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Supreme Court of Denmark

Agricultural aid 

Case no. 215/2016

Judgment delivered on 6 July 2017

Peter Martin Andersen
The Board of Appeal for Environment and Food
The Danish Agrifish Agency

Agricultural aid recovered as fields did not meet requirement for thick and low vegetation cover.

In 2007 and 2008, a farmer was awarded and paid agricultural aid under different EU aid schemes. According to the terms for the granting of the aid, the fields had to be grazed by cattle and have thick and low vegetation cover.

In the autumn of 2010, the farmer's fields were selected for inspection. The inspector estimated that more than half of the fields did not meet the requirement concerning, among other things, thick and low vegetation cover. Accordingly, the Danish Agrifish Agency and the Ministry of Food's Complaints Centre (now the Board of Appeal for Environment and Food) adopted a decision to withdraw a part of the aid.

The case concerned, among other things, whether the Danish Agrifish Agency's and the Complaints Centre's decisions had been made on an adequately informed basis and how to assess whether the requirement concerning thick and low vegetation cover had been met. New instructions for this had been issued in the autumn of 2010, stipulating that vegetation cover covering less than 50% of an area could be more than 40 cm in height. The case also concerned the significance of the Danish Agrifish Agency's assessment that the farmer's use of the land was in accordance with, among other things, the protection of biodiversity.

The Supreme Court found that the inspection had been conducted in accordance with the instructions, and that the Danish Agrifish Agency and the Complaints Centre could thus base their subsequent decisions on the information from this inspection. In addition, Peter Martin Andersen had been heard before the decisions were made. There was therefore no basis for establishing that the decisions had been made on an inadequate basis.

The Supreme Court also held that the purpose of the new instructions was not seen as being to tighten controls but simply to record the already existing guidelines. Accordingly, this was not, neither in fact nor according to a literal interpretation, a more strict interpretation with retrospective effect.

Finally, the Supreme Court found that, when assessing whether the eligibility conditions had been met, the Danish Agrifish Agency could not attach decisive importance to whether considerations for biodiversity, among other things, had won out over the grazing and mowing requirements under the agricultural aid schemes in the planning of the land use.

The proportionality principle did not preclude recovery of any aid unduly received, the claim for recovery was not time-barred, and acquiescence could not be invoked.

The Supreme Court affirmed the High Court's judgment on the above grounds.

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