C-336/00

1. In the present reference for a preliminary ruling the Oberster Gerichtshof (Supreme II — The legal framework Court) of the Republic of Austria has referred questions relating to the validity and interpretation of Council Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods compat- ible with the requirements of the protection of the environment and the maintenance of the countryside 2('Regulation No 2078/92'), A — Community law together with questions concerning the recovery of aid granted on the basis of that regulation. One issue raised by the six questions is whether Regulation No 2078/92 has the correct legal basis. They also seek 2. Regulation No 2078/92 was adopted on clarification of whether a farmer who has the basis of Article 42 of the EC Treaty 3 received co-funded aid as part of a national (now Article 36 EC) and Article 43 of the programme on the basis of Regulation EC Treaty (now Article 37 EC) with the No 2078/92 can rely on the protection of objective, inter alia, of promoting the use of farming practices that reduce the polluting effects of agriculture, which also con- 1 — Original language: German. tributes, by reducing production, to an 2 — OJ 1992 L 251, p. 85, as amended by the Act concerning the conditions of accession of the Kingdom of Norway, the improved market balance (see Article 1(a) Republic of Austria, the Republic of Finland and the of the regulation). The use of fertilisers and Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, Annex I — V. Agriculture — C. Agricultural structures and measures plant protection products was to be sub- accompanying the Common Agricultural Policy — Fig. 5 (OJ 1994 C 241, p. 129), repealed by Article 55 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural 3 — The version applicable is the one introduced into the EEC Guidance and Guarantee Fund (EAGGF) and amending Treaty by the Single European Act. This is the version and repealing certain Regulations (OJ 1999 L 160, p. 80). referred to hereinafter.

7. Under Article 8 of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricul- tural policy 6 (hereinafter Regulation ...'

6 — OJ. English Special Edition 1970 (I) p. 218, since repealed by Article 16 of Council Regulation (EC) No 1258/1999 of 4 — See also the recitals. 17 May 1999 on the financing of the common agricultural 5 — See the details in footnote 2. policy (OJ 1999 L 160, p. 103).

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No 729/70), the Member States were adopted and that it was available for required in their legislation, amongst other inspection at the Federal Ministry of Agri- things, to take the measures necessary to culture and Forestry. 7 recover sums lost as a result of irregularities or negligence. In accordance with Article 8(2), the Community was in prin- ciple to bear the financial consequences of any incomplete recovery; that did not apply 9. The ÖPUL Special Directive is divided to irregularities and negligence attributable into a general section containing, inter alia, to the administrative authorities or other extensive conditions for the granting of bodies of the Member States. support and the way in which it is admin- istered, as well as rules on the reimburse- ment of support where the conditions for its grant have not been complied with (point 1.9 of the Special Directive), and a practical section setting out specific con- ditions for the various elements of the programme. The Special Directive also contains a number of annexes, including Annexes 3.5 and 3.6 which give instruc- tions for integrated controls on fruit and wine production. B — The Austrian programme for the encouragement of extensive agriculture compatible with the requirements of the protection of the environment and the maintenance of the countryside (ÖPUL) 10. Under Austrian law, directives like the ÖPUL Special Directive are not general, abstract rules, but only come into force between contractual partners, as statements incorporated when a contract is concluded, for example.

for support under the ÖPUL Special Direc- 14. The defendant contended that the tive, which was granted on 12 December plaintiff's claim should be dismissed and 1995 in the sum of ATS 79 521 by pleaded that by the use of those products, Agrarmarkt Austria in the name and on which ultimately was acknowledged, he the account of the Republic of Austria, the had not acted contrary to directives, nor plaintiff in the main proceedings (here- had he committed himself by an admission inafter 'the plaintiff). The ÖPUL Special to make repayment. Specifically, he had Directive was not sent to the defendant. been informed only that he could not use herbicides in fruit growing and wine grow- ing, and he had renounced the use of those plant protection products but not the products named by the plaintiff. He had not entered into any further obligation. The specific directives were not annexed to the application or ever brought to his knowl- 12. When the defendant received a letter edge. The wording of the application also from Agrarmarkt Austria — a legal person lacked clarity, a fault to be borne by the under public law set up by the Federal plaintiff who had drafted it. The plaintiff Ministry of Agriculture and Forestry to was aware of the use of the products and administer support under the ÖPUL Special nevertheless paid the support. Any admis- Directive — seeking recovery of the sup- sion by the defendant as to the position was port, he assumed that he had made a attributable to a mistake caused by the mistake and proposed to Agrarmarkt Aus- plaintiff. tria repayment of ATS 5 000 per month. On 13 May 1998 the Finanzprokuratur (representing the Federal Ministry of Finance), which had been instructed by Agrarmarkt Austria in that regard, demanded from the defendant payment of ATS 90 273 (including interest). 15. At first instance the court dismissed the action because the directives of the plaintiff had not become part of the contract, nor was there an admission creating a right to recovery.

18. The Oberster Gerichtshof referred the 4. May a farmer in this instance, irrespec- following questions to the Court of Justice tive of the content of the programme for a preliminary ruling: within the meaning of Regulation No 2078/92 approved by the Commis- sion, rely on the statements of the administrative bodies of the Member States so that a claim for recovery is precluded? '1. Was Council Regulation (EEC) No 2078/92 of 30 June 1992 on agri- cultural production methods compat- ible with the requirements of the pro- tection of the environment and the maintenance of the countryside 5. Are the Member States free under (OJ 1992 L 215, p. 85) validly Regulation No 2078/92 to implement adopted? programmes within the meaning of

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that regulation either by private-sector even though it is based on Articles 42 and measures (contracts) or by forms of 43 of the Treaty and not, despite its State action? environmental objectives, Article 130s of the EC Treaty (now Article 175 EC).

6. In assessing whether restrictions on the possibilities of claiming recovery on grounds of the protection of legitimate (1) Submissions of the parties expectations and legal certainty accord with the interests of Community law, is only the respective form of action to be taken into account or also the possibil- ities of claiming recovery which exist in other forms of action and particularly favour the Community interests?' 21. All of the parties regard Article 43 of the Treaty as the correct legal basis and assume that Regulation No 2078/92 is valid.

Article 33 EC), as is clear from the 1st, 5th range from new production methods to and 12th recitals in particular, which extensification and the set-aside of agricul- indicate that the structural measures con- tural land. Although they contain an envi- tained in the regulation are intended to ronmental element, they predominantly counter the situation of overproduction relate to the practice of farming production and overexploitation of natural resources and methods and therefore pursue mainly in European agriculture. In giving prefer- agricultural objectives. ence to less intensive and more environ- mentally-friendly production methods, the aim, particularly in a situation of consider- able production surplus, is to rationalise agricultural production and ensure the optimum utilisation of the factors of production (Article 39(1 )(a) of the Treaty) and to stabilise markets (Article 39(1 )(c) of the Treaty). 26. The Council and the Commission take the view that the fact that a measure under Community law serves to protect the environment as well as to pursue the objectives of the common agricultural pol- icy has no decisive influence on the legal basis. The 'integration clause' contained in the second sentence of Article 130r(2) of 24. Such measures help to reduce the the Single European Act version of the EC supply of agricultural products and to Treaty — now given prominence in improve their quality, thus helping to Article 6 EC — makes it compulsory to adjust the supply of agricultural products integrate environmental protection require- to demand. Compensating for income lost ments into the definition and implemen- as a result of the drop in production and tation of all Community policies. Thus increases in costs helps to ensure a fair many measures in other areas of policy standard of living for farmers (Ar- contribute to protecting the environment ticle 39(1 )(b) of the Treaty). w i t h o u t needing to be based on Article 130s of the Treaty purely on that account.

(2) Assessment

31. It is clear from the provisions of Regulation No 2078/92 that the regulation pursues partly agricultural and partly envi- 29. The Court has consistently held that ronmental aims. In such an instance, the the choice of an instrument's legal basis does not depend simply on an institution's conviction as to the objective pursued. 10 — Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 10 {'Titanium dioxide') and Case C-269/97 Commission v Council [2000] ECR 1-2257, paragraph 4 3 . 11 —Joined Cases C-164/97 and C-165/97 Parliament v COMB- 8 — The Council refers in this connection to Case C-405/92 CIL, cited in footnote 9, paragraph 14 with further Mondiet [1993] ECR 1-6133. references, and Opinion 2/00 [2001] ECR I-9713, 9 — Joined Cases C-164/97 and C-165/97 Parliament v Council point 2 3 . [19991 ECR I-1139. 12 — Opinion 2/00, cited in footnote 1 1 , point 2 3 .

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appropriate legal basis must be determined 34. Article 43 of the Treaty, on the other by considering to which area of policy the hand, is the appropriate legal basis for any relevant measures mainly relate and which legislation on the production and market- area is only incidentally or indirectly ing of agricultural products listed in An- affected. nex II to the EC Treaty (now Annex I to the Amsterdam Treaty version of the EC Treaty) which contributes to the achiev- ement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty. 16

13 — C a s e C-62/S8 Greece v Commi [1990] ECR I-1527, paragraph 20, and Joined Cases C-164/97 and C-165/97 Parliament v Council, cited in footnote 9, paragraph 15. 16 — Case 68/S6 Umted Kingdom v Council [1988] ECR 855, paragraph 14, Case C-180/96 United Kingdom v Com- 14 — Mondiet, cited in footnote 8, paragraph 27, and Titanium mission [1998] ECR I-2265, paragraph 133, and Case Dioxide, cited in footnote 10, paragraph 22. C-269/97 Commission v Council, cited in footnote 10, 15 — Mondiet, cited in footnote 8, paragraph 26. paragraph 47.

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under Article 13 Or of the Treaty. The refers to the Court. 17 However, the Court Council was thus right to base the regu- is not competent to give a ruling on a lation on Article 43 of the Treaty. question where it is quite obvious that the ruling sought on the interpretation of Community law bears no relation to the actual facts of the main action or its purpose, or where the problem is a hypo- thetical one. 18 37. Because the agricultural objectives take priority, there is no further need to examine whether Article 130s of the Treaty should have been invoked in addition to Article 43 of the Treaty.

40. Although none of the parties has chal- lenged the Court's competence to give a ruling on Questions 2 to 5, nevertheless 38. The answer to Question 1 must there- there are grounds for examining whether fore be that Articles 42 and 43 of the those questions are not actually a hypo- Treaty were the correct legal basis for the thetical problem within the meaning of the adoption of Regulation No 2078/92, and case-law cited. there can thus be no doubt as to the validity of Regulation No 2078/92.

clarify this circumstance if the ÖPUL Austria, on which the defendant had noted Special Directive can be cited against the (undated) that he had ceased the fruit and defendant as directly applicable Commu- wine growing for which the aid had been nity law, regardless of whether it was granted. included in the contract. Questions 2 and 3 therefore ask whether the approval of a national programme makes it tantamount to an instrument of Community law addressed to the farmers receiving aid. 44. In the oral procedure the defendant submitted that no infringement of the five- year farming requirement had been invoked in the main proceedings and that it could therefore not be covered by the proceedings before the Court. In fact neither the order for reference nor the excerpts from the documents in the main proceedings which the Oberster Gerichtshof forwarded con- tained any reference to the fact that this 42. In Questions 4 to 6 the Oberster circumstance had been mentioned before Gerichtshof requests clarification of vari- the national courts. ous aspects of the protection of legitimate expectations in the recovery of agricultural aid. Those questions too ultimately relate to the defendant's use of prohibited plant protection products, since the defendant argues that he relied on the information 45. However, the minimum farming period provided by the Austrian authorities when is laid down not just in the ÖPUL Special he submitted his application, from which, Directive (point 1.4.2), but also and above in his view, he could not have inferred that all in the first sentence of Article 4(1) of fungicides were banned. Regulation No 2078/92 itself.

'... Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, so that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it'. 21 47. However, Questions 4, 5 and 6, which deal more generally with the admissibility of certain forms of action in granting and recovering agricultural aid and with the principle of the protection of legitimate expectations, could still be relevant. Where 49. The Court can, in order to interpret there is a clear infringement of the mini- and supplement the reference for a pre- mum requirements of Regulation liminary ruling, refer back to the parties' No 2078/92, however, it is difficult to submissions during the preliminary ruling conceive of reasons which might preclude procedure. 22 However, it cannot, on the a duty to repay the aid, 20 whatever forms basis of their submissions, establish new of action the national authorities use in facts which place the main proceedings in a granting or recovering it. completely different light. 23

50. Finally, it must also be borne in mind that the circumstance invoked for the first time before the Court might no longer be submissible under national procedural law, 48. Notwithstanding those circumstances, in so far as the latter is consistent with the Court should not leave the questions unanswered. Because the infringement of the 5-year farming requirement has not 21 — Case C-435/97 WWF [1999] ECR 1-5613, paragraph 31 been established by the national court, the with further references. Court of Justice cannot take it for granted 22 —See, for example, Case C-67/96 Albany [1999] ECR 1-5751, paragraphs 43 and 44. 23 — See WWF, cited in footnote 21, paragraph 31. The Court here refused to take into consideration that the facts presented by the national court were disputed by one of the 20 — For further details, see point 137 below. parties before the Court.

53. As is clear from the explanatory details provided by the national court, the thinking 55. None of the parties takes the view that the ÖPUL Special Directive itself became Community law as a result of the Commis- 24 — See the judgments cited in footnote 19. sion's approval.

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60. It is also not unusual for requirements of Community law to be transposed by national law without the national trans- 58. The Commission exercised its powers accordingly in its decision of 7 June 1995. In Article 1 of the decision it approves the 25 — Joined Cases T-371/94 and T-394/94 [1998] ECR II-2405, ÖPUL Special Directive. In Article 3 it paragraph 290.

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posing instrument thereby itself becoming account must be taken of the aims and Community law in any way. The directive requirements of Regulation No 2078/92 as an instrument is instead based precisely when interpreting and applying national on the separation of the Community's and legislation, as will be explained later. 26 the Member States' legal systems.

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65. The national court does not specifically conditions for granting aid in the support relate this question to the hypothesis that contract. The issue is thus solely a matter the OPUL Special Directive has become for national procedural law. part of the system of Community law through the Commission's decision to approve it. However, that is the only situation in which the question would be relevant. 68. In view of the answer to Question 2, therefore, Question 3 need not be answered.

66. As already established in connection with Question 2, the ÖPUL Special Direc- (4) Question 5 tive was not transformed into Community law by the Commission's approval. Where a specific aid measure deviates from the requirements of the Special Directive, therefore, consequences arise not from the Commission's decision, but primarily from 69. Since the answer to Question 4 depends national law. It is therefore irrelevant on the answers to Questions 5 and 6, those whether the defendant is to be regarded as two questions will be examined first. a person to whom the Commission's decision was addressed.

70. Question 5 asks whether the Member States are free under Regulation No 2078/92 to implement programmes within the meaning of that regulation either by private-sector measures (contracts) or by 61. The question of whether the ÖPUL forms of State action. Special Directive was notified in such a way that it can be cited against the defendant is also determined according to national law. However, it might be considered whether requirements for publication can be inferred from Article 3(3)(f) of Regulation (a) Submissions of the parties No 2078/92, which states that the pro- gramme must take steps to provide appro- priate information for the groups con- cerned. The purpose of this rule is to ensure that those involved are informed in general terms. It is not, however, intended to set 71. The defendant, the Austrian Govern- out specific rules regarding the inclusion of ment, supported by the Finanzprokuratur,

75. However, as the Court has already 72. The Republic of Austria points out that found, recourse to rules of national law is the legal form chosen must not make possible only in so far as it is necessary for implementation virtually impossible, and the implementation of provisions of Com- that there must be no differences from munity law and in so far as the application procedures for deciding similar but purely of those rules of national law does not national disputes. jeopardise the scope and effectiveness of that Community law, including its general principles. 28 The application of national law must not make it virtually impossible or disproportionately difficult to imple- ment Community regulations, or result in 73. The Commission takes the view that discrimination compared to procedures for private contracts between the Member deciding similar but purely national dis- State and the aid recipient appear appropri- putes. 29 ate for the implementation of structural programmes. The scope which the Member States enjoy to choose the legal form is only limited where the content of a measure provided for in the national programmes, such as the application of prohibitions and 76. Since Regulation No 2078/92 does not penalties, requires a form of State action. contain any procedural rules, the relevant rules of national law must be applied for the implementation of the ÖPUL Special Directive. The Republic of Austria is free in principle to implement the programmes through private-sector measures (b) Assessment (contracts).

27 — Joined Cases C-80/99, C-81/99 and C-82/99 Hemmer and Others [2001] ECR 1-7211, paragraph 55, and Joined Cases 205/82 to 215/82 Deutsche Mttchkontnr [ 1983) ECR 2633, paragraph 17. 74. In so far as Community law, including 28 — Flemmcr, cited in footnote 27, paragraph 55; sec also Joined Cases 146/81, 192/81 and 193/81 BayWa and its general principles, does not include Others 11982] ECR 1503, paragraph 29. common rules, according to settled case- 29 —Case C-298/96 Oelmühle Hamburg mid Others |1998| ECR 1-4767, paragraph 19, and Deutsche Mtlchkontor, law, the national authorities when imple- cited m footnote 27, paragraph 19.

81. In Question 6 the national court asks whether, in assessing whether restrictions on the possibilities of claiming recovery on grounds of the protection of legitimate expectations and legal certainty accord with the interests of Community law, 79. Where there are national rules making account must be taken only if the respective it virtually impossible or very difficult to form of action, or also of the possibilities of recover aid granted under private law, that claiming recovery which exist in other does not necessarily mean that the aid must forms of action and particularly favour not be granted under private law at all and the Community interests. The explanations that the Member State must use forms of given in the statement of reasons contained State action instead. It is for the Member in the order for reference indicate that the State to decide how it makes Community national court considers this question law effective in practice. Any provisions important primarily for examining possible precluding the recovery of aid granted instances of discrimination.

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(a) Submissions of the parties (b) Assessment

85. Just as with the form of the procedure for granting aid, the procedure for recover- 82. All of the parties essentially share the ing aid is also determined by national law if view that, in recovering aid, the Member there are no relevant provisions of Com- State may take account of national legal munity law. 30 Restrictions on claiming criteria for protecting legitimate expec- recovery on grounds of the protection of tations and legal certainty in the context legitimate expectations or legal certainty of the subsidy relationship, provided that are therefore permitted in principle in so far the interests of Community ¡aw are suffi- as is provided for under national pro- ciently taken into consideration and situ- cedural law for the respective form of ations with and without a link with Com- action. munity law are treated equally.

nity connection, making recovery possible fulfil this obligation, making it impossible only under strict conditions, whilst provi- to reclaim the aid successfully, it may be sions of public law were applied in similar accused of negligence within the meaning but purely national situations, making of the second sentence of Article 8(2) of recovery easier. However, if a Member Regulation No 729/70 and have to bear the State usually chooses the private-sector financial consequences. form of action for both national and Community aid, as appears to be the case in Austria according to the statements of the national court, there is no discrimi- nation if, when claiming recovery, it also applies the requirements of the chosen private-sector form of action without dis- 90. The answer to Question 6 must there- tinction. fore be that, when claiming recovery, it is not contrary to Community law for grounds of the protection of legitimate expectations and legal certainty to be taken into account in the manner provided for in national law for the respective form of action; Community law does not require the form of action used to be the one which 88. Where there are a number of forms of particularly favours Community interests, action which satisfy the requirements of although it must be ensured that it is not Community law and which are available made virtually impossible or disproportion- under national law for recovering aid, the ately difficult to implement Community Member State may choose the form which law, and that a situation with a Commu- is also applied in similar national situ- nity connection is not discriminated against ations. It does not have to use the form compared with similar purely national which theoretically most favours Commu- situations. nity interests.

95. The Republic of Austria takes the view that the question does not need to be 92. The parties disagree as to the con- answered, since the circumstances ditions under which the aid was granted. described in the order for reference contain nothing to suggest that the aid contract derogated from the programme. On the contrary, the extent to which the parties to the contract should have been able to rely on statements by the other party was a question of the interpretation of the pri- vate-law aid contract, which was for the national court to assess. 93. The defendant first submitted that, in so far as he was notified of it when he made his application, the draft of the ÖPUL Special Directive contained different con- ditions from the version later approved by the Commission. In particular, the ban on fungicides was not included. In the oral procedure the defendant then argued that 96. The Finanzprokuratur argues that the the aid contract had not been concluded on aid agreement between the Republic of the basis of the ÖPUL Special Directive at Austria and Martin Huber was entirely all, because the programme had not yet consistent with Regulation No 2078/92 been approved and was not available in its and the ÖPUL Special Directive, and puts final form when he made his application. forward detailed arguments on the incor- The aid in question was actually State aid, poration of the directive into the contract and was to be assessed according to the in accordance with national law. Regarding general rules of the Treaty. reliance on the protection of legitimate

98. Because the programme had been inad- equately notified, in that it had merely been available for inspection at the relevant ministry in Vienna, it was only at dispro- portionate expense that he had been able to obtain information about the precise con- tent of the ÖPUL Special Directive after it was adopted. As a 'small farmer' he was 101. The Commission submits that the primarily occupied with cultivating his principle of the protection of legitimate land, not dealing with various adminis- expectations in Community law protects trative matters. economic operators from the subsequent reassessment of legal positions they have acquired or arrangements they have made in reliance on the existing legal situation. It must be examined how the national auth- orities were able to create a situation of 99. In this case, the defendant argues, there reliance, even though when the application can be no public Community interest in was submitted in April 1995 the pro- recovery which takes precedence over the protection of legitimate expectations. Under Article 8(2) of Regulation No 729/70 31 — OJ 1996 L 102, p. 19.

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gramme, which was later approved, was answered because there is no reason to available only in draft form and no secure suppose that the aid contract derogates legal position could be offered, nor could from the ÖPUL Special Directive. It is for any definite information even be provided. the national courts to establish this, and unfortunately they do not yet appear to have done so conclusively.

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when he submitted his application. The applicable to Community aid. Instead, it ÖPUL Special Directive runs to several provides for the adoption of corresponding hundred printed pages with some very national regulations, which must be detailed information on the plant protec- approved by the Commission. The aid tion products which are permitted or pro- measures created by that cooperation are hibited in the various sections of the pro- jointly funded by the Member State and the gramme, and it is therefore highly doubtful Community. whether it can be assumed that its content was known solely on the basis of other information measures.

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principles of Community law are binding 112. However, the principle of the protec- on all national authorities entrusted with tion of legitimate expectations, as the implementation of Community provi- enshrined in national legislation, may sions. 33 This applies to the direct imple- oppose recovery here. As we said, the mentation of Community law and to the Member States' authorities are, in any application of national programmes event, obliged to observe the principles of approved on the basis of a Community the protection of legitimate expectations regulation and part-funded by the Commu- and assurance of legal certainty, which are nity. part of the Community legal order. The fact that national legislation provides for the same principles to be observed in a matter such as the recovery of unduly-paid Community aid cannot, therefore, be con- sidered contrary to that legal order. 36

110. Just as with the granting of Commu- nity (or part-funded) aid, in the absence of provisions of Community law, national law is applicable in disputes concerning the recovery of such aid, but subject to the limits established by Community law. That means that the rules of national law must not have the effect of making it virtually 113. As a result, the interest in recovering impossible or disproportionately difficult aid where the conditions for granting it to implement Community law, and have been infringed must be weighed in national law must be applied in a manner each individual case against the protection which is not discriminatory compared to of the defendant's legitimate expectations procedures for deciding similar but purely and the principle of legal certainty. In doing national disputes. 34 so, the interests of the Community must be taken fully into consideration.37

— the good faith of the person receiving the aid, 39

117. However, in Oelmühle, 43 the Court considered it an essential condition for granting protection of legitimate expec- tations that the aid recipient should have — the disappearance meanwhile of the acted in good faith in receiving the unduly- unjust enrichment, 40 paid aid. In the present case it is not clear whether the aid recipient even infringed a contractual obligation arising from the aid contract in his use of the fungicides Euparen, Orthophaldan, Delan and Folit. Even if that were the case, because the ÖPUL Special Directive was effectively — possible co-responsibility on the part of included in the contract under national a national authority, provided that law, it must be assumed that the defendant there is no infringement of a clear in any event acted in good faith in infring- provision of Community law. 41 ing the ÖPUL rules and was merely negli- gent in committing the infringement 38 — See the Opinion of Advocate General Léger in Case C-298/96 Oelmühle Hamburg and Others [1998] ECR 1-4769, points 47 to 51. 42 — Article 20(3) of Regulation No 746/96 merely provides 39 — Oelmühle, cited in footnote 29, paragraph 29. that a farmer may be excluded from receiving aid if he 40 — Oelmühle, cited in footnote 29, paragraph 31. makes a false declaration intentionally or as a result of 41 — Milchkontor, cited in footnote 27, paragraph 31, and Case gross negligence. 316/86 Krücken [1988] ECR 2213, paragraphs 23 and 24. 43 — Cited in footnote 29, paragraph 29.

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because he did not have precise knowledge 120. The ÖPUL Special Directive was, of the content of the ÖPUL Special Direc- admittedly, approved by the Commission, tive. but the individual aids paid to the farmers were not the subject of a Commission decision of which the farmer should have made certain.

44 — Sec Case C-24/95 Alcan II [1997]ECR I-1591, paragraphs 41 and 49 to 54. 122. The defendant asserts that he has used 45 — See Oelmuble, cited in footnote 29, paragraph 37, and the the aid payment and that the enrichment Opinion of Advocate General Léger in the same case, points 47 to 51. therefore no longer exists. As the Court

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also ruled in Oelmiible,46 the national might not have adequately fulfilled their court may, when examining the question obligation under Article 3(3)(f) of Regu- of the protection of legitimate expectations, lation No 2078/92 to provide appropriate take into consideration that the recipient of information for agricultural and rural the aid is no longer enriched, having acted operators if they did not adequately notify in good faith. Should the conditions be met the aid recipient of the ÖPUL rules when under national law for the defendant not to the application was made or when the aid be required to reimburse the aid on the was granted. ground that the enrichment has dis- appeared, that might be taken into con- sideration.

125. The Court has also established that (ee) Possible co-responsibility on the part the principle of legal certainty requires that of the national authorities legal rules be clear and precise, and that it aims to ensure that situations and legal relationships governed by Community law remain foreseeable. 49

127. Finally, the national court must exam- (ff) Limits of the protection of legitimate ine whether the ÖPUL Special Directive is expectations sufficiently clear in prohibiting the use of certain plant protection products. For example, the directive on integrated con- trolled fruit growing, which forms Annex 3.5 of the ÖPUL Special Directive, contains, inter alia, an Annex 5 (List of all preparations permitted for controlled, 129. The Court has, however, established a near-natural fruit growing). That Annex 5 limit for taking into consideration the lists Delan as 'green' (a permitted product) principle of the protection of legitimate and Euparen as 'yellow' (a product per- expectations, which is 'that the principle of mitted under certain conditions). Annex 4 the protection of legitimate expectations (Special production requirements and indi- cannot be relied upon against a precise cators and permitted products for con- provision of Community law'. 50 trolled and near-natural stone fruit grow- ing), which is relevant for the defendant's peach-growing, gives a list of 'registered' fungicides, in other words preparations which are probably permitted. However, that list does not include any of the products used by the defendant. A list of 130. With reference to the co-responsibility permitted, conditionally permitted and pro- of the Commission or a Member State for hibited products is also attached to the the undue payment of aid, the Court has directive on integrated controlled fruit held on a number of occasions that neither growing, but mentions only the active a wrongful act on the part of the Commis- substances, not the trade names (such as sion or its officials, nor the conduct of a Euparen and Delan). national authority responsible for applying Community law which acts in breach of that law, can constitute grounds for an economic operator to have legitimate expectations of treatment which is contrary to Community law, if a precise provision of Community law would otherwise be infringed. 51

134. In the first scenario the farmer would have breached his contractual obligations and received the aid unduly, so that the grantor of the aid would, in principle, be entitled under national law to recover it. However, as already stated, Community law does not oppose the application of the 132. Regulation No 2078/92 merely pro- principles of protection of legitimate expec- vides in general terms for aid to be granted tations and good faith in such cases. to reduce the use of plant protection products (Article 2(1)(a)). The support does not have to be linked to the relin- quishing of the fungicides used by the defendant. The relinquishing of herbicides alone, which was indisputably agreed, would also promote the aims of the regu- lation. It would thus not contradict the 135. In the second scenario, there would be purpose and substance of the regulation a contractually agreed derogation from the even if the defendant had infringed the (national) ÖPUL Special Directive in the ÖPUL Special Directive, which was form approved by the Commission. There included in the contract. are two possible legal consequences of such a divergence between a national pro- gramme for the implementation of Regu- lation No 2078/92 which has been approved by the Commission and an aid contract concluded on the basis of that programme:

133. It is still unclear, and it is for the national court to decide, whether the aid contract refers to the ÖPUL Special Direc- tive in the form approved by the Commis- — If it were a substantial divergence sion, making that form the subject of the which was contrary to the aims and contract (first scenario), or whether the substance of Regulation No 2078/92, parties concluded an agreement which the aid would have to be treated as if it

138. On the basis of the above observa- tions, the answer must be that the person 136. Since Regulation No 2078/92 pro- receiving the aid can rely on the principle of vides in general terms for aid to be granted the protection of legitimate expectations to reduce the use of plant protection against the recovery of aid granted under products, an aid contract which linked the Regulation No 2078/92. When weighing granting of aid (solely) to the relinquishing up the Community interest in the recovery of herbicides would not be contrary to the of unduly received aid and the protection of aims and substance of the regulation, so the recipient's legitimate expectations, that, despite the divergence from the criteria such as the recipient's good faith, national programme, the aid would be negligent conduct on the part of the covered by the regulation. The principles national authorities and the fact that the involved in Maizena 52 and Thyssen 53 enrichment has since disappeared may be would thus not apply, since there was no taken into account, provided that the same conditions apply as for the recovery of purely national aid and that the interests of 52 — Cited in footnote 51, paragraph 22. the Community are taken fully into con- 53 — Cited in footnote 56, paragraph 10. sideration.

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OPINION OF MR ALBER — CASE C-336/00

VI — Conclusion

139. In the light of the foregoing I propose that the Court give the following answers to the national court's questions:

(1) Examination of Question 1 has not produced anything prejudicial to the validity of Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside.

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