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Cite as: [2011] ECR I-5367, [2011] EUECJ C-536/9, [2011] EUECJ C-536/09

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JUDGMENT OF THE COURT (Seventh Chamber)

16 June 2011 *(1)

(Common agricultural policy – Community aid schemes – Integrated administration and control system – Regulation (EC) No 796/2004 – Fact of preventing an on-the-spot check from being carried out – Definition – Farmer not living on the holding – Farmer’s representative – Definition)

In Case C-�536/09,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Upravno sodišče Republike Slovenije (Slovenia), made by decision of 15 December 2009, received at the Court on 21 December 2009, in the proceedings

Marija Omejc

Republika Slovenija,

THE COURT (Seventh Chamber),

composed of D. Šváby, President of the Chamber, G. Arestis (Rapporteur) and J. Malenovský, Judges,

Advocate General: J. Mazák,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 16 February 2011,

after considering the observations submitted on behalf of:

– Ms Omejc, by M. Klofutar, odvetnik,

– the Slovenian Government, by N. Aleš Verdir and V. Klemenc, acting as Agents,

– the European Commission, by F. Clotuche-Duvieusart and M. Peternel, and by D. Kukovec, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 23(2) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of 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 (OJ 2004 L 141, p. 18).

2 The reference has been made in proceedings between Ms Omejc, a farmer, and the Republic of Slovenia, represented by the Ministry of Agriculture, Forestry and Food, concerning the dismissal by the latter of the complaint brought by Ms Omejc against the decision of the Agency of the Republic of Slovenia for the agricultural market and rural development (‘the paying agency’) rejecting her application for direct aid for agriculture for 2006.

Legal context

3 Recital 1 in the preamble to Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, is worded as follows:

‘Common conditions should be established for direct payments under the various income support schemes in the framework of the common agricultural policy.’

4 Article 2 of Regulation No 1782/2003 provides:

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

(a) “farmer” means a natural or legal person, or a group of natural or legal persons, whatever legal status is granted to the group and its members by national law, whose holding is situated within Community territory, as referred to in Article 299 of the Treaty, and who exercises an agricultural activity,

…’

5 According to Recital 29 in the preamble to Regulation No 796/2004:

‘Compliance with the provisions on the aid schemes managed under the integrated system should be effectively monitored. To this end, and to have a harmonised level of monitoring in all Member States, it is necessary to set out in detail the criteria and technical procedures for carrying out administrative and on-the-spot checks in respect both of the eligibility criteria established for the aid schemes and the cross compliance obligations. Moreover, as regards checks on the compliance with eligibility criteria, on-the-spot checks should, as a general rule, be unannounced. Where appropriate, the Member States should undertake to combine the various controls under this Regulation.’

6 According to Recital 55 in the preamble to Regulation No 796/2004:

‘To protect the Community’s financial interests effectively adequate measures should be adopted to combat irregularities and fraud. Separate provisions should be made in cases of irregularities found with regard to eligibility criteria for the different aid schemes concerned.’

7 Article 23 of Regulation No 796/2004 provides:

‘1. Administrative and on-the-spot checks provided for in this Regulation shall be made in such a way as to ensure effective verification of compliance with the terms under which aids are granted and of the requirements and standards relevant for cross-compliance.

2. The applications for aid concerned shall be rejected if the farmer or his representative prevents an on-the-spot check from being carried out.’

8 Article 25(1) of Regulation No 796/2004 provides:

‘1. On-the-spot checks shall be unannounced. However, provided that the purpose of the control is not jeopardised, advance notice may be given, strictly limited to the minimum time period necessary. Such notice shall, except in duly justified cases, not exceed 48 hours.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9 On 15 March 2006, Ms Omejc made an application for direct aid for agriculture for 2006 to the paying body.

10 During the first unannounced check on 7 September 2006, covering the land and the livestock on the agricultural holding run by the applicant in the main proceedings, a single irregularity was detected, namely, the absence of markings on one of the sheep on that holding.

11 In order to ascertain whether that irregularity had been put right, the inspector of the paying body wished to carry out a second on-the-spot check on 24 November 2006. The day before, that inspector had called the telephone number for the landline at the holding and informed Ms Omejc’s father, who lived there, of the check. However, in her aid application, the applicant in the main proceedings, who no longer lived on the holding, had given a mobile telephone number on which she could be contacted.

12 Ms Omejc’s father having been unable to inform her that the check was to be carried out, and not being he was not authorised to represent his daughter, the inspector was unable, in the absence of Ms Omejc, to check the necessary documents and, therefore, to complete the on-the-spot check on 24 November 2006. The applicant in the main proceedings was informed of those facts only when she contacted the inspector on the telephone number that the inspector had given her father when the check was terminated.

13 By decision of 14 December 2006, the paying body rejected the aid application submitted by Ms Omejc on the basis of Article 23(2) of Regulation No 796/2004, on the ground that the applicant in the main proceedings had not allowed the person authorised by that body to undertake the on-the-spot check.

14 On 27 December 2006, Ms Omejc made a complaint against that decision to the Ministry of Agriculture, Forestry and Food. By decision of 18 April 2007, the latter dismissed the complaint, taking the view that the on-the-spot check had been prevented or made impossible for reasons attributable solely to the applicant in the main proceedings and that, therefore, the provisions of Article 23(2) of Regulation No 796/2004 had been correctly applied by the paying body.

15 On 27 June 2007, Ms Omejc brought an action before the Upravno sodišče Republike Slovenije (Administrative Court of the Republic of Slovenia) seeking the annulment of the decision dismissing her complaint and the grant of the aid applied for.

16 In its reference for a preliminary ruling, the Upravno sodišče Republike Slovenije observes that Article 23(2) of Regulation No 796/2004 does not state whether an aid application must be rejected both where an action is intentional and where it arises from the negligence of the farmer or his representative. Furthermore, that provision does not define the concept of ‘representative’. Consequently, after considering that the resolution of the dispute in the main proceedings requires the interpretation of that provision of Regulation No 796/2004, the Upravno sodišče Republike Slovenije decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Must the expression ‘prevents an on-the-spot check [from being carried out]’ be interpreted in accordance with national law, which links the concept of prevention to deliberate conduct or negligence on the part of a particular person?

2. If the first question is answered in the negative: must the expression ‘prevents an on-the-spot check [from being carried out]’ be interpreted as including, as well as deliberate acts or situations deliberately brought about that make it impossible to carry out that check, any act or omission that can be ascribed to the negligence of the farmer or of his representative if, as a result, it was not possible to carry out the check in its entirety?

3. If Question 2 is answered in the affirmative: is the imposition of the sanction under Article 23(2) of Regulation No 796/2004/EC conditional upon the farmer’s having been adequately informed of that part of the check which requires his cooperation?

4. When the holder does not live on the agricultural holding, must the issue of the definition of ‘representative’ for the purpose of Article 23(2) of Regulation No 796/2004/EC be considered in the light of national law or of Community/Union law?

5. If the issue in Question 4 has to be considered in the light of Community/Union law: must Article 23(2) of Regulation No 796/2004/EC be interpreted as meaning that any adult, having proper capacity, who lives on the holding and to whom the farmer entrusts at least part of the management of that agricultural holding must be considered to be the farmer’s representative when an on-the-spot check is carried out?

6. If question 4 must be considered in the light of Community law and if the answer to question 5 is negative: is a person who runs an agricultural holding (the farmer for the purpose of Article 23(2) of Regulation No 796/2004/EC) but who does not live there required to appoint a representative who may, as a rule, be found on the agricultural holding at any time?’

Consideration of the questions referred for a preliminary ruling

The first and second questions

17 By its first and second questions, which it is appropriate to examine together, the referring court asks essentially whether the expression ‘prevents an on-the-spot check from being carried out’, in Article 23(2) of Regulation No 796/2004, corresponds to an autonomous concept of European Union law which must be interpreted in a uniform manner in all Member States and, if appropriate, whether that concept must be understood as meaning that it includes, in addition to deliberate conduct, any act or omission that may be ascribed to the negligence of the farmer or of his representative that has the consequence of preventing an on-the-spot check from being carried out.

18 In that connection, it must be stated at the outset that neither Article 23(2) nor any other provision of Regulation No 796/2004 contains any reference to national law as regards the concept to which the expression ‘prevents an on-the-spot check from being carried out’ corresponds.

19 In such circumstances, according to the Court’s settled case-law, the need for a uniform application of European Union law and the principle of equality require the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope normally to be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation (see, in particular, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-�6917, paragraph 43; and Case-467/08 Padawan [2010] ECR I-�0000, paragraph 32).

20 It is clear from that case-law that the expression ‘prevents an on-the-spot check from being carried out’, in a provision in a regulation which contains no reference to national laws, must be regarded as corresponding to an autonomous concept of European Union law, the meaning and scope of which must be identical in all the Member States. Therefore, it is for the Court to give that expression a uniform interpretation in the EU legal order.

21 In that regard, it should be borne in mind that, according to the Court’s settled case-�law, in interpreting a provision of European Union law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it is part (see, inter alia, Case 292/82 Merck [1983] ECR 3781, paragraph 12; Case C-�34/05 Schouten [2007] ECR I-�1687, paragraph 25; and Case C-�116/10 Felgen and Bacino Charter Company [2010] ECR I-�0000, paragraph 12).

22 It must be observed, first of all, that the actual wording of Article 23(2) of Regulation No 796/2004 does not contain any indication as regards the meaning to give to the expression ‘prevents an on-the-spot check [from being carried out]’. That provision merely states that the aid applications are to be rejected if the farmer or his representative prevents an on-the-spot check from being carried out, and does not specify whether the fact of preventing that check from taking place must be the consequence of conduct that includes, in addition to deliberate conduct, any act or omission that may be ascribed to the negligence of the farmer of his representative.

23 Next, it is clear from a comparative examination of the different language versions of Article 23(2) of Regulation No 796/2004 that that provision presents differences as far as concerns the expression ‘prevents an on-the-spot check from being carried out’. Some language versions, such as the English, French and Slovene versions use the word ‘prevents’, while other versions use a different formula. Thus, the German version uses the expression ‘makes impossible’ and the Italian version makes the rejection of the applications concerned subject to the condition that ‘an on-the-spot check cannot be carried out for reasons which may be ascribed to the farmer or his representative’.

24 In view of the linguistic differences, the purport of the concept of European Union law in question cannot be determined on the basis of an exclusively textual interpretation. That expression must therefore be interpreted in the light of the context in which it is used and of the aims and scheme of the regulation of which it is part (see, to that effect, Case C-372/88 Cricket St Thomas [1990] ECR I-1345, paragraph 19; Case C-�455/05 Velvet & Steel Immobilien [2007] ECR I-3225, paragraph 20, and Case C-239/07 Sabatauskas and Others [2008] ECR I-7523, paragraph 39).

25 As regards the context in which the concept occurs, to which the expression ‘prevents an on-the-spot check from being carried out’ corresponds occurs, it must be observed that that concept appears in Article 23 of Regulation No 796/2004, which is of particular importance in that regulation, since it lays down the general principles in accordance with which checks must be carried out. In that connection, subparagraph 1 of that provision states that administrative and on-the-spot checks provided for in that regulation are to be made in such a way as to ensure effective verification of compliance with the terms on which aid is granted and of compliance with the requirements and standards relevant for cross-compliance.

26 Lastly, it is clear from the wording of Recitals 29 and 55 in the preamble to Regulation No 796/2004 that the latter aim is intended, in particular, as far as concerns the making of checks, to ensure effective monitoring of the aid schemes managed under the integrated system and to protect the Community’s financial interests effectively by adopting adequate measures to combat irregularities and fraud.

27 It follows that checks are indispensable so that the objectives pursued by Regulation No 796/2004 may be achieved and, therefore, on that view, the fact of preventing them from being carried out cannot but lead to serious legal consequences, such as the rejection of the aid applications concerned as provided for by Article 23(2) of that regulation with respect to on-the-spot checks.

28 Although, having regard to the objectives of combating irregularities and fraud, those serious legal consequences are justified if the farmer or his representative adopts deliberate conduct aiming to avoid an on-the-spot check, within the meaning of Article 23(2) of Regulation No 796/2004, the position cannot be the same where the farmer or his representative has taken all measures which may be reasonably required of him in order to ensure that that check is carried out in full. The rejection of the applications concerned in accordance with that provision is therefore justified, if the farmer or his representative has not adopted such deliberate conduct, only if he or his representative has prevented or made it impossible for the check or a part thereof to be carried out by reason of any act or omission which may be ascribed to his negligence, without his taking any such action.

29 Therefore, the fact that the farmer or his representative has taken all reasonable measures in his power in order to ensure that the full on-the-spot check is not prevented or made impossible, in particular by communicating to the paying body concerned a telephone number on which he may be reached, that he acted in good faith by employing all the diligence of a prudent farmer, and that fraudulent conduct is excluded, constitute important evidence for the purpose of establishing whether that farmer or his representative has prevented the on-the-spot check from being carried out within the meaning of Article 23(2) of Regulation No 796/2004. It is for the national court to determine whether those facts are proved in the case in the main proceedings, taking account of all the facts in the case.

30 Having regard to all of the foregoing considerations, the answer to the first and second questions is that the expression ‘prevents an on-the-spot check from being carried out’ in Article 23(2) of Regulation No 796/2004 corresponds to an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States to the effect that it includes, in addition to deliberate conduct, any act or omission ascribable to the negligence of the farmer or his representative that has the consequence of preventing an on-the-spot check from being carried out in full, where the farmer or his representative has not taken all measures which may reasonably be required of him in order to ensure that that check may be carried out in full.

The third question

31 By its third question, the referring court asks essentially whether the rejection of the aid applications concerned, under Article 23(2) of Regulation No 796/2004, depends upon the farmer’s having been adequately informed of that part of the check which requires his cooperation.

32 In that connection, it must be observed that Article 23(2) of Regulation No 796/2004 does not lay down any obligation to inform the farmer or his representative that a check or any part thereof is to be carried out. In accordance with that provision, only the fact of preventing that check from being carried out justifies the rejection of the application concerned, regardless of whether or not the farmer has been duly informed that a check was to be carried out. It follows that the rejection of the applications provided for by that provision is not subject to the condition that the farmer or his representative should have been informed in advance in an appropriate manner of that part of the on-the-spot check that requires his cooperation.

33 Furthermore, it does not appear in any other provision of Regulation No 796/2004 that a notice must be sent to the farmer before an on-the-spot check is carried out. To the contrary, as Article 25(1) thereof states, on-the-spot checks are, as a general rule, to be unannounced and advance notice may be given only under certain conditions.

34 Having regard to those considerations, the answer to the third question is that the rejection of the aid applications concerned, under Article 23(2) of Regulation No 796/2004, does not depend on the farmer or his representative’s being adequately informed of the part of the on-the-spot check that requires his cooperation.

The fourth and fifth questions

35 By the fourth and fifth questions, which it is appropriate to examine together, the referring court asks essentially, whether ‘representative’, in Article 23(2) of Regulation No 796/2004, is an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States and, if appropriate, whether that concept must be understood as meaning that it includes, when on-the-spot checks are carried out, any adult, having proper capacity, who lives on the agricultural holding and to whom the farmer entrusts at least part of the management of that holding.

36 It must be observed from the outset that neither Article 23(2) or any other provision of Regulation No 796/2004 contains any reference to national law as regards the concept of ‘representative’ referred to in that article.

37 It follows from the case-law referred to in paragraph 19 of the present judgment that the concept of ‘representative’, which appears in a provision which is part of a regulation which contains no reference to national laws, must be regarded as an autonomous concept of European Union law, whose meaning and scope must be identical in all the Member States. Therefore, it is for the Court to give the concept of ‘representative’ a uniform interpretation in the European Union legal order.

38 Thus, it is clear from paragraph 27 of the present judgment that Article 23(2) of Regulation No 796/2004 provides that if the farmer prevents the on-the-spot check from being carried out he risks serious legal consequences as the aid applications concerned are rejected in that case. It must also be observed that that provision leads to the same consequences where the fact that an on-the-spot check has been prevented arises from the conduct of the farmer or his representative, who are considered in the same way in that regard.

39 It follows that, if the performance of the on-the-spot check is prevented by the conduct of the farmer’s representative, the aid applications concerned are rejected and the farmer thereby assumes the legal consequences of the his representative’s acts or omissions. Since, in that case, the farmer assumes the entire responsibility for the conduct of his representative, any adult having proper capacity who lives on the holding and to whom the farmer entrusts at least part of the management of that agricultural holding may be regarded as being the farmer’s ‘representative’, within the meaning of Article 23(2) of Regulation No 796/2004, only if the farmer’s wish to appoint that person to represent him has been clearly expressed.

40 Having regard to all the foregoing considerations, the answer to the fourth and fifth questions is that the concept of ‘representative’, referred to in Article 23(2) of Regulation No 796/2004, which is an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, must be interpreted as meaning that it includes, when on-the-spot checks are carried out, any adult having proper capacity, who lives on the holding and to whom the farmer entrusts at least part of the management of that agricultural holding, in so far as the farmer has clearly expressed his wish to give that person authority in order to represent him and, therefore, undertakes to assume responsibility for all that person’s acts and omissions.

The sixth question

41 By its sixth question, the referring court asks essentially whether Article 23(2) of Regulation No 796/2004 must be interpreted as meaning that a farmer who does not live on the agricultural holding which he runs, is required to appoint a representative who may, as a rule, be found on the agricultural holding at any time.

42 In that connection, it must be observed that neither Article 23(2) of Regulation No 796/2004 nor any other provision thereof introduces an obligation for a farmer who does not live on the agricultural holding which he runs to appoint a representative.

43 Furthermore, the since the objective of the check is to ensure effective verification of compliance with the terms on which aid is granted and of the requirements and standards relevant for cross-compliance, provided for in Article 23(1) of Regulation No 796/2004, there can be no requirement for the farmer to appoint a representative solely because he does not live on the agricultural holding. That objective must be regarded as being achieved if the farmer or his representative has not prevented the on-the-spot check from being carried out within the meaning of Article 23(2), as interpreted by the Court in paragraph 30 of the present judgment.

44 In the same way, it must be observed that no provision of Regulation No 796/2004 requires the farmer to be found at any given moment on the agricultural holding which he runs. It follows, therefore, that that obligation cannot be imposed on the farmer’s representative. In any event, such an obligation must be regarded as excessively restrictive and, in practice, impossible to comply with.

45 Having regard to those considerations, the answer to the sixth question is that Article 23(2) of Regulation No 796/2004 must be interpreted as meaning that a farmer who does not live on the agricultural holding which he runs is not required to appoint a representative who may, as a rule, be found at any given moment on that holding.

Costs

46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1. The expression ‘prevents an on-the-spot check from being carried out’ in Article 23(2) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of 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, corresponds to an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, to the effect that it includes, in addition to deliberate conduct, any act or omission ascribable to the negligence or the farmer or his representative which has the consequence of preventing an on-the-spot check from being carried out in full, where the farmer or his representative has not taken all measures which may reasonably be required of him in order to ensure that that check may be carried out in full.

2. The rejection of the aid applications concerned, under Article 23(2) of Regulation No 796/2004, does not depend on the farmer or his representative being adequately informed of the part of the on-the-spot check that requires his cooperation.

3. The concept of ‘representative’, referred to in Article 23(2) of Regulation No 796/2004, which is an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, must be interpreted as meaning that it includes, when on-the-spot checks are carried out, any adult having proper capacity, who lives on the holding and to whom the farmer entrusts at least part of the management of that agricultural holding, in so far as the farmer has clearly expressed his wish to give that person authority in order to represent him and, therefore, undertakes to assume responsibility for all that person’s acts and omissions.

4. Article 23(2) of Regulation No 796/2004 must be interpreted as meaning that a farmer who does not live on the agricultural holding which he runs is not required to appoint a representative who may, as a rule, be found at any given moment on that holding.

[Signatures]

1 Language of the case: Slovenian