1.

As has already been shown by a number of cases, ( 2 ) 2003 marked a turning point in the system of direct income support for farmers within the European Union. Production-related aid was essentially replaced by the ‘single payment’, the amount of which is no longer influenced by a holding’s current production.

2.

However, a farmer’s previous production was still of crucial importance for the initial assessment of the payment to which he was entitled under the new scheme. The payment was based, in principle, on the amount of aid received under the old, production-related system during the period from 2000 to 2002, which was fixed as the reference period.

3.

If production was adversely affected for certain reasons during that period, this inevitably had repercussions on the amount of the single payment. Such consequences were to be countered by a hardship case rule which allowed the reference period to be modified.

4.

Furthermore, under certain conditions the new system also offered the possibility to claim payment entitlements from a ‘national reserve’.

5.

The present case concerns a farmer who was not eligible for allocations from the national reserve because he had already benefited from the hardship case rule in order to adjust the reference period. A specific best value rule precludes a cumulation of entitlements. It will be necessary to clarify hereinafter the interpretation and validity of that provision.

6.

The relevant EU legislation in this case is Regulation No 1782/2003 ( 3 ) (‘the Basic Regulation’), which is now no longer in force, and its Implementing Regulation No 795/2004 ( 4 ) (‘the Implementing Regulation’).

7.

At the heart of the Basic Regulation lie rules on the single payment. For the most part, the single payment summarises the production-related income support which had been provided for farmers up to then.

8.

Recital 29 in the preamble states:

‘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. To take account of specific situations, a national reserve should be established. That reserve may also be used to facilitate the participation of new farmers in the scheme.’

9.

Under Article 22 (‘Aid applications’), a farmer must, each year, submit an application for direct payments subject to the integrated system, indicating, inter alia, all agricultural parcels of the holding and the number and amount of payment entitlements.

10.

Article 37(1) provides that a reference amount is to be used in the calculation of the amount of aid. The reference amount is the three-year average of the total amounts of payments which a farmer was granted in each calendar year of the reference period.

11.

Under Article 38, the reference period comprises the calendar years 2000, 2001 and 2002.

12.

Article 40 provides that a farmer whose production was adversely affected during the reference period by a case of force majeure or exceptional circumstances is entitled, by way of derogation from Article 37, to request that the reference amount be calculated on the basis of the unaffected calendar year or years (hereinafter also referred to as ‘the hardship case rule’).

13.

Under Article 40(5), the case, inter alia, of farmers who, during the reference period, were under agri-environmental commitments is treated as constituting a hardship case.

14.

Article 42 contains rules on the national reserve. Under paragraphs 1 and 7 thereof, Member States are required to proceed to a linear percentage reduction of the reference amounts in order to satisfy claims. Article 42(3) to (5) indicates cases in which the national reserve may be used.

15.

Under Article 42(3) and (5), the Member States may use the national reserve to grant reference amounts to farmers who have commenced their agricultural activity or who are subject to certain national restructuring and/or development programmes.

16.

Article 42(4) states:

‘Member States shall use the national reserve for the purpose of establishing, according to objective criteria and in such a way as to ensure equal treatment between farmers and to avoid market and competition distortions, reference amounts for farmers finding themselves in a special situation, to be defined by the Commission …’

17.

Recital 13 in the preamble to the Implementing Regulation states:

‘Article 42(4) of [the Basic Regulation] allows the Commission to define the special situations which shall give right to the establishment of reference amounts for certain farmers finding themselves in situations which prevented them, in full or partially, from receiving direct payments in the reference period. It is therefore appropriate to list those special situations by providing for rules in order to avoid cumulating the benefit from the different allocation of payment entitlements on the same farmer without prejudice to the possibility for the Commission to add further cases where the case may be. Moreover, Member States should be given the flexibility to establish the reference amount to be allocated.’

18.

Article 12 concerns applications for the initial allocation of payment entitlements. Article 12(8) includes the following provision:

‘Except for the purpose of establishing payment entitlements from the national reserve referred to in Articles ... 18 to 23a ... no parcel needs to be declared for the purpose of the establishment of the payment entitlements. …’

19.

Article 18(1) provides that the term ‘farmers in a special situation’ refers to farmers to whom Articles 19 to 23a of the Implementing Regulation may be applied. Those articles concern cases in which a farmer did not, for particular reasons, receive direct payments in full or partially in the reference period.

20.

Article 18(2) lays down a prohibition on cumulation in the form of a best value rule:

‘In cases where a farmer in a special situation meets the condition for applying two or more of Articles 19 to 23a [of the Implementing Regulation] or Articles 37(2), 40, 42(3) or 42(5) of [the Basic Regulation], he shall receive a number of payment entitlements not higher than the number of hectares he declares in the first year of application of the single payment scheme and whose value shall be the highest value he may obtain by applying separately each of the Articles for which he meets the conditions.’

21.

Under Article 22, the purchase of leased land constitutes a special situation. A farmer receives payment entitlements if he bought a holding whose land was under a lease during the reference period, with the intention to commence or expand his agricultural activity within one year after the expiry of the lease, and if certain other conditions are satisfied.

22.

Mr Feakins was a farmer in the United Kingdom. In 2001 his entire stock had to be slaughtered because of the foot and mouth disease epidemic, with the result that he was unable to restock until 2002 and could no longer farm his holding.

23.

Consequently, in response to his application, the reference amount for the calculation of the single payment was established on the basis of the hardship case rule in the Basic Regulation. The year 2000 was used as the reference period.

24.

In 2002 Mr Feakins purchased two other farms, each of which was leased to third parties at that time. Mr Feakins intended to farm them himself when the leases expired and in 2005 and in 2007 respectively he obtained vacant possession of those farms. In those two years he submitted aid applications for the farms. Mr Feakins had already, in 2005, applied for a provisional allocation of payment entitlements from the national reserve under Article 22 of the Implementing Regulation.

25.

The authorities approved the provisional allocation, but subsequently invoked the best value rule. Mr Feakins was, as a result, refused payment entitlements from the national reserve because the hardship case rule under Article 40 of the Basic Regulation had already been applied to him in establishing his reference amount.

26.

Mr Feakins appealed to the Scottish Land Court, the referring court. That court has doubts as to the interpretation and validity of the best value rule and refers the following three questions to the Court:

27.

In the proceedings before the Court, Mr Feakins, the Scottish Ministers, the Commission and Greece submitted written observations and took part in the hearing on 30 April 2014.

28.

In order to answer the questions referred for a preliminary ruling, it makes sense to begin by clarifying the broad logic of the single payment scheme.

29.

Articles 37 and 38 of the Basic Regulation define the basic rule for the calculation of the single payment. The determinant factor under those provisions is provided by the direct payments which a farmer received in the reference period before the system was reorganised.

30.

Provision is made for certain exceptions to that basic rule. The main exceptions are the hardship case rule in Article 40 of the Basic Regulation and cases which give entitlement to allocations from the national reserve under Article 42 of the Basic Regulation.

31.

If more than one exception to the basic rule for the calculation of the single payment is applicable to a farmer, he is only able, under a best value rule contained in the Implementing Regulation — but not in the Basic Regulation — to rely on the derogating provision which offers him the greatest benefit. The intention thereby is to preclude a cumulation of entitlements. ( 5 )

32.

With regard to the best value rule, the referring court is now asking about both its interpretation (see under B) and its validity (see under C). A further question seeks clarification as to whether the competent authorities were effectively notified of the number of hectares of a farm in an application for provisional approval of payment entitlements from the national reserve or only when they were declared in the application for actual payment (‘IACS form’) submitted by the farmer (see under D). Aside from these questions, the possibility of a limitation of the temporal effects of the Court’s judgment must also be examined (see under E).

33.

By its first question, the referring court essentially seeks clarification as to the interpretation of the best value rule. That interpretation is a matter of dispute between the parties to the proceedings because the best value rule refers both to provisions of the Basic Regulation and to provisions of the Implementing Regulation.

34.

Most of the parties take the view that, on the basis of a ‘conjunctive’ approach, all of the provisions cited must be considered to have equal ranking and to be subject to the prohibition on cumulation. On the other hand, on the basis of a ‘disjunctive’ approach, advocated by Mr Feakins, the best value rule would be construed as referring to two different groupings of provisions: Articles 19 to 23a of the Implementing Regulation and Articles 37(2), 40 and 42(3) and (5) of the Basic Regulation. The latter reading is supported by the fact that both groupings are, as it were, linked linguistically, for example by the phrase ‘oder von’ in the German version, but are at the same time also contrasted with one another.

35.

In the case of Mr Feakins, the consequence of the first approach is that, because he had recourse to the hardship case rule on account of an epizootic, he could no longer claim any parallel payment entitlements under Article 22 of the Implementing Regulation. On an interpretation of the best value rule based on the second approach, however, that possibility would certainly appear to exist.

36.

The referring court takes the understandable view that the natural reading of the best value rule points to the conjunctive approach. If the author of the regulation had intended to demarcate two separate groupings of provisions and wished the prohibition on cumulation to apply only within each grouping, it is likely that, having recognised the risk of ambiguity, matters would have been spelt out more clearly.

37.

It must be stated, however, that the wording of the best value rule is not amenable to an unambiguous interpretation. This is certainly not because of the problem that the wording of the various language versions differs from one version to another. Rather, the grammatical interpretation of individual versions, such as the German, the English ( 6 ) or the French, ( 7 ) in themselves does not allow a clear conclusion to be drawn.

38.

It is settled case-law, however, that in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 8 )

39.

Mr Feakins argues that the provisions under Articles 19 to 23a of the Implementing Regulation, on the one hand, and Articles 37(2), 40 and 42(3) and (5) of the Basic Regulation, on the other, fulfil different purposes. The first list of provisions relates to cases in which a farmer is entitled to allocations from the national reserve because he had invested to increase his production, but that investment was not reflected in the determination of his reference amount. By contrast, he argues, the second list covers cases in which the single payment to which a farmer is entitled pursuant to the basic rule under Article 37 of the Basic Regulation has had to be ‘normalised’, for example because the farmer was affected by a hardship case and his production during the reference period was therefore limited.

40.

This approach is unconvincing. As Mr Feakins himself concedes, Article 19 of the Implementing Regulation does not relate to the case of investment to increase production. That provision is directed, rather, at dairy farmers whose production during the reference period was limited. The same applies to Article 23a of the Implementing Regulation, which relates to cases in which a farmer is granted entitlements by virtue of a definitive administrative act or court ruling.

41.

On the other hand, the case of a farmer who commenced his agricultural activity after or at the end of the reference period, and who can therefore possibly claim payment entitlements under Article 42(3) of the Basic Regulation, is not a case in which there is a ‘normalisation’ of the single payment established pursuant to the basic rule in Article 37 of the Basic Regulation. In fact, such a farmer has not yet received any direct payments.

42.

Apart from their legal source, the relevant provisions of the Basic Regulation and of the Implementing Regulation cannot therefore be demarcated convincingly. They are all intended, rather, to offset disadvantages which would be suffered by a farmer if, in establishing the reference amount, regard were to be had solely to the payments granted to him during the reference period from 2000 to 2002.

43.

The objective of the best value rule, according to recital 13 in the preamble to the Implementing Regulation, is to avoid cumulation of payment entitlements to the benefit of the same farmer.

44.

If, however, the best value rule is interpreted in line with a disjunctive approach, as is taken by Mr Feakins, a farmer could cumulate payment entitlements. For example, it would be possible in principle to claim an entitlement under Articles 19 to 23a of the Implementing Regulation in parallel with an entitlement under Article 42(5) of the Basic Regulation. The objective of the best value rule would thereby be frustrated.

45.

All in all, there is thus a stronger case for the conjunctive approach. As an interim conclusion it must therefore be stated that the best value rule is applicable where a farmer meets the conditions for the application of any two or more of the following provisions: namely Article 19, Article 20, Article 21, Article 22, Article 23 and Article 23a of the Implementing Regulation and Article 37(2), Article 40, Article 42(3) and Article 42(5) of the Basic Regulation.

46.

With this in mind, it is now necessary to examine the second question, which is posed in the event that the conjunctive approach is accepted.

47.

By this question the referring court is seeking to ascertain whether the best value rule is invalid because the Commission did not have power to enact it in that form or because it did not state reasons for its enactment. It is clear from the order for reference that the referring court’s doubts are based in particular on a possible infringement of the principle of equal treatment.

48.

The scope of the review of the validity of the best value rule is thus broad. Accordingly, I will examine hereinafter the legal basis for its enactment (see under 1.), compliance with the obligation to state reasons by the Commission (see under 2.), a possible impairment of the practical effectiveness of the hardship case rule (see under 3.) and the principle of equal treatment (see under 4.).

49.

The validity of the best value rule must be examined, first of all, in order to ascertain whether, in enacting it, the Commission relied on an appropriate legal basis, as, under Article 13(2) TEU, the Commission may not exceed the limits of the powers conferred on it.

50.

According to the citations in the preamble to the Implementing Regulation, in enacting that regulation the Commission relied in particular on Article 42(4) and Article 145(c) of the Basic Regulation as legal bases.

51.

According to recital 13 in the preamble to the Implementing Regulation, the best value rule is expressly based on Article 42(4) of the Basic Regulation.

52.

However, it is possible to infer from the wording of that provision only the duty to define when farmers find themselves ‘in a special situation’. The Commission complied with that duty in Article 18(1) and Articles 19 to 23a of the Implementing Regulation.

53.

In the view of the Commission, the power to define special situations in which a claim against the national reserve may be made nevertheless also implies a power to make rules to limit the number of claims made.

54.

This argument, however, is unconvincing. The very wording of Article 42(4) of the Basic Regulation points in an entirely different direction as regards the Commission’s implementing powers. It expressly refers only to the definition of ‘special situations’.

55.

The assumption of an implicit power to enact the best value rule in its present form would also run counter to the schematic context of Article 42(4) of the Basic Regulation. The best value rule prevents a farmer, for example, from claiming entitlements to allocations from the national reserve under Article 42(5) if he was subject to restructuring programmes under that provision and, moreover, the hardship rule under Article 40 was applicable to him. Such a farmer does not find himself in a ‘special situation’ which would have to be defined under Article 42(4).

56.

Consequently, Article 42(4) of the Basic Regulation cannot constitute an appropriate legal basis for the best value rule.

57.

The Scottish Ministers argue, however, that the enactment of the best value rule is covered by Article 145 of the Basic Regulation and in particular by point (c) thereof. Under that provision, ‘detailed rules shall be adopted for the implementation’ of the Basic Regulation, in particular related to the granting of the aids provided for therein.

58.

The Court generally gives a broad definition to the concept of ‘implementation’ in the context of the common agricultural policy. ( 9 ) In this connection it refers to the special role played by the Commission in continually following with attention trends on the agricultural markets and states that only the Commission is able to act with urgency as the situation requires. ( 10 ) As the Court has made clear, however, such a wide interpretation of the Commission’s powers can be accepted only in the specific framework of the rules on agricultural markets. ( 11 ) Otherwise, an implementing power must be considered to authorise the Commission to provide further detail in relation to the content of the basic legislative act. ( 12 ) In any event, the Commission is authorised to adopt implementing measures only in so far they are not contrary to the basic legislative act. ( 13 )

59.

The present case does not concern market control. It must be stated that it is not possible to infer from the Basic Regulation itself any prohibition on benefiting from more than one provision derogating from the basic rule for the calculation of the single payment under Article 37. No other conclusion can be drawn in particular from recital 29 in the preamble to the Basic Regulation, the wording of which tends rather to leave open the possibility of cumulation.

60.

The Council, as the author of the Basic Regulation, also cannot be alleged to have committed an inadvertence which resulted in a legal vacuum requiring to be filled. The author of the regulation did indeed address the possibility of cumulation of entitlements, as is shown by Article 35 of the Basic Regulation. Under that provision, an eligible area may be subject, in principle, to both a single payment application and an application for any other direct payment and aid.

61.

Consequently, in enacting the best value rule, the Commission did not specify a prohibition on cumulation laid down in the Basic Regulation. Rather, it created it on its own legislative initiative and, in doing so, brought about a substantive modification of the system under the Basic Regulation. It thus acted outside the scope of its power to adopt more detailed rules to implement the provisions of the Basic Regulation.

62.

As an interim conclusion, it therefore follows that the best value rule is invalid because neither Article 42(4) nor Article 145 of the Basic Regulation constitutes an appropriate legal basis for its enactment.

63.

Notwithstanding the above considerations, it is next necessary to examine whether the invalidity of the best value rule can also be inferred from a breach by the Commission of the obligation to state reasons.

64.

The need to state the reasons for legal acts is regulated in the second paragraph of Article 296 TFEU. It is clear from settled case-law that the scope of the obligation to state reasons depends on the nature of the legal act in question. In the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to the adoption of the measure and the general objectives which it is intended to achieve. ( 14 )

65.

It is also clear from the Court’s case-law that the obligation laid down in the second paragraph of Article 296 TFEU to state adequate reasons is an essential procedural requirement. It must be distinguished from the question whether the reasoning is well founded, which has to be examined in the context of the substantive legality of the measure at issue. ( 15 )

66.

The best value rule is part of a measure of general application enacted by the Commission in implementation of the single payment scheme. As is stated in recital 13 in the preamble to the Implementing Regulation, reference amounts can be established under Article 42(4) of the Basic Regulation for farmers in a special situation. It is therefore appropriate to list those special situations. It is added that the Commission also wishes to provide for rules in order to avoid cumulation of the benefit from the different allocation of payment entitlements on the same farmer.

67.

From a procedural point of view, the Commission thus made sufficient reference, in the preamble to the Implementing Regulation, to the background which led to the adoption of the best value rule. Furthermore, it indicated the objective which the provision was intended to achieve. There is therefore no breach of the obligation to state reasons under the second paragraph of Article 296 TFEU.

68.

Aside from the procedural problems just discussed, the substantive question arises as to whether the best value rule impairs the effectiveness of the hardship case rule. In this regard, it is necessary first to examine the hardship case rule and then its relationship with the provisions governing the national reserve.

69.

The hardship case rule concerns, on the one hand, farmers whose production during the reference period was limited as a result of force majeure or exceptional circumstances. On the other hand, under Article 40(5) of the Basic Regulation, farmers who were unable to show representative production in the reference period because they were under agri-environmental commitments are also covered. They too could thus request an adjustment of the reference period for the establishment of the reference amount.

70.

As the Court has already held, the objective of Article 40(5) of the Basic Regulation is to ensure that farmers who, during the reference period, were subject to agri-environmental measures were placed in the same situation as they would have been if they had not participated in those measures. ( 16 ) A farmer who has entered into agri-environmental commitments cannot be penalised in the context of a subsequent European Union support scheme by reason of those very commitments. That farmer, in fact, was not in a position to foresee that his decision might have consequences on future direct payments under rules subsequently adopted. ( 17 ) The inclusion of agri-environmental commitments in the hardship case rule under the Basic Regulation thus gives effect, in particular, to the principle of legal certainty and the principle of protection of legitimate expectations. ( 18 )

71.

A farmer affected by a (genuine) hardship case like the foot and mouth disease in the present case cannot, contrary to the claim made by Mr Feakins at the hearing, rely on the abovementioned principles in the same way. He did not, for instance, enter into specific agri-environmental commitments. However, this does not alter the fact that Article 40 of the Basic Regulation pursues the objective of also placing farmers affected by hardship cases in the same situation as regards the calculation of the reference amount for the single payment as they would have been in if the hardship case had not occurred. The hardship case rule, in fact, does nothing more than suppress, for the purposes of the calculation of the reference amount, the period affected by a limitation of production.

72.

Furthermore, it is clear from the broad logic of the hardship case rule that the author of the regulation pursued the objective of even largely offsetting the effects of hardship cases. If a hardship case had resulted in limitations of production during the entire reference period under Article 38 of the Basic Regulation, the period from 1997 to 1999 or part thereof could, under Article 42(2), be used to calculate the reference amount.

73.

With regard to the initial situation for the establishment of the reference amount for the single payment, it is therefore intended to treat a farmer in a situation of hardship in the same way as an unaffected farmer. In these efforts, the author of the regulation went beyond the guidelines that can be inferred from the Court’s case-law in structurally similar cases. ( 19 )

74.

The Basic Regulation draws a clear distinction between the hardship case rule under Article 40 and the national reserve under Article 42. In the case of the national reserve, it is possible that the available funds may not be sufficient to cover the claims to be satisfied in priority from that pot. Consequently, the Member States must carry out a linear reduction of the entitlements.

75.

The hardship case rule, on the other hand, is subject to no such proviso. It does not give rise to the receipt of additional payment entitlements, but leads merely to the modification of the reference period for the calculation of the single payment. Priority is thus given to situations eligible for the application of the hardship case rule.

76.

The travaux préparatoires for the Basic Regulation support this distinction and the prioritisation of the hardship case rule. Under the original Commission proposal, the main purpose of the national reserve was to supplement the reference amounts of farmers who had been affected by hardship cases. ( 20 )

77.

In the course of the deliberations within and with the Council, however, this was rejected. For cases of limitations of production during the reference period which were to be attributed to hardship cases or to agri-environmental commitments made by the farmer, there was to be no provision for the national reserve. ( 21 ) By contrast, above all payment entitlements for farmers in a special situation were to be satisfied from the national reserve. ( 22 )

78.

The hardship case rule and the national reserve also differ in their respective purposes. The hardship case rule pursues the specific purpose of preventing disadvantages for a farmer, such as the farmer in the present case who is affected by an epizootic, resulting from the reference period being set from 2000 to 2002. By contrast, the national reserve does not constitute an additional hardship case rule. ( 23 ) It is designed primarily to offset disadvantages stemming not from the choice of the reference period, but from the fact that the single payment scheme was introduced at all. ( 24 ) In the case of Mr Feakins, for example, it must be assumed that he could have been granted aid under the old, production-related support system if he himself had farmed the holdings which he purchased in 2002.

79.

It therefore follows from the foregoing that the hardship case rule and the national reserve are two qualitatively different systems. The purpose of the hardship case rule is to treat affected farmers in the same way as farmers who were not affected by a case of hardship. Furthermore, the Basic Regulation prioritises situations falling under the hardship case rule over entitlements to allocations from the national reserve.

80.

The best value rule under the Implementing Regulation, on the other hand, does not distinguish between the hardship case rule and the national reserve. Instead, it makes general reference to rules which offset disadvantages resulting from the application of the basic rule under Article 37 of the Basic Regulation in the calculation of the single payment.

81.

The best value rule thus impairs the practical effectiveness of the hardship case rule. A farmer could be prompted, because of the best value rule, to refrain from having recourse to the hardship case rule so as not to forfeit the possibility of subsidies from the national reserve. If a farmer requested both application of the hardship case rule and subsidies from the national reserve, he had to decide between the two options on account of the best value rule. However, this ran counter to the spirit and purpose of the hardship case rule, which seeks to achieve equality as between affected farmers.

82.

The best value rule is therefore invalid as it impairs the practical effectiveness of the hardship case rule under the Basic Regulation.

83.

It is also necessary to examine whether the best value rule is compatible with the principle of equal treatment. The validity of the best value rule was discussed with particular intensity from this perspective by the parties before the Court.

84.

Mr Feakins refers to the fact that a farmer such as himself, whose production was adversely affected during the reference period because of an epizootic and who therefore benefited from the hardship case rule in order to ‘normalise’ his reference amount, can no longer, because of the best value rule, claim any parallel entitlements to allocations from the national reserve. However, that option is certainly available to a farmer not affected by an epizootic, a situation which, in the view of Mr Feakins, constitutes unequal treatment lacking any objective justification.

85.

By contrast, the Commission, the Scottish Ministers and Greece deny that there is unequal treatment in the absence of comparable situations and, should it be concluded to the contrary, claim that there is objective justification.

86.

The principle of equal treatment is one of the general principles of EU law and is enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. ( 25 ) It requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 26 )

87.

According to the Court’s case-law, the elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account. ( 27 )

88.

It must be stated, first of all, that the best value rule gives rise to unequal treatment. In the final analysis, it differentiates between, on the one hand, a farmer whose reference amount was established pursuant to the hardship case rule in the Basic Regulation and, on the other hand, a farmer whose reference amount was calculated under the basic rule contained in Article 37 of the Basic Regulation. The former is prevented from claiming parallel entitlements to allocations from the national reserve, even though he finds himself in a hardship situation, whilst the latter, who is not affected by a hardship case, can benefit from funds from the reserve in a ‘special situation’.

89.

It is thus necessary now to examine the comparability of the situations having regard to the subject-matter and purpose of the act which makes the distinction in question and to the principles and objectives of the relevant regulatory field.

90.

In my recently delivered Opinion in Nordea Bank, ( 28 ) I refrained from conducting such an examination of comparability. That case concerned freedom of establishment and the question of its compatibility with certain national tax rules. I considered that I had to take this course of action because the case-law on the interpretation of the fundamental freedoms has developed and there is no certainty regarding the criteria applied by the Court where it examines the comparability of situations in tax cases. ( 29 )

91.

There are no such uncertainties in the present case. The question of comparability arises here against the background of the general principle of equal treatment and not in the specific context of the fundamental freedoms and tax law and, for that reason, I will examine it separately.

92.

As has already been mentioned, the purpose of the hardship case rule is to achieve equality as between a farmer who can rely on that provision because of a hardship case and a farmer who is not affected by a hardship case. ( 30 ) Having regard to the objective pursued by the Council, as the author of the regulation, there is therefore no problem in accepting that the situations are comparable.

93.

It is necessary, in what follows, to clarify whether there is justification for the unequal treatment.

94.

As the Commission and the Scottish Ministers rightly argue, the Court of Justice in principle recognises the EU legislature as having a broad discretionary power in matters concerning the common agricultural policy, whilst judicial review is limited to manifest errors of assessment and misuse of powers. ( 31 )

95.

In specifying the general principle of equal treatment, however, Article 42(4) of the Basic Regulation requires the Member States expressly to ensure equal treatment for farmers in the establishment of reference amounts for farmers in a special situation. Similarly, the Commission is also required to comply with the principle of equal treatment when it relies on that provision in order to define conditions under which a farmer may claim payment entitlements from the national reserve. ( 32 )

96.

It is therefore necessary to examine whether the difference in treatment of two farmers based on the reference period in which the reference amount for the single payment was established is objectively justified.

97.

The Commission considers that the unequal treatment is justified by the objective of avoiding the cumulation of different advantages by a farmer. This, it submits, protects the financial interests of farmers whose single payment was calculated under the basic rule in Article 37 of the Basic Regulation. A high number of entitlements claimed against the national reserve would have to be offset, under Article 42(1) and (7) of the Basic Regulation, by a linear reduction of the reference amounts granted outside the scope of the national reserve.

98.

The objective put forward by the Commission must be regarded as legitimate in principle. As I myself have previously stated, funds from the national reserve in particular are running low and it may be expedient to limit the number of claims made against the national reserve. ( 33 )

99.

Nevertheless, contrary to the view taken by the Scottish Ministers, for example, it is not true that the hardship case rule constitutes an advantage in itself. Its purpose, rather, is merely to offset a disadvantage suffered by an affected farmer. In its present form, the best value rule thus accords less favourable treatment to farmers in hardship situations in an unjustifiable manner.

100.

In this connection, it is also necessary to reject the argument that the application of the hardship case rule could even excessively favour a farmer in a hardship situation because the calculation of his reference amount had potentially been based on a period with exceptionally high production and that therefore formed the basis for the single payment.

101.

Such a consequence is simply inherent in the approach taken by the author of the regulation in laying down rules for the calculation of the single payment. The determinant factor is production during the reference period. During that period, many farmers may have recorded an above-average yield. However, the production of other farmers might also have been reduced even though they had not been affected by a case of hardship. Neither case gives grounds for corrective action.

102.

I therefore arrive at the interim conclusion that the best value rule is also invalid on grounds of an infringement of the principle of equal treatment in so far as that provision prevents a farmer from claiming payment entitlements from the national reserve under Article 22 of the Implementing Regulation if the hardship case rule under Article 40 of the Basic Regulation was already applicable to him.

103.

Lastly, by its third question the referring court is seeking to ascertain whether the best value rule is applicable in the situation in which a farmer such as Mr Feakins has received a provisional approval of an allocation of payment entitlements from the national reserve for a farm in 2005, but that allocation is not notified, in the form in which he applied for actual payment, until 2007, when the farm was eventually taken over by the farmer himself.

104.

The referring court asks this question only in the event that it is held that the best value rule is not invalid. In the light of my statements regarding the second question, there is therefore no need to answer the present question, but it would appear necessary, in the alternative and with all due brevity, to make the following points.

105.

The best value rule refers to ‘the number of hectares he declares in the first year of application of the single payment scheme’. In the view of Mr Feakins, the best value rule is thus applicable only to applications made in the first year of application of the single payment scheme, that is to say, applications made in 2005.

106.

In that year Mr Feakins notified the relevant number of hectares and applied for a provisional allocation of payment entitlements from the national reserve for the two farms which he had purchased in 2002; subsequently, the application received provisional approval.

107.

However, the actual calling of payments also requires an aid application to be submitted under Article 22 of the Basic Regulation (‘IACS form’). For the farm of which he took possession in 2007, Mr Feakins submitted such an application for the first time in that year. Mr Feakins now argues that a farmer ‘declares’ a number of hectares only if he notifies them in the IACS form and that the best value rule cannot be applicable to his declaration made in 2007 in the IACS form.

108.

Irrespective of whether the view is correct that the best value rule is actually applicable solely in the first year of the single payment scheme, the following point must be made: Article 12 of the Implementing Regulation regulates the initial allocation of payment entitlements. Under Article 12(8) thereof, no parcel needs to be declared for the purpose of the establishment of the payment entitlements except in respect of payment entitlements from the national reserve.

109.

As the Commission rightly argues, it follows a contrario that payment entitlements from the national reserve cannot be provisionally allocated without a declaration of the corresponding hectares.

110.

Contrary to the view taken by Mr Feakins, there is therefore no scope for an interpretation of the best value rule to the effect that notification of the number of hectares in an application for provisional allocation of payment entitlements does not constitute a ‘declaration’ of that land.

111.

In the event that the Court should reject the validity of the best value rule, the Commission requested, at the hearing, a limitation of the temporal effects of the judgment.

112.

Where the Court declares an act of an EU institution invalid in proceedings for a preliminary ruling, the relevant judgment in principle has retroactive effect, in the same way as a judgment annulling an act. ( 34 ) If, however, the Court considers this necessary for overriding considerations of legal certainty, it may order that certain effects of the act in question are definitive by analogous application of the second paragraph of Article 264 TFEU. ( 35 )

113.

The Commission takes the view that Member States will face serious difficulties in recalculating farmers’ entitlements if the best value rule were to be declared invalid without a limitation of the temporal effects to the future.

114.

In fact, if the best value rule had not been enacted in its present form, farmers who have benefitted from the hardship case rule would have been able to make parallel claims for allocations from the national reserve. The increased recourse to the national reserve might have entailed a linear reduction of the reference amounts of other farmers under Article 42(7) of the Basic Regulation. The financial interests of those farmers could therefore be affected in particular by a declaration that the best value rule is invalid.

115.

It must nevertheless be stated with regard to the present case that no more detailed information exists on how frequently the hardship case rule has been applied. Nor can it be estimated how many additional claims would have been made for allocations from the national reserve. In the vast majority of cases in which allocation of the single payment under the Basic Regulation was applied for, it would appear that definitive aid decisions now exist.

116.

Consequently, there is insufficient evidence to indicate that a limitation of the temporal effects of the judgment is justified for overriding considerations of legal certainty.

117.

In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling as follows:

Article 18(2) of Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers is invalid.