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

25By its first two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article30(6)(a) of Regulation No1305/2013 must be interpreted as meaning that peat bogs are completely excluded from entitlement to Natura 2000 payments and, if that is not the case, whether peat bogs fall within the ‘agricultural areas’ or ‘forest areas’ within the meaning of that provision.

26In order to answer those questions, it should be noted that Article30 of Regulation No1305/2013 governs, inter alia, Natura 2000 payments. Under paragraph1 of that provision, support is to 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 (the ‘Birds’ Directive) and Directive 2000/60 (the ‘Water Framework Directive’). That provision states, in paragraph6(a), that Natura 2000 agricultural and forest areas designated pursuant to the ‘Habitats’ Directive and the ‘Birds’ Directive are eligible for payments relating to the support in question.

27Thus, agricultural and forest areas which, although situated in Natura 2000 areas designated pursuant to the ‘Habitats’ Directive and the ‘Birds’ Directive, fall within the concept of ‘agricultural area’ or ‘forest area’ within the meaning of Regulation No1305/2013, may be eligible for Natura 2000 payments referred to in Article30(1) of Regulation No1305/2013.

28That said, it should be noted that Regulation No1305/2013 does not mention and, a fortiori, does not define the concept of ‘peat bogs’ or ‘peat land’. Nor does the referring court specify what is meant by ‘peat bogs’ or ‘peat land’ within the meaning of the national legislation at issue in the main proceedings. In those circumstances, it must therefore be held, as the Advocate General did in point33 of his Opinion, that a peat bog designates, in essence and according to the ordinary meaning of that word, a wetland characterised by the presence of ‘peat’, soil characterised by a high content of organic matter of plant origin and by organic carbon storage.

29For its part, the concept of ‘forest’ is defined in Article2(1)(r) of Regulation No1305/2013 as an area of land spanning more than 0.5 hectare 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. However, paragraph2 of that article provides that a Member State may choose to apply a different definition than that definition, based on national law or the inventory system in force, provided that, in that case, that definition is given in its rural development programme. It will be for the referring court, if necessary, to ascertain whether, in the present case, the Republic of Latvia adopted such a definition.

30As the Advocate General observed in point35 of his Opinion, it cannot be ruled out that, depending on the vegetation present in the place concerned, a peat bog may be made up of ‘forests’ within the meaning of Article2(1)(r) of Regulation No1305/2013, or within the definition of ‘forest’ which may, as the case may be, be established by the Member State concerned under Article2(2) of that regulation.

31As regards agricultural areas, Regulation No1305/2013 defines ‘agricultural area’ in Article2(1)(f) of that regulation as ‘any area taken up by arable land, permanent grassland and permanent pasture or permanent crops as defined in Article4 of [Regulation No1307/2013]’.

32As the Advocate General observed in point34 of his Opinion, it follows from the definition of ‘permanent grassland and permanent pasture’ set out in Article4(1)(h) of Regulation No1307/2013, and from the specifications set out in the first subparagraph of Article45(1) of that regulation, that peat bogs and peat land may fall within that definition and, therefore, within that of agricultural area.

33It must therefore be held that, in so far as peat bogs or peat land situated in Natura 2000 areas designated pursuant to the ‘Habitats’ Directive and the ‘Birds’ Directive fall within the concept of ‘forest’ or ‘agricultural area’ within the meaning of Regulation No1305/2013 or, as the case may be, the national legislation adopted in accordance with that regulation, those peat bogs and peat land may be regarded as ‘Natura 2000 agricultural and forest areas’ within the meaning of Article30(6)(a) of that regulation and therefore, in principle, are eligible for the Natura 2000 payments referred to in Article30(1) of that regulation.

34Whether, depending on their specific configuration, peat bogs situated in a Natura 2000 area, such as those at issue in the main proceedings come, as the case may be, within the concept of ‘forest’ or ‘agricultural area’ and thus within that of ‘Natura 2000 agricultural and forest areas’, within the meaning of Article30(6)(a) of Regulation No1305/2013, constitutes a factual assessment which falls within the jurisdiction of the national courts.

35In the light of all the foregoing, the answer to the first two questions is that Article30(6)(a) of Regulation No1305/2013 must be interpreted as meaning that it does not exclude, in principle, peat bogs from Natura 2000 payments, in so far as those peat bogs are situated in Natura 2000 areas designated pursuant to the ‘Habitats’ Directive and to the ‘Birds’ Directive and fall within the concept of ‘agricultural area’ or ‘forest’, within the meaning of, respectively, points (f) and (r) of Article2(1) or of Article2(2) of that regulation, which may thus be eligible for the payments referred to in Article30(1) of that regulation as ‘Natura 2000 agricultural and forest areas’ within the meaning of Article30(6)(a) thereof.

The third and fourth questions

36By its third and fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article30 of Regulation No1305/2013 permits a Member State to exclude peat bogs from entitlement to Natura 2000 payments or to limit the grant of support for such areas to situations where their designation as ‘Natura 2000 areas’ has the effect of adversely affecting the exercise of a specific type of economic activity in those areas, in particular, forestry.

37In the first place, it should be noted that it follows from the answer given to the first two questions that ‘peat bogs’ or ‘peat land’ situated in Natura 2000 areas which are not covered by the definition of ‘agricultural area’ or that of ‘forest’ within the meaning of, respectively, subparagraphs (f) and (r) of Article2(1) or of Article2(2) of Regulation No1305/2013 are ineligible for payments under Article30 of that regulation.

38In that regard, it is important, however, to point out that, under Article2(2) thereof, a Member State is entitled to establish a definition of the concept of ‘forest’, the effect of which is to exclude peat bogs or peat land from entitlement to payments, even though they are areas corresponding to the definition set out in Article2(1)(r) of Regulation No1305/2013.

39It is apparent from the written observations of the Latvian Government that the specific categories of plots of land and their decisive characteristics are defined in Decree No562 of the Council of Ministers of 21August 2007 on the rules for the classification of types of land use and the criteria for determining them. Under the annex to that decree, ‘agricultural land’, ‘forest[s]’ and ‘peat bogs’ constitute three distinct categories of land depending on their type of use. That being so, it is for the referring court to ascertain whether, in the present case, the Republic of Latvia adopted a definition of the concept of ‘forest’ under Article2(2) of Regulation No1305/2013.

40In the second place, it should be borne in mind that Article30 of Regulation No1305/2013 gives Member States the possibility of granting compensation under Natura 2000, but does not create any obligation to that effect imposed on them. Payments under Natura 2000 and the ‘Water Framework Directive’ are one of the rural development measures within the meaning of Article2(1)(c) of that regulation. Accordingly, Article30 thereof and the conditions laid down therein apply only to payments made under the rural development programme of the Member State concerned, as approved by the Commission under Article10 of that regulation. Member States are not obliged to implement all measures, but only those corresponding to their strategy and that of the European Union, also taking into account the level of EAFRD financing. That interpretation is consistent with recital9 of Regulation No1305/2013, which refers, inter alia, to the choice of measures adopted in order to achieve the objectives in the field of rural development. Consequently, a payment under Article30 of Regulation No1305/2013 is only one of the options for which a Member State may opt for the purposes of receiving funding.

41Furthermore, first of all, AnnexI, Part 5, measure 12 of Implementing Regulation No808/2014 leaves it to the Member States to choose between three sub-measures under Article30 of Regulation No1305/2013, namely 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. Next, AnnexI, Part 1, Section 8, 2)(e), point11 of that implementing regulation requires, inter alia, the Member States to determine the restrictions or disadvantages on account of which payments provided for in rural development plans may be granted. Lastly, Article10(1) of that implementing regulation provides that Member States may determine the amount of payments on the basis of standard assumptions of additional costs and income foregone.

42Accordingly, in principle, EU law confers on the Member States a margin of discretion as regards, first, the choice of measures which they intend to implement, among those provided for by EU law and, second, the determination of the restrictions or disadvantages on account of which payments are granted.

43While it is admitted that the restrictions adopted by Member States, while establishing their rural development programme, must not deprive the Natura 2000 payments system of its the compensatory aim (see, to that effect, judgment of 30March 2017, Lingurár, C‑315/16, EU:C:2017:244, paragraph28), the fact remains that those Member States may decide how the measures to achieve the objectives set out in Regulation No1305/2013 are to be implemented in practice. Furthermore, when making these choices, those States must observe the general principles of EU law, such as non-discrimination and proportionality (see, to that effect, concerning the principle of proportionality, judgment of 30March 2017, Lingurár, C‑315/16, EU:C:2017:244, paragraph29 and the case-law cited).

44In the present case, it is apparent from the request for a preliminary ruling that, in the Rural Development programme 2014-2020, which was approved by the Commission on 13February 2015, the Republic of Latvia limited the grant of Natura 2000 payments to forest areas, excluding the peat bogs located therein. The provisions of that programme are reproduced in Decree No171 of the Council of Ministers of 7April 2015 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, point56 of which states that support may be granted ‘to forest land, excluding peat bogs’.

45It follows, first, that, as regards the three sub-measures referred to in paragraph41 of the present judgment, the Republic of Latvia opted only for the second of those sub-measures, under the heading ‘Compensation payment for Natura 2000 forest areas’, thus excluding in that way from the support scheme put in place, ‘Natura 2000 agricultural areas’, within the meaning of Article30(6)(a) of that regulation, and, consequently, the peat bogs which fall, as the case may be, within the definition of those areas. In so doing, the Republic of Latvia therefore made a choice between the three types of sub-measures, which were thus available to it under Regulation No1305/2013 and Implementing Regulation No808/2014.

46As regards, second, the restrictions or disadvantages on account of which such payments may be granted for ‘Natura 2000 forest areas’, within the meaning of Article30(6)(a) of Regulation No1305/2013, that Member State described them and defined the amount of that compensation per hectare of land concerned, excluding peat bogs.

47Consequently, the fact that a Member State limits payments for such areas to situations where their designation as ‘Natura 2000 areas’ has the effect of restricting the exercise of a specific type of economic activity in those areas, in particular forestry, appears to comply with the conditions of Regulation No1305/2013.

48It follows from the foregoing considerations that the answer to the third and fourth questions is that Article30(6)(a) of Regulation No1305/2013 must be interpreted as allowing a Member State to exclude from Natura 2000 payments, first, ‘Natura 2000 agricultural areas’ within the meaning of that provision, including, in that case, peat bogs which come within such areas and, second, and in accordance with Article2(2) of Regulation No1305/2013, peat bogs situated in Natura 2000 areas, which, in principle, come within the concept of ‘forest’ within the meaning of Article2(1)(r) of that regulation, and thus the concept of ‘Natura 2000 forest areas’ within the meaning of Article30(6)(a) of that regulation. The latter provision must also be interpreted as permitting a Member State to limit such payments for Natura 2000 forest areas, including, where appropriate, peat bogs, to situations where the designation of those areas as ‘Natura 2000 areas’ has the effect of adversely affecting the exercise of a specific type of economic activity, in particular forestry.

The fifth question

49By its fifth question, the referring court asks, in essence, whether Article30(1) of Regulation No1305/2013, read in conjunction with Article17 of the Charter, must be interpreted as meaning that a Natura 2000 payment must be granted to the owner of a peat bog falling within that network on the basis that a restriction was imposed on an economic activity that could be carried out on such a peat bog, such as planting cranberries, where, at the time when he or she acquired the immovable property concerned, the owner was aware of such restriction.

The jurisdiction of the Court

50The Commission submits that the Court has no jurisdiction to rule on the fifth question. It claims that Article30 of Regulation No1305/2013 does not create any obligation or promise to pay compensation to natural persons on account of all the restrictions allegedly affecting the use of property coming within the Natura 2000 network and, generally, that EU law does not recognise the existence of a general principle requiring compensation to be granted in all circumstances, that is to say for all those restrictions imposed by way of Natura 2000. The Commission takes the view that a solution similar to that adopted by the Court in the judgment of 22May 2014, Érsekcsanádi Mezőgazdasági (C‑56/13, EU:C:2014:352) should apply in the present case, since, in that judgment the Court held, in essence, that, since the obligation to pay compensation at issue in the case which gave rise to that judgment was based not on EU law, but on national legislation, the Court did not have jurisdiction to assess such national legislation in the light of the right to an effective remedy, the right to property and the freedom to conduct a business guaranteed by the Charter.

51In that regard, it should be borne in mind that the Charter’s scope is defined in Article51(1) thereof, according to which, so far as action of the Member States is concerned, the provisions of the Charter are addressed to those Member States only when they are implementing EU law (judgment of 13June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph44 and the case-law cited).

52The Member States are implementing EU law, within the meaning of Article51(1) of the Charter, where, in accordance with the requirements of the ‘Habitats’ Directive, they take appropriate steps to ensure that the natural habitats and the habitats of wild flora and fauna’s species are maintained or restored at a favourable conservation status and, in particular, to avoid, in the special areas of conservation, the deterioration of natural habitats.

53Article6(2) of the ‘Habitats’ Directive provides that Member States are to 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 that directive.

54Furthermore, the transposition and implementation by the Member States of the measures referred to in the ‘Birds’ Directive and the ‘Habitats’ Directive inevitably have repercussions on the right to property of persons to whom immovable property situated in the areas in question belongs, since, at the very least, they are subject to restrictions on the use of that property.

55Accordingly, it must be held that the Member States implement EU law, within the meaning of Article51(1) of the Charter, when they establish schemes that grant Natura 2000 payments and payments under the ‘Water Framework Directive’, pursuant to Article30(1) of Regulation No1305/2013. Moreover, it is also because EU law is being implemented in the present case that the general principles of EU law apply, as has already been stated in paragraph43 of the present judgment.

56Furthermore, it follows from Article6(1) and Article10 of Regulation No1305/2013 that the EAFRD is to act in the Member States through the rural development programmes of the Member States, which are to be approved by the Commission.

57It is true that Article30(1) of Regulation No1305/2013 leaves the Member States a margin of discretion in deciding what measures are to be taken, as is apparent from paragraph40 of the present judgment. However, where a Member State adopts measures in the exercise of the discretion conferred upon it by an act of EU law, it must be regarded as implementing that law, within the meaning of Article51(1) of the Charter (see, to that effect, judgment of 13June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph48 and the case-law cited).

58The mere fact that Article30 of Regulation No1305/2013 does not impose an obligation on Member States to provide for a compensation scheme cannot be interpreted as meaning that Article17 of the Charter is not applicable (see, by analogy, judgment of 9June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph86).

59It follows that Article17 of the Charter is applicable to the dispute in the main proceedings and that, accordingly, the Court has jurisdiction to rule on the fifth question.

Substance

60It should be noted at the outset that it is apparent from the wording of Article17 of the Charter that that article expressly confers a right to compensation only in the event of deprivation of the right to property, such as expropriation, which is clearly not the situation in the present case.

61In this respect, it is necessary, in particular, to distinguish the main proceedings from those which gave rise to the judgment of 9June 2016, Pesce and Others (C‑78/16 and C‑79/16, EU:C:2016:428), in so far as those proceedings concerned the systemic felling of trees, namely olive trees, and therefore the deprivation of property of those trees as such. In the present case, the prohibition on establishing plantations of cranberries on property coming within the Natura 2000 network does not constitute a deprivation of the right to property of that immovable property, but a restriction on its use, which may be regulated by law to the extent necessary in the public interest, in accordance with the provisions in the third sentence of Article17(1) of the Charter.

62As regards the restrictions that may thus be placed on the use of the right to property, it should be borne in mind, moreover, that, the right to property guaranteed by Article17 of the Charter is not absolute and that its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union (judgment of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraph69 and the case-law cited).

63It is therefore apparent from Article52(1) of the Charter, that restrictions may be imposed on the use of the right to property, provided that the restrictions genuinely meet the objectives of general interest pursued and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed (judgment of 20September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15P to C‑10/15P, EU:C:2016:701, paragraph70 and the case-law cited).

64First, it follows from settled case-law of the Court that protection of the environment is one of those objectives of general interest (see, to that effect, judgment of 9March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph81 and the case-law cited). Protection of the environment is therefore capable of justifying a restriction on the use of the right to property (judgment of 15January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph114 and the case-law cited).

65Second, it does not appear that measures such as those at issue in the main proceedings, thus taken for the purposes of protecting nature and the environment, under the ‘Birds’ Directive and the ‘Habitats’ Directive, which merely prohibit planting cranberries in peat bogs in order to prevent harm to the environmental interests thus protected, constitute, in the absence of compensation for affected owners, a disproportionate and intolerable interference impairing the very substance of the right to property (see, by analogy, judgment of 10July 2003, Booker Aquaculture and Hydro Seafood, C‑20/00 and C‑64/00, EU:C:2003:397, paragraph70). In the present case, such a conclusion is all the more compelling since, as is apparent from the statements made in the order for reference, that prohibition, and hence the restriction on the exercise of the right to property, were already in force at the time when the peat bogs at issue in the main proceedings were acquired by Sātiņi-S, with the result that Sātiņi-S could not have been unaware of the existence of that restriction.

66Although, admittedly, the Member States may consider, where appropriate, provided that they do so in compliance with EU law, that full or partial compensation is appropriate for owners of plots affected by conservation measures taken under the ‘Birds’ Directive and the ‘Habitats’ Directive, the existence of an obligation under EU law to grant such compensation cannot however be inferred from that finding (see, to that effect, judgment of 10July 2003, Booker Aquaculture and Hydro Seafood, C‑20/00 and C‑64/00, EU:C:2003:397, paragraph85).

67In the light of the foregoing, the answer to the fifth question is that Article30 of Regulation No1305/2013, read in conjunction with Article17 of the Charter, must be interpreted as meaning that a Natura 2000 payment must not be granted to the owner of a peat bog that comes within the Natura 2000 network on the basis that a restriction has been made to an economic activity which may be carried out on such a peat bog, such as the prohibition on planting cranberries, where, at the time when he or she acquired the immovable property concerned, the owner was aware of such restriction.