Case C‑516/16

Erzeugerorganisation Tiefkühlgemüse eGen

v

Agrarmarkt Austria

(Request for a preliminary ruling from the Bundesverwaltungsgericht)

(Reference for a preliminary ruling — Agriculture — Common organisation of the markets — Operational programme in the fruit and vegetables sector — Regulation (EC) No 1234/2007, as amended by Regulation (EC) No 361/2008 — Articles 103b, 103d and 103g — EU financial aid — Regulation (EU) No 543/2011 — Article 60 and point 23 of Annex IX — Investments on the holdings and/or premises of the producer organisations — Concept — Legitimate expectations — Legal certainty)

Summary — Judgment of the Court (Seventh Chamber), 20 December 2017

1. Agriculture—Common organisation of the markets—Fruit and vegetables—Producers’ organisations—EU financial aid—Investments on the holdings and/or premises of the producer organisations—Meaning

   (Commission Regulation No 543/2011, Annex IX, point 23)

2. Agriculture—Common organisation of the markets—Fruit and vegetables—Producers’ organisations—EU financial aid—Refusal to pay the amount of the financial aid and claim for reimbursement of the aid unduly paid—Protection of legitimate expectations—None

   (Commission Regulation No 543/2011, Annex IX, point 23)

3. Questions referred for a preliminary ruling—Admissibility—Limits—Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

   (Art. 267 TFEU)

4. Own resources of the European Union—Aid co-financed by the EU which has been unduly paid—No recovery—Lawfulness—Conditions

1.  Point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, in so far as it refers to investments made ‘on holdings and/or premises of producer organisations’, must be interpreted as meaning that:

   –

   the mere fact that an investment made in the context of an operational programme covered by Article 60(1) of that regulation is located on land which is owned by a third party, and not the producer organisation concerned, is not, in principle, under point 23 of Annex IX, a ground for non-eligibility of aid for the expenditure incurred, by that producer organisation, in respect of that investment;

   –	point 23 of Annex IX relates to investments made on holdings and/or premises which are, in law and in fact, under the exclusive control of that producer organisation, so that any use of those investments for the benefit of a third party be excluded.

   (see operative part 1)

2.  The principle of the protection of legitimate expectations must be interpreted as not precluding, in circumstances such as those at issue in the case in the main proceedings, the competent national authority, first, refusing payment of the amount of the financial aid which had been requested by a producer organisation for an investment finally considered to be ineligible for that aid pursuant to point 23 of Annex IX to Implementing Regulation No 543/2011 and, second, requesting the producer organisation to reimburse the aid already received for that investment.

   In that regard, it should be recalled that the exercise by a Member State of any discretion to decide whether or not it would be expedient to demand repayment of EU funds unduly or irregularly granted would be inconsistent with the duty under the common agricultural policy for national administrations to recover such funds (see, to that effect, inter alia, judgment of 21 September 1983, Deutsche Milchkontor and Others, 205/82 to 215/82, EU:C:1983:233, paragraph 22).

   Following settled case-law of the Court, the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law; nor can the conduct of a national authority responsible for applying EU law, which acts in breach of that law, give rise to a legitimate expectation on the part of a trader of beneficial treatment contrary to EU law (judgments of 1 April 1993, Lageder and Others, C‑31/91 to C‑44/91, EU:C:1993:132, paragraph 35, and of 20 June 2013, Agroferm, C‑568/11, EU:C:2013:407, paragraph 52).

   Moreover, when approving the operational programme concerned, it was already well established that, in the context of financing the common agricultural policy, a strict interpretation of the conditions for the European Union taking over costs was necessary, since the management of the common agricultural policy, on the basis of equality between traders in the Member States, requires that the national authorities of a Member State, by means of a wide interpretation of a specific provision, should not favour traders of that Member State (see, to that effect, judgment of 27 February 1985, Italy v Commission, 55/83, EU:C:1985:84, paragraph 31 and the case-law cited, and of 6 November 2014, Netherlands v Commission, C‑610/13 P, not published, EU:C:2014:2349, paragraph 41).

   (see paras 68, 69, 71, operative part 2)

3.  See the text of the decision.

   (see paras 80, 82)

4.  In circumstances such as those at issue in the case in the main proceedings, EU law must be interpreted as meaning that, in the absence of a temporal limitation of the effects of the present judgment, it does not preclude the principle of legal certainty being taken into account in order to exclude the recovery of aid unduly paid, provided that the conditions laid down be the same as for the recovery of purely national financial payments, that the interests of the European Union be taken fully into account and that the good faith of the beneficiary of the aid be established.

   Accordingly, it cannot be regarded as contrary to EU law for national law, as far as the recovery of sums wrongly paid by public authorities are concerned, to take into account, in addition to the principle of legality, the principle of legal certainty, since the latter principle forms part of the legal order of the European Union (judgments of 19 September 2002, Huber, C‑336/00, EU:C:2002:509, paragraph 56 and the case-law cited, and of 21 June 2007, ROM-projecten, C‑158/06, EU:C:2007:370, paragraph 24).

   In particular, the principle of legal certainly requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (judgment of 21 June 2007, ROM-projecten, C‑158/06, EU:C:2007:370, paragraph 25 and the case-law cited).

   That being so, the EU’s interest in recovering aid which has been received in infringement of the conditions for granting it must be fully taken into account when assessing the interests in question, including — notwithstanding what has been pointed out in the preceding paragraph — whether the principle of legal certainty precludes the recipient of the aid from being required to repay it (judgments of 19 September 2002, Huber, C‑336/00, EU:C:2002:509, paragraph 57 and the case-law cited, and of 21 June 2007, ROM-projecten, C‑158/06, EU:C:2007:370, paragraph 32).

   Moreover, the beneficiary of aid may challenge a demand for recovery only if he acted in good faith when applying for it (judgment of 19 September 2002, Huber, C‑336/00, EU:C:2002:509, paragraph 58 and the case-law cited).

   (see paras 97, 98, 100, 101, operative part 3)