delivered on 4 June 2015 (1)

Case C‑103/14

Bronius Jakutis,

Nacionalinė mokėjimo agentūra prie Žemės ūkio ministerijos,

(Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Lithuania))

‘Request for a preliminary ruling — Common agricultural policy (CAP) — Interpretation of Regulation (EC) No 73/2009 — Validity of Articles 10(1) and 132(2) of Regulation No 73/2009 together with Commission Implementing Decision C(2012) 4391 final and Commission working document DS2011/14/REV2 of 20 October 2011 in the light of the 2003 Act of Accession, the principles of legal certainty, of the protection of legitimate expectations, of sound administration, of fair competition and of non-discrimination, and the objectives of the CAP set out in Article 39 TFEU — Modulation of direct payments to farmers in new Member States — Reduction of complementary national direct payments — Levels of direct payments applicable in the old and new Member States — Comparison — Equalisation of the levels of direct payments in 2012 — No data to prove equalisation of the level of direct payments applicable in the old and new Member States — No statement of reasons — No publication in the Official Journal of the European Union’

I – Introduction

1.This case concerns the complex question of the possibility of comparing the levels of direct payments to farmers in the Member States of the European Union, despite significant differences between the amounts of such payments in the different Member States.

2.This comparison is necessary, in particular, in order to determine whether the modulation of direct payments and the reduction of complementary national direct payments (‘CNDPs’) were applicable in 2012 in the new Member States that joined the European Union on 1 May 2004 (‘the EU-10 Member States’). It cannot be denied that this question is of considerable importance to farmers in the EU-10 Member States.

3.Under the phasing-in scheme, direct payments to farmers in the EU-10 Member States were gradually introduced after their accession to the European Union so as to reach, in 2013, 100% of the level of such payments applicable in the other Member States. The issue raised in this request for a preliminary ruling concerns the comparison of the levels of direct payments applicable in 2012 in the EU-10 Member States and in the Member States of the European Union as constituted on 30 April 2004 (‘the EU-15 Member States’).

4.The request for a preliminary ruling submitted by the Vilniaus apygardos administracinis teismas (Lithuania) covers, first, the interpretation of certain provisions of Council Regulation (EC) No 73/2009 (2) and, second, the validity of certain provisions of that regulation, of Commission Implementing Decision C(2012) 4391 final (3) and of Commission working document DS2011/14/REV2. (4) In order to examine the questions referred for a preliminary ruling, in particular, reference must be made to Article 39 TFEU, the 2003 Act of Accession (5) and some of the general principles of EU law.

5.Although this is the first time that questions concerning the application of the modulation and reductions of CNDPs in the EU-10 Member States have been referred to the Court of Justice, direct actions for the annulment of European Union measures in this field have already been brought before the General Court of the European Union. (6) However, the question concerning the interpretation of the concept of ‘level of direct payments’, within the meaning of Article 10(2) of Regulation No 73/2009, is still a live issue. (7)

II – Legal framework — EU law

A – 2003 Act of Accession

Article 9 of the 2003 Act of Accession provides:

‘Provisions of this Act the purpose or effect of which is to repeal or amend acts adopted by the institutions, otherwise than as a transitional measure, shall have the same status in law as the provisions which they repeal or amend and shall be subject to the same rules as those provisions.’

B – Regulation (EC) No 1259/1999

Council Regulation (EC) No 1259/1999 (8) applied, in accordance with Article 1 thereof, to payments granted directly to farmers under support schemes in the framework of the common agricultural policy (CAP) which were financed in full or in part by the ‘Guarantee’ section of the European Agricultural Guidance and Guarantee Fund (EAGGF). (9)

8.Point 27 of Chapter 6 of Annex II to the 2003 Act of Accession made some amendments to Regulation No 1259/1999, including the insertion of Articles 1a, 1b and 1c, concerning support schemes in the new Member States.

9.Article 1a of Regulation No 1259/1999 lays down a scheme by which direct payments are gradually increased (the phasing-in scheme) in the new Member States:

‘Introduction of support schemes in new Member States

In the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (hereinafter referred to as “new Member State(s)”) the direct payments granted under the support schemes referred to in Article 1 shall be introduced in accordance with the following schedule of increments expressed as a percentage of the then applicable level of such payments in the Community as constituted on 30 April 2004:

25% in 2004

30% in 2005

35% in 2006

40% in 2007

50% in 2008

60% in 2009

70% in 2010

80% in 2011

90% in 2012

100% as from 2013.’

10.Article 1b, which was also inserted into Regulation No 1259/1999 by point 27 of Chapter 6 of Annex II to the 2003 Act of Accession, lays down a single area payment scheme (‘the SAPS’) that the EU-10 Member States may choose to apply.

The provisions of Article 1c of Regulation No 1259/1999 give the new Member States the possibility of granting CNDPs. According to the final subparagraph of paragraph 2 of that article:

‘The total direct support the farmer may be granted in the new Member States after accession under the relevant EU scheme including all complementary national direct payments shall not exceed the level of direct support the farmer would be entitled to receive under the corresponding EU scheme then applicable to the Member States in the Community as constituted on 30 April 2004.’

C – Regulation (EC) No 1782/2003

Article 1a of Regulation No 1259/1999 lays down a scheme by which direct payments are gradually increased (the phasing-in scheme) in the new Member States:

‘Introduction of support schemes in new Member States

The CAP was reformed at the same time as the accession negotiations with the EU-10 Member States. In the course of that reform, Regulation No 1259/1999 was replaced by Council Regulation (EC) No 1782/2003. (10)

Regulation No 1782/2003 introduced a system for modulating direct payments. (11) Article 10(1) of that regulation provides:

‘All the amounts of direct payments to be granted in a given calendar year to a farmer in a given Member State shall be reduced for each year until 2012 by the following percentages:

3% in 2005,

4% in 2006,

5% in 2007,

5% in 2008,

5% in 2009,

5% in 2010,

5% in 2011,

5% in 2012.’

Regulation No 1782/2003 was subsequently amended on 22 March 2004 by two measures of the Council of the European Union: Council Decision 2004/281/EC (12) and Council Regulation (EC) No 583/2004. (13)

Regulation No 583/2004 provides for the application of the system of modulation in the new Member States. As set out in recital 4 in the preamble thereto:

‘The farmers in the new Member States will receive direct payments, following a phasing-in mechanism. In order to achieve the proper balance between policy tools designed to promote sustainable agriculture and those designed to promote rural development, the system of modulation should not be applied in the new Member States until the level of direct payments applicable in the new Member States is at least equal to the level applicable in the Community as constituted on 30 April 2004.’

Regulation No 583/2004 also inserted Article 12a into Regulation No 1782/2003, paragraph 1 of which provides:

‘Articles 10 and 12 shall not apply to the new Member States until the beginning of the calendar year, in respect of which the level of direct payments applicable in the new Member States is at least equal to the then applicable level of such payments in the Community as constituted on 30 April 2004.’

As regards the second amendment to Regulation No 1782/2003 of 22 March 2004, Decision 2004/281 inserted Articles 143a, 143b and 143c into that regulation, which are substantially the same as Articles 1a, 1b and 1c of Regulation No 1259/1999.

Article 143a lays down the same schedule for the introduction of direct payments as Article 1a of Regulation No 1259/1999, while the final subparagraph of Article 143c(2) of Regulation No 1782/2003, as amended by Decision 2004/281, provides:

‘The total direct support the farmer may be granted in the new Member States after accession under the relevant direct payment including all complementary national direct payments shall not exceed the level of direct support the farmer would be entitled to receive under the corresponding direct payment then applicable to the Member States in the Community as constituted on 30 April 2004.’

D – Regulation No 73/2009

Regulation No 1782/2003 was repealed by Regulation No 73/2009. The latter provides for a gradual increase in the reduction of direct payments through modulation. Article 7 of Regulation No 73/2009 contains the provisions on modulation in the EU-15 Member States. It provides:

‘1. Any amount of direct payments to be granted in a given calendar year to a farmer in excess of EUR 5000 shall be reduced for each year until 2012 by the following percentages:

in 2009 by 7%;

in 2010 by 8%;

in 2011 by 9%;

in 2012 by 10%.”

…’

Article 10 of Regulation No 73/2009 lays down specific rules for modulation in the new Member States. It provides:

‘1. Article 7 shall apply to farmers in a new Member State in any given calendar year only if the level of direct payments applicable in that Member State for that calendar year pursuant to Article 121 is at least equal to the then applicable level in the Member States other than the new Member States, taking into account any reductions applied under Article 7(1).

…’

Article 121 of Regulation No 73/2009 sets out the schedule for the introduction of direct payments in the new Member States and does not substantially depart from the previous regulations:

‘In the new Member States other than Bulgaria and Romania, direct payments shall be introduced in accordance with the following schedule of increments expressed as a percentage of the then applicable level of such payments in the Member States other than the new Member States:

—60% in 2009,

—70% in 2010,

—80% in 2011,

—90% in 2012,

—100% as from 2013.

…’

The final subparagraph of Article 132(2) of Regulation No 73/2009 limits the grant of CNDPs and was initially worded as follows:

‘The total direct support which a farmer may be granted in the new Member States after accession under the relevant direct payment, including all complementary national direct payments, shall not exceed the level of direct support a farmer would be entitled to receive under the corresponding direct payment then applicable to the Member States in the Member States other than the new Member States, from 2012, taking into account the application of Article 7 in conjunction with Article 10.’

This provision was subsequently corrected in all of the official languages. Following the corrigendum of 18 February 2010, (14) the wording is as follows:

‘The total direct support which a farmer may be granted in the new Member States after accession under the relevant direct payment, including all complementary national direct payments, shall not exceed the level of direct support a farmer would be entitled to receive under the corresponding direct payment then applicable to the Member States in the Member States other than the new Member States, taking into account, from 2012, the application of Article 7 in conjunction with Article 10.’

E – Implementing Decision C(2012) 4391

Implementing Decision C(2012) 4391, authorising the granting of complementary national direct payments in Lithuania in respect of the year 2012, comprises two articles which are worded as follows:

Article 1

Article 2

This Decision is addressed to the Republic of Lithuania.

Following an application for support for agricultural and other areas submitted by Kretingalės kooperatinė ŽŪB (Kretingalė agricultural cooperative company), the Nacionalinė mokėjimo agentūra prie Žemės ūkio ministerijos (National Paying Agency under the Lithuanian Ministry of Agriculture, ‘the NMA’) adopted Decision No 165 on 22 May 2013, by which it applied the modulation of direct payments financed out of the European Agricultural Guarantee Fund (EAGF) as well as the reduction of CNDPs. Decision No 165 states that it was adopted pursuant to Article 7(1) and (2) of Regulation No 73/2009, Article 1(4) of Implementing Decision C(2012) 4391 and Decree No 55 of the Lithuanian Government on complementary national direct payments made in respect of the year 2012 (nutarimas Nr. 55 ‘Dėl 2012 metų papildomų nacionalinių tiesioginių išmokų’) of 23 January 2013 (‘Government Decree No 55’).

Subsequently, after receiving an application for support for agricultural and other areas submitted by Mr Jakutis, the NMA adopted Decision No 2223 on 5 June 2013. In accordance with that decision, the reduction of CNDPs applies to Mr Jakutis since the total amount of direct payments, including all CNDPs, which he received in respect of the year 2012 exceeds EUR 5000 (LTL 17264). Decision No 2223 states that it was adopted pursuant to Article 1(4) of Implementing Decision C(2012) 4391 and Government Decree No 55.

Mr Jakutis and Kretingalės kooperatinė ŽŪB brought actions before the Vilniaus apygardos administracinis teismas seeking the annulment, respectively, of NMA Decision No 2223 of 5 June 2013 and NMA Decision No 165 of 22 May 2013.

According to Mr Jakutis and Kretingalės kooperatinė ŽŪB, there was no legal basis for applying in Lithuania either the modulation of direct payments or the reduction of CNDPs in respect of 2012. They claim that, pursuant to the provisions of the 2003 Act of Accession, as long as it is not established in fact that the amounts and levels of direct payments to farms in Lithuania are equal to those in the EU-15 Member States, the direct payments to be made to Lithuanian farms cannot be modulated under Articles 7 and 10 of Regulation No 73/2009.

The NMA contested the actions brought by Mr Jakutis and Kretingalės kooperatinė ŽŪB and pointed out that it had no power to assess the lawfulness of the Government decree, let alone the decision of the European Commission. However, the Lithuanian Ministry of Agriculture, as interested third party in the case before the referring court, stated that Government Decree No 55 had been adopted in order to implement Regulation No 73/2009 and Implementing Decision C(2012) 4391, although it took the view that modulation and the reductions of CNDPs should not be applied to the EU-10 Member States in 2012.

Having doubts as to the correct interpretation and validity of certain provisions of Regulation No 73/2009, the Vilniaus apygardos administracinis teismas decided — by decision of 10 February 2014 — to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1) Regarding appraisal, under Article 10(1) of Regulation No 73/2009, applied in conjunction with Articles 7 and 121, of the level of direct payments in the old and new EU Member States:

(a)Must Article 7(1) of Regulation No 73/2009, applied in conjunction with Article 10(1) and Article 121, be interpreted as meaning that in 2012 the level of direct payments of the old EU Member States that are in excess of EUR 5000 is 90%?

If the first question is answered in the affirmative, does that mean that in 2012 the level of direct payments in the new and old EU Member States has not equalised, on the basis of the content and objectives of Article 10(1) and Article 121 of Regulation No 73/2009?

Are the end of Article 10(1) of Regulation No 73/2009 (“… taking into account any reductions applied under Article 7(1)”) and Commission working document DS/2011/14/REV2, in which for the purposes of comparison a different basis for direct payments is laid down — in the new EU Member States the level of direct payments is appraised without modulation having been applied (90% in accordance with Article 121), whilst in the old EU Member States modulation has been applied (100% minus 10% in accordance with Article 7(1)) — contrary to the [2003] Act of Accession and to principles of EU law, inter alia the principles of the protection of legitimate expectations, of sound administration, of fair competition and of non-discrimination, as well as to the objectives of the [CAP], which are laid down in Article 39 TFEU?

Regarding the incompatibility of Article 10(1) and the end of the final subparagraph of Article 132(2) of Regulation No 73/2009, and the measures of EU law adopted on their basis, with the [2003] Act of Accession and European Union principles:

Are the end of Article 10(1) of Regulation No 73/2009 (“… taking into account any reductions applied under Article 7(1)”) and the end of the final subparagraph of Article 132(2) (“… taking into account, from 2012, the application of Article 7 in conjunction with Article 10”), as well as Commission working document DS/2011/14/REV2 and … Implementing Decision C(2012) 4391 … which were adopted on their basis, contrary to the [2003] Act of Accession, which does not prescribe the modulation of direct payments and the reduction of complementary national direct payments in the new EU Member States and/or the year in which equalisation of direct payments in the new and old EU Member States is presumed?

Are Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009, as well as Commission working document DS/2011/14/REV2 and … Implementing Decision C(2012) 4391 …, inasmuch as, in accordance with their content and objectives, the modulation of direct payments and the reduction of complementary national direct payments are applied in 2012 in the new EU Member States, which receive considerably less support than the old EU Member States, contrary to principles of EU law, inter alia the principles of the protection of legitimate expectations, of fair competition and of non-discrimination, and to the objectives of the [CAP], which are laid down in Article 39 TFEU, in particular the objective of increasing agricultural productivity?

Does the amendment of the final subparagraph of Article 132(2) of Regulation No 73/2009 (“taking into account, from 2012, the application of Article 7 in conjunction with Article 10”), which was carried out under the corrigendum procedure (OJ 2010 L 43, p. 7) (an amendment by which an alteration of a non-technical nature was made, and the content of the provision was fundamentally amended as it was laid down that equalisation of direct payments in the new and old EU Member States was presumed in 2012), infringe principles of EU law, inter alia the principles of the protection of legitimate expectations, of legal certainty, of sound administration and of non-discrimination?

Does the word “dydis” [“level”] used in Article 1c set out in point 27(b) of Chapter 6.A (“Agriculture”) of Annex II to the [2003] Act of Accession have the same meaning as the word “lygis” [“level”] in the final subparagraph of Article 132(2) of Regulation No 73/2009?

Are … Commission [I]mplementing [D]ecision [C(2012) 4391] and Commission working document DS/2011/14/REV2, which were not published in the Official Journal of the European Union and do not state adequate reasons (they were adopted in reliance solely upon the presumption that in 2012 the level of direct payments in the new and old EU Member States equalised), contrary to the [2003] Act of Accession and in breach of principles of EU law, inter alia the principles of legal certainty, of the protection of legitimate expectations and of sound administration? If so, must Article 1(4) of the Commission implementing decision be annulled as contrary to Regulation No 73/2009 and the [2003] Act of Accession?

Written observations were submitted by Mr Jakutis and Kretingalės kooperatinė ŽŪB, the Republic of Lithuania, the Republic of Poland, the Council of the European Union and the European Commission, all of which, with the exception of the Republic of Poland, were represented at the hearing that took place on 25 February 2015.

IV – Analysis

A – Preliminary observations

The referring court is unsure whether certain provisions of Regulation No 73/2009 are consistent with the principles of the protection of legitimate expectations, of legal certainty, of sound administration, of fair competition and of non-discrimination, without providing any further explanation as to how those provisions might undermine some of these principles.

Under Article 94 of the Rules of Procedure of the Court, the request for a preliminary ruling must contain a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the case before the referring court.

It should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them. Against that background, the Court is, in principle, bound to give a ruling since the questions submitted concern the interpretation of EU law. (15)

The Court has nevertheless stressed that it is important that the national court states the precise reasons which caused it to question itself as to the interpretation of certain provisions of EU law and to consider it necessary to refer questions to the Court for a preliminary ruling. (16) Thus, the Court has held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute. (17)

It seems to me that the order for reference does not contain sufficient particulars enabling these requirements to be met so far as concerns the principles of legal certainty, legitimate expectations, sound administration and fair competition. Indeed, as regards the principles of legal certainty, legitimate expectations and fair competition, the referring court does not give any explanation of the alleged infringements of these principles.

As regards the principle of sound administration, which the national court mentions in passing with reference to Implementing Decision C(2012) 4391, it is apparent from Article 41 of the Charter of Fundamental Rights of the European Union that this principle concerns the handling of affairs by the institutions, bodies, offices and agencies of the European Union and the related quality requirements.

Implementing Decision C(2012) 4391 forms part of a procedure between the Commission and the Republic of Lithuania. Lithuanian farmers are not parties to that procedure — in which case they would be protected by the principle of sound administration — or addressees of the implementing decision. The national court does not, however, provide any explanation regarding the alleged infringement of the principle of sound administration which the Commission is said to have committed against the Republic of Lithuania and which could have legal consequences in the case pending before the national court. The considerations of the national court in this respect are concerned rather with the statement of reasons for Implementing Decision C(2012) 4391, which will be examined in point 146 et seq. of this Opinion.

Furthermore, the national court provides no clarification of the link between each of these principles and the factual situation or applicable national legislation. In the absence of those particulars, it is not possible to delimit the specific problem of interpretation which could be raised in relation to each of the principles of EU law which the national court requires to be interpreted. (18)

Accordingly, I propose that the Court find questions 1(c) and 2(b) referred to it to be inadmissible, in so far as they concern the principles of legal certainty, legitimate expectations, sound administration and fair competition. By contrast, the principle of non-discrimination and equal treatment will be examined in more detail in point 108 et seq. of this Opinion.

As regards working document DS2011/14/REV2, it should be recalled that according to the case-law of the Court, acts the legal effects of which are binding on, and capable of affecting the interests of, an applicant by bringing about a distinct change in his legal position are acts which may be the subject of an action for annulment. (19) Moreover, it is in principle those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects. (20)

According to the Commission, working document DS2011/14/REV2 was submitted to the Member States at meetings of the Management Committee for Direct Payments which took place in July and October. (21) It consists of a proposal by the Commission concerning the application of Article 132 of Regulation No 73/2009 and the conditions for the grant of CNDPs in 2012.

By contrast, the final decision having legal effects as regards the grant of CNDPs is Implementing Decision C(2012) 4391, by which the Commission authorised the grant of CNDPs in Lithuania in 2012. I am of the view that working document DS2011/14/REV2 is a preparatory measure that does not produce legal effects. Accordingly, it cannot form the subject-matter of an action for annulment.

As a consequence, its validity cannot be disputed in the context of a request for a preliminary ruling either, since a finding by the Court that it is unlawful would not have any legal effect. (22)

I therefore propose that the Court find questions 1(c), 2(a) and (b), and 3 to be inadmissible in so far as they concern working document DS2011/14/REV2.

First of all, it should be noted that according to the judgment in LAISA and CPC España v Council, (23) a provision of an act of accession concerning the legal nature of provisions repealing or amending acts adopted by the institutions, such as Article 9 of the 2003 Act of Accession, does not have the effect of subjecting to a review of legality the provisions to which it refers. On the other hand, that provision gives specific expression to the exceptions set out in Article 7 of the 2003 Act of Accession as regards the procedure for amending and repealing provisions of the act of accession. (24)

Thus, the lawfulness of provisions of secondary legislation that the 2003 Act of Accession has amended, otherwise than as a transitional measure, cannot be called in question.

By contrast, although the provisions of Regulation No 73/2009 at issue in the present case in fact have, in part, the same content as the provisions of Regulation No 1259/1999 as amended by the 2003 Act of Accession, the provisions whose validity is called in question by the national court, particularly the end of Article 10(1) (‘taking into account any reductions applied under Article 7(1)’) and the end of the final subparagraph of Article 132(2) (‘taking into account, from 2012, the application of Article 7 in conjunction with Article 10’), are provisions which were inserted at a later stage. Accordingly, they are subject to a review of legality.

As the final preliminary point, it should also be observed that the system of modulation came to an end in 2012, but that, in order to maintain the amount of direct payments in the 2013 calendar year on a level similar to that of 2012, Regulation (EU) No 671/2012 of the European Parliament and of the Council (25) established an adjustment mechanism for the 2013 calendar year with an effect equivalent to that of modulation and the net ceilings. The regulation does not contain any special rules for the EU-10 Member States as regards that adjustment. However, the adjustment mechanism does not apply to farmers in Bulgaria and Romania since, according to the phasing-in mechanism provided for in the 2005 Act of Accession, (26) the level of direct payments in Bulgaria and Romania continues to be below the level of direct payments applicable in the other Member States in 2013, after application of the adjustment of payments to farmers in the transitional period. (27)

In the remainder of this Opinion, I will start by examining the first two sub-questions of question 1 together, which relate to the interpretation of Articles 7(1), 10(1) and 121 of Regulation No 73/2009. Questions 1(c), 2(a) and (b), and 3 concern the validity of certain provisions of Regulation No 73/2009 and Implementing Decision C(2012) 4391 in the light of, in particular, the 2003 Act of Accession, Article 39 TFEU and certain general principles of EU law. For the reasons set out in point 88 of this Opinion, questions 1(c) and 2(a) and (b) should be examined together. Question 2(c) concerns the validity of Article 132(2) of Regulation No 73/2009, as worded following the corrigendum published on 18 February 2010, and question 2(d) relates to the meaning of the two Lithuanian terms used, respectively, in the 2003 Act of Accession and Regulation No 73/2009. These questions and question 3 should be examined separately in the order in which they were submitted by the national court.

B – Question 1(a) and (b)

By question 1(a) and (b), the referring court essentially asks the Court whether the level of direct payments in the EU-15 Member States in 2012 was 90% and if that means that the level of direct payments in the EU-10 Member States in 2012 was equal to that in the EU-15 Member States, for the purposes of Article 10(1) of Regulation No 73/2009. If the level of direct payments in the EU-10 Member States was equal to the level of direct payments in the EU-15 Member States, the result would be that modulation, within the meaning of Article 7 read in conjunction with Article 10 of Regulation No 73/2009, would apply in the EU-10 Member States in 2012.

Mr Jakutis and Kretingalės kooperatinė ŽŪB, together with the Lithuanian Government, take the view that, in 2012, the level of direct payments in the EU-15 Member States was not 90%, while the level of direct payments in the EU-10 Member States was 90%. This implies that the level of direct payments in the EU-10 Member States was not equal to that in the EU-15 Member States in 2012. These parties argue that only the level of direct payments exceeding EUR 5000 was 90% in the EU-15 Member States, modulation being applicable only where the amount actually paid to the farmer exceeds EUR 5000. The total level of payments was therefore higher than 90% in the EU-15 Member States.

53.By contrast, the Polish Government and the Commission consider that the level of direct payments in the EU-15 Member States was indeed 90% in 2012 and that the levels of direct payments in the EU-15 and EU-10 Member States were the same in 2012.

2.The concept of ‘level of direct payments’

54.In order to reply to question 1(a) and (b), it is absolutely necessary to ascertain the meaning of the expression ‘level of direct payments’ appearing in Article 10(1) of Regulation No 73/2009. Despite its considerable importance for the purpose of applying the system of modulation in the EU-10 Member States, that expression is not defined in the EU legislation governing modulation.

55.According to the Commission, Article 10 of Regulation No 73/2009 and the relevant provisions of the 2003 Act of Accession are based on a comparison of the ‘common’ levels of support and not their nominal levels. The Commission observes that this approach was also taken, for the purpose of comparing the common levels of support, when Decision 2009/444 was adopted. (28) More specifically, Article 3 of and Annex III to that decision lay down the outcomes as to the application, in 2012, of modulation in the new Member States. Furthermore, according to the Commission, the lawfulness of that decision was confirmed by the General Court in the judgment in Poland v Commission, (29) which implicitly acknowledges that comparing the common levels of support is valid.

56.First of all, it should be noted that the case giving rise to the judgment in Poland v Commission concerned the allocation between Member States of savings made through modulation. In that case, the Republic of Poland sought in fact to establish that modulation was applicable to it in 2012 in order to qualify for amounts resulting from modulation. Therefore, the interpretation of the conditions for applying modulation in the EU-10 Member States in 2012 was not in any way challenged in that case. In my opinion, that judgment cannot be construed in the sense that the General Court confirmed that interpretation, at least in a way that affects the present case.

57.The expression ‘level of direct payments’, which appears in Article 10 of Regulation No 73/2009, was inserted for the first time by Regulation No 583/2004 amending, inter alia, Regulation No 1782/2003. Regulation No 583/2004 inserted Article 12a into Regulation No 1782/2003, governing modulation in the EU-10 Member States.

58.By contrast, the expression ‘applicable level of such payments’, used in Article 121 of Regulation No 73/2009, and the expression ‘level of direct support’, used in the final subparagraph of Article 132(2) of Regulation No 73/2009, already appear in point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession, which sets out, inter alia, Articles 1a and 1c of Regulation No 1259/1999. (30)

59.Article 1a of Regulation No 1259/1999 provided for the introduction of support schemes in the EU-10 Member States in accordance with a schedule of increments expressed as a percentage of ‘the then applicable level of such payments in the Community as constituted on 30 April 2004’. Article 1c of that regulation concerned CNDPs, the total amount of which, including direct payments, ‘shall not exceed the level of direct support the farmer would be entitled to receive under the corresponding EU scheme then applicable to the Member States in the Community as constituted on 30 April 2004’. (31) The term ‘level’, used in these provisions, is not, however, defined in the EU legislation governing direct payments and CNDPs either.

60.It is necessary to examine whether the passages in question in these provisions — ‘the level of direct payments applicable in the Member States other than the new Member States’, ‘the then applicable level of such payments in the Community as constituted on 30 April 2004’ and ‘the level of direct support the farmer would be entitled to receive under the corresponding EU scheme then applicable to the Member States in the Community as constituted on 30 April 2004’ — have the same meaning. The first two passages appear to concern the overall level of direct payments and the third the individual level of direct payments specific to each farmer.

61.Given that the objectives of applying modulation and reducing direct payments in the EU-10 Member States are the same — to ensure that the level of direct payments and CNDPs received by farmers in the EU-10 Member States does not exceed the level of direct payments received by farmers in the EU-15 Member States — it seems to me that the concept of ‘level of direct support’, appearing in the final subparagraph of Article 132(2) of Regulation No 73/2009, may be used to interpret the concept of ‘level of direct payments’, appearing in Article 10(1) of Regulation No 73/2009. (32)

62.According to the Commission, the phasing-in mechanism is based on a comparison of the ‘common levels of support’. This statement is based on the premiss that there is already in fact a common level of direct payments applicable in the EU-15 Member States. It is therefore necessary to consider the level of direct payments applicable in the EU-15 Member States.

63.It is apparent, for example, from the Commission report on the distribution of direct support to farmers in the 2005 financial year, (33) after the accession of the EU-10 Member States, that the total amounts of support granted to farmers vary considerably, even within the EU-15 Member States.

64.Consequently, it is clear that the ‘level’ of support cannot be equal to the total amount of support or its nominal value. If the level were equal to the amount, it would not be possible for there to be a common level in the EU-15 Member States. In this connection, it is common ground — as the Commission has observed — that the comparison of the levels of direct payments in the EU-15 and EU-10 Member States presupposes that the levels taken into account are ‘common’ to those groups of Member States, excluding the individual amounts of each Member State.

65.Although the expression ‘level of direct payments’ does not refer to the amount of direct payments, I think it is nevertheless possible to conclude that it refers to the methods for calculating the direct payments to be granted. (34)

66.If that interpretation were to be upheld, it would be possible to infer that the level of direct payments in the EU-10 Member States is equal to that in the EU-15 Member States, at the very least when the methods for granting direct payments are the same in both groups of Member States.

The reference to the ‘level of direct support the farmer would be entitled to receive under the corresponding EU scheme then applicable to the Member States in the Community as constituted on 30 April 2004’, (35) appearing in point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession, setting out Article 1c of Regulation No 1259/1999, supports this interpretation entailing the comparison of direct payment schemes or methods for granting direct payments. It is therefore necessary to proceed to consideration of the methods for calculating direct payments.

68.In order to be able to compare the methods for calculating direct payments, it is necessary, first of all, to examine the situation in the EU-15 Member States and the manner in which those methods have evolved.

The different direct payment schemes in the EU-15 Member States prior to the reform of the CAP in 2003 (36) were listed in the Annex to Regulation No 1259/1999. Regulation No 1782/2003 introduced a single payment scheme (‘the SPS’), that is to say, a system of decoupled income support for each farm which, without altering the amounts actually paid to farmers, combined a certain number of existing direct payments in a single payment determined on the basis of previous entitlements, within a reference period, adjusted to take into account the full implementation of measures introduced in the framework of Agenda 2000 and of the changes to the amounts of support made by Regulation No 1782/2003. (37)

70.Within the framework of the SPS, the Member States had several options available to them as regards the precise scope of the scheme and the possible exceptions to total decoupling. When the SPS was introduced, the Member States had three main options for calculating the value of payment entitlements, namely a ‘historic model’ based on the payments received by individual farmers within a reference period resulting in different amounts of support per hectare, a ‘regional model’ that takes account of all payments received in a region and divides them by the number of hectares of eligible land resulting in a flat rate, and a ‘hybrid model’ that combines the other two models and may be ‘static’ or ‘dynamic’. (38) Regulation No 73/2009 subsequently extended the decoupling of direct support and simplified the functioning of the SPS.

71.Since the EU-15 Member States, which are all required to apply the SPS, have chosen different models for calculating direct payments, it is clear that the methods for calculating direct payments applied by those Member States also differ, even though they all relate to the same payment scheme. (39) However, since Article 10 of Regulation No 73/2009 is based on the premiss of a ‘common’ level of direct payments in the EU-15 Member States, that level must necessarily exist, despite differences between the calculation methods.

72.As regards the system applying in the EU-10 Member States, it follows from point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession, setting out Article 1c inserted into Regulation No 1259/1999, that the EU-10 Member States had the power to choose a new transitional scheme, including the SAPS, applicable only in the new Member States.

73.The period of application of the SAPS scheme proposed in the 2003 Act of Accession ran until the end of 2006 with the possibility of renewal twice by one year at the new Member State’s request. Given that, pursuant to the 2003 Act of Accession, the phasing-in of direct support in the EU-10 Member States continued until 2013, under the provisions of that act, the basic direct payment scheme (40) should have been the same in the EU-15 and EU-10 Member States well before the end of the phasing-in period in 2013. However, it is apparent from Article 143c(9) of Regulation No 1782/2003, as amended by the 2003 Act of Accession adapted by Decision 2004/281, that the period of application of the SAPS was first extended until the end of 2010, and from Article 122(3) of Regulation No 73/2009 that it was again extended until 31 December 2013. (41)

74.Of the EU-10 Member States, only the Republic of Malta and the Republic of Slovenia decided to apply the SPS, the scheme which is also applicable in the EU-15 Member States. The remaining EU-10 Member States continue to apply the SAPS, a scheme which is not available to the EU-15 Member States.

75.Thus, if we accept the interpretation that these ‘levels’ of direct payments indicate the methods for calculating the direct payments to be granted, the comparison of the levels of direct payments becomes even more difficult, since the grant methods are different, particularly in so far as the support schemes are not the same, which was the case for most of the EU-15 and EU-10 Member States in 2012.

76.However, as I have already mentioned in point 71 of this Opinion, since it must be possible for a common level of direct payments in the EU-15 Member States to exist in the presence of different SPS models, it is also possible to conclude that the SPS and SAPS are similar, for the purpose of comparing the levels of direct payments.

77.The general scheme of Regulation No 73/2009 supports that interpretation. This regulation retained the possibility for the EU-10 Member States to continue to apply the SAPS until the end of 2013. However, under Article 121 thereof, as from 2013 these Member States should still be equal to the applicable level of such payments in the Member States other than the new Member States. It follows that these two schemes are similar for the purpose of comparing the levels of direct payments and, therefore, the mere fact that most of the EU-10 Member States chose a different direct payments scheme from that used in the EU-15 Member States cannot preclude a comparison of common levels.

78.At this stage, it is necessary to examine whether the level of direct payments in the EU-10 Member States was, in 2012, at least equal to the level of direct payments applicable in the EU-15 Member States, within the meaning of Article 10(1) of Regulation No 73/2009.

79.The key question for the purpose of comparing the levels of direct payments is whether, in order to determine the level of direct payments in the EU-15 Member States in 2012, account should be taken of the fact that only direct payments exceeding EUR 5000 are modulated in the EU-15 Member States.

80.The Commission states that the effect of applying the EUR 5000 ceiling is nominal, given the varying practical consequences of doing so in the different EU-15 Member States. Furthermore, according to the Commission, the comparison of the levels of direct payments applicable in the EU-15 Member States as well as in the EU-10 Member States is carried out ex ante. Therefore, it would have been almost impossible to take into account the effect of direct payments below EUR 5000 in the EU-15 Member States in order to determine whether, in 2012, modulation applied in the EU-10 Member States.

81.As I have already stated, the level of direct payments refers to the method for calculating direct payments. In the system of modulation, the method is such that only direct payments exceeding EUR 5000 are reduced by way of modulation. It is evident that, in all of the EU-15 Member States, some farmers receive direct payments below EUR 5000 which are not then subject to modulation. Thus, if the EUR 5000 ceiling had to be taken into account for the purpose of determining the level of direct payments, the total level of direct payments would be above 90% since, in the case of farmers in the EU-15 Member States who receive amounts below EUR 5000, their level of support continues to be 100%.

However, such an interpretation would be at odds with the general scheme of Regulation No 73/2009. The words ‘taking into account any reductions applied under Article 7(1)’, appearing in Article 10(1) of Regulation No 73/2009, and ‘taking into account, from 2012, the application of Article 7 in conjunction with Article 10’, appearing in Article 132(2) of Regulation No 73/2009, were inserted into that regulation when the system of modulation was to continue until the end of 2012 and the level of direct payments in the EU-10 Member States was to equal the level of direct payments applicable in the EU-15 Member States in 2013.

Accordingly, it seems to me, as the Commission has stated, that Article 10 and the final subparagraph of Article 132(2) of Regulation No 73/2009 clearly presuppose that 2012 is the first — and, since modulation came to an end in 2012, the only — calendar year in which compulsory modulation applies in the EU-10 Member States. (42)

If the impact of the EUR 5000 ceiling had been relevant for the purpose of determining the level of direct payments, resulting in the level of direct payments in the EU-15 Member States in 2012 being above 90%, it would never have been possible for modulation to be applied in the EU-10 Member States, 2012 being the only year in which the levels of direct payments could have been uniform before the end of the modulation period. (43) In those circumstances, the legislature would have had no reason to insert the provisions of paragraphs 2 and 3 into Article 10 of Regulation No 73/2009 or to refer to the year 2012 in Article 132(2) of Regulation No 73/2009. Therefore, the requirement to take into account the modulation applied in the EU-15 Member States for the purpose of comparing levels would have no logical basis.

In the light of all the foregoing considerations, I propose that the Court answer question 1(a) and (b) as follows: Articles 7(1), 10(1) and 121 of Regulation No 73/2009 must be interpreted as meaning that the level of direct payments applicable in the EU-15 Member States was, in 2012, equal to 90% of the level of all direct payments and the level of direct payments in the new EU-10 Member States was, in 2012, equal to that in the EU-15 Member States.

C – Questions 1(c) and 2(a) and (b)

By question 1(c), the referring court asks whether the fact that the comparison of direct payments is carried out on a different basis (in the EU-10 Member States the level of direct payments is appraised without modulation having been applied, whilst in the EU-15 Member States it is appraised after modulation has been applied) warrants the finding that the provisions at the end of Article 10(1) of Regulation No 73/2009 are contrary to the 2003 Act of Accession as well as to certain general principles of EU law and the objectives of the CAP.

I would recall that I have already confirmed in point 85 of this Opinion that Article 10(1) of Regulation No 73/2009, read in conjunction with Article 7(1) thereof, should be interpreted as meaning that the comparison of the levels must indeed be carried out on the basis mentioned by the referring court. Question 1(c) therefore concerns the validity of the end of Article 10(1) of Regulation No 73/2009 in the light of the 2003 Act of Accession, the stated principles of EU law and the objectives of the CAP.

Accordingly, it is necessary to reply to this question and to question 2(a) and (b), which also concerns the validity of Article 10(1) of Regulation No 73/2009, together. Question 2(a) and (b) also concerns the validity of the final subparagraph of Article 132(2) of Regulation No 73/2009 and the validity of Implementing Decision C(2012) 4391. Since the application of the final subparagraph of Article 132(2) of Regulation No 73/2009 depends on Article 10 thereof — the application of the reduction of CNDPs also requires a comparison of the levels of direct payments based on Articles 7 and 10 of Regulation No 73/2009 (44) — all of these questions should be dealt with together, examining the 2003 Act of Accession first followed by the general principles and the objectives of the CAP.

In points 40 and 45 of this Opinion, I proposed that the Court find these questions to be inadmissible in part in so far as they concern the principles of legal certainty, legitimate expectations, sound administration and fair competition, as well as working document DS2011/14/REV2. Consequently, as regards the general principles, I shall consider only the principle of non-discrimination and equal treatment.

Mr Jakutis and Kretingalės kooperatinė ŽŪB submit that the end of Article 10(1) and the end of the final subparagraph of Article 132(2) of Regulation No 73/2009, as well as Implementing Decision C(2012) 4391, are contrary to the 2003 Act of Accession, which does not provide for the modulation of direct payments or the reduction of CNDPs in the EU-10 Member States, or lay down the year as from which equalisation of direct payments in the EU-15 and EU-10 Member States is presumed. Conversely, the Commission considers that the obligation to take into account all reductions applied under Article 7(1) of Regulation No 73/2009 was necessary in order to maintain a balance between the levels of support laid down in the 2003 Act of Accession and to ensure that compulsory modulation was consistent with the provisions of that act.

It is true that the 2003 Act of Accession does not provide for the compulsory application of modulation to farmers in the EU-10 Member States. Modulation is a new measure, introduced by Regulation No 1782/2003 after the conclusion of the 2003 Act of Accession, within the framework of the reform of the CAP. Article 12a of Regulation No 1782/2003, governing modulation in the EU-10 Member States, was subsequently inserted into Regulation No 1782/2003 by Regulation No 583/2004.

The only provisions of the 2003 Act of Accession that refer indirectly to the comparison of the levels of direct support are Articles 1a and 1c of Regulation No 1259/1999, set out in point 27 of Chapter 6 of Annex II to the 2003 Act of Accession, which are reproduced above. (45)

Article 1a of Regulation No 1259/1999 simply means that the level of direct payments in the EU-10 Member States will be equal to 100% of the level of direct payments in the EU-15 Member States in 2013, while Article 1c thereof is a clear expression of the intention to prevent the scheme applied in the EU-10 Member States, including the grant of CNDPs, resulting in a higher level of direct support than that arising under the scheme applied in the EU-15 Member States. Even though, under Article 1c, the total amount of direct support that may be paid to a farmer in the EU-10 Member States, including CNDPs, must not exceed the level of direct support to which he would be entitled under the corresponding scheme applicable in the EU-15 Member States, I think it is clear that Article 1c entails a comparison between the levels of direct payments. Thus, when the levels of direct payments are equivalent in the EU-15 and EU-10 Member States, the amount of CNDPs to be granted to an individual farmer in the EU-10 Member States must be reduced in line with possible changes in the level in the EU-15 Member States.

It is in the light of these considerations that the validity of the relevant provisions of Regulation No 73/2009 should be examined from the viewpoint of the 2003 Act of Accession, beginning with Article 10(1) of that regulation.

Article 1a of Regulation No 1259/1999, set out in the 2003 Act of Accession, does not provide that the level of direct payments in the EU-10 Member States could not reach the level of direct payments in the EU-15 Member States before 2013, but merely that the level of 100% had to be reached in 2013. However, whilst the level of direct payments in the EU-15 Member States may also be less than 100% before 2013, equal levels in the EU-15 and EU-10 Member States are possible even before 2013.

Consequently, given that, first, the 2003 Act of Accession does not prevent the levels of direct payments in the EU-15 and EU-10 Member States being uniform even before 2013 and, second, under that act the level of direct support, including CNDPs, in the EU-10 Member States may not exceed the level of direct payments in the EU-15 Member States, I think that the taking into account of a decrease in the level of direct payments in the EU-15 Member States for the purpose of comparing the levels is consistent with the 2003 Act of Accession.

I recall that the modulation applicable in the EU-10 Member States in 2012 following this comparison carried out on a different basis — after modulation for the EU-15 Member States and before modulation for the EU-10 Member States — is not the same as the modulation applicable in the EU-15 Member States, and concerns only amounts exceeding EUR 300000. (46) This method of applying modulation in the EU-10 Member States prevents the modulation applied in the EU-15 Member States in 2012 from resulting in a lower level of direct payments in the EU-15 Member States compared to the level of direct payments in the EU-10 Member States, and also prevents the modulation applied in the EU-10 Member States in 2012 leading to a decrease in the level of direct payments in the EU-10 Member States below the level of direct payments in the EU-15 Member States.

Consequently, Article 10(1) of Regulation No 73/2009 is, in this respect, consistent with the 2003 Act of Accession.

As regards the question whether the final subparagraph of Article 132(2) of Regulation No 73/2009 is consistent with the 2003 Act of Accession, it should be noted that this article expressly refers to the year 2012 in order to take account of the modulation resulting from Articles 7 and 10 of that regulation.

As I have already mentioned in previous points, the obligation to take into account modulation in the EU-15 Member States in order to apply modulation in the EU-10 Member States in 2012, resulting from Article 10(1) of Regulation No 73/2009, is consistent with the 2003 Act of Accession. For the same reasons, the obligation to take into account modulation in 2012, in the grant of CNDPs, is consistent with the 2003 Act of Accession. It is necessary in order to prevent the combined level of direct payments and CNDPs exceeding the level of direct payments in the EU-15 Member States.

Thus, the 2003 Act of Accession does not preclude express reference to the year as from which a reduction in direct payments, such as modulation, applies in the EU-10 Member States, in the event of equalisation of the levels of direct payments in the EU-15 and EU-10 Member States, which, in my view, was the case in 2012.

Lastly, Implementing Decision C(2012) 4391 confirms the interpretation of the final subparagraph of Article 132(2) of Regulation No 73/2009 supported by the Commission and the application of that article to CNDPs granted in Lithuania in 2012. Accordingly, in order to assess the validity of that decision, it is necessary to consider whether the Commission’s interpretation is correct.

Working document DS2011/14/REV2, to which the Commission refers in Implementing Decision C(2012) 4391, contains detailed explanations on modulation and on how to apply the reductions of CNDPs in the EU-10 Member States in 2012. According to that working document, the reduction of CNDPs is applied differently in Member States applying the SAPS and in those applying the SPS. (47)

Article 132(5) of Regulation No 73/2009 allows Member States applying the SAPS to establish financial envelopes intended for specific sectors. (48) As the Commission observes, those sectoral financial envelopes are equal to the difference between the total amount of support per specific sector resulting from the application of point (a) or (b) of the first subparagraph of Article 132(2) of Regulation No 73/2009 (namely 100% of the support granted by the EU-15 Member States under point (a), which applies in this context) and the total amount of direct payments that would be available for the same sector in Lithuania for the same year under the SAPS.

According to the Commission, however, under modulation in the EU-10 Member States applying the SAPS, farmers who received direct payments and CNDPs totalling less than EUR 5000 were not subject to reductions of CNDPs, as farmers in the EU-15 Member States were eligible for an ‘exemption’ of EUR 5000 under Article 7(1) of Regulation No 73/2009. If the total amount of payments to which a farmer is entitled exceeds EUR 5000, the portion of CNDPs exceeding EUR 5000 must be reduced by 10%, as that reduction applies within the framework of modulation under Article 7(1)(d) of Regulation No 73/2009. If the total amount of all payments due exceeds EUR 300000, the portion of CNDPs exceeding EUR 300000 must be reduced by an additional 4 percentage points.

That interpretation appears to me to be consistent with the 2003 Act of Accession. The above method of calculation ensures that the compulsory modulation applied in the EU-15 Member States is consistent with the objectives of the 2003 Act of Accession, without at the same time decreasing the combined level of direct payments and CNDPs in the EU-10 Member States below the level of direct payments applicable in the EU-15 Member States. Since CNDPs are granted in the EU-10 Member States in addition to direct payments, I consider that all amounts exceeding EUR 5000 must be reduced in proportion to modulation in the EU-15 Member States in order to maintain a balance between direct payments granted in the EU-15 Member States and direct payments and CNDPs granted in the EU-10 Member States.

On the basis of the foregoing, it appears to me to be clear that the consideration, in the light of the 2003 Act of Accession, of the provisions of Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009, and of Implementing Decision C(2012) 4391, has not revealed any factor capable of affecting the validity of these provisions and of that decision.

Mr Jakutis and Kretingalės kooperatinė ŽŪB submit that, in so far as — in accordance with the wording and objectives of the relevant provisions and acts — the modulation of direct payments and the reduction of CNDPs are applied in 2012 to farmers in the EU-10 Member States, who receive considerably less direct support than farmers in the EU-15 Member States, these provisions and acts are contrary to the principles of EU law and to the objectives of the CAP. By contrast, the Commission contends that since the EU-10 Member States apply the phasing-in mechanism, they are not in the same situation as the EU-15 Member States.

It must be recalled, first of all, that the principle of non-discrimination and equal treatment is a general principle of EU law, affirmed in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified. (49) A breach of the principle of equal treatment as a result of different treatment presumes that the situations concerned are comparable, having regard to all the elements which characterise them. (50)

The parties put forward two different views as regards the infringement of the principle of non-discrimination. Mr Jakutis and Kretingalės kooperatinė ŽŪB consider that using a different basis to compare direct payments resulted in an unwarranted reduction of payments for the EU-10 Member States in 2012 and demonstrates that comparable situations are treated differently. The Lithuanian Government maintains that the principle of non-discrimination was infringed since the amount paid per hectare objectively differs between the EU-10 and EU-15 Member States; these groups of Member States are in different situations and, as such, should not be treated in the same way by applying modulation equally.

111.

In my opinion, both assertions are wrong.

112.

This case is not a ‘classic’ case of discrimination. First of all, the difference in treatment between the EU-10 and EU-15 Member States stems from primary law, in particular the 2003 Act of Accession, the objective of which is to establish, for the EU-10 Member States, detailed rules on the adjustment of EU law which are either more or less favourable with respect to the acquis communautaire applying in the EU-15 Member States. Accordingly, those two groups of Member States are not in comparable situations within the meaning of the ‘classic’ case-law concerning the principle of non-discrimination.

113.

The Court has already had occasion to hold that the agricultural situation in the EU-10 Member States was radically different from that in the EU-15 Member States, which justified a gradual application of European Union aid, in particular aid relating to direct support schemes, in order not to disrupt the necessary ongoing restructuring in the agricultural sector of the EU-10 Member States. The EU-10 Member States are not in a situation comparable to that of the EU-15 Member States which have unrestricted access to direct support schemes. That being the case, no valid comparison can be made. (51)

114.

Consequently, at least until the end of the phasing-in period, the EU-10 Member States are not in a situation comparable to that of the EU-15 Member States. First, the EU-10 Member States receive direct payments corresponding to the percentages set out in the schedule, initially included in the 2003 Act of Accession, and, second, they are able to grant CNDPs, an option which is not available to the EU-15 Member States. (52) Thus, the differing situations of the EU-15 and EU-10 Member States are a direct result of the provisions of the 2003 Act of Accession.

115.

It may also be useful to bear in mind that, even if modulation applies to the EU-10 Member States in 2012, the percentage to be taken into account for the purpose of modulation is limited to the difference between the level of direct payments in the EU-10 Member States, resulting from the phasing-in mechanism, and the level of direct payments observed in the EU-15 Member States, having regard to all reductions made pursuant to Article 7(1) of Regulation No 73/2009 (that is to say, modulation in the EU-15 Member States). In working document DS2011/14/REV2, the Commission concluded that, since this difference in 2012 is 0%, ‘basic’ modulation does not apply in the EU-10 Member States. Only ‘gradual’ modulation, namely modulation applying to direct payments exceeding EUR 300000, is applicable in the EU-10 Member States. Therefore, only direct payments exceeding EUR 300000 are subject to a modulation of 4%.

116.

In my opinion, that interpretation of the application of modulation in the EU-10 Member States in 2012, which directly stems from Article 10(2) of Regulation No 73/2009, is correct. The assertion that modulation is applied in the same way in the EU-10 and EU-15 Member States is therefore wrong.

117.

Since the EU-10 Member States are entitled to grant CNDPs and the EU-10 Member States applying the SAPS have all chosen a sectoral approach for the grant of CNDPs (53) — which, in conjunction with the application of the SAPS, makes it almost impossible to compare, on the one hand, direct payments and CNDPs granted in the EU-10 Member States and, on the other, direct payments granted in the EU-15 Member States — it is not possible to draw a parallel between the levels of direct payments in the EU-15 Member States and the direct payments and CNDPs in the EU-10 Member States in order to assess whether the principle of non-discrimination and equal treatment has been infringed as regards the reduction of CNDPs.

118.

In any event, all comparisons are irrelevant as the EU-15 and EU-10 Member States are not in comparable situations and must not be treated in the same way. Moreover, this issue is a direct result of the 2003 Act of Accession and the lawfulness of the provisions of that act cannot, as primary law, be challenged.

119.

On the basis of all the foregoing, it appears to me to be clear that the consideration, in the light of the principle of non-discrimination and equal treatment, of the provisions of Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009, and of Implementing Decision C(2012) 4391, which concerns the interpretation of Article 132 of Regulation No 73/2009, has not revealed any factor capable of affecting the validity of those provisions and of that decision.

120.

As regards the objectives of the CAP set out in Article 39 TFEU, it should be noted that the EU legislature enjoys a wide discretionary power in matters concerning the CAP corresponding to the political responsibilities given to it by Articles 40 TFEU and 43 TFEU. The Court has, on numerous occasions, held that the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue. (54) Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion. (55)

Since the differing situations of the EU-15 and EU-10 Member States and the principle that the combined level of direct payments and CNDPs in the EU-10 Member States should not exceed the level of direct payments in the EU-15 Member States directly stem from the 2003 Act of Accession, I do not think that the EU legislature committed a manifest error of assessment or manifestly exceeded the limits of its discretion by adopting the end of Article 10(1) and the end of the final subparagraph of Article 132(2) of Regulation No 73/2009, as well as Implementing Decision C(2012) 4391.

122.

In fact, as I have already stated, the obligation to take into account the compulsory modulation applicable in the EU-15 Member States for the purpose of comparing the levels of direct payments in 2012 is rather, in my view, a precondition to ensure a balance between the levels of direct payments set out in the 2003 Act of Accession.

123.

On the basis of the foregoing, it appears to me to be clear that the consideration, in the light of the objectives of the CAP, of the provisions of Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009, and of Implementing Decision C(2012) 4391, has not revealed any factor capable of affecting the validity of those provisions and of that decision.

D – Question 2(c)

124.

By question 2(c), the national court essentially asks whether the final subparagraph of Article 132(2) of Regulation No 73/2009, as worded following the corrigendum published on 18 February 2010, infringes the principles of EU law and, more particularly, the principles of the protection of legitimate expectations, of legal certainty, of sound administration, of fair competition and of non-discrimination, in so far as that alteration by way of corrigendum introduced a substantive change rather than a technical correction.

125.

In order to assess whether the corrigendum of 18 February 2010 constitutes a simple correction of a clerical error not affecting the content of Regulation No 73/2009, it should be noted that, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the aims pursued by the legislation of which it forms part. (56)

According to the Commission, the corrigendum is of a technical nature. It is apparent from the observations of the Commission that Article 132(2) of Regulation No 73/2009 was altered by corrigendum dated 18 February 2010 in all official languages. The original wording of the final subparagraph of Article 132(2) in all official languages contained a reference to the year 2012. However, in some language versions (57) this reference appeared at the beginning of the sentence, whilst in others (58) it was found at the end of the sentence, in a position that was not entirely appropriate.

The French-language version, like the Lithuanian-language version, belongs to the first group of language versions, in which the year was mentioned at the beginning of the sentence prior to alteration. The alteration made is as follows:

‘À partir de 2012, le montant total des aides directes pouvant être octroyées, après l’adhésion, à un agriculteur dans les nouveaux États membres au titre du paiement direct applicable, y compris tout paiement direct national complémentaire, ne dépasse pas le niveau de l’aide directe à laquelle cet agriculteur aurait droit au titre du paiement direct correspondant applicable, au moment considéré, dans les États membres autres que les nouveaux États membres, compte tenu, <span class="italic">à partir de 2012</span>, de l’application conjointe de l’article 7 et de l’article 10.’ (59)

By contrast, in the English and all other language versions belonging to the second group of language versions, the final subparagraph of Article 132(2) of Regulation No 73/2009 was corrected by changing the place of the reference to the year 2012 at the end of the sentence:‘The total direct support which a farmer may be granted in the new Member States after accession under the relevant direct payment, including all complementary national direct payments, shall not exceed the level of direct support a farmer would be entitled to receive under the corresponding direct payment then applicable to the Member States in the Member States other than the new Member States, from 2012, taking into account, <span class="italic">from 2012</span>, the application of Article 7 in conjunction with Article 10.’ (60)

It should be observed, as the Commission does, that the reference to the year 2012 at the beginning of the sentence means that the final subparagraph of Article 132(2) of Regulation No 73/2009 could be interpreted as meaning that the prohibition — under which farmers in the EU-10 Member States may not receive payments exceeding the level applicable in the EU-15 Member States — <span class="italic">only</span> concerned 2012. This interpretation would be clearly wrong and incompatible with the provisions of the 2003 Act of Accession.

Consequently, although the corrigendum to Article 132(2) of Regulation No 73/2009 was adopted in all language versions, the original versions of the provision in Spanish, Czech, Danish, Estonian, Greek, English, Italian, Latvian, Maltese, Polish, Portuguese, Romanian, Slovakian, Slovenian, Finnish and Swedish nevertheless express the intention of the EU legislature. I therefore think it obvious that the change in position of the reference to the year 2012 in the sentence in question is nothing more than a technical correction and not an alteration to the substance of the legal obligation.

Accordingly, the alteration made by the corrigendum constitutes a simple correction of a clerical error not affecting the content of the applicable legislation and thus does not render the final subparagraph of Article 132(2) of Regulation No 73/2009 unlawful.

E – <span class="italic">Question 2(d)</span>

By question 2(d), the national court asks whether the word ‘dydis’ in Lithuanian (‘level’ in the English-language version), used in Article 1c set out in point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession, has the same meaning as the word ‘lygis’ (‘level’ in the English-language version), used in the final subparagraph of Article 132(2) of Regulation No 73/2009.

I recall that point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession, inter alia, inserted Article 1c into Regulation No 1259/1999.

First of all, it should be noted that the referring court does not specify in the question submitted for a preliminary ruling or in the order for reference to which subparagraph or even paragraph of Article 1c reference is made. Article 1c of Regulation No 1259/1999 comprises 10 paragraphs and the word ‘dydis’ is used on several occasions therein. (61) Even the word ‘lygis’, mentioned in the question submitted for a preliminary ruling with reference to the final subparagraph of Article 132(2), is used in Article 1c.

None the less, I think it is possible to interpret the question in order to provide a useful answer.

As regards the origin of Article 132 of Regulation No 73/2009, it should be noted that this article essentially lays down the same rules as Article 143c of Regulation No 1782/2003 which, in turn, reproduces the measures set out in Article 1c of Regulation No 1259/1999.

In the light of that sequence of events and having regard to the last part of question 2(d), which involves comparing the word ‘dydis’ and a word used in the final subparagraph of Article 132(2) of Regulation No 73/2009, it seems to me that the word ‘dydis’, to which the national court refers in question 2(d), is that appearing in the final subparagraph of Article 1c(2) of Regulation No 1259/1999.

The relevant Lithuanian term used in the final subparagraph of Article 143c(2) of Regulation No 1782/2003 is ‘dydis’, as in the final subparagraph of Article 1c(2) of Regulation No 1259/1999. That term was therefore changed only when Regulation No 73/2009 was adopted, which uses the word ‘lygis’ in the final subparagraph of Article 132(2).

In accordance with case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (62)

In several language versions, other than the Lithuanian version, of the final subparagraph of Article 1c(2) of Regulation No 1259/1999 and the final subparagraph of Article 132(2) of Regulation No 73/2009 (in any event, in the Spanish, Danish, German, Estonian, English, French, Italian, Portuguese, Finnish and Swedish language versions), the terms used remained essentially the same in both regulations.

Furthermore, there is no reference to this change in the preamble to Regulation No 73/2009. Recital 48 merely states that ‘[t]he conditions for granting [CNDPs] should be maintained’.

Therefore, I think it is apparent that the change in the terms used in the Lithuanian version of the final subparagraph of Article 132(2) of Regulation No 73/2009 compared to the articles of earlier regulations does not alter the meaning of that subparagraph. This finding is borne out by the fact that the final subparagraph of Article 132(2) of Regulation No 73/2009 reproduces the measures set out in point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession.

Consequently, I propose that the Court answer question 2(d) as follows: the meaning of the word ‘dydis’, used in the final subparagraph of Article 1c(2) of Regulation No 1259/1999, as set out in point 27(b) of Chapter 6 of Annex II to the 2003 Act of Accession, is the same as the word ‘lygis’, used in the final subparagraph of Article 132(2) of Regulation No 73/2009.

F – Question 3

By question 3, the national court essentially raises the question of the validity of Implementing Decision C(2012) 4391, which was not published in the Official Journal of the European Union and, according to that court, does not contain an adequate statement of reasons.

As regards publication, it should be noted that under Article 297(2) TFEU, the publication of decisions is not mandatory when the addressees thereof are specified. Such decisions are notified to their addressees and take effect upon such notification. Consequently, the fact that Implementing Decision C(2012) 4391, addressed to the Republic of Lithuania, was not published in the Official Journal of the European Union does not infringe the principles of EU law.

As regards, next, the statement of reasons for Implementing Decision C(2012) 4391, the referring court considers that that decision was adopted without taking account of the fact that there was no information confirming that direct payments in the EU-15 and EU-10 Member States had equalised in 2012.

First and foremost, the national court’s starting point is wrong. The fact that the levels of direct payments — which refer to the methods for calculating direct payments and not to the nominal amounts of direct payments — equalised in 2012 directly stems from the provisions of Regulation No 73/2009.

For this reason, it was not necessary for the Commission to give a statement of reasons for its decision.

It should be recalled that, according to settled case-law, the statement of reasons required under Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. (63)

In recital 4 in the preamble to Implementing Decision C(2012) 4391, the Commission refers to Article 132(2) of Regulation No 73/2009, from which it is apparent that the total amount of direct support, including CNDPs, granted to a farmer in the EU-10 Member States may not exceed the level of direct payments applicable in the EU-15 Member States, taking account of modulation under Articles 7 and 10 of Regulation No 73/2009. It follows from those articles that the levels of direct payments in the EU-15 and EU-10 Member States were equal in 2012.

Therefore, Implementing Decision C(2012) 4391 contains an adequate statement of reasons in the light of the reductions of CNDPs.

V – Conclusion

In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Vilniaus apygardos administracinis teismas (Lithuania) as follows:

As regards question 1(a) and (b), Articles 7(1), 10(1) and 121 of Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003, must be interpreted as meaning that the level of direct payments applicable in the Member States of the European Union as constituted on 30 April 2004 was, in 2012, equal to 90% of the level of all direct payments and the level of direct payments in the Member States that joined the European Union on 1 May 2004 was, in 2012, equal to that in the old Member States.

As regards questions 1(c), 2(a) and (b), and 3, the consideration of the questions referred for a preliminary ruling has not revealed any factor capable of affecting the validity of the end of Article 10(1) and the end of the final subparagraph of Article 132(2) of Regulation No 73/2009 or the validity of Commission Implementing Decision C(2012) 4391 final of 2 July 2012 authorising the granting of complementary national direct payments in Lithuania in respect of the year 2012 (notified under number K(2012) 4391).

As regards question 2(c), the consideration of the question referred for a preliminary ruling has not revealed any factor capable of affecting the validity of the final subparagraph of Article 132(2) of Regulation No 73/2009, as worded following the corrigendum published on 18 February 2010 in the Official Journal of the European Union.

As regards question 2(d), the meaning of the word ‘dydis’, used in the final subparagraph of Article 1c(2) of Council Regulation (EC) No 1259/1999 of 17 May 1999 establishing common rules for direct support schemes under the common agricultural policy, as set out in point 27(b) of Chapter 6 of Annex II to the Act of 23 September 2003 concerning the Conditions of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, is the same as the word ‘lygis’, used in the final subparagraph of Article 132(2) of Regulation No 73/2009.

Act concerning the Conditions of Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33) (‘the 2003 Act of Accession’).

(6) Thus, in Case T‑386/13, the district of Kėdainių, Lithuania (Kėdainių rajono Okainių ŽŪB) and 134 other applicants asked the General Court to annul Implementing Decision C(2012) 4391 — the same implementing decision as that at issue in the present request for a preliminary ruling — and to declare inapplicable, pursuant to Article 277 TFEU, the final subparagraph of Article 132(2) and part of Article 10(1) of Regulation No 73/2009. By its order in Kėdainių rajono Okainių and Others v Council and Commission (T‑386/13, EU:T:2014:754), the General Court dismissed the action as inadmissible on the ground that the application for annulment of that decision had not been brought within the prescribed period and the plea of illegality had been raised indirectly. By contrast, in Lithuania v Commission (T‑533/13), the Republic of Lithuania asked the General Court to annul Article 1(4) of Commission Implementing Decision C(2013) 4487 final of 19 July 2013 authorising the grant in Lithuania of transitional national aid for 2013. Consideration of the case was stayed pending the Court of Justice’s ruling on the questions referred for a preliminary ruling in this case.

(7) As regards modulation, in Case T‑333/09 (judgment in Poland v Commission, T‑333/09, EU:T:2012:449), the Republic of Poland sought the annulment of Annex I to Commission Decision 2009/444/EC of 10 June 2009 allocating the amounts resulting from the modulation provided for in Articles 7 and 10 of Council Regulation (EC) No 73/2009 to the Member States for the years 2009 to 2012 (OJ 2009 L 148, p. 29). The General Court did not expressly deal with the question of the levels of direct payments in that judgment. In its judgment in Agrargenossenschaft Neuzelle (C‑545/11, EU:C:2013:169), the Court of Justice also had occasion to assess the modulation and further reductions of direct payments in the old Member States for the years 2009 to 2012 without, however, dealing with the question of the levels of direct payments.

(8) Regulation of 17 May 1999 establishing common rules for direct support schemes under the common agricultural policy (OJ 1999 L 160, p. 113).

(9) Except those provided for under Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).

(10) Regulation of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

(11) According to recital 5 in the preamble to Regulation No 1782/2003, the system of progressive reduction of direct payments on a compulsory Community-wide basis for the years 2005 to 2012 was introduced in order to achieve a better balance between policy tools designed to promote sustainable agriculture and those designed to promote rural development. The savings made were intended to finance rural development measures.

(12) Decision adapting the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the common agricultural policy (OJ 2004 L 93, p. 1).

(13) Regulation of 22 March 2004 amending Regulations No 1782/2003, (EC) No 1786/2003 on the common organisation of the market in dried fodder and (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (OJ 2004 L 91, p. 1).

(14) OJ 2010 L 43, p. 7.

(15) Judgment in Meilicke (C‑83/91, EU:C:1992:332, paragraphs 22 and 24) and order in Dhumeaux et Cie and Others (C‑116/05, EU:C:2005:738, paragraphs 18 and 19 and the case-law cited).

(16) Orders in Laguillaumie (C‑116/00, EU:C:2000:350, paragraph 16 and the case-law cited) and Dhumeaux et Cie and Others (C‑116/05, EU:C:2005:738, paragraph 21). See also, in that respect, my Opinion in Gullotta and Farmacia di Gullotta Davide & C. (C‑497/12)

EU:C:2015:168

points 88 to 94.

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0017" href="#c-ECR_62014CC0103_EN_01-E0017" shape="rect">17</a> </span>) Orders in Laguillaumie (C‑116/00, EU:C:2000:350, paragraph 16 and case-law cited); Hanssens and Others (C‑75/04, EU:C:2005:53, paragraph 9); and Dhumeaux et Cie and Others (C‑116/05, EU:C:2005:738, paragraph 21).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0018" href="#c-ECR_62014CC0103_EN_01-E0018" shape="rect">18</a> </span>) See, to that effect, order in Laguillaumie (C‑116/00, EU:C:2000:350, paragraphs 18 and 19).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0019" href="#c-ECR_62014CC0103_EN_01-E0019" shape="rect">19</a> </span>) Judgments in Sucrimex and Westzucker v Commission (C‑133/79, EU:C:1980:104, paragraph 15); IBM v Commission (C‑60/81, EU:C:1981:264, paragraph 9); and Schönberger v Parliament (C‑261/13 P, EU:C:2014:2423, paragraph 13). See also the Opinion of Advocate General Cruz Villalón in Gauweiler and Others (C‑62/14, EU:C:2015:7, point 74).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0020" href="#c-ECR_62014CC0103_EN_01-E0020" shape="rect">20</a> </span>) Judgments in Athinaïki Techniki v Commission (C‑521/06 P, EU:C:2008:422, paragraph 42) and NDSHT v Commission (C‑322/09 P, EU:C:2010:701, paragraph 48).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0021" href="#c-ECR_62014CC0103_EN_01-E0021" shape="rect">21</a> </span>) Summary records of these meetings are available for consultation in English at the following Internet address: http://ec.europa.eu/agriculture/committees/direct-payments-pre-2013-reform_en.htm.

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0022" href="#c-ECR_62014CC0103_EN_01-E0022" shape="rect">22</a> </span>) See, to that effect, judgment in Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraphs 40 and 41) and the Opinion of Advocate General Cruz Villalón in Gauweiler and Others (C‑62/14, EU:C:2015:7, point 72). According to that judgment, the conclusions of a committee established under EU law, which are not binding on national authorities, cannot be examined in proceedings under Article 267 TFEU.

(23) 31/86 and 35/86, EU:C:1988:211.

(24) See, to that effect, judgment in LAISA and CPC España v Council (31/86 and 35/86, EU:C:1988:211, paragraph 14).

(25) Regulation of 11 July 2012 amending Council Regulation (EC) No 73/2009 as regards the application of direct payments to farmers in respect of the year 2013 (OJ 2012 L 204, p. 11).

(26) Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded (OJ 2005 L 157, p. 203) of 21 June 2005.

(27) Recitals 2 and 7 in the preamble to Regulation No 671/2012.

(28) See footnote 7 of this Opinion.

(29) T‑333/09, EU:T:2012:449.

(30) As regards the different terms used in the Lithuanian versions of those regulations, see points 134 to 142 of this Opinion.

(31) The wording of that article in Regulation No 73/2009 was slightly amended compared to the wording used in the 2003 Act of Accession. Thus, the final subparagraph of Article 132(2) of Regulation No 73/2009 is worded as follows: ’shall not exceed the level of direct support a farmer would be entitled to receive under the corresponding direct payment then applicable to the Member States in the Member States other than the new Member States’.

(32) Some language versions use different expressions in Article 10(1) and the final subparagraph of Article 132(2) of Regulation No 73/2009 (in particular, the Estonian and Finnish versions), while in several other versions, the expressions used are the same. I would observe that, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment in Ivansson and Others, C‑307/13, EU:C:2014:2058, paragraph 40). Accordingly, these isolated linguistic variations are not capable of affecting the finding as to the interpretation of Article 10(1) of Regulation No 73/2009.

(33) The reports are available for consultation in English at the following Internet addresses: http://ec.europa.eu/agriculture/cap-funding/beneficiaries/direct-aid/pdf/annex1-2005_en.pdf and http://ec.europa.eu/agriculture/cap-funding/beneficiaries/direct-aid/pdf/annex2-2005_en.pdf.

(34) The World Trade Organisation (WTO) and the Organisation for Economic Cooperation and Development (OECD) have developed different methods for classifying and measuring levels of agricultural support. These methods, particularly the WTO’s Aggregate Measurement of Support (AMS) and the OECD’s Producer Support Estimate (PSE) may be used to classify and compare the levels of support in each country. However, these different systems were created for different objectives and produce widely varying results (see, to that effect, the study by Effland, A.: ‘Classifying and Measuring Agricultural Support: Identifying Differences Between the WTO and OECD Systems’, EIB-74, US Department of Agriculture, Economic Research Service, March 2011. This study is available for consultation at the following Internet address: http://www.ers.usda.gov/media/129064/eib74.pdf). These systems cannot in themselves be used for the purpose of interpreting the concept of ‘level’ used in Regulation No 73/2009.

(35) Emphasis added.

(36) It should be recalled that the CAP was reformed at the same time as the accession negotiations with the EU-10 Member States.

(37) Recitals 24 and 25 in the preamble to Regulation No 1782/2003.

(38) See the Commission document concerning the SPS, which is available for consultation in French at the following Internet address: http://ec.europa.eu/agriculture/direct-support/pdf/factsheet-single-payment-scheme_fr.pdf. For the different schemes implemented in the 28 Member States, see the map at the following Internet address: http://ec.europa.eu/agriculture/direct-support/images/map-direct-payments_en.gif.

(39) This scheme gives Member States considerable scope in terms of choice. Thus, as academic writers have pointed out, ‘taking into account Regulation [No 1782/2003] as well as the body of detailed rules on application, the result is a set of approximately 500 [a]rticles and 50 annexes covering two “decoupled systems” (the single payment system and the simplified system for new Member States), seventeen coupled systems (six of which are transitional), two decoupling models (historic and regional), six methods of regionalisation (historic, flat rate, hybrid, static or dynamic and the variant for new Member States), the option of deferred decoupling for milk premiums, the possibility of differentiation for areas of permanent pasture or herbaceous crops; 10 options for partial recoupling of certain crops; the possible non-application of decoupling for a transitional period of three years; the power not to decouple certain support schemes and finally, dulcis in fundo, at least six different types of payment entitlement within the framework of the single payment scheme’ (Bianchi, D., La politique agricole commune (PAC). Toute la PAC, rien d’autre que la PAC, Bruylant, Brussels, 2006, p. 294).

(40) That is to say, the scheme prior to the reductions applied, in particular, by way of phasing-in or modulation.

(41) Even after that date, Member States applying the SAPS may, under Article 36 of Regulation (EU) No 1307/2013 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), decide to continue to apply that scheme until 31 December 2020. According to the Commission information note of 13 November 2014 concerning the decisions taken by Member States for the implementation of the new direct support system (available for consultation in English at the following Internet address: http://ec.europa.eu/agriculture/direct-support/direct-payments/docs/implementation-decisions-ms_en.pdf), the 10 Member States that apply the SAPS, including the Republic of Bulgaria and Romania, have all decided to continue to apply this scheme until 2020.

(42) The adjustment mechanism, introduced for 2013, is, however, applicable in the EU-10 Member States without any specific rules (see point 49 of this Opinion).

(43) Since the modulation percentage in 2011 was only 9% for the EU-15 Member States and the level of direct payments in the EU-10 Member States was 80% of the level applicable in the EU-15 Member States, it is clear that the levels of direct payments in the EU-15 and EU-10 Member States in 2011 were still very different.

(44) The final subparagraph of Article 132(2) of Regulation No 73/2009 contains the phrase ‘taking into account, from 2012, the application of Article 7 in conjunction with Article 10’.

(45) See point 59 of this Opinion.

(46) This interpretation stems directly from Article 10(2) of Regulation No 73/2009, the validity of which was not called in question in these proceedings. According to working document DS2011/14/REV2, the difference between the level of direct payments resulting from the phasing-in mechanism in the EU-10 Member States and the level of direct payments observed in the EU-15 Member States, taking account of all reductions made pursuant to Article 7(1) of that regulation, was zero in 2012, the levels in the EU-15 and EU-10 Member States equalling 90%. Since the percentage to be taken into account is zero, the modulation rate for amounts between EUR 5000 and EUR 300000 is also zero. Thus, the gradual modulation rate — namely the reduction increased by 4 percentage points — for amounts exceeding EUR 300000 is 4%.

(47) Implementing Decision C(2012) 4391 only concerns the Republic of Lithuania, which applies the SAPS. The consideration of this interpretation, which is already apparent from Working Document DS2011/14/REV2, is therefore focused on its effects for the EU-10 Member States applying the SAPS.

(48) According to the Commission, this sectoral approach was applied in 2012 in all of the Member States that chose the SAPS, including the Republic of Lithuania. In the Commission’s view, within the framework of the SAPS, CNDPs have their own specific features, as they allow Member States to support sectors that would not otherwise receive any support in those Member States. When a Member State chooses the SAPS, all payments made within the framework of European support schemes are combined so that they can be shared out equally depending on the number of hectares eligible for support, with the result that all farmers receive a uniform amount per hectare across the whole of the national territory. However, payments made within the framework of the SPS are more differentiated, as a Member State may give more support to some sectors, differentiating the amounts relating to payment entitlements.

(49) Judgments in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55 and the case-law cited); IBV & Cie (C‑195/12, EU:C:2013:598, paragraphs 49 and 50); and Feakins (C‑335/13, EU:C:2014:2343, paragraph 47).

(50) Judgments in Arcelor Atlantique et Lorraine and Others (C‑127/07, EU:C:2008:728, paragraph 25); IBV & Cie (C‑195/12, EU:C:2013:598, paragraph 51); and Feakins (C‑335/13, EU:C:2014:2343, paragraph 49).

(51) See, to that effect, judgments in Poland v Council (C‑273/04, EU:C:2007:622, paragraphs 87 and 88) and Poland v Commission (C‑335/09 P, EU:C:2012:385, paragraphs 100 and 101).

(52) It should be noted that the EU-10 Member States applying the SAPS retained the possibility of granting complementary aid even after the phasing-in period. Recital 8 in the preamble to Regulation No 671/2012 is worded as follows: ‘The new Member States were allowed to grant [CNDPs] as a consequence of the phasing-in of direct payments in those Member States. Such possibility will no longer be available in 2013, when the schedule for the gradual introduction of direct payments in the new Member States will be complete. In the new Member States applying the [SAPS], [CNDPs] have played an important role in supporting the income of farmers in specific sectors. … For that reason, and in order to avoid a sudden and substantial decrease of support in 2013 in those sectors benefiting, until 2012, from [CNDPs] … it is appropriate to provide, in those Member States, for the possibility to grant, subject to authorisation by the Commission, transitional national aids to farmers in 2013.’ The possibility of granting such transitional national aid was further extended by Regulation No 1307/2013 for the period 2015-2020.

(53) See point 104 of this Opinion.

(54) Judgments in Bavaria and Bavaria Italia (C‑343/07, EU:C:2009:415, paragraph 81) and Panellinios Syndesmos Viomichanion Metapoiisis Kapnou (C‑373/11

EU:C:2013:567

paragraph 40)

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0055" href="#c-ECR_62014CC0103_EN_01-E0055" shape="rect">55</a> </span>) Judgments in Jippes and Others (C‑189/01, EU:C:2001:420, paragraph 80); Spain v Commission (C‑304/01, EU:C:2004:495, paragraph 23); Unitymark and North Sea Fishermen’s Organisation (C‑535/03, EU:C:2006:193, paragraph 55); Bavaria and Bavaria Italia (C‑343/07, EU:C:2009:415, paragraph 82); and Panellinios Syndesmos Viomichanion Metapoiisis Kapnou (C‑373/11, EU:C:2013:567, paragraph 41).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0056" href="#c-ECR_62014CC0103_EN_01-E0056" shape="rect">56</a> </span>) Judgment in Premis Medical (C‑273/09, EU:C:2010:809, paragraph 30).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0057" href="#c-ECR_62014CC0103_EN_01-E0057" shape="rect">57</a> </span>) In particular, the Bulgarian, German, French, Lithuanian and Dutch versions.

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0058" href="#c-ECR_62014CC0103_EN_01-E0058" shape="rect">58</a> </span>) The Spanish, Czech, Danish, Estonian, Greek, English, Italian, Latvian, Maltese, Polish, Portuguese, Romanian, Slovakian, Slovenian, Finnish and Swedish versions.

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0059" href="#c-ECR_62014CC0103_EN_01-E0059" shape="rect">59</a> </span>) Emphasis and strikethrough added. The Lithuanian corrigendum of 18 February 2010 (OJ 2010 L 43, p. 7) contained an error. Although the reference to the year 2012 was inserted at the end of the provision, it was not deleted from the beginning of the sentence. Accordingly, the Lithuanian version of the final subparagraph of Article 132(2) of Regulation No 73/2009 had to be corrected a second time on 15 May 2013 (OJ 2013 L 130, p. 60).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0060" href="#c-ECR_62014CC0103_EN_01-E0060" shape="rect">60</a> </span>) Emphasis and strikethrough added.

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0061" href="#c-ECR_62014CC0103_EN_01-E0061" shape="rect">61</a> </span>) Either the word ‘dydis’ as such or its declined form ‘dydžio’.

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0062" href="#c-ECR_62014CC0103_EN_01-E0062" shape="rect">62</a> </span>) See, inter alia, judgment in Ivansson and Others (C‑307/13, EU:C:2014:2058, paragraph 40).

(<span class="note"> <a id="t-ECR_62014CC0103_EN_01-E0063" href="#c-ECR_62014CC0103_EN_01-E0063" shape="rect">63</a> </span>) See, inter alia, judgment in France v Council (C‑479/07, EU:C:2009:131).