(Reference for a preliminary ruling– European Agricultural Fund for Rural Development (EAFRD)– Regulation (EU) No1305/2013

European Union law

The ‘Habitats’ Directive

3The first subparagraph of Article3(1) of Council Directive 92/43/EEC of 21May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L206, p.7) (‘the “Habitats” Directive’) provides:

‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in AnnexI and habitats of the species listed in AnnexII, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.’

4Article6(2) of that directive provides:

‘Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.’

Regulation No1305/2013

5Recitals9 and 24 of Regulation No1305/2013 state:

‘(9)Rural development programmes should identify the needs of the area covered and describe a coherent strategy to meet them in the light of the [European] Union priorities for rural development. That strategy should be based on the setting of targets. The links between the needs identified, the targets set and the choice of measures selected to meet them should be established. Rural development programmes should also contain all the information required to assess their conformity with the requirements of this Regulation.

…

(24)Support should continue to be granted to farmers and forest holders to help address specific disadvantages in the areas concerned resulting from the implementation of Directive 2009/147/EC of the European Parliament and of the Council [of 30November 2009 on the conservation of wild birds (OJ 2010 L20, p.7)] and [the “Habitats” Directive] and in order to contribute to the effective management of Natura 2000 sites. Support should also be made available to farmers to help address disadvantages in river basin areas resulting from the implementation of [Directive 2000/60/EC of the European Parliament and of the Council of 23October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L327, p.1)]. Support should be linked to specific requirements described in the rural development programme that go beyond relevant mandatory standards and requirements. Member States should also ensure that payments to farmers do not lead to double funding under this Regulation and Regulation (EU) No1307/2013 [of the European Parliament and of the Council of 17December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No637/2008 and Council Regulation (EC) No73/2009 (OJ 2013 L347, p.608)]. Furthermore, the specific needs of Natura 2000 areas should be taken into account by Member States in the overall design of their rural development programmes.’

6Article2 of that regulation, under the heading ‘Definitions’, provides in paragraphs1 and 2 thereof:

‘1.…

In addition, the following definitions shall apply:

…

(c)“measure” means a set of operations contributing to one or more of the Union priorities for rural development;

…

(f)“agricultural area” means any area taken up by arable land, permanent grassland and permanent pasture or permanent crops as defined in Article4 of [Regulation No1307/2013];

…

(r)“forest” means an area of land spanning more than 0,5 hectares with trees higher than 5 meters and a canopy cover of more than 10 percent, or trees able to reach these thresholds in situ; and does not include land that is predominantly under agricultural or urban land use, subject to paragraph2.

2.A Member State or region may choose to apply a forest definition, other than the one in point (r) of paragraph1, based on existing national law or inventory system. The Member States or regions shall provide such definition in the rural development programme.’

7Article6 of that regulation, under the heading ‘Rural development programmes’, provides in paragraph1 thereof:

‘The EAFRD shall act in the Member States through rural development programmes. Those programmes shall implement a strategy to meet the Union priorities for rural development through a set of measures as defined in Title III. Support from the EAFRD shall be sought for the achievement of the objectives of rural development pursued through Union priorities.’

8Article10 of that regulation, under the heading ‘Approval of rural development programmes’ provides:

‘1.Member States shall submit to the [European] Commission a proposal for each rural development programme, containing the information referred to in Article8.

2.Each rural development programme shall be approved by the Commission by means of an implementing act.’

9Article30 of that regulation, under the heading ‘Natura 2000 and [Directive 2000/60] payments’, provides:

‘1.Support under this measure shall be granted annually per hectare of agricultural area or per hectare of forest in order to compensate beneficiaries for additional costs and income foregone resulting from disadvantages in the areas concerned, related to the implementation of [the “Habitats” Directive ] and [Directive 2009/147] and [Directive 2000/60].

When calculating support under this measure, Member States shall deduct the amount necessary in order to exclude double funding of the practices referred to in Article43 of [Regulation No1307/2013].

…

6.The following areas shall be eligible for payments:

(a)Natura 2000 agricultural and forest areas designated pursuant to [the “Habitats” Directive ] and [Directive 2009/147];

…’

Regulation No1307/2013

10Article4 of Regulation No1307/2013, under the heading ‘Definitions and related provisions’, provides in paragraph1 thereof:

‘For the purposes of this Regulation, the following definitions shall apply:

…

(h)“permanent grassland and permanent pasture” (together referred to as “permanent grassland”) means land used to grow grasses or other herbaceous forage naturally (self-seeded) or through cultivation (sown) and that has not been included in the crop rotation of the holding for five years or more; it may include other species such as shrubs and/or trees which can be grazed provided that the grasses and other herbaceous forage remain predominant as well as, where Member States so decide, land which can be grazed and which forms part of established local practices where grasses and other herbaceous forage are traditionally not predominant in grazing areas;

…’

11Article45 of that regulation, under the heading ‘Permanent grassland’, provides in the first subparagraph of paragraph1 thereof:

‘Member States shall designate permanent grasslands which are environmentally sensitive in areas covered by [the “Habitats” Directive and Directive 2009/147], including in peat and wetlands situated in these areas, and which need strict protection in order to meet the objectives of those Directives.’

Implementing Regulation (EU) No808/2014

12Article10 of Commission Implementing Regulation (EU) No808/2014 of 17July 2014 laying down rules for the application of Regulation No1305/2013 (OJ 2014 L227, p.18), under the heading ‘Standard assumption of additional costs and income foregone’, is worded as follows:

‘1.Member States may fix the amount of the payments for the measures or types of operations referred to in Articles28 to 31 and Articles33 and 34 of [Regulation No1305/2013] on the basis of standard assumptions of additional costs and income foregone.

2.Member States shall ensure that the calculations and the corresponding payments referred to in paragraph1:

(a)contain only elements that are verifiable;

(b)are based on figures established by appropriate expertise;

(c)indicate clearly the source of the figures used;

(d)are differentiated to take account of regional or local site conditions and actual land use, where applicable;

(e)do not contain elements linked to investment costs.’

13Part 1 of AnnexI to that implementing regulation is entitled ‘Presentation of the content of rural development programmes’. Point8 of Part 1 is entitled ‘Description of the measures selected’ and reads as follows:

‘…

(2)Description by measure including:

…

(e)description specific to each measure and/or type of operation as follows:

…

11.Natura 2000 and Directive [2000/60] payments [Article30 of Regulation No1305/2013]

…

–identification of the restrictions/disadvantages based on which payments can be granted and indication of compulsory practices;

–description of the methodology and the agronomic assumptions including the description of the baseline requirements referred to in Article30(3) of Regulation [No1305/2013] for [the “Habitats” Directive and Directive 2009/147] and in Article30(4) of that Regulation for [Directive 2000/60] used as reference for the calculations justifying additional costs and income foregone resulting from the disadvantages in the areas concerned related to the implementation of [the “Habitats” Directive, Directive 2009/147] and [Directive 2000/60]; where relevant, that methodology shall take into account payment for agricultural practices beneficial for the climate and the environment granted in accordance with [Regulation No1307/2013], in order to exclude double funding.

…’

14Part 5 of AnnexI to that implementing regulation relates to the codes of measures and sub-measures. That part provides, under Article30 of Regulation No1305/2013, under code 12, for the measure under the heading ‘Natura 2000 and [Directive 2000/60] payments’. That measure comprises three sub-measures under the heading, respectively, under codes 12.1, 12.2 and 12.3, ‘Compensation payment for Natura 2000 agricultural areas’, ‘Compensation payment for Natura 2000 forest areas’ and ‘Compensation payment for agricultural areas included in river basin management plans’.

Latvian law

15The Ministru kabineta noteikumi No562 ‘Noteikumi par zemes lietošanas veidu klasifikācijas kārtību un to noteikšanas kritērijiem’ (Decree No562 of the Council of Ministers on the rules for the classification of types of land use and the criteria for determining them) of 21August 2007 (Latvijas Vēstnesis, 2007, No137) provides, in its annex, a classification of types of land use.

16The Ministru kabineta noteikumi No264 ‘Īpaši aizsargājamo dabas teritoriju vispārējie aizsardzības un izmantošanas noteikumi’ (Decree No264 of the Council of Ministers on general provisions on the protection and use of special areas of conservation) of 16March 2010 (Latvijas Vēstnesis, 2010, No58) lays down the general rules for the protection and use of special areas of conservation.

17Point16 of that decree, included in Chapter 5 thereof, under the heading ‘Protected natural areas’, provides:

‘In nature protection areas it is forbidden:

…

16.12.to establish cranberry plantations in peat bogs;

…’

18Points56 to 58 of the Ministru kabineta noteikumi No171 ‘Noteikumi par valsts un Eiropas Savienības atbalsta piešķiršanu administrēšanu un uzraudzību vides, klimata un lauku ainavas uzlabošanai 2014.–2020. gada plānošanas periodā’ (Decree No171 of the Council of Ministers relating to the grant, administration and supervision of State and European Union aid for improvements to the environment, climate and rural areas during the programming period for the years 2014 to 2020) of 7April 2015 (Latvijas Vēstnesis, 2015, No76) are worded as follows:

‘Point56.The area eligible for support under this measure is forest land (excluding peat bogs):

56.1.which is included in the list of [Natura 2000 areas] pursuant to Article30(6)(a) of Regulation No1305/2013;

…

Point58: Support may be granted if the eligible area declared for the support is at least 1 ha and comprises fields of at least 0.1 ha, and the minimum area subject to some form of restriction within a field measures at least 0.1 ha, and if the said fields can be identified on a map, are included in the Rural Support Service’s electronic application system and are subject to any of the following restrictions on economic activity from 1March of the current year under the legislation governing the protection and use of special areas of conservation or the protection of species and biotopes:

58.1.prohibition on forestry activities;

58.2.prohibition on main harvesting and thinning;

58.3.prohibition on main harvesting;

58.4.prohibition on clear cutting.’

19The Latvijas lauku attīstības programma 2014.-2020.gadam (Rural development programme for Latvia 2014-2020), approved by the Commission under Article10(2) of Regulation No1305/2013 (‘the Rural Development programme 2014-2020’), states that support may be paid where restrictions are placed on forestry activities in Natura 2000 areas or in microreserves located on forest land, excluding peat bogs.