAP towards 2020: Meeting the food, natural resources and territorial challenges of the future (COM(2010) 672 final), p. 7; Fact Sheets on the European Union – 2026, Direct payments, p. 1, available at https://www.europarl.europa.eu/ftu/pdf/en/FTU_3.2.7.pdf; and European Commission, Income support explained – Overview of direct payments for farmers, available at https://agriculture.ec.europa.eu/common-agricultural-policy/income-support/income-support-explained_en.
7 Ibid.
8 Regulation of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608). That regulation was repealed by 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 2021 L 435, p. 1). However, Regulation No 1307/2013 remains applicable ratione temporis to the present case.
9 See, in that regard, Article 4(1)(b) of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549).
10 See, in that regard, Article 58(2) of Regulation No 1306/2013, Article 59(1) of Regulation No 1306/2013 and Article 67(1) and (2) of Regulation No 1306/2013.
11 See, in that regard, Article 72(1) of Regulation No 1306/2013.
12 See, in that regard, the third subparagraph of Article 9(2) of Regulation No 1307/2013.
13 The term used by the Commission is that of ‘connected entities’. To avoid confusion, I will however employ the term ‘related companies’ used by the General Court in the judgment under appeal, thereby referring to the same constellation.
14 See judgment of 13 June 2024, Agrarmarkt Austria (C‑731/22, EU:C:2024:503).
15 See Article 4(1)(b) of Regulation No 1307/2013 for the definition of a ‘holding’.
16 See, in that regard, judgment of 10 September 2020, Hamas v Council (C‑122/19 P, EU:C:2020:690, paragraph 27).
17 In the last part of the fourth argument, the United Kingdom quotes the General Court with regard to its statement that ‘an applicant could distribute its activities across a number of related legal entities in order to circumvent the limits placed by that provision on the recognition of its active farmer status’.
18 See in that regard Article 1(a) of Regulation No 1307/2013.
19 I recall that, according to that provision, ‘no direct payments shall be granted to natural or legal persons, or to groups of natural or legal persons, whose agricultural areas are mainly areas naturally kept in a state suitable for grazing or cultivation and who do not carry out on those areas the minimum activity defined by Member States in accordance with point (b) of Article 4(2).’
20 See, in that regard, judgment of 7 April 2022, Avio Lucos (C‑176/20, EU:C:2022:274, paragraph 54).
21 See the judgment under appeal, paragraph 71.
22 Ibid.
23 Emphasis added.
24 The other language versions likewise use terms equivalent to the term ‘who’, thereby requiring a direct causal link between the applicant for aid and the exercise of the activities on the list of exclusion (see, in particular, ‘přímé platby se neposkytnou fyzickým či právnickým osobám ani skupinám fyzických či právnických osob, které provozují …’ in the Czech-language version‚ ‘[n]atürlichen oder juristischen Personen oder Vereinigungen natürlicher oder juristischer Personen, die … betreiben sowie … erbringen, werden keine Direktzahlungen gewährt’ in the German-language version, ‘aucun paiement direct n’est octroyé à des personnes physiques ou morales ni à des groupements de personnes physiques ou morales qui exploitent …’ in the French-language version and ‘ Δεν χορηγούνται άμεσες ενισχύσεις σε φυσικά ή νομικά πρόσωπα, ή σε ομάδες φυσικών ή νομικών προσώπων, που διευθύνουν …’ in the Greek-language version. Emphasis added.
25 It thereby referred to the judgment of 7 April 2022, Avio Lucos (C‑176/20, EU:C:2022:274, paragraph 54).
26 See the judgment under appeal, paragraphs 97 and 98.
27 I wish to point out that, contrary to what the Czech Republic argues, I do not, however, see a problem to the extent that an aid applicant could be classified as an ‘active farmer’ despite not carrying out an agricultural activity itself, simply on the basis that one of the companies related to it carries out such an activity. From my understanding, that situation would be easily captured by the presumption in the first subparagraph of Article 9(2) of Regulation No 1307/2013, since that aid applicant then directly carries out one of the activities on the list of exclusions.
28 Judgment of 13 June 2024 (C‑731/22, ‘the judgment in Agrarmarkt Austria’, EU:C:2024:503).
29 The judgment in Agrarmarkt Austria, paragraphs 34 and 36.
30 The judgment in Agrarmarkt Austria, paragraph 23.
31 The judgment in Agrarmarkt Austria, paragraphs 34 to 36.
32 See the judgment under appeal, paragraph 105.
33 See the judgment under appeal, paragraph 104.
34 This reasoning seems to be based by analogy on the explanations provided for in Article 13 of Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 supplementing Regulation (EU) No 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and amending Annex X to that Regulation (OJ 2014 L 181, p. 1), which provides criteria for proving that agricultural activities are not insignificant and refers in that regard to ‘the total receipts obtained from agricultural activities’.
35 See, in that regard, paragraphs 107 to 111 of the judgment under appeal. The General Court further argued in paragraph 109 of the judgment under appeal that it is clear from the wording of Article 60 of Regulation No 1306/2013 (‘natural or legal person’) that that article does not apply to the scenario of a group applying for direct payment. Article 2 thereof, however, refers to the definition of a ‘farmer’ within the meaning of Article 4 of Regulation No 1307/2013. I therefore conclude that Article 60 of Regulation No 1306/2013 expresses the general idea that in circumstances such as the ones described in that provision, no advantage should be granted and that that provision therefore also covers ‘groups’.
36 See, in that regard, judgment of 7 April 2022, Avio Lucos (C‑176/20, EU:C:2022:274, paragraph 70 and the case-law cited).
37 See, in that regard, the judgment under appeal, paragraph 109 and the case-law cited.
38 Ibid.
39 I recall that, according to recital 10 of Regulation No 1307/2013, ‘experience acquired in the application of the various support schemes for farmers has shown that support was in a number of cases granted to natural or legal persons whose business purpose was not, or was only marginally targeted at an agricultural activity. To ensure that support is better targeted, Member States should refrain from granting direct payments to certain natural and legal persons unless such persons can demonstrate that their agricultural activity is not marginal. …’
40 See, in that regard, judgments of 5 May 2015, Spain v Council (C‑147/13, EU:C:2015:299, paragraph 79 and the case-law cited), and of 17 November 2022, Avicarvil Farms (C‑443/21, EU:C:2022:899, paragraph 46).
41 See, in that regard, judgment of 6 September 2018, Czech Republic v Commission (C‑4/17 P, EU:C:2018:678, paragraph 58).
