Provisional text

Provisional text

delivered on 9 September 2021 (1)

Case C-234/20

delivered on 9 September 2021 (1)

SIA ‘Sātiņi-S’

Case C-234/20

Lauku atbalsta dienests

SIA ‘Sātiņi-S’

(Request for a preliminary ruling from the Augstākā tiesa (Supreme Court, Latvia))

( Reference for a preliminary ruling – European Agricultural Fund for Rural Development (EAFRD) – Regulation (EU) No 1305/2013 – Support for rural development – Article 30 – Payments under the Natura 2000 network – Compensation for income foregone in agricultural and forest areas – Limitation or exclusion of compensation for peat bogs – Charter of Fundamental Rights of the European Union – Article 17 – Right to property – Compensation in connection with restrictions on economic activities existing prior to the acquisition of land and known to the beneficiary )

Lauku atbalsta dienests

1.This request for a preliminary ruling has been made in proceedings between SIA ‘Sātiņi-S’, a Latvian undertaking (‘Sātiņi-S’), and the Lauku atbalsta dienests (Rural Support Service, Latvia).

(Request for a preliminary ruling from the Augstākā tiesa (Supreme Court, Latvia))

2.The request concerns the interpretation of Article 30(1) and Article 30(6)(a) of Regulation (EU) No 1305/2013 (2) and of Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and addresses, in essence:

–the classification of ‘peat bogs’ for the purposes of application of Article 30(1) and Article 30(6)(a) of Regulation No 1305/2013;

( Reference for a preliminary ruling – European Agricultural Fund for Rural Development (EAFRD) – Regulation (EU) No 1305/2013 – Support for rural development – Article 30 – Payments under the Natura 2000 network – Compensation for income foregone in agricultural and forest areas – Limitation or exclusion of compensation for peat bogs – Charter of Fundamental Rights of the European Union – Article 17 – Right to property – Compensation in connection with restrictions on economic activities existing prior to the acquisition of land and known to the beneficiary )

–whether a Member State may exclude the payments under Article 30(1) and Article 30(6)(a) of Regulation No 1305/2013 or limit them to certain areas or activities;

–whether there are grounds for paying compensation for income foregone as a result of restrictions on economic activities on land, of which the owner was aware when it purchased the land.

1.This request for a preliminary ruling has been made in proceedings between SIA ‘Sātiņi-S’, a Latvian undertaking (‘Sātiņi-S’), and the Lauku atbalsta dienests (Rural Support Service, Latvia).

II. Legal context

2.The request concerns the interpretation of Article 30(1) and Article 30(6)(a) of Regulation (EU) No 1305/2013 (2) and of Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and addresses, in essence:

–the classification of ‘peat bogs’ for the purposes of application of Article 30(1) and Article 30(6)(a) of Regulation No 1305/2013;

3.Article 17 of the Charter, entitled ‘Right to property’ provides, in paragraph 1:

‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’

–whether a Member State may exclude the payments under Article 30(1) and Article 30(6)(a) of Regulation No 1305/2013 or limit them to certain areas or activities;

–whether there are grounds for paying compensation for income foregone as a result of restrictions on economic activities on land, of which the owner was aware when it purchased the land.

4.Article 3(1) of Directive 92/43/EEC (3) states:

‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.

II. Legal context

The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC. [(4)]’

3. Regulation No 1305/2013

6.Regulation No 1305/2013 states as follows in recitals 7, 9 and 24:

‘(7) In order to ensure the immediate start and efficient implementation of rural development programmes, support from the EAFRD should be based on the existence of administrative framework conditions that are sound. Member States should therefore assess the applicability and fulfilment of certain ex ante conditionalities. Each Member State should prepare either a national rural development programme for its entire territory or a set of regional programmes or both a national programme and a set of regional programmes. Each programme should identify a strategy for meeting targets in relation to the Union priorities for rural development and a selection of measures. Programming should comply with Union priorities for rural development, whilst at the same time adapting to national contexts and complementing the other Union policies, in particular the agricultural market policy, the cohesion policy and the common fisheries policy. Member States which opt for preparing a set of regional programmes should also be able to prepare a national framework, without a separate budgetary allocation, in order to facilitate co-ordination among the regions in addressing nation-wide challenges.','prefix':

3.Article 17 of the Charter, entitled ‘Right to property’ provides, in paragraph 1:

…

‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’

(9) Rural development programmes should identify the needs of the area covered and describe a coherent strategy to meet them in the light of the Union priorities for rural development. That strategy should be based on the setting of targets. The links between the needs identified, the targets set and the choice of measures selected to meet them should be established. Rural development programmes should also contain all the information required to assess their conformity with the requirements of this Regulation.

…

(24) Support should continue to be granted to farmers and forest holders to help address specific disadvantages in the areas concerned resulting from the implementation of Directive 2009/147/EC [(5)] and [the Habitats Directive] and in order to contribute to the effective management of Natura 2000 sites. Support should also be made available to farmers to help address disadvantages in river basin areas resulting from the implementation of [Directive 2000/60/EC. [(6)] Support should be linked to specific requirements described in the rural development programme that go beyond relevant mandatory standards and requirements. Member States should also ensure that payments to farmers do not lead to double funding under this Regulation and Regulation (EU) No 1307/2013. [(7)] Furthermore, the specific needs of Natura 2000 areas should be taken into account by Member States in the overall design of their rural development programmes.’

4.Article 3(1) of Directive 92/43/EEC (3) states:

…

‘A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.

8.Article 2 of Regulation No 1305/2013, entitled ‘Definitions’, provides:

‘…

The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC. [(4)]’

In addition, the following definitions shall apply:

3. Regulation No 1305/2013

…

(c) “measure” means a set of operations contributing to one or more of the Union priorities for rural development;

6.Regulation No 1305/2013 states as follows in recitals 7, 9 and 24:

…

‘(7) In order to ensure the immediate start and efficient implementation of rural development programmes, support from the EAFRD should be based on the existence of administrative framework conditions that are sound. Member States should therefore assess the applicability and fulfilment of certain ex ante conditionalities. Each Member State should prepare either a national rural development programme for its entire territory or a set of regional programmes or both a national programme and a set of regional programmes. Each programme should identify a strategy for meeting targets in relation to the Union priorities for rural development and a selection of measures. Programming should comply with Union priorities for rural development, whilst at the same time adapting to national contexts and complementing the other Union policies, in particular the agricultural market policy, the cohesion policy and the common fisheries policy. Member States which opt for preparing a set of regional programmes should also be able to prepare a national framework, without a separate budgetary allocation, in order to facilitate co-ordination among the regions in addressing nation-wide challenges.

(f) “agricultural area” means any area taken up by arable land, permanent grassland and permanent pasture or permanent crops as defined in Article 4 of [Regulation No 1307/2013];

…

…

(r) “forest” means an area of land spanning more than 0,5 hectares with trees higher than 5 meters and a canopy cover of more than 10 percent, or trees able to reach these thresholds in situ; and does not include land that is predominantly under agricultural or urban land use, subject to paragraph 2.

(9) Rural development programmes should identify the needs of the area covered and describe a coherent strategy to meet them in the light of the Union priorities for rural development. That strategy should be based on the setting of targets. The links between the needs identified, the targets set and the choice of measures selected to meet them should be established. Rural development programmes should also contain all the information required to assess their conformity with the requirements of this Regulation.

A Member State or region may choose to apply a forest definition, other than the one in point (r) of paragraph 1, based on existing national law or inventory system. The Member States or regions shall provide such definition in the rural development programme;

…

…

10.According to Article 4 of Regulation No 1305/2013, entitled ‘Objectives’:

(24) Support should continue to be granted to farmers and forest holders to help address specific disadvantages in the areas concerned resulting from the implementation of Directive 2009/147/EC [(5)] and [the Habitats Directive] and in order to contribute to the effective management of Natura 2000 sites. Support should also be made available to farmers to help address disadvantages in river basin areas resulting from the implementation of [Directive 2000/60/EC. [(6)] Support should be linked to specific requirements described in the rural development programme that go beyond relevant mandatory standards and requirements. Member States should also ensure that payments to farmers do not lead to double funding under this Regulation and Regulation (EU) No 1307/2013. [(7)] Furthermore, the specific needs of Natura 2000 areas should be taken into account by Member States in the overall design of their rural development programmes.’

‘Within the overall framework of the [Common Agricultural Policy (CAP)], support for rural development, including for activities in the food and non-food sector and in forestry, shall contribute to achieving the following objectives:

…

(a) fostering the competitiveness of agriculture;

(b) ensuring the sustainable management of natural resources, and climate action;

8.According to Article 4 of Regulation No 1305/2013, entitled ‘Objectives’:

(c) achieving a balanced territorial development of rural economies and communities including the creation and maintenance of employment.’

‘Within the overall framework of the [Common Agricultural Policy (CAP)], support for rural development, including for activities in the food and non-food sector and in forestry, shall contribute to achieving the following objectives:

11.Article 6 of that regulation, entitled ‘Rural development programmes’, provides in paragraph 1:

‘The EAFRD shall act in the Member States through rural development programmes. Those programmes shall implement a strategy to meet the Union priorities for rural development through a set of measures as defined in Title III. Support from the EAFRD shall be sought for the achievement of the objectives of rural development pursued through Union priorities.’

(a) fostering the competitiveness of agriculture;

12.Article 10 of that regulation, entitled ‘Approval of rural development programmes’, reads as follows:

(b) ensuring the sustainable management of natural resources, and climate action;

‘1. Member States shall submit to the Commission a proposal for each rural development programme, containing the information referred to in Article 8.

(c) achieving a balanced territorial development of rural economies and communities including the creation and maintenance of employment.’

13.Article 30 of that regulation, entitled ‘Natura 2000 and Water Framework Directive payments’, provides:

9.Article 6 of that regulation, entitled ‘Rural development programmes’, provides in paragraph 1:

‘1. Support under this measure shall be granted annually per hectare of agricultural area or per hectare of forest in order to compensate beneficiaries for additional costs and income foregone resulting from disadvantages in the areas concerned, related to the implementation of [the Habitats Directive] and [the Birds Directive] and the Water Framework Directive.

‘The EAFRD shall act in the Member States through rural development programmes. Those programmes shall implement a strategy to meet the Union priorities for rural development through a set of measures as defined in Title III. Support from the EAFRD shall be sought for the achievement of the objectives of rural development pursued through Union priorities.’

…

6. The following areas shall be eligible for payments:

10.Article 10 of that regulation, entitled ‘Approval of rural development programmes’, reads as follows:

(a) Natura 2000 agricultural and forest areas designated pursuant to [the Habitats Directive] and [the Birds Directive];

‘1. Member States shall submit to the Commission a proposal for each rural development programme, containing the information referred to in Article 8.

…

4. Implementing Regulation No 808/2014

12.Article 10 of Implementing Regulation (EU) No 808/2014, (8) entitled ‘Standard assumption of additional costs and income foregone’, provides in paragraph 1:

11.Article 30 of that regulation, entitled ‘Natura 2000 and Water Framework Directive payments’, provides:

‘Member States may fix the amount of the payments for the measures or types of operations referred to in Articles 28 to 31 and Articles 33 and 34 of [Regulation No 1305/2013] on the basis of standard assumptions of additional costs and income foregone.’

‘1. Support under this measure shall be granted annually per hectare of agricultural area or per hectare of forest in order to compensate beneficiaries for additional costs and income foregone resulting from disadvantages in the areas concerned, related to the implementation of [the Habitats Directive] and [the Birds Directive] and the Water Framework Directive.

13.Section 8 of Part 1 of Annex I to that implementing regulation, entitled ‘Description of the measures selected’, reads as follows:

‘…

…

11. Natura 2000 and Water Framework Directive (“WFD”) payments (Article 30 of [Regulation No 1305/2013])

6. The following areas shall be eligible for payments:

…

–identification of the restrictions/disadvantages based on which payments can be granted and indication of compulsory practices;

(a) Natura 2000 agricultural and forest areas designated pursuant to [the Habitats Directive] and [the Birds Directive];

– description of the methodology and the agronomic assumptions including the description of the baseline requirements referred to in Article 30(3) of [Regulation No 1305/2013] for [the Habitats Directive] and [the Birds Directive] and in Article 30(4) of that Regulation for the WFD used as reference for the calculations justifying additional costs and income foregone resulting from the disadvantages in the areas concerned related to the implementation of [the Habitats Directive, the Birds Directive] and the WFD; where relevant, that methodology shall take into account payment for agricultural practices beneficial for the climate and the environment granted in accordance with [Regulation No 1307/2013], in order to exclude double funding.

…’

…

14.Measure 12 of Part 5 of Annex I to that implementing regulation establishes the Natura 2000 and Water Framework Directive payments under Article 30 of Regulation No 1305/2013 and establishes the following payment types:

compensation payment for Natura 2000 agricultural areas [code 12.1]

15.Ministru kabineta 2010. gada 16. marta noteikumi Nr. 264 īpaši aizsargājamo dabas teritoriju vispārējie aizsardzības un izmantošanas noteikumi (Decree No 264 of the Council of Ministers of 16 March 2010 on general provisions governing the protection and use of special areas of conservation, ‘Decree No 264’) (9) lays down the general rules on the protection and use of special areas of conservation.

compensation payment for Natura 2000 forest areas [code 12.2]

16.Chapter 5 of that decree, entitled ‘Nature protection areas’, states in point 16:

compensation payment for agricultural areas included in river basin management plans [code 12.3].

‘In nature protection areas it is forbidden:

15.Ministru kabineta 2010. gada 16. marta noteikumi Nr. 264 īpaši aizsargājamo dabas teritoriju vispārējie aizsardzības un izmantošanas noteikumi (Decree No 264 of the Council of Ministers of 16 March 2010 on general provisions governing the protection and use of special areas of conservation, ‘Decree No 264’) (9) lays down the general rules on the protection and use of special areas of conservation.

…

16.Chapter 5 of that decree, entitled ‘Nature protection areas’, states in point 16:

‘In nature protection areas it is forbidden:

16.12. to establish Vaccinium berry plantations in peat bogs;

…

…’

16.12. to establish Vaccinium berry plantations in peat bogs;

…

18.The lauku attīstības programma 2014.-2020.gadam (rural development programme for Latvia for the period from 2014 to 2020), (12) approved by the European Commission under Article 10(2) of Regulation No 1305/2013, states that support may be paid where restrictions are placed on forestry activities in Natura 2000 areas or in microreserves located on forest land, excluding peat bogs.

17.Ministru kabineta 2015. gada 7. aprīļa noteikumi Nr. 171 noteikumi par valsts un Eiropas Savienības atbalsta piešķiršanu, administrēšanu un uzraudzību vides, klimata un lauku ainavas uzlabošanai 2014.–2020. gada plānošanas periodā (Decree No 171 of the Council of Ministers of 7 April 2015 relating to the grant, administration and supervision of State and European Union aid for improvements to the environment, climate and rural areas during the programming period for the years 2014 to 2020, ‘Decree No 171’), (10) provides as follows in points 56 to 58:

III. The dispute in the main proceedings, the questions referred and the proceedings before the Court of Justice

56 The area eligible for support under this measure is forest land (excluding peat bogs):

19.In 2002 Sātiņi-S purchased 7.7 hectares of peat bog in a nature protection area and in a Natura 2000 conservation area of European importance (‘the Natura 2000 area’) in Latvia.

56.1. which is included in the list of [Natura 2000 areas] pursuant to Article 30(6)(a) of Regulation No 1305/2013 and determined in accordance with the likums “Par īpaši aizsargājamām dabas teritorijām” (Law on special areas of conservation);

…

20.On 2 February 2017, Sātiņi-S submitted a claim to the Lauku atbalsta dienests (Rural Support Service) for compensation for 2015 and 2016 in respect of the prohibition on establishing Vaccinium berry plantations on that peatland. By a decision of 28 February 2017, the Rural Support Service refused that claim on the grounds that the applicable national legislation did not provide for that compensation.

58. Support may be granted if the eligible area declared for the support is at least 1 hectare and comprises fields of at least 0.1 hectares, and the minimum area subject to some form of restriction within a field measures at least 0.1 hectares, and if the said fields can be identified on a map, are included in the Rural Support Service’s electronic application system and are subject to any of the following restrictions on economic activity from 1 March of the current year under the legislation governing the protection and use of special areas of conservation or the protection of species and biotopes:

21.Sātiņi-S appealed that decision to the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia), which dismissed the appeal by a judgment of 26 March 2018.

58.1. prohibition on forestry activities;

58.2. prohibition on main harvesting and thinning;

22.Sātiņi-S brought an appeal on a point of law against that judgment to the Augstākā tiesa (Supreme Court, Latvia), which stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

58.3. prohibition on main harvesting;

‘(1) Must Article 30(6)(a) of [Regulation No 1305/2013] be interpreted as meaning that peat bogs are completely excluded from Natura 2000 payments?

58.4. prohibition on clear cutting.’ (11)

(2) If the reply to the first question is in the negative, are peat bogs included in agricultural or forest areas?

18.The lauku attīstības programma 2014.-2020.gadam (rural development programme for Latvia for the period from 2014 to 2020), (12) approved by the European Commission under Article 10(2) of Regulation No 1305/2013, states that support may be paid where restrictions are placed on forestry activities in Natura 2000 areas or in microreserves located on forest land, excluding peat bogs.

III. The dispute in the main proceedings, the questions referred and the proceedings before the Court of Justice

(3) If the reply to the first question is in the negative, must Article 30 of Regulation No 1305/2013 be interpreted as meaning that a Member State may completely exclude peat bogs from Natura 2000 payments and that such national provisions are compatible with the compensatory aim of those payments established in Regulation No 1305/2013?

19.In 2002 Sātiņi-S purchased 7.7 hectares of peat bog in a nature protection area and in a Natura 2000 conservation area of European importance (‘the Natura 2000 area’) in Latvia.

(4) Must Article 30 of Regulation No 1305/2013 be interpreted as meaning that a Member State may restrict support payments for Natura 2000 areas by making support available only in connection with restrictions on a particular type of economic activity, for example, by limiting support in forest areas to forestry activities?

20.On 2 February 2017, Sātiņi-S submitted a claim to the Lauku atbalsta dienests (Rural Support Service) for compensation for 2015 and 2016 in respect of the prohibition on establishing Vaccinium berry plantations on that peatland. By a decision of 28 February 2017, the Rural Support Service refused that claim on the grounds that the applicable national legislation did not provide for that compensation.

21.Sātiņi-S appealed that decision to the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia), which dismissed the appeal by a judgment of 26 March 2018.

(5) Must Article 30(1) of Regulation No 1305/2013, read together with Article 17 of the [Charter], be interpreted as meaning that someone is entitled to a Natura 2000 payment by virtue of his plans for a new economic activity if, when he acquired the property, he was already aware of the restrictions that applied to it?’

22.Sātiņi-S brought an appeal on a point of law against that judgment to the Augstākā tiesa (Supreme Court, Latvia), which stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

23.Sātiņi-S, the Latvian Government, Ireland and the Commission filed written observations.

‘(1) Must Article 30(6)(a) of [Regulation No 1305/2013] be interpreted as meaning that peat bogs are completely excluded from Natura 2000 payments?

(2) If the reply to the first question is in the negative, are peat bogs included in agricultural or forest areas?

24.At the hearing, which was held on 3 June 2021, the Latvian Government, Ireland and the Commission presented oral submissions.

(3) If the reply to the first question is in the negative, must Article 30 of Regulation No 1305/2013 be interpreted as meaning that a Member State may completely exclude peat bogs from Natura 2000 payments and that such national provisions are compatible with the compensatory aim of those payments established in Regulation No 1305/2013?

(4) Must Article 30 of Regulation No 1305/2013 be interpreted as meaning that a Member State may restrict support payments for Natura 2000 areas by making support available only in connection with restrictions on a particular type of economic activity, for example, by limiting support in forest areas to forestry activities?

(5) Must Article 30(1) of Regulation No 1305/2013, read together with Article 17 of the [Charter], be interpreted as meaning that someone is entitled to a Natura 2000 payment by virtue of his plans for a new economic activity if, when he acquired the property, he was already aware of the restrictions that applied to it?’

23.Sātiņi-S, the Latvian Government, Ireland and the Commission filed written observations.

25.By its first two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 30(6)(a) of Regulation No 1305/2013 must be interpreted as meaning that peatlands are completely excluded from entitlement to Natura 2000 payments and, if the answer to that question is in the negative, whether peatlands constitute agricultural areas or forest areas within the meaning of that provision.

24.At the hearing, which was held on 3 June 2021, the Latvian Government, Ireland and the Commission presented oral submissions.

26.Under Article 30(1) of Regulation No 1305/2013, support is granted annually per hectare of agricultural area or per hectare of forest in order to compensate beneficiaries for additional costs and income foregone resulting from disadvantages in the areas concerned, related to the implementation of the Habitats Directive, the Birds Directive and the Water Framework Directive. Article 30(6)(a) of that regulation specifies that Natura 2000 agricultural and forest areas designated pursuant to the Habitats Directive and the Birds Directive are eligible for the support payments in question.

27.In the present case, the Rural Support Service refused Sātiņi-S compensation in connection with the restriction on the economic activity consisting of establishing Vaccinium berry plantations on the peat bogs, relying on the Latvian legislation that excludes those payments for peat bogs.

25.By its first two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 30(6)(a) of Regulation No 1305/2013 must be interpreted as meaning that peatlands are completely excluded from entitlement to Natura 2000 payments and, if the answer to that question is in the negative, whether peatlands constitute agricultural areas or forest areas within the meaning of that provision.

28.The referring court observes, first of all, that the payment system for Natura 2000 areas is intended to help the beneficiaries address the disadvantages caused by implementation of the Habitats Directive, the Birds Directive and the Water Framework Directive, and that the restrictions adopted by Member States must not abandon the compensatory aim of that system, given that peat bogs represent a significant portion of Latvian territory and cover a significant part of that country’s Natura 2000 areas. That court then notes that the identification of Natura 2000 areas in Annex I to the Habitats Directive includes peat bogs among the types of natural habitats of Community interest whose conservation requires the designation of special areas of conservation. Last, the referring court notes, on the one hand, that although Article 30(6)(a) of Regulation No 1305/2013 limits the payments to certain areas, that is to say, agricultural and forest areas, that does not mean that it limits the payments to certain types of economic activity and, on the other, that pursuant to point 58 of Decree No 171 the support under Article 30(6)(a) of Regulation No 1305/2013 is only available in connection with restrictions on forestry activities, even though agricultural activities can be carried on in peat bogs on forest land, by establishing Vaccinium berry plantations in them.

26.Under Article 30(1) of Regulation No 1305/2013, support is granted annually per hectare of agricultural area or per hectare of forest in order to compensate beneficiaries for additional costs and income foregone resulting from disadvantages in the areas concerned, related to the implementation of the Habitats Directive, the Birds Directive and the Water Framework Directive. Article 30(6)(a) of that regulation specifies that Natura 2000 agricultural and forest areas designated pursuant to the Habitats Directive and the Birds Directive are eligible for the support payments in question.

27.In the present case, the Rural Support Service refused Sātiņi-S compensation in connection with the restriction on the economic activity consisting of establishing Vaccinium berry plantations on the peat bogs, relying on the Latvian legislation that excludes those payments for peat bogs.

29.Sātiņi-S asserts that the compensation that the national legislation grants only to forest areas, excluding peat bogs, is ‘unfair’ and that the economic activity and demarcation of the boundaries of the land belonging to that company commenced before the protected natural area was designated as a special area of conservation.

28.The referring court observes, first of all, that the payment system for Natura 2000 areas is intended to help the beneficiaries address the disadvantages caused by implementation of the Habitats Directive, the Birds Directive and the Water Framework Directive, and that the restrictions adopted by Member States must not abandon the compensatory aim of that system, given that peat bogs represent a significant portion of Latvian territory and cover a significant part of that country’s Natura 2000 areas. That court then notes that the identification of Natura 2000 areas in Annex I to the Habitats Directive includes peat bogs among the types of natural habitats of Community interest whose conservation requires the designation of special areas of conservation. Last, the referring court notes, on the one hand, that although Article 30(6)(a) of Regulation No 1305/2013 limits the payments to certain areas, that is to say, agricultural and forest areas, that does not mean that it limits the payments to certain types of economic activity and, on the other, that pursuant to point 58 of Decree No 171 the support under Article 30(6)(a) of Regulation No 1305/2013 is only available in connection with restrictions on forestry activities, even though agricultural activities can be carried on in peat bogs on forest land, by establishing Vaccinium berry plantations in them.

30.In relation to the first question referred, the Latvian Government argues that the fact that the grant of compensation is limited derives directly from Article 30(6)(a) of Regulation No 1305/2013, under which Natura 2000 payments are reserved for agricultural and forest areas, and that peatland does not form part of the forest areas to which the State confines the grant of payments, because it does not fall within the definition of ‘forest’ in Article 2(1)(r) thereof. Since it asserts that that question should be answered in the affirmative, the Latvian Government argues that it is unnecessary to rule on the second question referred, but states nevertheless that, according to national law, an area of land is classified according to the type of land use, its natural characteristics and current economic use and that, on the basis of the specific characteristics of plots of land, ‘agricultural land’, ‘forest’ and ‘peat bogs’ are three separate categories.

29.Sātiņi-S asserts that the compensation that the national legislation grants only to forest areas, excluding peat bogs, is ‘unfair’ and that the economic activity and demarcation of the boundaries of the land belonging to that company commenced before the protected natural area was designated as a special area of conservation.

31.According to the Commission, given that Regulation No 1305/2013 does not mention, define or describe ‘peat bogs’ or ‘peatland’, the peatlands concerned are capable of falling within Article 30(6)(a) of that regulation, by virtue of their characteristics, where they fall within the definition of an ‘agricultural area’ within the meaning of Article 2(1)(f) of that regulation, or of a ‘forest’ within the meaning of Article 2(1)(r) of that regulation, as the case may be.

30.In relation to the first question referred, the Latvian Government argues that the fact that the grant of compensation is limited derives directly from Article 30(6)(a) of Regulation No 1305/2013, under which Natura 2000 payments are reserved for agricultural and forest areas, and that peatland does not form part of the forest areas to which the State confines the grant of payments, because it does not fall within the definition of ‘forest’ in Article 2(1)(r) thereof. Since it asserts that that question should be answered in the affirmative, the Latvian Government argues that it is unnecessary to rule on the second question referred, but states nevertheless that, according to national law, an area of land is classified according to the type of land use, its natural characteristics and current economic use and that, on the basis of the specific characteristics of plots of land, ‘agricultural land’, ‘forest’ and ‘peat bogs’ are three separate categories.

31.According to the Commission, given that Regulation No 1305/2013 does not mention, define or describe ‘peat bogs’ or ‘peatland’, the peatlands concerned are capable of falling within Article 30(6)(a) of that regulation, by virtue of their characteristics, where they fall within the definition of an ‘agricultural area’ within the meaning of Article 2(1)(f) of that regulation, or of a ‘forest’ within the meaning of Article 2(1)(r) of that regulation, as the case may be.

32.In order to answer the first two questions referred, I will examine the classification of peat bogs for the purposes of Article 30(6)(a) of Regulation No 1305/2013, in order to determine whether that provision completely excludes peat bogs from Natura 2000 payments.

32.In order to answer the first two questions referred, I will examine the classification of peat bogs for the purposes of Article 30(6)(a) of Regulation No 1305/2013, in order to determine whether that provision completely excludes peat bogs from Natura 2000 payments.

33.

33.

Since there is no definition of a ‘peat bog’ or of ‘peatland’ in EU law, as regards the classification of peat bogs for the purposes of Article 30(6)(a) of Regulation No 1305/2013, I note that a peat bog is, in essence, a wetland characterised by the presence of ‘peat’ – soil characterised by a high content of organic matter of plant origin and by organic carbon storage. (13) Whilst there are, admittedly, several types of peat bog, so far as I am aware the foregoing factors are the fundamental characteristics of such an area.

1.In the light of those characteristics, first, the definition of a ‘peat bog’ is not entirely in line with that of an ‘agricultural area’ within the meaning of Article 2(1)(f) of Regulation No 1305/2013, (14) according to which ‘agricultural area’ means ‘any area taken up by arable land, permanent grassland and permanent pasture or permanent crops as defined in Article 4 of [Regulation No 1307/2013]’. Nevertheless, a peat bog may consist, at least partly, of ‘permanent grassland’, (15) which is included in the definition of ‘agricultural area’. (16)

2.Second, the definition of a ‘peat bog’ likewise is not completely in line with that of a ‘forest’, within the meaning of Article 2(1)(r) of Regulation No 1305/2013, according to which ‘forest’ means ‘an area of land spanning more than 0.5 hectares with trees higher than 5 meters and a canopy cover of more than 10 percent, or trees able to reach these thresholds in situ; and does not include land that is predominantly under agricultural or urban land use, subject to paragraph 2’. (17) Nevertheless, depending on the vegetation present, a peat bog may consist, at least partly, of forest. (18)

3.I am therefore inclined to conclude that although peat bogs, as such, are not referred to in Article 30(6)(a) of Regulation No 1305/2013, neither are they, for the purposes of application of that article, a tertium genus separate from the agricultural and forest areas to which that provision refers. In other words, the scientific definition of a ‘peat bog’ as an area of land with the particular characteristics described in point 33 of this Opinion does not mean that the same area, on the basis of its composition, cannot fall within the legal definition of an ‘agricultural’ or ‘forest’ area within the meaning of the same article, to the extent that they include, inter alia, grassland contained within the definition of an ‘agricultural area’ or vegetation corresponding to the vegetation comprising a ‘forest area’. (19)

4.I am therefore of the view that peatland areas can, at least in part, fall within the definition of ‘agricultural’ or ‘forest’ areas eligible for payments under Article 30(6)(a) of Regulation No 1305/2013.

5.In the present case, given that the Latvian legislature has limited the payments under Article 30(6)(a) of Regulation No 1305/2013 to forest areas, excluding agricultural areas, it is for the referring court to verify whether the peat bogs to which the case in the main proceedings relates, as they are defined by the Latvian legislation, fall within the definition of ‘forest area’ in that provision. (20)

6.Furthermore, since the prohibited activity in the present case is an agricultural activity (the planting of Vaccinium berries), the referring court also asks whether support granted under Article 30(6)(a) of Regulation No 1305/2013 to compensate the owners of land for the disadvantages suffered in forest areas allows those owners to be compensated not only in connection with the prohibition on carrying out a forestry activity, (21) but also in connection with an agricultural activity such as planting Vaccinium berries. In its view, the fact that Natura 2000 payments are limited to certain (agricultural and forest) areas has no bearing on the economic activities carried on in those areas.

7.The payments granted under Article 30(6)(a) of Regulation No 1305/2013 are intended to ‘compensate beneficiaries for additional costs and income foregone resulting from disadvantages in the areas concerned, related to the implementation of [the Habitats Directive and the Birds Directive] and the Water Framework Directive’.

8.From a textual perspective, neither Article 30(1) of Regulation No 1305/2013 nor the regulation in general specifies what causes those ‘disadvantages’ or whether they are the result of the prohibition on carrying on an agricultural or forestry activity. Nevertheless, Section 8 of Part 1 of Annex I to Implementing Regulation No 808/2014 requires the Member States, inter alia, to identify the restrictions or disadvantages based on which payments under the rural development plans may be granted. The Member States therefore appear to be free to identify the types of disadvantage eligible for compensation.

9.From a contextual perspective, although Article 30(6)(a) of Regulation No 1305/2013 merely states that the payments can relate to Natura 2000 agricultural and forest areas designated pursuant to the Habitats Directive and the Birds Directive, Article 30(6)(b) extends those payments, subject to certain conditions, to ‘other delimited nature protection areas with environmental restrictions applicable to farming or forests’. (22) I therefore consider that both those activities are regarded as being equally and indistinguishably eligible for the payments.

10.From the teleological perspective, it may be inferred from the scope of application of Regulation No 1305/2013 and its objectives themselves, as set out in Article 4 thereof, that the regulation supports rural development, including activities in the food and non-food sector and in forestry. To my mind, this means that the activities taken into consideration for the purposes of Natura 2000 payments can be only agricultural or forestry activities which exclude, for example, coal extraction, one of the activities typical of peatland exploitation and an industrial activity not falling within the scope of application of that regulation. (23)

11.To my mind therefore, Article 30(6)(a) of Regulation No 1305/2013 does not in principle preclude the grant of payments to provide compensation in connection with the prohibition on an agricultural activity in a forest area. It is for the Member States to determine the activities whose restriction gives rise to those payments.

12.Therefore, I propose that the first two questions referred for a preliminary ruling should be answered to the effect that Article 30(6)(a) of Regulation No 1305/2013 must be interpreted as meaning that it does not in principle exclude peat bogs from the payments under Article 30(1) thereof, since they may, depending on the circumstances, constitute agricultural or forest areas eligible to benefit from the payments within the meaning of that article. It is for the referring court to verify whether that situation obtains in the case in the main proceedings.

13.By its third and fourth questions, which must be examined together, the referring court asks, in essence, as to whether Article 30 of Regulation No 1305/2013 permits a Member State to exclude peat bogs from eligibility for Natura 2000 payments or to make support available only in connection with restrictions imposed on a specific type of economic activity, in particular forestry activity in a forest area.

14.The referring court observes inter alia that, while it is for the Member States to decide how to implement that regulation, the limitations they adopt must not eliminate the ‘compensatory aim’ of the Natura 2000 payments system. (24)

15.The Latvian Government asserts that Article 30 of Regulation No 1305/2013 does permit the Member States to exclude peatlands completely from Natura 2000 payments or to limit the grant of support to Natura 2000 areas by making support available only in connection with restrictions on a particular type of economic activity. Under Articles 5 and 8 of that regulation, the Member States are free not only to choose the measures in the rural development programme, but also to determine the conditions under which they are implemented, and are not obliged to grant all the support measures provided for in that regulation. In the present case, the Latvian Government submits, the measures in Latvia’s rural development programme, which has been approved by the Commission, are consistent with the objectives of the EU legislation and the discretion conferred on the Member States by the regulation, to the extent that the national legislature has targeted the support in order to maximise its contribution to the objective of enhancing biodiversity in forestry land, thereby preventing the fragmentation of funding.

16.I note at the outset that Article 30 of Regulation No 1305/2013 creates no payment obligation, as can be seen plainly from Article 30(6), according to which the areas to which it refers, including Natura 2000 agricultural and forest areas, shall be eligible for payments. That approach is also in line with the spirit of EU rural development legislation, under which the Member States are free to determine the measures by which they implement that legislation in their rural development programmes, in accordance with Union priorities and taking account of national contexts. (26)

17.I note furthermore, first of all, that Measure 12 of Part 5 of Annex I to Implementing Regulation No 808/2014 establishes three payment types from which the Member States can choose when implementing Article 30 of Regulation No 1305/2013, that is to say, compensation payments to Natura 2000 agricultural areas, compensation payments to Natura 2000 forest areas and compensation payments to agricultural areas included in river basin management plans. Next, point 11 of Section 8(2)(e) of Part 1 of Annex I to that implementing regulation requires the Member States, inter alia, to identify the restrictions or disadvantages based on which the payments under the rural development plans may be granted. Last, under Article 10(1) of that implementing regulation, Member States may fix the amount of the payments on the basis of standard assumptions of additional costs and income foregone.

18.In principle, therefore, the EU legislation affords the Member States discretion, first, with regard to choosing the measures they intend to implement from among those laid down by the EU legislation and, second, how they determine the restrictions or disadvantages on the basis of which payments are granted. Therefore, I take the view that the Latvian legislature acted lawfully when, in adopting measures to implement Article 30 of Regulation No 1305/2013 using the discretion conferred on it by that regulation, it elected to compensate only forest land and limited payments to those in connection with certain restrictions, that is to say, the prohibitions on forestry activities under point 58 of Decree No 171.

19.That finding is not called into question by the ‘compensatory aim’ of the Natura 2000 payment system, to which the referring court makes reference in reliance on the judgment in Lingurár. (27) That judgment in fact concerned a situation in which the Member State had implemented Natura 2000 support for private owners in connection with restrictions on the use of forests and other wooded areas, completely excluding from the aid forest areas, irrespective of their size, that belonged to the State, with the effect that, in that case, a forest area in which 0.182% was owned by the State was ineligible for the support in question. It was, according to the Court, that restriction which conflicted with the compensatory aim of the payments system and rendered the measure disproportionate. (28) The case in the main proceedings concerns a different situation, in which the Latvian legislature completely excluded peat bogs from the forest land for which the support is granted, making a choice which is, in principle, within its powers to make.

20.When choosing the measures to adopt, a Member State must of course comply with the general principles of the EU, such as the principles of non-discrimination and proportionality. (29) As the Commission has observed, if as a result of their characteristics the peat bogs at issue were part of ‘forests’ in accordance with the definition adopted in Article 2(1)(r) of Regulation No 1305/2013 or any definition adopted in its rural development programme in accordance with Article 2(2) thereof, (30) the exclusion of those areas from eligibility for support under Article 30 of that regulation would breach the general principle of non-discrimination, which is inherent in the EU regulatory system.

21.I therefore propose that the answer to the third and fourth questions referred for a preliminary ruling is that Article 30(6)(a) of Regulation No 1305/2013 must be interpreted as permitting a Member State, where the general principle of non-discrimination is complied with, either to exclude peat bogs from eligibility for Natura 2000 payments – without such an exclusion thereby compromising the compensatory purpose of those payments – or to limit the support granted in respect of those areas only to that in connection with restrictions imposed on a specific type of economic activity, in particular forestry activity.

22.By its fifth and last question, the referring court asks, essentially, whether Article 30 of Regulation No 1305/2013, read together with Article 17 of the Charter, must be interpreted as meaning that the owner of land is entitled to payments in connection with a restriction on economic activity on that land where it was aware of that limitation at the time it acquired the land.

23.The Latvian Government proposes that this question should be answered in the negative, on the grounds that Article 17 of the Charter allows restrictions on the use of property, in the public interest and in accordance with the principle of proportionality; that when Sātiņi-S acquired the land at issue there were already legal restrictions on the exercise of the economic activity it wished to undertake; and that there was no evidence that Sātiņi-S had been given any legitimate assurances that the national measures relating to the grant of Natura 2000 payments could be amended in its favour.

24.Ireland, which has confined its observations to this question, proposes that it should be answered to the effect that Article 30(1) of Regulation No 1305/2013, read together with Article 17 of the Charter, does not confer any entitlement to a Natura 2000 payment in respect of someone’s plans for a new economic activity on a property if, when it acquired the property, that person was already aware of the restrictions that applied to it.

25.The Commission asserts that the present case concerns not an expropriation of land but the regulation of the use of property, which is permitted to the extent necessary in the general interest, under the last sentence of Article 17(1) of the Charter, because protection of the environment is an objective in the general interest and the prohibition on establishing a Vaccinium berry plantation is not disproportionate in the light of that objective. It argues that Article 30 of Regulation No 1305/2013 does not give rise to either an obligation or a promise to pay compensation to natural persons in connection with all the restrictions imposed in relation to Natura 2000, and that the Habitats Directive and the Birds Directive likewise contain no provisions relating to the creation of any compensation mechanism. It also raises the matter of whether the Court has jurisdiction to rule on a restriction on the right to property, such as the restriction in the present case, which arguably does not concern the implementation of EU law.

26.Addressing, as a preliminary consideration, the issue of the Court’s jurisdiction to rule on the fifth question referred for a preliminary ruling, I recall that, under Article 51(1) of the Charter, which governs its field of application, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. That article confirms the Court’s consistent case-law according to which the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but are not applicable outside such situations. Where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction. (31)

27.In the present case, however, the referring court has referred a question of interpretation of Article 30(1) of Regulation No 1305/2013, read together with Article 17 of the Charter. The question therefore primarily concerns the application of Article 30 of that regulation.

28.It is sufficient to observe in that respect that, as can be seen from the proposed answers to the preceding questions, Article 30 of Regulation No 1305/2013 does not create any payment obligation or any entitlement to compensation in connection with restrictions imposed in the context of Natura 2000. As set out in points 50 and 51 of this Opinion, while the Member States may adopt measures under that article, they are under no obligation to do so and they furthermore have discretion as to the measures they consider appropriate in order to implement that regulation.

29.That finding is not called into question by any interpretation of Article 30 of Regulation No 1305/2013 read together with Article 17 of the Charter, since Article 17 of the Charter has no effect on the scope of application of Article 30 of Regulation No 1305/2013, or by any autonomous application of Article 17 of the Charter, which would involve the application of that article in a purely domestic situation and would not be a matter of implementation of EU law within the meaning of Article 51(1) of the Charter.

30.Specifically as regards Article 6 of the Habitats Directive, which Ireland Government invokes as a source of obligations on the Member States, I observe that, in essence, this article provides, in paragraph 1, that the Member States are to establish the conservation measures necessary for the special areas of conservation and, in paragraph 2, that those Member States are to take appropriate steps to avoid, in those areas, the deterioration of habitats and significant disturbance of the species for which the areas have been designated. To my mind, although that provision requires the Member States to adopt measures to protect the relevant areas, it makes no provision whatsoever for the adoption of compensation measures such as those at issue in the main proceedings.

31.In the alternative, I note that the restrictions imposed by the Latvian legislature, to which the case in the main proceedings relates, call into question not the substance of the right to property but potentially its use which, according to the last sentence of Article 17(1) of the Charter, may be regulated in so far as is necessary for the general interest. The Court has consistently held that the exercise of the right to property may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, disproportionate and intolerable interference, impairing the very substance of the right guaranteed. (32) In the present case, those objectives include protection of the environment which is therefore capable of justifying a restriction on the use of the right to property, (33) meaning that a prohibition on establishing a Vaccinium berry plantation, as in the present case, is consistent with an objective in the general interest and is not disproportionate in relation to the aim pursued, since the need to protect the ecosystem necessarily involves a prohibition on transforming the existing situation. (34)

32.I therefore propose that the fifth question should be answered to the effect that Article 30 of Regulation No 1305/2013, read together with Article 17 of the Charter, must be interpreted as meaning that it does not grant the owner of land, such as peat bogs, a right to Natura 2000 payments in connection with a restriction on carrying on an economic activity on that land.

In the light of the foregoing, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Augstākā tiesa (Supreme Court, Latvia):

(1) Article 30(6)(a) of Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 must be interpreted as meaning that it does not in principle exclude peat bogs from the payments under Article 30(1) of that regulation since they may, depending on the circumstances, constitute agricultural or forest areas eligible to benefit from the payments within the meaning of that article.

(2) Article 30(6)(a) of Regulation No 1305/2013 must be interpreted as meaning that it does permit a Member State, where the general principle of non-discrimination is complied with, either to exclude peat bogs from eligibility for Natura 2000 payments – without such an exclusion thereby compromising the compensatory purpose of those payments – or to limit the support granted for those areas only to that in connection with restrictions imposed on a specific type of economic activity, in particular forestry activity.

(3) Article 30 of Regulation No 1305/2013, read together with Article 17 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not grant the owner of land, such as peat bogs, a right to Natura 2000 payments in connection with a restriction on carrying on an economic activity on that land.

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1 Original language: French.

2 Regulation of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 (OJ 2013 L 347, p. 487, and corrigendum OJ 2016 L 130, p. 1).

3 Council Directive of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’).

4 Council Directive of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).

5 Directive of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7; ‘the Birds Directive’).

6 Directive of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1; ‘the Water Framework Directive’).

7 Regulation of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608).

8 Commission Implementing Regulation of 17 July 2014 laying down rules for the application of Regulation No 1305/2013 (OJ 2014 L 227, p. 18).

9 Latvijas Vēstnesis, 2010, No 58.

10 Latvijas Vēstnesis, 2015, No 76.

11 The Commission notes in its written observations that the version of that decree cited in the order for reference contains amendments adopted on 14 March 2017, which are inapplicable ratione temporis to the facts in the main proceedings. Before those amendments, point 58 read as follows: ‘Support may be granted if the eligible area declared for the support is at least 1 hectare and comprises fields of at least 0.5 hectares with the same boundaries as forest plots and if the said fields can be identified on the ground and are included in the Rural Support Service’s electronic application system and are subject to any of the following restrictions on economic activity from 1 April of the current year under the legislation governing the protection and use of special areas of conservation or the protection of species and biotopes: … prohibition on forestry activities; … prohibition on final felling and thinning; … prohibition on final felling; … prohibition on clear cutting.’

12

This programme is available on the Latvian government website at: https://www.zm.gov.lv/public/files/CMS_Static_Page_Doc/00/00/01/81/03/Programme_2014LV06RDNP001_9_0_lv.pdf.

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The few international rules on peatland define it very flexibly. Peatlands are regarded as ‘wetlands’ within the meaning of the Convention on Wetlands of International Importance especially as Waterfowl Habitat, concluded at Ramsar, Iran, on 2 February 1971 (United Nations Treaty Series, Vol. 996, p. 245, No 14583), in which the definition of ‘wetland’ is very broad. In relation to peatland specifically, the Ramsar Convention Secretariat document entitled ‘Designating Ramsar Sites: Strategic Framework and guidelines for the future development of the List of Wetlands of International Importance’ (4th edition, Vol. 17, 2010) states, in paragraphs 136 and 137, that peatlands are defined by the presence of a peat substrate (‘peat’ consisting of dead and partially decomposed plant remains that have accumulated in situ under waterlogged conditions) and are ecosystems with a peat deposit that may be covered by vegetation (which may or may not be peat-forming) or may lack vegetation entirely. According to that document, the presence of peat or vegetation capable of forming peat is the key characteristic of peatlands.

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I believe it is helpful to point out that although Article 30(6)(a) of Regulation No 1305/2013 refers to agricultural ‘areas’ [‘zones’ in the French-language version], Article 2(1)(f) provides a definition of an agricultural ‘area’ [‘surface’ in the French-language version]. To my mind, however, the two expressions are interchangeable.

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Article 4(1)(h) of Regulation No 1307/2013 defines ‘permanent grassland and permanent pasture’ (together referred to as ‘permanent grassland’) as follows: ‘land used to grow grasses or other herbaceous forage naturally (self-seeded) or through cultivation (sown) and that has not been included in the crop rotation of the holding for five years or more; it may include other species such as shrubs and/or trees which can be grazed provided that the grasses and other herbaceous forage remain predominant as well as, where Member States so decide, land which can be grazed and which forms part of established local practices where grasses and other herbaceous forage are traditionally not predominant in grazing areas’.

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Article 45 of Regulation No 1307/2013, entitled ‘Permanent grassland’, provides in the first subparagraph of paragraph 1 that ‘Member States shall designate permanent grasslands which are environmentally sensitive in areas covered by [the Habitats Directive or the Birds Directive], including in peat and wetlands situated in these areas, and which need strict protection in order to meet the objectives of those Directives.’ (Emphasis added).

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Under Article 2(2) of Regulation No 1305/2013, a Member State or region may choose to apply (in the rural development programme) a forest definition other than the one in Article 2(1)(r) that regulation, based on existing national law or the existing inventory system.

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For example, I note that Annex I to the Habitats Directive, which lists the natural habitat types of Community interest the conservation of which requires the designation of special areas of conservation, and, on the one hand distinguishes ‘bogs’, which appear under code 7, from ‘forests’, which appear under code 9, but on the other hand includes certain types of bog, namely ‘bog woodland’, as one of the ‘Forests of Temperate Europe’ under code 91D0.

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I note also that such areas cannot be classified ‘definitively’, under EU or national legislation, since the morphology of land can change, in particular as the result of human intervention. I will cite as an example recital 81 of Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82), which explicitly refers to the possibility of peatlands being transformed into agricultural areas. As regards the issue of indirect land-use change, that recital states that ‘indirect land-use change occurs when the cultivation of crops for biofuels, bioliquids and biomass fuels displaces traditional production of crops for food and feed purposes. Such additional demand increases the pressure on land and can lead to the extension of agricultural land into areas with high-carbon stock, such as forests, wetlands and peatland’ (emphasis added).

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Having no wish to encroach upon the jurisdiction of the referring court to interpret national law, I will confine myself to noting that the national legislation to which that court refers seems, at least by implication, to regard peat bogs as forming part of forest land, establishing as it does, in point 56 of Decree No 171, that ‘the area eligible for support under this measure is forest land (excluding peat bogs)’ (emphasis added). However, according to the observations of the Latvian Government at the hearing, it would seem that the Latvian legislation has adopted a definition of ‘peat bog’ that is incompatible with that of ‘forest’, although the Commission disputes that point.

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I recall here that, under point 58 of Decree No 171, the Latvian legislature has limited payments to those in connection with certain restrictions on forestry activity, that is to say, the prohibitions on forest management activities and certain cutting and felling activities.

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Emphasis added.

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I note, for example, that Annex II to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1) distinguishes between, on the one hand, projects for the exploitation of peatlands as ‘extractive industry’ and, on the other, agriculture, silviculture and aquaculture projects.

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On that point, the referring court cites the judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244).

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See point 31 of this Opinion.

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See among other provisions, Article 6(1) and recital 7 of Regulation No 1305/2013. Moreover, under Article 10 of that regulation, the Commission confines itself to approving the programmes submitted to it by the Member States.

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Judgment of 30 March 2017 (C‑315/16, EU:C:2017:244).

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See judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244, paragraphs 26 to 30).

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On the principle of proportionality, see judgment of 30 March 2017, Lingurár (C‑315/16, EU:C:2017:244, paragraph 29 and the case-law cited).

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See footnote 20 to this Opinion. At the hearing, the Commission claimed that the Latvian legislature had not adopted a definition of ‘forest’ within the meaning of Article 2(1)(r) of Regulation No 1305/2013 whereas, according to the observations of the Latvian Government, it would seem that the Latvian legislation adopted a definition of ‘peat bog’ that is incompatible with that of ‘forest’.

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See judgment of 22 April 2021, Profi Credit Slovakia (C‑485/19, EU:C:2021:313, paragraph 37 and the case-law cited).

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See judgment of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 113 and the case-law cited).

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See judgment of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 114 and the case-law cited).

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I also doubt that Sātiņi-S, which had acquired that land in the knowledge of the pre-existing restrictions, can argue that its right to property has in fact been adversely affected.