1.

The common agricultural policy is traditionally associated with agricultural over-production, the so-called milk lakes and butter mountains. Regulation (EC) No 1782/2003, ( 2 ) however, uncoupled support for European agriculture from the production of individual farms. That scheme introduced the single payment, which did not depend on production.

2.

With the transition to the new system, the amount of the single payment is determined by reference to direct payments received by the farm in question under the previous scheme over the course of certain reference periods. Those payments were still based on production figures.

3.

If, however, during those periods, farms took part in agri-environmental measures, their production was likely to have been significantly reduced, with the result that they will have received smaller direct payments than similar farms. Consequently, for cases of hardship, Regulation No 1782/2003 lays down provisions the effect of which is to take into account, for the calculation of the single payment, only reference periods which were not affected by participation in agri-environmental measures

4.

The present request for a preliminary ruling concerns French provisions on the definition of cases of hardship. The Confédération paysanne objects to the fact that single payments for farms which participated in agri-environmental measures are calculated on the basis of direct payments received for earlier periods, and complains that France takes into account even periods before the reference periods laid down in the regulation. In that connection it is also necessary to clarify whether the hardship rules are applicable only if a farm’s production is ‘seriously’ affected by agri-environmental measures, as laid down by the French version of the regulation, or whether a mere adverse effect is sufficient, which would be in line with the other language versions.

5.

With regard to the calculation of aid for farmers under Regulation No 1782/2003, recital 29 in the preamble thereto states as follows:

‘In order to establish the amount to which a farmer should be entitled under the new scheme, it is appropriate to refer to the amounts granted to him during a reference period. …’

6.

The corresponding provision is laid down in Article 37(1) of the regulation:

‘The reference amount shall be the three-year average of the total amounts of payments which a farmer was granted … in each calendar year of the reference period referred to in Article 38. …’

7.

Under Article 38 of Regulation No 1782/2003, the reference period comprises the calendar years 2000, 2001 and 2002.

8.

Article 40 of Regulation No 1782/2003 provides as follows for cases of hardship:

‘1.   By way of derogation from Article 37, a farmer whose production was adversely affected during the reference period by a case of force majeure or exceptional circumstances occurring before or during that reference period shall be entitled to request that the reference amount be calculated on the basis of the calendar year or years in the reference period not affected by the case of force majeure or exceptional circumstances.

2.   If the whole reference period was affected by the case of force majeure or exceptional circumstances, the Member State shall calculate the reference amount on the basis of the 1997 to 1999 period.

… In those cases, paragraph 1 shall apply mutatis mutandis.

…

5.   Paragraphs 1, 2 and 3 of this Article shall apply, mutatis mutandis, to farmers who, during the reference period, were under agri-environmental commitments according to Regulations (EEC) No 2078/92 [ ( 3 )] and (EC) No 1257/1999 [ ( 4 )]. …

In the case where the measures referred to in the first subparagraph covered both the reference period and the period referred to in paragraph 2, Member States shall establish, according to objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, a reference amount in accordance with the detailed rules …’

9.

The abovementioned detailed rules in Regulation No 795/2004 ( 5 ) are irrelevant for purposes of the present request for a preliminary ruling.

10.

With effect from 1 January 2009, Regulation No 1782/2003 was repealed in accordance with Articles 146 and 149 of Regulation No 73/2009 ( 6 ) and replaced by the latter regulation. Article 33(1)(a) of Regulation No 73/2009 provides that single payments are to be determined according to payment entitlements under Regulation No 1782/2003.

11.

The ninth paragraph of Article 1 of Decree No 2006-710 of 19 June 2006 on the implementation of the income support provided for by Regulation No 1782/2003 defines the hardship rules by providing that, in relation to agri-environmental measures, those rules are to apply only when they result in a 20% reduction in direct payments by comparison with periods during which the farm was not participating in such measures:

‘For the application of Article 40(5) of [Regulation No 1782/2003] … consideration shall be given only to those agri-environmental commitments listed by order of the Minister for Agriculture and which, as the case may be, would have resulted in a reduction equivalent to at least 20%:

12.

Article 7 of the Order of 20 November 2006 applying Decree No 2006-710 of 19 June 2006, as amended by the Order of 23 February 2010, supplements that provision with calculation rules and makes it clear that the comparison year is the last year during which no agri-environmental measure was put into effect. However, that year must not be earlier than 1992:

‘Article 7 – (1)   Where a farmer was subject to one of the agri-environmental commitments defined in Article 3 of this Order during each of the three years of the reference period, the rate of reduction calculated for the purposes of applying the ninth paragraph of Article 1 of the abovementioned Decree of 19 June 2006 shall correspond to the ratio between:

…

(2)   Where the rate of reduction calculated in accordance with paragraph 1 reaches the threshold of 20% referred to in the ninth paragraph of Article 1 of the abovementioned Decree of 19 June 2006, an amount shall be added to its reference amount, calculated in accordance with Article 37 of the abovementioned Regulation No 1782/2003 …

The amount to be added shall be equal to the difference between the amount of the aid received during the last year not affected by an agri-environmental commitment and the average of the amounts of aid received during the reference period.

(3)   For the application of the present article, the last year not affected by an agri-environmental commitment shall not be earlier than 1992.’

13.

The Confédération paysanne is an association which represents the interests of French farmers. It has applied to the Conseil d’État (Council of State) in an action for review of the abovementioned French legislation designed to define the cases of hardship under Article 40 of Regulation No 1782/2003. The Confédération paysanne criticises the calculation of the single payment on the basis of direct payments made during earlier periods and challenges the fact that periods earlier than the reference periods laid down by that regulation are taken into account.

14.

In those proceedings, the French Conseil d’État has for that reason referred the following questions to the Court:

15.

In the proceedings, written observations were submitted by the Confédération paysanne, the French Republic and the European Commission, and all three presented oral argument at the hearing held on 18 April 2013.

16.

In order to reply to the questions referred, it is necessary first to set out the system governing the rules for cases of hardship under Article 40 of Regulation No 1782/2003 (see A below). To provide a helpful reply to the request for a preliminary ruling, ( 7 ) it will then be necessary to consider in more detail the matter of the adverse effect on production (see B below). Finally, there is the question of how far the amount of direct payments, and not the adverse effect on production, may be decisive (see C below), and the question of which reference periods may be taken into account (see D below).

17.

Direct payments under Regulation No 1782/2003, the so-called single payments, are calculated on the basis of reference amounts in accordance with Articles 37 and 38 of that regulation. They are based on the direct payments received by the respective farmers in the calendar years 2000, 2001 and 2002 in accordance with the rules previously in force.

18.

The new single payment does not depend on the level of current production. However, the earlier production figures indirectly influence the amount because the direct payments used in the past were based on the production figures at that time.

19.

However, the amount of the direct payments could be reduced if the farmer had participated in agri-environmental measures during that reference period, since such measures frequently result in reduced production. Consequently, the first subparagraph of Article 40(5) of Regulation No 1782/2003 treats periods during which farmers had agri-environmental commitments as periods during which production was affected by force majeure or exceptional circumstances.

20.

If production is adversely affected by force majeure or exceptional circumstances, the farmer may, under Article 40(1) of Regulation No 1782/2003, apply for the reference amount to be calculated without taking into account the periods adversely affected. Therefore, where production is adversely affected by agri-environmental commitments within the meaning of the first subparagraph of Article 40(5), the period during which those commitments were carried out is not taken into account. ( 8 ) The concept of adverse effect will be discussed in detail below. ( 9 )

21.

However, if the output of the farm was adversely affected by agri-environmental measures in the calendar years 2000, 2001 and 2002 as a whole, some other comparison period must be used. According to Article 40(2) of Regulation No 1782/2003, that period is the period from 1997 to 1999.

22.

However, if involvement in agri-environmental measures extended also to that substitute period, the reference amount must be calculated in a different way. In those cases the Member States must, in accordance with the second subparagraph of Article 40(5) of Regulation No 1782/2003, lay down a reference amount in accordance with objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions.

23.

The questions referred by the Conseil d’État seek to determine whether certain methods of increasing the reference amount under Article 40(1), (2) and (5) of Regulation No 1782/2003 are permissible. On the basis of the French version of the regulation, the Conseil d’État proceeds on the basis that a case of hardship within the meaning of that provision presupposes a serious adverse effect. The Commission, in particular, concludes from this that the Member States have a broad legislative discretion.

24.

Of the original language versions of Regulation No 1782/2003, which was adopted in eleven languages, the French version is the only one which qualifies the adverse effect as ‘serious’. The Spanish, Italian, Portuguese and Finnish versions, by contrast, correspond to the German version, which requires only an adverse effect. In the other versions, that is to say, the Danish, Greek, English, Dutch and Swedish versions, an ‘adverse influence’ is required and, therefore, not a serious adverse effect.

25.

The different language versions of a provision of EU law must be uniformly interpreted. In the case of divergence between those versions, the provision in question must therefore in principle be interpreted by reference to the purpose and general scheme of the rules of which it forms part. ( 10 ) A provision the language versions of which differ is also to be interpreted on the basis of the real intention of its author. ( 11 )

26.

The necessary degree of the adverse effect is not mentioned in the available information on the legislative procedure. The different language versions exist already in Article 43(1) of the Commission proposal, which in essence already provided for the general hardship rules under Article 40(1) to (4) of Regulation No 1782/2003. ( 12 ) However, the documentation on the Council discussions contains a reference to the purpose of including adverse effects resulting from agri-environmental measures in the hardship rules. ( 13 ) There was seen to be a parallel with cases in which farmers were entitled to additional milk quotas because they had discontinued production during certain reference periods in return for the payment of a premium. ( 14 )

27.

Just like those dairy farmers, a farmer who has entered into agri-environmental commitments pursuant to Regulations No 2078/92 and No 1257/1999 cannot for that reason be placed at a disadvantage in the context of a subsequent European Union support scheme. That farmer could not have been in a position to foresee that his decision might have consequences for future direct payments on the basis of a regulation adopted at a later date. ( 15 ) There would, however, be a risk of such a disadvantage if direct payments which depended on production and which were reduced as a result of participation in agri-environmental measures having an adverse effect on production were to be used to calculate the single payment, which is no longer related to production.

28.

Consequently, the inclusion of agri-environmental measures in Article 40 of Regulation No 1782/2003 is designed not solely to avoid unfair hardship. According to the Court, Article 40(5) and (1) of that regulation gives effect, rather, to the principle of legal certainty. According to that general principle of EU law, EU rules binding on individuals must be clear and precise so that those individuals may know without ambiguity what are their rights and obligations and may take steps accordingly. ( 16 ) That principle must be observed all the more strictly in the case of a measure liable to have financial consequences. ( 17 )

29.

Since, at the time of participation in agri-environmental measures, it was not apparent that future claims for assistance could be jeopardised, the rules for calculating the single payment had to be supplemented by Article 40(5) of Regulation No 1782/2003 in such a way that farmers with agri-environmental commitments would not be penalised by reason of the fact that they were under such commitments during the reference period. ( 18 )

30.

To be precise, however, more is involved than the principle of legal certainty. Above all, in accordance with the principle of the protection of legitimate expectations, farmers were entitled to expect that they would not be placed at a disadvantage in relation to future European Union support as a result of their participation in fixed-term agri-environmental measures. ( 19 ) Furthermore, it could be contrary to the principle of equality to treat farmers who have taken part in agri-environmental measures in the same way as farmers who produced normally. Finally, farmers would be deterred from taking part in future agri-environmental measures if support were reduced as a result after the termination of the measure. That would be contrary to the European Union objective of aiming at a high level of protection of the environment pursuant to Article 191 TFEU and Article 37 of the Charter of Fundamental Rights. Under Article 11 TFEU, ( 20 ) that objective must be taken into account in all policies of the Union, and thus also in the common agricultural policy.

31.

Against that background, there is no reason to limit the hardship rules to serious adverse effects on production where it is affected by agri-environmental measures. On the contrary, even slightly adverse effects must in principle be offset. For the purpose of calculating the reference amount under Article 40 of Regulation No 1782/2003, the aim must be to treat farmers who have taken part in agri-environmental measures as if their production had been normal.

32.

Therefore, contrary to the Commission’s view, the Member States cannot be given a broad scope for legislation with regard to defining the concept of adverse effect. There is particular doubt as to the 20% threshold in France for a reduction in direct payments. On a de minimis basis, the Member States may at most except from the hardship rules totally insignificant adverse effects where the administrative costs would be disproportionate to the benefits to the farms concerned. ( 21 )

33.

It is not necessary to decide here whether these considerations must be applied to cases of force majeure or exceptional circumstances under Article 40(1) of Regulation No 1782/2003. Contrary to the view expressed by France, it would not be an infringement of the principle of equal treatment if the farms in question were treated differently from those which had taken part in agri-environmental measures. Only the latter can rely on the principles of legal certainty and the protection of legitimate expectations, as well as the protection of the environment, which may justify differences when the transition is made to the single payment.

34.

To sum up, the necessary conclusion is that claims under Article 40(1) and (5) of Regulation No 1782/2003 require that a farmer’s production during the reference period must have been adversely affected by commitments made in connection with agri-environmental measures; the adverse effect need not be serious.

35.

By the first question, the Conseil d’État seeks to determine whether Article 40(1) and (5) of Regulation No 1782/2003 permits the Member States to base the right to revalorisation of the reference amount for farmers whose production was adversely affected by reason of commitments made in connection with agri-environmental measures to which they had been subject for all or part of the reference period on a comparison between the direct payments received in the years which were affected and those received in the years which were not affected.

36.

This question appears to relate to the amount of the compensation entitlement under Article 40(1) of Regulation No 1782/2003, that is to say, the legal consequence of that provision. However, it also relates to one of its conditions, namely, the adverse effect on production, as the revalorisation of the reference amount is intended precisely to offset the consequences of that adverse effect.

37.

The Confédération paysanne correctly points out that Article 40(1) of Regulation No 1782/2003 does not presuppose a reduction in direct payments, but an adverse effect on production.

38.

However, as the Commission contends, Article 40(1) does not regulate how that adverse effect is to be determined. France and the Commission, moreover, state, without being challenged, that direct payments prior to 2003 were based on a farm’s production. Those direct payments are, consequently, a suitable yardstick for the production volume.

39.

As France further points out, the EU legislature has also used the amount of payments in the past as a measure for the future single payment. The first sentence of recital 29 in the preamble to Regulation No 1782/2003 states that, in order to establish the amount to which a farmer should be entitled under the new scheme, it is appropriate to refer to the amounts granted to him during a reference period. Article 37 gives effect to that aim by laying down that the decisive reference amount is normally to be the average of the payments received by the farmer during the reference period mentioned in Article 38. If production was adversely affected within the meaning of Article 40(1) during the whole reference period, Article 40(2) provides instead that the reference amount is to be calculated on the basis of the period from 1997 to 1999.

40.

Consequently, it conforms precisely with the system of Regulation No 1782/2003 to calculate the single payment on the basis of the direct payments during 2000 to 2003 or, alternatively, during the period from 1997 to 1999. How far reference may be made to earlier years is a matter for consideration in the context of the reply to the second question.

41.

The Confédération paysanne objects, admittedly, that Regulation No 1257/1999 and the implementing Regulation (EC) No 445/2002 ( 22 ) calculate financial aid for agri-environmental measures by reference to the limitations on production. However, that is a different regulation system which was not adopted by the EU legislature for the hardship provisions of Regulation No 1782/2003.

42.

The reply to the first question must therefore be that Article 40(1), (2) and (5), first subparagraph, and Articles 37 and 38 of Regulation (EC) No 1782/2003 require the Member States to base the right to revalorisation of the reference amount for farmers whose production was seriously affected by commitments made in connection with agri-environmental measures to which they were subject for all or part of the reference period on a comparison between the direct payments received in the years affected and those received in the years not affected.

43.

The second question seeks to clarify whether Article 40(2) and (5) of Regulation (EC) No 1782/2003 permits the Member States to base the right to revalorisation of the reference amount for farmers whose production has been seriously affected by commitments made in connection with agri-environmental measures to which they were subject during 1997 and 2002 on a comparison between the amount of direct payments received in the last year not affected by an agri-environmental commitment and the annual average amount of direct payments received in the reference period. By virtue of Article 7(3) of the Order of 20 November 2006, as amended by the Order of 23 February 2010, the years not affected are 1992 to 1996.

44.

The French scheme is based on the second subparagraph of Article 40(5) of Regulation No 1782/2003. Under that provision, France is required to establish a reference amount according to objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions.

45.

France and the Commission submit that reference to earlier production periods is in principle an objective criterion. However, it is questionable whether this ensures equal treatment as between farmers. To that extent, it is first necessary to establish what legislative scope is available to the Member States for the purpose of ensuring equal treatment.

46.

The Court has allowed the Member States a relatively generous scope for a rule similar to the second subparagraph of Article 40(5) of Regulation No 1782/2003. The rule in question is Article 42(4), which requires Member States to establish additional reference amounts for farmers in a special situation. Like the second subparagraph of Article 40(5), Article 42(4) provides for the application of objective criteria in such a way as to ensure equal treatment among farmers and to avoid market and competition distortions. For that purpose the Member States may establish reference amounts of EUR 0 and apply threshold values of EUR 500. ( 23 )

47.

However, in spite of the similarities of wording, the second subparagraph of Article 40(5) and Article 42(4) of Regulation No 1782/2003 are not comparable with regard to their aims. The former is intended to give effect to the principles of the protection of legitimate expectations and legal certainty, ( 24 ) whereas the latter applies to situations in which precisely no legitimate expectations exist. ( 25 )

48.

Consequently, the regulatory scope under Article 42(4) of Regulation No 1782/2003 cannot be transposed to the second subparagraph of Article 40(5). Rather, in the case of the latter provision, the conclusions that were drawn from the concept of adverse effect apply. ( 26 ) The Member States thus have a limited regulatory scope.

49.

Strict criteria must therefore be applied in the determination of whether a Member State’s measures ensure equal treatment of farmers. Particular account must be taken of the approach taken by the EU legislature. It has expressly limited to the years 1997 to 2002 the earlier production periods to which reference may be made, although it could easily have included earlier periods. It must therefore be presumed that it did not consider that production in all periods prior to 1997 was comparable to that in the period 2000 to 2002. That assessment would be undermined if the Member States could simply revert to earlier periods in establishing their own hardship rules under the second subparagraph of Article 40(5) of Regulation No 1782/2003.

50.

This appraisal is confirmed by the Commission’s submissions for 1992 and 1993 in particular. According to these, total direct payments in France in those years were approximately 10% of the payments in later years. Consequently, it is scarcely possible that reasonable compensation for adverse effects could have been achieved on the basis of payments in those years.

51.

Against this, according to the Commission, in France in 1995 and 1996 the total figure for direct payments was approximately the same as in the subsequent years, and in 1994 it was still approximately 75%.

52.

However, it cannot be concluded from this that the payments in 1995 and 1996 or perhaps even in 1994 could have been used as a basis for comparison, contrary to the legislature’s assessment. There is no guarantee at all that even individual direct payments in those years were comparable to the payments from the period 1997 to 2002.

53.

Consequently, the second subparagraph of Article 40(5) of Regulation No 1782/2003 does not permit the Member States to lay down further reference periods which go beyond those in Articles 38 and 40(2).

54.

The purpose of a Member State’s legislation under the second subparagraph of Article 40(5) of Regulation No 1782/2003 must rather be to place the farmers affected in the position they would have been in with regard to the calculation of the reference amount if they had not taken part in agri-environmental measures in the period from 2000 to 2002.

55.

The calculation of the reference amount favoured by the Confédération paysanne on the basis of the actual production adversely affected would appear suitable in principle for attaining that objective. In order to determine the adverse effect, it would be possible, for example, to go back to comparable farms or areas, or to refer to production before the agri-environmental measures began. It would then be possible to calculate what the direct payments would have been in the years from 2000 to 2002 without the agri-environmental measures. Since, according to the information provided by France, only very few cases cannot be decided on the basis of direct payments during the years from 1997 to 2002, this somewhat more laborious procedure could reasonably be used.

56.

However, other methods may also be suitable for providing full compensation for the consequences of adverse effects on production. Therefore it cannot be said that adverse effects constitute the only permissible criterion for transposing the second subparagraph of Article 40(5) of Regulation No 1782/2003.

57.

The reply to the second question must therefore be that Article 40(2) and (5) of Regulation (EC) No 1782/2003 does not permit the Member States to base the right to revalorisation of the reference amount for farmers whose production was adversely affected by reason of commitments made in connection with agri-environmental measures to which they were subject during 1997 and 2002 on a comparison between the amount of direct payments received during the last year not affected by commitments in connection with agri-environmental measures and the annual average amount of direct payments received in the reference period. Rather, in calculating the reference amount by applying the second subparagraph of Article 40(5) of Regulation No 1782/2003, the farms affected must be placed in the position in which they would have been if they had not taken part in agri-environmental measures in the period from 2000 to 2002.

58.

I therefore propose that the Court rule as follows: