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3. Regulation (EEC) No 1765/92, 5which came into force as from the 1993/1994 marketing year, established a new support I — The Community law background 3 — For a more detailed description of the Community law framework established following the reform of the CAP, see my Opinions in Case C-354/95 The Queen v Minister for Agriculture, Fisheries and Food, ex parte National Farmers' Union and Others [1997] ECR I-4559 and Case C-356/95 Witt v Amt für Land- und Wasserwirtschaft [1997] ECR I-6589. 4 — As to the causes of the CAP reform, see, in particular, Blumann, C , Politique agricole commune, Droit commu- nautaire agricole et agro-alimentaire, Litec, Paris, 1996, 2. In 1992, the Common Agricultural Pol- paragraphs 582 to 592. icy ('CAP') was subject to a reform which 5 —Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (OJ 1992 L 181, p. 12). The version of Regulation No 1765/92 applicable to the dispute in the main proceed- ings is that which was most recently amended by Council * Original language: French. Regulation (EC) No 1422/97 of 22 July 1997 (OJ 1997 L 196, p. 18). As the amendments made were particularly 1 — OJ 1994 L 90, p. 8. numerous, they are taken into consideration only in so far as 2 — Otherwise referred to as the 'High Court'. they affect the reply to the question referred.

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system for producers of certain arable 6. Title I of the same regulation deals with crops. It is designed to avoid overproduc- compensatory payments. tion in the sector concerned, ensure better market balances, and compensate for the loss of income caused by the reduction of the institutional prices by a compensatory payment for producers. 6

5. The p r e a m b l e to Regulation No 1765/92 states that '... in order to Under Article 2(5), 'Producers applying for benefit from the compensatory payments the compensatory payment under the gen- under the general scheme, producers must eral scheme shall be subject to an obliga- set aside a predetermined percentage of tion to set aside part of the land of their their arable area ...'. 8 holding from production and shall receive a compensation for this obligation'. 6 — See the second recital in the preamble to Regulation No 1765/92. 7 — See, in particular, the fifth recital in the preamble to Regulation No 1765/92 and the first subparagraph of Article 2(2) of that regulation. Before the CAP reform, aid was linked to the volume of production. 8 — Thirteenth recital. By way of explanation, Regulation No 1765/92 establishes two types of support systems: a 'general scheme', open to all producers, and a 'simplified scheme' open only to small producers. The obligation to set land aside applies only to producers applying for compen- Article 7 sets out the main provisions sation under the general scheme. Small producers applying for compensation under the simplified scheme are not applicable to the set-aside of land. Arti- required to set part of their land aside (see the 16th recital in cle 7(4) states that 'The land set aside may the preamble to Regulation No 1765/92 and Article 8 of the regulation). be used for the provision of materials for

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the manufacture within the Community of payment under the general scheme referred products not primarily intended for human to in Article 2(5) of Regulation (EEC) or animal consumption, provided that No 1765/92 is subject to an obligation on effective control systems are applied'. the part of the producer concerned to set aside part of his land ...'. 11

1 1 . C o u n c i l R e g u l a t i o n (EEC) No 3508/92 12 establishes an integrated administration and control system for cer- 9. The preamble to that regulation con- firms that 'eligibility for the compensatory 11 — First recital. 12 — Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (OJ 1992 9 — It cites, for example, durum wheat, rye, maize and sun- L 355, p. 1). The version of Regulation No 3508/92 flower seeds. applicable to the dispute in the main proceedings is that 10 — The version of Regulation No 762/94 applicable to the last amended by Council Regulation (EC) No 820/97 of dispute in the main proceedings is that which was last 21 April 1997 establishing a system for the identification amended by Commission Regulation (EC) No 2930/95 of and registration of bovine animals and regarding the 18 December 1995 (OJ 1995 L 307, p. 8). The amend- labelling of beef and beef products (OJ 1997 L 117, p. 1). ments which have taken place will be taken into con- The amendments which took place are taken into con- sideration only in so far as they affect the answer to the sideration only in so far as they affect the answer to the question referred. question referred.

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tain Community aid schemes and, in parti- sets out the sanctions which apply where cular, the scheme established by Regulation the area declared by the person concerned No 1765/92. 13 in the 'area' aid application differs from the area actually determined by the competent authorities on inspection.

13 — Under Article 1(1)(a) of Regulation No 3508/92. 14 — Commission Regulation (EEC) No 3887/92 of 23 Decem- ber 1992 laving down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36). The version of Regulation No 3887/92 applicable to the 16. The application submitted by Cooke dispute in the main proceedings is that which was last sought a compensatory payment for an amended by Commission Regulation (EC) No 613/97 of 8 April 1997 laying down rules for the application of area of land set aside during 1997. It Council Regulation (EC) No 3072/95 as regards the conditions for granting compensatory payments under related to 60.64 hectares of cereal crops, the aid scheme for rice producers (OJ 1997 L 94, p. 1). 23.90 hectares of oilseed crops and 5 The amendments made are taken into consideration only in so far as they affect the answer to the question referred. hectares of land which it had left fallow.

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17. In 1996, the year before the set-aside III— The question referred for a preli- period, the land in question had been sown minary ruling with temporary grass and, more precisely, Italian rye-grass. Cooke states that that grass was cut and used for silage during that same year, namely 1996. 15 20. Taking the view that resolution of the dispute depended on an interpretation of the provisions referred to above, the High Court decided to stay the proceedings and refer the following question to the Court of Justice:

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22. It should be noted that the terms of that because it can be used for two different question leave no ambiguity as to the purposes. It might not only be intended for subject-matter of this reference. harvesting, but could also be left as grass- land for the grazing of cattle. In particular, the United Kingdom argues that Italian rye- grass does not constitute a proper 'crop' within the meaning of Article 2 of Regula- tion No 762/94. The Court is clearly being asked what rights are given to producers during the year which precedes the set-aside period. The High Court wishes to know whether, during that year, the persons concerned are authorised to grow temporary grass which is intended for cutting and use as silage. 24. In accordance with the methods of The Court is thus not being called upon to interpretation of the Court of Justice, 17 it determine the type of crops which might be needs to be examined whether the reading grown during the set-aside period proper. proposed by the United Kingdom is sup- ported by the wording, scheme and aims of Regulation No 762/94.

23. During the procedure before the Court of Justice, the United Kingdom Govern- ment was the only intervener 16 to propose a restrictive reading of Article 2 of Regula- tion No 762/94. The wording of Article 2 of Regulation No 762/94

29. Moreover, in accordance with the 'ordinary meaning' of words, the expres- sion 'récolte' [harvest] designates the fact of recueillir [gathering] the products of the 27. Article 2 of Regulation No 762/94 uses earth. 20 That term also implies an inter- two words which are essential in this case. vention or action by man, which consists in It provides that, in the year preceding the gathering or collecting the products of the set-aside period, the area concerned must earth so as to keep them for future use. have been 'cultivée' [cultivated] with a view Such intervention generally includes the to a 'récolte' [harvest]. cutting or uprooting of plant matter present on the cultivated surface.

28. Taking guidance from the 'ordinary meaning' of words, the word 'cultiver' points to the fact that the land has been The idea of human intervention designed to worked to make it produce plant products gather the products of the earth also useful for the needs of mankind. 19 The excludes from the scope of Article 2 of word thus assumes an action or interven- Regulation No 762/94 areas whose pro- tion by man upon the earth with the aim of duction of plant matter is eliminated by a gathering a given plant product. Such natural process or the mere presence of intervention generally includes the sowing animals. That would apply, in particular, to land left as grassland for grazing by cattle.

19 — See Le Petit Robert, Dictionnaire de la Langue Française, Paris, Édition Dictionnaires Le Robert, 1999. 20 — Ibidem.

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33. By the provisions of that article, the Community legislature expressly excluded 21 — In that respect, see also Commission Regulation (EC) certain land and crops from the benefit of No 658/96 of 9 April 1996 on certain conditions for granting compensatory payments under the support system the support system established by Regula- for producers of certain arable crops (OJ 1996 L91,p.46).

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The scheme of Regulation No 762/94 Moreover, Article /(1) or Regulation No 1765/92 requires producers to set aside a pre-established percentage of the land in their holdings; that percentage, which was initially fixed at 15%, 24 is regularly revised to reflect production and market trends. 25 36. As we have seen, 22 set-aside constitutes the cornerstone of the new support system for producers of arable crops. It fulfils two essential functions, since, first, it confers entitlement to a compensatory payment in the same way as a crop and, secondly, the entitlement of producers to the payment of aid for arable crops is dependent upon its existence.

The Community legislature has also set out the conditions concerning the use and care of the land during the set-aside period. 26 Under Article 7(4) of R e g u l a t i o n No 1765/92, the land set aside may be 37. In view of the importance of the two used for the provision of materials for the functions referred to above, the Commu- manufacture of products not primarily nity legislature precisely and comprehen- intended for human or animal consump- sively organised the system of obligations tion. Apart from such use, however, the upon producers in relation to the set-aside areas set aside may not be used for any of land. other sort of agricultural production or put to any lucrative use incompatible with the growing of an arable crop. 27 Article 3(2) of

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Regulation No 762/94 also provides that of legal certainty — which constitutes a 'The areas set aside must be cared for so as fundamental principle of Community to maintain good cropping conditions'. law — requires that a rule imposing obli- gations on an individual must be clear and precise, so that he may be aware of his rights and obligations without ambiguity.

Finally, the provisions of Regulation No 762/94 fix the duration of the set-aside period; they provide that, to be considered 40. Therefore, any reading of Article 2 of under the scheme established by Regulation Regulation No 762/94 which seeks to add No 1765/92, the areas concerned must to that text requirements which its word- 'remain set aside for a period commencing ing — or other provisions — do not lay on 15 January at the latest and ending on down clearly and precisely would be likely 31 August at the earliest'. 28 to infringe the principle of legal certainty. Indeed, such a reading would make produ- cers no longer able to know precisely what their obligations were and consequently risk exposing them to sanctions which they could not reasonably foresee.

38. Those provisions demonstrate that Regulations Nos 1765/92 and 762/94 set out clearly and comprehensively the condi- tions which the persons concerned must fulfil in order to benefit from the compen- satory payments provided for by the sup- 41. The general scheme of Regulation port system. The Community legislature No 762/94 therefore confirms that Arti- imposes a series of obligations on produ- cle 2 is capable of covering land such as cers, compliance with which is compulsory that in issue in the main proceedings. in order to claim compensatory payments.

sating for loss of income resulting from the tory payments in respect of areas set aside reduction in institutional prices by means in circumstances where, in the year preced- of a compensatory payment to producers. ing the set-aside period, the land concerned But those two regulations are also was not given over to the production of aimed — and above all — at avoiding 'arable crops' within the meaning of Reg- overproduction in the arable crops sec- ulation No 1765/92. By contrast, removing tor. 30 the benefit of compensatory payments in those circumstances would risk encoura- ging farmers to sow their land with arable crops in the year preceding the set-aside period and thereby reducing the effective- ness of the system established by Regula- 43. Thus, in the context of CAP reform, the tion No 1765/92. setting aside of land has taken on a 'new face' in that it has become an Ordinary measure for regulating production'. 31 The Community legislature regards it as 'an instrument for managing arable crop pro- duction whose rate is likely to be changed in each marketing year on the basis of the 45. In the light of the above considerations, market situation'. 32 Set-aside thus consti- I therefore propose that the Court should tutes one of the main measures designed to reply, in answer to the question referred, reduce the excess production of Commu- that the first paragraph of Article 2 of nity agriculture. Regulation No 762/94 must be interpreted as meaning that the expression 'an area which has been cultivated in the previous year with a view to a harvest' includes land which was sown with a type of temporary grass where that grass has been harvested. 44. As the Finnish Government has rightly remarked, 33 an affirmative reply to the question referred would be likely to pro- mote the attainment of that objective.

Court's attention to the implications of this regard to the general principle of legal case. certainty inherent in the Community legal order and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith, find it necessary to limit the possibility for interested parties, relying on the Court's interpretation of a provision, to call in It states that, since the entry into force of question those legal relations . . . ' . 35 Regulation No 1765/92, it has refused to g r a n t compensatory payments — in respect of set-aside areas — to producers who, in the year preceding the set-aside period, had sown their land with fodder crops, even where the crops had been harvested with a view to silage. The United Kingdom Government considers that, if the 48. For that purpose, the Court is 'con­ Court were to give an affirmative answer to cerned to establish that ... two essential the question referred, it would be obliged criteria [are] fulfilled for deciding to impose to re-examine all of the files handled since such a limitation, namely that those con­ 1993 in order to check whether the refusal cerned should have acted in good faith and decisions concerned land sown with tem­ that there should be a risk of serious porary grass, and whether that grass had difficulties'. 3 6 been harvested. The administrative burden of such a re-examination would be con­ siderable, since some 10 000 files were involved.

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reasonably have been mistaken as to the Regulation No 762/94 did not apply to applicability 37 or the scope 38 of the Com- land such as that at issue in the main munity provision interpreted. proceedings. 40

50. However, I doubt whether the second condition, concerning the existence of 'ser- ious difficulties', has been fulfilled. The In this case, the documents before the United Kingdom Government has, it is true, Court show 39 that, as from August 1992, set out the reasons why the judgment to the Commission knew that the British follow risks imposing a considerable authorities took the view that land sown administrative burden on the competent with temporary grass did not constitute an authorities. It does not, however, appear to area 'cultivated with a view to a harvest' have put forward any specific evidence, in within the meaning of Article 2 of Regula- accordance with the case-law of the Court tion No 762/94. Between 1992 and 1997, of Justice, 41 to establish the existence of a the British authorities regularly contacted genuine 'upheaval' in its national adminis- the Commission to ask whether their tration. interpretation of the disputed provisions was likely to raise difficulties with regard to Community law. At the hearing in this case, the Commission expressly confirmed that it never replied to those enquiries.

51. On the basis of the information at my disposal, I therefore consider that there is no need for the Court to limit the effects of the judgment to follow.

In those circumstances, I believe that the Commission's attitude may have led the persons concerned in the United Kingdom reasonably to consider that Article 2 of

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