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URL: http://www.bailii.org/eu/cases/EUECJ/2014/C4713_O.html
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OPINION OF ADVOCATE GENERAL
Sharpston
delivered on 30 April 2014 (1)
Case C‑47/13
Martin Grund
v
Landesamt für Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany))
(Agriculture — Direct support scheme — Definition of ‘permanent pasture’ — Land used for more than five years for production of grass or other herbaceous forage — Change of type of herbaceous forage during the period)
1. This request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) (Germany) raises what might seem to be a basically straightforward question, but one which is somewhat obscured by complex legislation and some discrepancies between language versions. Does the fact that pasture has been successively reseeded with different types of herbaceous forage constitute crop rotation or is the land to be regarded as permanent pasture?
Context
2. Before setting out the legislative framework, it may be helpful to outline the general context in which the dispute in the main proceedings has arisen and some of the specific issues which complicate the resolution of that dispute.
3. Direct aid for farmers under the common agricultural policy may be made conditional on compliance with certain standards in order to encourage, inter alia, good environmental practice. For example, support may be given for maintaining pasture but withdrawn if it is converted to arable land. In some circumstances, such conversion may be prohibited. However, farmers may none the less wish to convert pasture to arable land where they can derive more profit from the latter.
4. The main proceedings involve a German farmer, two of whose fields would be subject to a prohibition of conversion to arable land if they were to be classified as permanent pasture within the meaning of the European Union (‘EU’) legislation. He wishes therefore to establish that they were not to be so classified at the relevant date. To that end, he submits that changes between grass and a clover/grass mixture on the fields interrupted the classification as permanent pasture and in fact constituted crop rotation. (2) The competent national authorities disagree.
5. The situation is complicated to some extent by the fact that, where most language versions of the EU legislation use a term similar to ‘conversion’ when referring to a change from pasture to arable use, the German version uses terms which relate to ploughing. Here, it appears that the farmer did not plough the land but used a method (overseeding following scarification of the ground, also sometimes known as interseeding or no-till seeding), in which the previous crop is not removed and the soil is not turned over but the surface is loosened or roughened using a scarifier or harrow and the same or another crop is seeded in addition to the existing crop.
6. A further minor issue is the fact that the EU legislation has been implemented in Germany both at national and at regional level. Whereas the national legislation makes a dynamic reference to the EU legislation as it has been or may be amended, the regional legislation makes a static reference to a version of the EU legislation which has now been repealed and replaced.
EU legislation
7. Two successive regimes governing direct support schemes for farmers under the common agricultural policy have been cited: first, that embodied in Council Regulation No 1782/2003 (3) and Commission Regulation No 796/2004 (4) (‘the first regime’); then, with effect from 1 January 2009 as regards the Council legislation and 1 January 2010 as regards the Commission legislation, that embodied in Council Regulation No 73/2009 (5) and Commission Regulation No 1122/2009 (6) (‘the second regime’). However, in so far as is relevant to the present case, there are few, if any, material differences between the two sets of provisions. (7)
Maintenance of permanent pasture
8. In the first regime, the preamble to Regulation No 1782/2003 contained, inter alia, the following recitals:
‘(2) The full payment of direct aid should be linked to compliance with rules relating to agricultural land, agricultural production and activity. Those rules should serve to incorporate in the common market organisations basic standards for the environment, food safety, animal health and welfare and good agricultural and environmental condition. If those basic standards are not met, Member States should withdraw direct aid in whole or in part ...’
‘(4) Since permanent pasture has a positive environmental effect, it is appropriate to adopt measures to encourage the maintenance of existing permanent pasture to avoid a massive conversion into arable land.’
9. Those aims are echoed and confirmed in recitals 3 and 7 in the preamble to Regulation No 73/2009 in the second regime:
‘(3) Regulation (EC) No 1782/2003 established the principle that farmers who do not comply with certain requirements in the areas of public, animal and plant health, environment and animal welfare are subject to reductions of or exclusion from direct support. This “cross compliance” system forms an integral part of Community support under direct payments and should therefore be maintained. ...’
‘(7) Regulation (EC) No 1782/2003 recognised the positive environmental effect of permanent pasture. The measures in that Regulation aimed at encouraging the maintenance of existing permanent pasture to ensure against mass conversion to arable land should be maintained.’
10. As regards substantive provisions, Article 3(1) of Regulation No 1782/2003 required a farmer receiving direct payments to respect in particular the ‘good agricultural and environmental condition’ established under Article 5. In the second regime, that requirement was reiterated in Article 4(1), referring to the condition in Article 6, of Regulation No 73/2009.
11. The relevant condition is set out in the first subparagraph of Article 5(2) of Regulation No 1782/2003 and of Article 6(2) of Regulation No 73/2009, which require Member States to ‘ensure that land which was under permanent pasture at the date provided for the area aid applications for 2003 is maintained under permanent pasture’. The second subparagraph of each provision allows a Member State to derogate from the first subparagraph in duly justified circumstances, ‘provided that it takes action to prevent any significant decrease in its total permanent pasture area’.
12. Turning from the Council legislation to the Commission’s detailed implementing rules, in the first regime Article 3 of Regulation No 796/2004 set out Member States’ obligations as regards the maintenance of land under permanent pasture, as provided for in Article 5(2) of Regulation No 1782/2003. In particular, Article 3(1) required Member States to ensure the maintenance of the ratio of the land under permanent pasture in relation to the total agricultural area, at national or regional level, while Article 3(2) required them to ensure that that ratio did not decrease to the detriment of land under permanent pasture by more than 10% relative to the reference ratio for 2003. In the second regime, the same obligations and requirements are set out in Article 3(1) and (2) of Regulation No 1122/2009.
13. The relevant provisions of Article 4 are practically identical in Regulation No 796/2004 and in Regulation No 1122/2009. The article is entitled ‘Maintenance of land under permanent pasture at individual level’ and contains the following paragraphs:
‘1. Where it is established that the ratio referred to in Article 3(1) of this Regulation is decreasing the Member State concerned shall, at national or regional level, provide for the obligation of farmers applying for aid under any of the direct payment schemes listed in Annex I [to Regulation No 1782/2003 or Regulation No 73/2009, as the case may be] not to convert [(8)] land under permanent pasture without prior authorisation.
...
2. Where it is established that the obligation referred to in Article 3(2) of this Regulation cannot be ensured, the Member State concerned shall, further to the measures to be taken in accordance with paragraph 1 [of this Article], provide, at national or regional level, for the obligation of farmers applying for aid under any of the direct payment schemes listed in Annex I [to Regulation No 1782/2003 or Regulation No 73/2009, as the case may be] to re-convert land into land under permanent pasture [(9)] for those farmers who have land at their disposal which was converted [(10)] from land under permanent pasture into land for other uses.
...’
Definitions
The direct support legislation
14. The definition of ‘permanent pasture’ is essentially the same in the first and second regimes. It is contained in Article 2(2) of Regulation No 796/2004 and Article 2(c) of Regulation No 1120/2009, (11) to which Article 2(2) of Regulation No 1122/2009 refers. The basic definition is ‘land used to grow grasses or other herbaceous forage naturally (self-seeded) or through cultivation (sown) and that is not included in the crop rotation of the holding for five years or longer’.
15. Regulation No 239/2005 (12) added Article 2(2a) to Regulation No 796/2004, defining ‘grasses or other herbaceous forage’ as ‘all herbaceous plants traditionally found in natural pastures or normally included in mixtures of seeds for pastures or meadows in the Member State (whether or not used for grazing animals)’. The same wording was included in Article 2(c) of Regulation No 1120/2009. (13)
16. In addition, in the second regime, Article 2(d) of Regulation No 1120/2009 states that ‘grassland’ means ‘arable land used for grass production (sown or natural); for the purposes of Article 49 of Regulation (EC) No 73/2009 grassland shall include permanent pasture’. Article 2(b) defines ‘permanent crops’ as ‘non-rotational crops other than permanent pasture that occupy the land for five years or longer and yield repeated harvests ...’.
Farm structure surveys
17. Other definitions which may (or may not) be relevant are to be found in Annex I to Decision 2000/115 (14) and Annex II to Regulation No 1200/2009, (15) which replaced Decision 2000/115 with effect from 4 January 2010. Again, the definitions are essentially the same in both cases. One distinction between the two measures is that Annex I to Decision 2000/115 contains ‘definitions’ and ‘explanations’, whereas, according to its title, Annex II to Regulation No 1200/2009 lists only ‘definitions’ — including what are described as ‘explanations’ in the former.
18. ‘Arable land’ is defined in Section D of Annex I to Decision 2000/115 and point II.2.01 of Annex II to Regulation No 1200/2009 as land ‘worked (ploughed or tilled) regularly, generally under a system of crop rotation’. The former then explained that a ‘crop rotation system means that the crops on a certain plot are following other crops according to a predefined plan’, while the latter defines crop rotation as ‘the practice of alternating annual crops grown on a specific field in a planned pattern or sequence in successive crop years so that crops of the same species are not grown without interruption on the same field’. Both continue: ‘Normally the crops are changed annually, but they can also be multi-annual. For discriminating arable land from permanent crops or permanent grassland [and meadows], a threshold of five years is used. This means that if a plot is used for the same crop for five years or more, without in the meantime removing the preceding crop and establishing a new one, it is not considered arable land.’
19. Point D.18(a) of Annex I to Decision 2000/115 defined ‘temporary grass’ as ‘grass plants for grazing, hay or silage included as a part of a normal crop rotation, lasting at least one crop year and less than five years, sown with grass or grass mixtures. The areas are broken up by ploughing or other tilling or the plants are destroyed by other means such as by herbicides before they are sown or planted again.’ It explained that ‘mixtures of predominantly grass plants and other forage crops (usually leguminous), grazed, harvested green or as dried hay are included here’, but not ‘annual grass crops (lasting less than one crop year)’.
20. Section F defined ‘permanent grassland and meadow’ as ‘land used permanently (for five years or more) to grow herbaceous forage crops, through cultivation (sown) or naturally (self-seeded) and that is not included in the crop rotation on the holding’, explaining that it ‘can be used for grazing or mowed for silage or hay’.
21. Points II.2.01.09.01 and II.2.03 of Annex II to Regulation No 1200/2009 define ‘temporary grass’ and ‘permanent grassland’ respectively in essentially the same way as their counterparts in Annex I to Decision 2000/115. However, the exclusion of ‘annual grass crops (lasting less than one crop year)’ from ‘temporary grass’ is not repeated, and ‘renewable energy production’ is added to the possible uses of ‘permanent grassland’.
German legislation
22. The Federal Direktzahlungen-Verpflichtungengesetz (Law on obligations relating to direct payments) of 21 July 2004 implements Regulation No 1782/2003 and the measures adopted for its application, with particular regard to the maintenance of permanent pasture on holdings claiming direct payments. It refers dynamically to the versions of EU legislation applicable at any relevant time and was brought into line with the texts revised in 2009. Under Paragraph 3(1) of that law, the Länder are responsible for ensuring that the proportion of permanent pasture does not appreciably diminish. Under Paragraph 5(3)(1), they are empowered to prohibit or to restrict the ploughing up (16) of pasture where the proportion of permanent pasture has decreased by more than 5%.
23. On that basis, the Land of Schleswig-Holstein adopted the Landesverordnung zur Erhaltung von Dauergrünland (‘Permanent Pasture Maintenance Regulation’) on 13 May 2008. Under Paragraph 1(1) of that regulation, if it is established on the basis of individual applications for the single farm payment that the proportion of permanent pasture has decreased by more than 5%, the competent authority is to make a public declaration to that effect. Under Paragraph 2(1), once that declaration has been published, farmers who claim direct support may not plough up (17) permanent pasture, as defined in Article 2(2) of Regulation No 796/2004, for as long as they are in receipt of direct support. However, Paragraph 2(2) allows the competent authority to authorise such ploughing by derogation from Paragraph 2(1). Unlike the Federal law, the Permanent Pasture Maintenance Regulation refers only and specifically to Regulation No 796/2004, rather than to the EU legislation applicable at the relevant time, and has apparently not been updated following the introduction of the second regime.
24. On 23 June 2008 the competent authority declared that the proportion of permanent pasture had decreased by more than 5% in Schleswig-Holstein; the prohibition under Paragraph 1(1) of the Permanent Pasture Maintenance Regulation would therefore apply from the following day.
Facts, procedure and question referred
25. According to the account set out in the order for reference, Mr Grund is a farmer in Schleswig-Holstein and applies annually for farm subsidies. In his applications he indicated that, from 1998 and 1999 onwards, he was cultivating field grass (Ackergras) in two fields (Hohenkamp and Herrbusch). In 2005 he put a clover/grass mixture (Kleegras) on both fields by overseeding after scarification (18) and, from 2005 to 2008, notified them as under clover/grass mixture. In 2009 both were again used for field grass. In 2010 Hohenkamp was leased out and has since been the subject of an application for subsidies as a grass meadow. Since 2010 silage maize has been cultivated on Herrbusch, pursuant to an authorisation in exchange for which another area had to be brought into use as permanent pasture. (19)
26. By letter of 9 January 2009 the Landesamt für Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein (Regional office for agriculture, environment and rural areas of the Land of Schleswig-Holstein, ‘the Landesamt’) informed Mr Grund that it had reclassified the fields as permanent pasture because they had been used uninterruptedly as pasture from 1998 to 2008. It also pointed out that the prohibition under the Permanent Pasture Maintenance Regulation applied to the fields.
27. Mr Grund challenged that reclassification (apparently because he could lease Hohenkamp at a higher rent as arable land), claiming principally that the land was not permanent pasture. Land on which field grass was cultivated was not permanent pasture because after one or two years of use it would be ploughed. (20) Permanent pasture was land permanently sown with the same grass. The specific ecological value associated with that was not attached to land sown with field grass. In any event, a change from clover/grass mixture to field grass or vice versa was a crop rotation precluding the creation of permanent pasture and ending existing use as permanent pasture land.
28. The Landesamt contended that land sown with field grass that was regularly ploughed could be equated with natural permanent pasture. The decisive factor was that the same type of crop be cultivated without interruption; otherwise, a crop rotation would occur. But after field grass had been cultivated uninterruptedly on both areas over a period of five years they constituted permanent pasture irrespective of the subsequent sowing of a clover/grass mixture.
29. Mr Grund’s challenge was dismissed at first instance on the ground that, since he had cultivated field grass for at least five years on both fields up to 2003 or 2004, they constituted permanent pasture. That status, once acquired, was not lost by a crop rotation of different herbaceous forage plants. Mr Grund’s appeal against that judgment was dismissed on the ground that, irrespective of what happens when there is a change from grass or other herbaceous forage to other arable crops, a change from grass to another type of herbaceous forage does not affect the characteristics of existing permanent pasture.
30. Mr Grund’s further appeal on a point of law is now before the referring court, which seeks a ruling on the question:
‘Is agricultural land permanent pasture within the meaning of Article 2(2) of [Regulation No 796/2004] if used currently and for at least five years for the cultivation of grass or other herbaceous forage but during this period the area has been ploughed and instead of the previous herbaceous forage (in this case clover/grass mixture) another herbaceous forage (in this case field grass) sown, or do such cases constitute a crop rotation precluding the creation of permanent pasture?’
31. Mr Grund, the Landesamt, the German Government and the Commission have submitted written observations and presented oral argument at the hearing on 6 February 2014.
Applicable EU legislation
32. The Commission submits that, ratione temporis, the second direct support regime is applicable, not the first, as the status of the two fields in issue falls to be determined as in 2010 and 2011 respectively. The Landesamt takes the view that, since the Permanent Pasture Maintenance Regulation refers to Regulation No 796/2004, the provisions of the first regime are those which must be interpreted. Mr Grund accepts that the reference is to Regulation No 796/2004 but points out that the primacy of EU law must mean that the second regime is directly applicable. The German Government considers that the question is immaterial, since the definitions are essentially the same under both regimes.
33. It seems to me clear that, if in the national proceedings the status of the fields falls to be determined as in 2010 and 2011 respectively, it is the EU legislation in force at those times — namely that of the second regime — which must be interpreted and applied. The fact that the Permanent Pasture Maintenance Regulation continues to refer to Regulation No 796/2004 is of no relevance. National legislation cannot extend the validity or effects of directly applicable EU legislation which has been repealed and replaced.
34. However, it appears from the order for reference that the main proceedings concern in the first place a challenge brought against a decision taken on 9 January 2009. At that point, the legislation embodying the second regime had not yet been adopted, although Regulation No 73/2009, when it entered into force on 1 February 2009, became applicable from 1 January 2009 (21) (Regulations No 1120/2009 and No 1122/2009 did not enter into force until 1 January 2010). In those circumstances, if the point in issue is the validity of a decision taken on 9 January 2009, there is a clear case to be made for interpreting and applying the legislation of the first regime. However, the determination of the material date with respect to each field is a matter of national procedural law, which this Court is not competent to decide.
35. Fortunately, as the German Government and the Commission have pointed out, there is no material difference between the two sets of EU legislation in so far as they concern the question referred, so that no actual problem of divergence of interpretation appears to arise. It will therefore be for the referring court to determine, in the context of the proceedings before it, which specific EU regulations are relevant.
Ancillary issues
36. The Landesamt raises two points which are not mentioned in the order for reference, and which it wishes the Court to take into account. First, although the conversion from field grass to clover/grass mixture in 2005 has been determined to have been by overseeding after scarification, it is not established that the return to field grass in 2009 was not simply the result of natural decline in the proportion of clover. Second, there is a further issue between the parties to the main proceedings, namely whether the status of permanent pasture had not already been acquired between 1998 or 1999 and 2004; Mr Grund maintains that, by a legal fiction, his declaration of the fields as arable land in 2003 is what counts, (22) whereas the Landesamt considers that it is only their true use as pasture which is relevant.
37. I do not consider that the Court should examine in the present proceedings whether the classification of the fields should be based on real use or, by a ‘legal fiction’, on the 2003 declaration. It is a point which is unrelated to the question posed and on which there has been no argument. Moreover, it appears from the Landesamt’s observations that the issue has been raised before the lower courts but does not form part of the appeal currently before the referring court. If, following the Court’s ruling in the present case and the ensuing decisions taken in the national proceedings, that issue must still be decided, the relevant national court may refer a further question as appropriate.
38. However, if pasture can change naturally from a clover/grass mixture to grass alone, that is a point which may be relevant when determining what constitutes crop rotation as opposed to maintenance of permanent pasture.
Substance
39. Mr Grund and the German Government propose to answer the question posed to the effect that in the circumstances described there is crop rotation and the land is not to be classed as permanent pasture, while the Landesamt and the Commission propose the contrary answer. I shall outline the opposing arguments before assessing the issue.
Arguments in favour of loss of permanent pasture status
40. Mr Grund notes that, in Regulation No 796/2004, ‘permanent pasture’ is defined by opposition to ‘arable land’ subject to ‘crop rotation’, a term not defined in the direct support legislation. However, for administrative and farming purposes, the definition of crop rotation in Decision 2000/115 is used. It implies alternating crops, if not annually, at least more than once every five years. In that context, clover and ryegrass, for example, are different crops. The grass cover need not be destroyed — the definition does not require ploughing and may include overseeding. The definition of temporary grass in point II.2.01.09.01 of Annex II to Regulation No 1200/2009 makes clear that an alternation of grass mixtures constitutes crop rotation.
41. By contrast, Article 4 of Regulation No 796/2004 implies that a permanent pasture is one on which the same type of herbaceous forage has been maintained for at least five years and that any switch to another type interrupts the five-year period. The aim is ecological. Ploughing up pasture releases carbon and nitrogen in quantities which increase with the length of time the land has lain undisturbed. Only when the same grass layer has lain undisturbed for more than five years are the environmental benefits, in particular biodiversity, significant enough to warrant protection.
42. The German Government notes that, for the fields in issue to be classified as permanent pasture, two conditions must be met during the five-year period preceding the relevant date: grasses or other herbaceous forage must be grown, and there must have been no crop rotation. There is no dispute that the first condition is met; the question is whether there was crop rotation during the relevant period.
43. ‘Crop rotation’ is not defined in the direct support legislation, but the definitions in the annexes to Decision 2000/115 or Regulation No 1200/2009 can be transposed. Both sets of measures are based on the same concept of permanent pasture, so the concept of crop rotation should also be the same; it would be unreasonable to define crop rotation differently in the two contexts without some objective justification, and there is none.
44. Crop rotation involves destroying the old crop and sowing a new one, at intervals of no more than five years. The replacement of field grass by a clover/grass mixture qualifies as a change of crop, clover being traditionally used in crop rotation to enrich the soil in nitrogen. There is nothing in EU law to suggest that alternation between different herbaceous forage crops does not constitute crop rotation. The references to conversion between permanent pasture and other uses do not concern alternation between different types of grass or herbaceous forage crop; the aim of the direct support legislation (Articles 5(2) of Regulation No 1782/2003 and 6(2) of Regulation No 73/2009) is to keep land under pasture instead of using it as arable land, both seen as broad concepts (the agricultural statistics legislation excludes temporary grass from permanent grassland, and thus includes it in arable land). The aim is expressly environmental in both Regulation No 1782/2003 and Regulation No 73/2009; the ecological benefits of pasture (biodiversity, high humus content, increased fixation of CO2) are attained only after five years without ploughing and sowing another crop. The main proceedings concern a situation in which crops (field grass and clover/grass mixture) were alternated at intervals of less than five years. There was therefore crop rotation and classification as permanent pasture is excluded.
Arguments in favour of maintenance of permanent pasture status
45. The Landesamt considers, first, that it follows from Article 2(2) of Regulation No 796/2004 that ploughing does not bring an end to use of land as pasture if it is followed by further use as pasture. That provision does not refer to work carried out on the land but to the use to which it is put. Article 4(1) of that regulation (and more clearly, in the German version, of Regulation No 1122/2009) refers to conversion to another use. Article 4(2) of Regulation No 796/2009 confirms that by referring (in the German version) to land ploughed to be used for other purposes. The definition in Article 2(2) also confirms, by referring to the cultivation of herbaceous forage, that permanent pasture need not be used for grazing but may also be harvested, a procedure which is, from an ecological point of view, no more beneficial than ploughing.
46. Second, the fact that there is a change in the type of use as pasture does not interrupt the period of use as pasture. Article 2(2) of Regulation No 796/2004 contrasts ‘grow[ing] grasses or other herbaceous forage’ with ‘crop rotation’. Therefore, if grasses or other herbaceous forage are grown (even in alternation), there is no crop rotation. Article 4(2) further contrasts ‘land under permanent pasture’ (on which grasses or other herbaceous forage are grown) with ‘land used for other purposes’ (namely, any purposes other than the growing of grasses or other herbaceous forage) and (in the German version) refers to reseeding if land used for other purposes is converted back to permanent pasture — a reference which can only mean that the land had not been seeded with grasses or other herbaceous forage (the idea of reconversion bearing the same implication in other language versions). By contrast, two successive uses as permanent pasture must be regarded as continuing use for that purpose. As for the explanation of ‘crop rotation’ in point 2.01 of Annex II to Regulation No 1200/2009 (or point D.II of Annex I to Decision 2000/115), that relates only to EU surveys of farm structures and is of no relevance to the obligation to maintain permanent pasture; in any event, it does not specify whether ‘crop’ means a specific crop or a category of crop.
47. Finally, the Landesamt submits that, even if a change to a different herbaceous forage crop were considered to interrupt the five-year period for the acquisition of permanent pasture status, it should not be regarded as terminating that status once acquired.
48. The Commission agrees that both the field grass and the clover/grass mixture sown on the land in issue constitute ‘grasses or other herbaceous forage’. The question is whether alternation between the two constitutes ‘crop rotation’. Those words are not defined in the relevant legislation, so, in accordance with consistent case-law, they must be interpreted by reference to their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part.
49. As noted by the referring court, the usual meaning of ‘crop rotation’ in everyday language involves a change from one crop to another, and may be considered by some to include the change in issue in the main proceedings.
50. However, the systematic context in which the term is used tends to indicate that ‘crop rotation’ does not include such a change. The definition of ‘permanent pasture’ in Article 2(c) of Regulation No 1120/2009 includes all types of grass and of herbaceous forage, so a change from one type to another does not affect classification as permanent pasture. Article 2(b) indicates that ‘permanent pasture’ is a subdivision of ‘permanent crop’ but is not to be further subdivided, as is confirmed by the concept of maintaining permanent pasture set out in Article 4(1) and (2) of Regulation No 1122/2009, namely avoiding conversion to a type of crop other than permanent pasture. Other language versions are clearer than the German in that regard. It cannot be concluded from the use of the noun ‘Umbruch’ or the verb ‘umbrechen’ that ploughing alone (without a change to another type of crop) breaks the continuity of permanent pasture.
51. The aim of maintaining permanent pasture is based on scientific research showing that permanent pasture has in general a positive effect on reducing greenhouse gas emissions, preventing soil erosion and maintaining biodiversity. The effect remains the same when an area of permanent pasture is changed from one type of grass or herbaceous forage to another. The change in issue in the main proceedings thus has no bearing on continued classification as permanent pasture.
Assessment
52. The definition of permanent pasture in the direct support legislation, ‘land used to grow grasses or other herbaceous forage naturally (self-seeded) or through cultivation (sown) and that is not included in the crop rotation of the holding for five years or longer’, (23) contains two conditions. Whilst ‘grasses and other herbaceous forage’ are defined (together, as a category), (24) other (categories of) crops are not so defined. Nor is there a definition in that legislation of the term ‘crop rotation’. The absence of a definition of ‘crop rotation’ means — as the written observations lodged with the Court amply demonstrate — that it is possible to parse the definition of ‘permanent pasture’ in different ways. Is what matters the use to which the land is put: growing ‘grass or other herbaceous cover’ rather than (other) crops? (25) Or is it what is done to the land — that is, what techniques are applied to it? Do field grass (Ackergras) and a clover/grass mixture (Kleegras) count as the same crop (because they both fall within the definition of ‘grasses and other herbaceous forage’ (26))? Or are they different crops, so that a switch from one to the other counts as crop rotation?
53. A further question might be: ‘Is the order in which the two conditions are listed in the Regulation of any significance? If so, one would ask first: ‘Is this land currently under “grass or other herbaceous forage”?’ If the answer to that question were affirmative, one would then go on to ask: ‘Is that the current use because the land is being worked under a system of crop rotation — so that that current crop will be replaced (by what? by a crop within the same category or by a different crop?) — or has the “grass or other herbaceous forage” been growing there for more than five years?’ If the latter, the land is permanent pasture.
54. At this point, it is important to stress that there was no expert evidence before the Court as to (a) what are the purpose and essential features of crop rotation as understood by agronomists and (b) whether a change between grasses and other herbaceous forage would be covered by such purpose or features. For that reason, I feel unable to base the analysis that follows on an assumption (for it could be no more than that) that the legislator ‘must have meant’ one to read ‘grasses or other herbaceous forage’ in contradistinction to ‘other crops’, so that a change within the former category could never count as a crop rotation.
55. My starting point is therefore that, for land to be classified as permanent pasture, two conditions must have been fulfilled: the land must have been under ‘grasses or other herbaceous forage’ for at least five years and it must not have been included in the crop rotation of the holding for the same period. Those conditions are cumulative: if only one is fulfilled, the land cannot be classified as permanent pasture; moreover, if both are fulfilled it must be so classified.
56. If the two conditions are cumulative, logically it must be possible for one condition to be met and not the other. In the absence of clear words indicating that ‘grasses and other herbaceous forage’ are to be treated as a single concept for the purposes of deciding whether or not there has been crop rotation, it must therefore be possible for there to be crop rotation while grass or other herbaceous forage is maintained.
57. Consequently, it cannot be sufficient to say, as has been argued by the Landesamt and the Commission, in particular at the hearing, that what counts when determining whether land has lost the status of ‘permanent pasture’ is simply whether there has been a change from its use to grow grass or other herbaceous forage to use for other, in particular arable, purposes. That is one possibility, but another must be that there is crop rotation within the category of grasses or other herbaceous forage.
58. In the main proceedings, it appears that, for at least the five years preceding the relevant date for each field, both fields were under one or other type of grass or herbaceous forage. The issue is thus whether the way in which the type in question was changed during that period constituted crop rotation.
59. At one end of the scale, it seems to me clear that a change from a clover/grass mixture to grass alone as a result of natural decline in the proportion of clover (27) would not meet any definition of crop rotation, whether as understood in everyday language or agricultural usage or as set out in Section D of Annex I to Decision 2000/115 or point II.2.01 of Annex II to Regulation No 1200/2009.
60. At the other end of the scale, crop rotation within the category of ‘grasses and other herbaceous forage’ must, presumably, be deemed to take place where the land is ploughed up, with removal of the previous crop and reseeding with a different type of grass or herbaceous forage (which is the scenario postulated in the referring court’s question), or it would never be possible for such crop rotation to occur.
61. On the basis of the latter scenario, therefore, it seems difficult to answer the question posed other than to the effect that in the circumstances described there is crop rotation and the land cannot be classed as permanent pasture.
62. However, the scenario postulated in the question actually referred (ploughing with removal of the previous crop and reseeding with a different type of grass or herbaceous forage) does not appear to be quite the same as that described in the account of the facts in the order for reference (scarifying and overseeding with a partly different type of herbaceous forage). The discrepancy between the two may be due to the fact that the national court used in formulating its question the language of the legislation in the German version, which refers specifically to ploughing where other language versions use a term meaning conversion.
63. Consequently, in order to give a more complete answer, it may be desirable to consider changes that are less radical than ploughing and reseeding with a different type but more radical than natural decline or increase of a species of herbaceous forage within a mixture: for example (a) ploughing and reseeding with the same type of grass or herbaceous forage or (b) scarifying and overseeding with a partly different type of grass or herbaceous forage.
64. I agree with the Commission that (in the absence of the necessary definition) the words ‘crop rotation’ must be interpreted by reference to their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. (28) That approach seems all the more necessary in the light of the linguistic variation in other parts of the legislation, where a word bearing the general meaning of ‘change the use of’ is used in most if not all of the other language versions, while the German version uses a verb meaning ‘to break up’ the land or soil, apparently with the implication of a first, or at least thorough, ploughing.
65. Looking at the meaning of the term ‘crop rotation’ in ordinary language, I think it unlikely that either of my examples (a) and (b) in point 63 above would be regarded as falling within it, whether by a layman or by a farmer. As regards (a), crop rotation necessarily entails some change of crop, often with a view to maintaining balance in the soil. Reseeding with the same crop does not. As regards (b), overseeding (usually after scarifying) is commonly used to renew an existing area of grass (at least outside agriculture, as for lawns or sports pitches), rather than to change to a new type of grass. Here, there seems to have been only a partial change to a new type of crop (from clover/grass mixture to field grass).
66. Consideration of the context in which the term ‘crop rotation’ is used in the relevant legislation should, in my view, be confined in the first place to the direct support legislation itself. The legislation on agricultural statistics has a different aim, so there cannot be (contrary to the view of the German Government) a presumption that the term has exactly the same meaning in both contexts. However, if interpretation in the light of the context and of the aim of the direct support legislation were to lead to the same meaning as that in the statistical legislation, the latter would provide some support.
67. As far as the direct support legislation is concerned, the criteria of ‘context’ and ‘purposes’ are intertwined.
68. The stated aim of the provisions under consideration is that of encouraging the maintenance of existing permanent pasture to ensure against mass conversion to arable land, because of the positive environmental effect of permanent pasture. (29)
69. All the parties submitting observations agree that grassland is environmentally beneficial, but Mr Grund and the German Government assert that the benefit is attained only once the grass or other herbaceous forage has lain undisturbed for five years or more, whereas the Commission states that the effect remains positive even when the particular type of cover is changed during the period. Since that is an issue of fact on which conflicting views are advanced but which neither this Court nor the referring court is competent to determine, (30) it does not seem possible to base the requested interpretation on anything other than the twin propositions that keeping land under grass or other herbaceous forage is in itself environmentally beneficial and that the benefit increases in proportion to the length of time it is kept in that state, particularly when the cover lies undisturbed.
70. The way in which the direct support legislation seeks to achieve the aim of maintaining permanent pasture is by withholding payments from farmers who do not maintain existing permanent pasture as such. The preambles to the relevant Council regulations confirm (31) the principle that farmers who do not comply with certain requirements in the areas of public, animal and plant health, environment and animal welfare are subject to reductions of or exclusion from direct support — a cross-compliance system which forms an integral part of EU support under direct payments. That is given effect, as regards the maintenance of permanent pasture, in Articles 4(1) and 6(2), read together.
71. However, the Bundesverwaltungsgericht states in its order for reference that Mr Grund has an interest in obtaining a declaration that the Hohenkamp field is not permanent pasture because he can lease it at a higher rent as arable land.
72. Such an outcome would run counter to the purposes of the rules in issue. It therefore seems to me that, in order to remain consistent with the aim of those rules, the concept of conversion from permanent pasture to land for other uses (by means of crop rotation) should be interpreted in a way which does not facilitate such conversion.
73. Once conversion has taken place, there is no longer any ‘brake’ helping to maintain permanent pasture, and any incentive to re-convert to permanent pasture may be minimal or non-existent if rent is significantly higher for arable land. The aim, it must be remembered, is to maintain permanent pasture, not to switch at will between pasture and arable land — and it appears to be common ground that the positive environmental effect sought is enhanced the longer the land remains under pasture.
74. In that regard, it was explained at the hearing that scarification and overseeding were in principle more environmentally positive than ploughing and reseeding. Normally, both are performed in the autumn, but scarification and overseeding leaves the previous crop largely in place, so that the field remains green throughout the winter and cover is renewed in the spring, whereas ploughing and reseeding leaves the land bare during the winter. Consequently, it seems to me that the technique used is of some relevance in the matter, contrary to what several parties have argued.
75. Where, as appears to be the case in the main proceedings, the overseeding results in a partial change of type of herbaceous forage (between field grass and a clover/grass mixture), that cannot in my view give rise to a different determination from that where, for example, there is a natural decline in the proportion of one type in a mixture. (32) Such a situation is in fact likely to be environmentally beneficial since, as was explained at the hearing, it may avoid the need for fertilisers.
76. I therefore reach the view that, for the purposes of the regulations, there is crop rotation where agricultural land under grass or other herbaceous forage is ploughed up, removing that crop, and reseeded with a different crop either in the same category or in a different category. (33) However, there is no crop rotation where the previous crop is not removed by ploughing up the land but is partly modified by overseeding.
77. I note, moreover, that such a view is in fact supported rather than undermined by the agricultural statistics legislation, which excludes crop rotation if a plot is used for the same crop for five years or more, ‘without in the meantime removing the preceding crop and establishing a new one’ but considers it to take place when ‘areas are broken up by ploughing or other tilling or the plants are destroyed by other means such as by herbicides before they are sown or planted again’. (34)
Conclusion
78. In the light of all the foregoing considerations, I propose that the Court should answer the question referred by the Bundesverwaltungsgericht (Germany) to the following effect:
For the purposes of either Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 or Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of [Regulation No] 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for [in] that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector, where agricultural land is used for at least five years for the cultivation of grass or other herbaceous forage and, during that period, the area has been ploughed up, removing the previous crop, and reseeded with a different type of herbaceous forage, then there is crop rotation precluding classification as permanent pasture. Where, however, the previous crop is not removed by ploughing up the land but is partly modified by overseeding, then there is no crop rotation and the area is to be classified as permanent pasture.
1 – Original language: English.
2 – Crop rotation, generically, is ‘an agricultural practice in which different crops are cultivated in succession on the same area of land over a period of time so as to maintain soil fertility and reduce the adverse effects of pests’ (Dictionary of Biology, Elizabeth Martin and Robert Hine, Oxford University Press, 2008).
3 – 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 (OJ 2003 L 270 p. 1).
4 – 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 Council Regulations (EC) No 1782/2003 and (EC) No 73/2009, as well as for the implementation of cross compliance provided for in Council Regulation (EC) No 479/2008 (OJ 2004 L 141, p. 18), as amended.
5 – Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).
6 – Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for [in] that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65).
7 – Any differences in wording are indicated in square brackets.
8 – In Regulation No 796/2004, unlike other versions, the German version of this provision uses the verb ‘umbrechen’, which means to break up (the soil), and thus to plough or till (for the first time). In Regulation No 1122/2009, the verb used is ‘umwidmen’ (literally, ‘to rededicate’). Where the English version uses the simple verb ‘convert’, several other language versions refer specifically to conversion ‘to other uses’.
9 – In German, in both regulations, ‘to re-convert land into land under permanent pasture’ is rendered as ‘Flächen wieder als Dauergrünland einzusäen’ (literally, ‘to seed areas again as permanent pasture’).
10 – The German version again uses the verb ‘umbrechen’ in both regulations.
11 – Commission Regulation (EC) No 1120/2009 of 29 October 2009 laying down detailed rules for the implementation of the single payment scheme provided for in Title III of Regulation No 73/2009 (OJ 2009 L 316, p. 1).
12 – Commission Regulation (EC) No 239/2005 of 11 February 2005 amending and correcting Regulation (EC) No 796/2004 (OJ 2005 L 42, p. 3).
13 – Member States were also authorised to include crops listed in Annex IX to Regulation No 1782/2003 or Annex I to Regulation No 1120/2009, as the case may be. Those annexes contain identical lists of a number of types of cereals, oilseeds, protein crops, flax and hemp, which might not normally be regarded as pasture. It was stated, however, at the hearing that Germany has not availed itself of the possibility of including such crops.
14 – Commission Decision 2000/115/EC of 24 November 1999 relating to the definitions of the characteristics, the list of agricultural products, the exceptions to the definitions and the regions and districts regarding the surveys on the structure of agricultural holdings (OJ 2000 L 38, p. 1), as amended by Commission Regulation (EC) No 1444/2002 of 24 July 2002 (OJ 2002 L 216, p. 1).
15 – Commission Regulation (EC) No 1200/2009 of 30 November 2009 implementing Regulation (EC) No 1166/2008 of the European Parliament and of the Council on farm structure surveys and the survey on agricultural production methods, as regards livestock unit coefficients and definitions of the characteristics (OJ 2009 L 329, p. 1).
16 – The verb used is ‘umbrechen’, which corresponds, in the German version of Regulation No 796/2004, to ‘convert (to another use)’ or its equivalent in other languages.
17 – The verb used is again ‘umbrechen’.
18 – The referring court uses the verb ‘einschlitzen’.
19 – See the second subparagraph of Article 5(2) of Regulation No 1782/2003 and of Article 6(2) of Regulation No 73/2009, cited in point 11 above.
20 – The referring court uses the verb ‘umbrechen’ here.
21 – Article 149 of Regulation No 73/2009.
22 – Article 3(4)(a) of both Regulation No 796/2004 and Regulation No 1122/2009 states that ‘the land under permanent pasture shall be the land under permanent pasture declared by the farmers in 2003’.
23 – Article 2(2) of Regulation No 796/2004 and Article 2(c) of Regulation No 1120/2009.
24 – See point 10 above; see also point 11 as regards ‘grassland’, and ‘permanent crops’.
25 – Crop rotation of a primitive type was already practiced in medieval times. Typically it might be based on a three year strip rotation under which (for example) wheat was sown, followed by barley, and the land was then left to lie fallow for a year to recover. The credit for the widespread use of ‘modern’ crop rotation is usually ascribed to Charles Townshend, 2nd Viscount Townshend (1674–1738), who introduced into Norfolk a new form of 4-crop rotation which had already been pioneered by farmers in the Waasland region of the Low Countries. Townshend added turnip and clover to the traditional crops of wheat and barley (hence his nickname, ‘Turnip Townshend’) and directed that the rotation should cover four individual fields rather than narrow strips. The rotation removed the need for land to lie fallow (and hence unproductive) in order to recover its fertility, because the nodules of clover (sometimes for this reason known as ‘green manure’) ‘fix’ nitrates in the soil and so put back in what other crops such as wheat and barley take out. Townshend’s innovation was widely copied and made a major contribution to the Agricultural Revolution that preceded the Industrial Revolution.
26 – Including, where applicable, the other crops listed in Annex IX to Regulation No 1782/2003 and Annex I to Regulation No 1120/2009 (see footnote 13 above).
27 – See points 36 and 38 above.
28 – See, for example, Partena, C‑137/11, EU:C:2012:593, paragraph 56 and case-law cited.
29 – See points 8 and 9 above.
30 – The Bundesverwaltungsgericht explicitly states that it is bound by the findings of fact made by the appeal court and is not able to make its own findings.
31 – See points 8 and 9 above.
32 – See points 36, 38 and 59 above.
33 – It may be that the legislature intended to draw the distinction I have outlined in point 54 above. However, the text of the regulation does not say this explicitly and, in the absence of any expert evidence, I do not feel confident enough to suggest to the Court that it must be so construed and that the new crop sown must be of a different category.
34 – See points 18 to 21 above.
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