Satini-S (State aid - Concept of 'advantage' - damage caused to aquaculture by protected wild birds - Opinion) [2021] EUECJ C-238/20

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

(Reference for a preliminary ruling – State aid – Concept of ‘advantage’ – Compensation for the damage caused to aquaculture by protected wild birds in a Natura 2000 network area – Regulation (EU) No 717/2014 – De minimis rule – Charter of Fundamental Rights of the European Union – Article 17 – Right to property)

1. This request for a preliminary ruling was made in proceedings between SIA Satini-S, a Latvian undertaking, and Dabas aizsardzibas parvalde (Environmental Protection Authority, Latvia).

2. The request concerns the interpretation of Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 107 and 108 TFEU and Article 3(2) of Regulation (EU) No 717/2014 (2) and concerns whether payments made available in respect of damage caused to aquaculture in a Natura 2000 network area by wild birds protected under Directive 2009/147/EC (3) (i) may be lower than the losses sustained and (ii) constitute State aid and, if so, come within the scope of the ‘fishery de minimis’ regulation.

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

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

4. In the words of Article 51 of the Charter, entitled ‘Field of application’:

‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’

‘Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.’

‘In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.’

‘Without prejudice to Articles 7 and 9, Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:

(b) deliberate destruction of, or damage to, their nests and eggs or removal of their nests;

(d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;

‘Member States may derogate from the provisions of Articles 5 to 8, where there is no other satisfactory solution, for the following reasons:

– to prevent serious damage to crops, livestock, forests, fisheries and water,

(b) for the purposes of research and teaching, of re-population, of re-introduction and for the breeding necessary for these purposes;

(c) to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers.’

‘For the purposes of transparency, equal treatment and effective monitoring, this Regulation should apply only to de minimis aid for which it is possible to calculate precisely the gross grant equivalent ex ante without any need to undertake a risk assessment (“transparent aid”). Such a precise calculation can, for instance, be made for grants, interest rate subsidies, capped tax exemptions or other instruments that provide for a cap ensuring that the relevant ceiling is not exceeded. Providing for a cap means that as long as the precise amount of aid is not or not yet known, the Member State has to assume that the amount equals the cap in order to ensure that several aid measures together do not exceed the ceiling set out in this Regulation and to apply the rules on cumulation.’

‘1. This Regulation applies to aid granted to undertakings in the fishery and aquaculture sector, with the exception of:

(a) aid the amount of which is fixed on the basis of price or quantity of products purchased or put on the market;

(b) aid to export-related activities towards third countries or Member States, namely aid directly linked to the quantities exported, to the establishment and operation of a distribution network or to other current expenditure linked to the export activity;

(e) aid for the modernisation or replacement of main or ancillary engines of fishing vessels;

(f) aid to operations increasing the fishing capacity of a vessel or equipment increasing the ability of a vessel to find fish;

(g) aid for the construction of new fishing vessels or importation of fishing vessels;

(h) aid to the temporary or permanent cessation of fishing activities unless specifically provided for in the Regulation (EU) No 508/2014; ^[(5)^]

(k) aid to direct restocking, unless explicitly provided for as a conservation measure by a Union legal act or in the case of experimental restocking.

2. Where an undertaking is active in the fishery and aquaculture sector and is also active in one or more of the sectors or has other activities falling within the scope of Regulation (EU) No 1407/2013, ^[(6)^] that Regulation shall apply to aid granted in respect of the latter sectors or activities, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the activities in the fishery and aquaculture sector do not benefit from the de minimis aid granted in accordance with that Regulation.

3. Where an undertaking is active in the fishery and aquaculture sector as well as in the primary production of agricultural products falling within the scope of [Regulation (EU) No 1408/2013 (7)], this Regulation shall apply to aid granted in respect of the former sector provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with this Regulation.’

11. Article 3 of the ‘fishery de minimis’ regulation, entitled ‘De minimis aid’, states, in paragraphs 1 to 3:

‘1. Aid measures shall be deemed not to meet all the criteria in Article 107(1) [TFEU], and shall therefore be exempt from the notification requirement in Article 108(3) [TFEU], if they fulfil the conditions laid down in this Regulation.

2. The total amount of de minimis aid granted per Member State to a single undertaking in the fishery and aquaculture sector shall not exceed EUR 30 000 over any period of three fiscal years.

3. The cumulative amount of de minimis aid granted per Member State to undertakings active in the fishery and aquaculture sector over any period of three fiscal years shall not exceed the national cap set out in the Annex.’

12. Article 4 of that regulation, entitled ‘Calculation of gross grant equivalent’, provides:

‘1. This Regulation shall apply only to aid in respect of which it is possible to calculate precisely the gross grant equivalent of the aid ex ante without any need to undertake a risk assessment (“transparent aid”).

2. Aid comprised in grants or interest rate subsidies shall be considered as transparent de minimis aid.

7. Aid comprised in other instruments shall be considered as transparent de minimis aid if the instrument provides for a cap ensuring that the relevant ceiling is not exceeded.’

13. Article 4 of the sugu un biotopu aizsardzibas likums (Law on the conservation of species and biotopes) of 16 March 2000, (8) entitled ‘Powers of the Council of Ministers’, provides in paragraph 6:

(6) the procedures for determining the amount of losses suffered by land users as a result of serious damage caused by animals of migratory species and specially protected non-cynegetic species, and the minimum requirements to be met by the protective measures necessary to avoid damage[.]’

14. Article 10 of that law, entitled ‘Right of land owners or users to obtain compensation’, provides:

‘1. Land owners or users shall be entitled to receive compensation from the State budget funds earmarked for that purpose for serious damage caused by animals of migratory species and specially protected non-cynegetic species, provided that they have adopted the necessary protective measures and have employed their knowledge, skills and practical abilities to introduce environmentally respectful measures to prevent or reduce damage. Landowners or users shall not be entitled to receive compensation if they have maliciously contributed towards causing the damage or increasing the value thereof in order to obtain compensation.

3. Compensation for serious damage caused by animals of migratory species and specially protected non-cynegetic species shall not be awarded if the land owner or user has received other State, municipal or EU payments directly or indirectly intended to offset the same limitations on economic activity or the same damage caused by animals of migratory species and specially protected non-cynegetic species for which compensation is made available in legislative provisions, or if the applicant receives aid under [Regulation No 508/2014].’

15. Article 5 of the lauksaimniecibas un lauku attistibas likums (Law on agriculture and rural development) of 7 April 2004, (9) entitled ‘State and European Union support’, states in paragraph 7:

‘The Council of Ministers shall lay down the detailed rules for managing and monitoring aid awarded by the State and by the European Union for agriculture and aid awarded by the State and by the European Union for rural development and fisheries.’

16. The Ministru kabineta noteikumi Nr. 558 ‘De minimis atbalsta uzskaites un pieškiršanas kartiba zvejniecibas un akvakulturas nozare’ (Decree No 558 of the Council of Ministers laying down detailed rules on accounting for and awarding de minimis aid in the fishery and aquaculture sector) of 29 September 2015 (10) is worded as follows:

‘1. This Decree lays down the detailed rules on accounting for and awarding de minimis aid in the fishery and aquaculture sector, in accordance with [the “fishery de minimis” regulation].

2. In order to obtain de minimis aid in accordance with the provisions of Articles 3, 4 and 5 of [the “fishery de minimis” regulation], an aid applicant must make an application for de minimis aid (“the application”) to the aid awarding body (Annex 1). The application shall indicate the de minimis aid received by the applicant in the current year and in the two preceding fiscal years, as well as any planned de minimis aid, irrespective of the mode of award or the awarding body. In cases where de minimis aid is cumulated, the aid applicant shall also provide information on the other aid received for the project in question in connection with the same eligible costs. In providing information on de minimis aid and other planned State aid, the aid applicant shall also indicate any aid for which it has applied but in respect of which the aid awarding body has not yet made a decision. If the applicant for de minimis aid has not previously received aid of this type, it shall provide the relevant information in its application.

17. The Ministru kabineta noteikumi Nr. 353 ‘Kartiba, kada zemes ipašniekiem vai lietotajiem nosakami to zaudejumu apmeri, kas saistiti ar ipaši aizsargajamo nemedijamo sugu un migrejošo sugu dzivnieku nodaritajiem butiskiem postijumiem, un minimalas aizsardzibas pasakumu prasibas postijumu noveršanai’ (Decree No 353 of the Council of Ministers on the procedure for determining the amount of losses suffered by land owners or users as a result of serious damage caused by animals of migratory species and specially protected non-cynegetic species, and on the minimum requirements to be met by the protective measures necessary to avoid damage) of 7 June 2016 (11) provides:

1.1. the procedure for determining the amount of losses suffered by land owners or users as a result of serious damage caused by animals of migratory species and specially protected non-cynegetic species (“losses”);

39. When adopting a decision on the award of compensation, the Administration shall meet the following requirements:

39.1. award the compensation with due regard for the limitations in terms of sector and activity referred to in Article 1(1) of [Regulation No 1408/2013] or Article 1(1) of [the “fishery de minimis” regulation] …;

39.2. verify that the amount of compensation does not increase the total amount of de minimis aid received during the fiscal year in question and during the two preceding fiscal years to a level in excess of the de minimis aid threshold laid down in Article 3(2) of Regulation No 1408/2013 (economic operators active in the primary production of agricultural products) or in Article 3(2) of [the “fishery de minimis” regulation] (economic operators active in the fishery and aquaculture sector in accordance with Regulation (EU) No 1379/2013 ^[(12)^]). In considering the amount of compensation, the Administration shall assess the de minimis aid received in relation to a single undertaking. A “single undertaking” is one which meets the criteria laid down in Article 2(2) of Regulation No 1408/2013 and Article 2(2) of [the “fishery de minimis” regulation].

40. Within a period of two months from the determination of the amount of the losses, the [competent] official shall adopt either a decision awarding compensation, which shall fix the amount thereof, or a decision refusing compensation.’

II. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

18. In 2002, Satini-S purchased ponds with a surface area of 600.70 hectares in a Nature 2000 nature reserve in Latvia.

19. In 2017, Satini-S applied to the Dabas aizsardzibas parvalde (Environmental Protection Authority) for an award of compensation for the damage caused to aquaculture by protected birds and other animals. That authority refused that request, on the ground that Satini-S had already been awarded de minimis aid of EUR 30 000 over a period of three fiscal years.

20. Satini-S brought an action against that decision before the competent court, claiming that, because it is compensatory in nature, compensation for the damage caused to aquaculture by protected animals was not State aid. Its claim was dismissed at first and second instance and Satini-S appealed on a point of law before the Augstaka tiesa (Supreme Court, Latvia), which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the right to fair compensation for limits on the right to property that is guaranteed by Article 17 of the [Charter] allow the compensation awarded by a State for the losses caused to aquaculture in a Natura 2000 network area by protected birds, in accordance with [the “birds” directive], to be significantly less than the losses actually suffered?

(2) Does the compensation awarded by a State for the losses caused to aquaculture in a Natura 2000 network area by protected birds, in accordance with [the “birds” directive], constitute State aid within the meaning of Articles 107 and 108 [TFEU]?

(3) If the answer to the second question is in the affirmative, is the de minimis aid limit of EUR 30 000 laid down in Article 3(2) of [the “fishery de minimis” regulation] applicable to compensation such as that at issue in the dispute in the main proceedings?’

21. Written observations have been submitted by Satini-S, the Latvian Government, Ireland and the European Commission.

22. At the hearing, held on 3 June 2021, oral observations were submitted by the Latvian Government, Ireland, the Netherlands Government and the Commission.

23. By its first question, the referring court asks, in essence, whether Article 17 of the Charter must be interpreted as precluding compensation awarded by a Member State for the losses caused to aquaculture in a Natura 2000 network area by birds protected under the ‘birds’ directive (‘the compensation at issue’) being less than the losses actually sustained by the undertaking concerned.

24. The referring court observes that compensation in respect of the limitation of the right to property, in accordance with Article 17(1) of the Charter, must be real and effective, whereas, in the present case, the amount of the compensation at issue is calculated principally by reference to the surface area of the fish ponds and does not take account of the number of fish eaten by protected birds and therefore does not cover all the losses actually sustained. It adds that the ‘birds’ directive allows Member States to derogate from that directive in order to prevent serious damage to fisheries.

25. Satini-S asserts that, according to the national legislation, it is forced to bear 88% of its losses, which reduces its competitiveness, and that small aquaculture undertakings outside the Natura 2000 network areas are covered as to 100% for the losses sustained, which gives rise to unfair competition.

26. The Latvian Government and Ireland claim that Member States are under no obligation to compensate in full for damage caused to aquaculture by protected birds in a Natura 2000 network area. The obligations arising under the ‘birds’ and ‘habitats’ directives do not constitute a deprivation of the right to property but, rather, the control of its use. In the present case, the restriction of the right to property follows from the ‘birds’ directive and pursues an objective in the general interest, namely the interest in protecting the environment. Furthermore, no compensation is provided for in that directive. The Latvian Government maintains, moreover, that the amount of the losses for which compensation is paid is calculated according to a formula which does not necessarily cover all the losses sustained, and observes that the procedure for calculating the compensation at issue will be revised in that sense by the Latvian legislature and that the new compensation measure will be notified to the Commission as ‘State aid’.

27. The Commission proposes that the Court should not answer the first question referred for a preliminary ruling, as it lacks jurisdiction under Article 51(1) of the Charter. Payment of the compensation at issue does not constitute the implementation of EU law within the meaning of that provision, since neither the ‘birds’ directive nor the ‘habitats’ directive provides for compensation on the basis of the damage caused to private property, in particular aquaculture ponds, when they are implemented. EU law provides only for the possibility to provide State aid, under the European Agricultural Fund for Rural Development (EAFRD), (13) the European Maritime and Fisheries Fund (EMFF) (14) or the European Union Guidelines for State aid in the agricultural and forestry sectors and in rural areas 2014 to 2020 (15) and the Guidelines for the examination of State aid to the fishery and aquaculture sector. (16)

28. I would observe at the outset that, according to Article 51(1) of the Charter, which governs its field of application, the provisions of the Charter are addressed to the Member States only when they are implementing Union law. That provision confirms the consistent case-law of the Court, according to which the fundamental rights guaranteed in the EU legal order are applicable in all situations governed by EU law, but are not applicable outside such situations. Where a legal situation does not fall within the scope of EU law, the Court does not have jurisdiction to adjudicate on it and any provisions of the Charter that may be relied on cannot of themselves form the basis for such jurisdiction. (17)

29. In fact, the ‘birds’ and ‘habitats’ directives contain no provision intended to establish a scheme of compensation for damage caused to individuals by measures taken to implement those directives. Furthermore, it seems to me that Article 9 of the ‘birds’ directive, to which the referring court makes reference, which provides that the Member States may establish derogations from the requirements of that directive, in particular to prevent serious damage to fisheries, cannot form the basis of a right to compensation. In that sense, the Court has already held that although, in certain areas in which it has a broad discretion, such as that of agricultural policy, the EU legislature may consider that compensation is appropriate, the existence, in Union law, of a general principle requiring compensation to be paid in all circumstances cannot be inferred from that fact. (18)

30. It follows that, since an obligation to pay compensation cannot be based on EU law, a national provision under which compensation, even if partial compensation, is payable by the relevant State for damage caused to aquaculture in a Natura 2000 network area by birds protected under the ‘birds’ directive does not come within the scope of EU law but is solely a matter for the national legislature. In the preliminary ruling procedure laid down in Article 267 TFEU, it is not for the Court to appraise the interpretation of provisions of national law or to rule on whether the interpretation thereof given by the national court is correct. (19)

31. In conclusion, I consider that payment of the compensation at issue, in respect of the limitation of the right to property guaranteed in Article 17 of the Charter, does not constitute, in the circumstances of the present case, the implementation of Union law, within the meaning of Article 51(1) of the Charter.

32. Consequently, I propose that the answer to the referring court should be that the Court does not have jurisdiction to answer the first question.

33. By its second question, the referring court seeks to ascertain whether the compensation at issue constitutes State aid.

34. It expresses doubts as to whether payments of compensation awarded in order to comply with the public-law obligations that follow from the ‘birds’ directive constitute State aid. It considers that those payments constitute, rather, compensation for losses sustained, within the meaning of Article 17(1) of the Charter.

35. The Latvian Government and the Commission contend that the compensation at issue constitutes State aid. They observe, in particular, that the limitations arising under the EU legislation, and in particular the legal obligation to protect wild animals and to tolerate the damage which they may cause, constitute a normal commercial risk for an aquaculturist and that, by means of the compensation at issue, the Member State mitigates a burden normally borne by certain economic operators. Nor does the compensation at issue correspond to any of the situations, highlighted by the Commission, in which the Court’s case-law has precluded the existence of an advantage: on the contrary, it corresponds to a type of aid granted in accordance with the Guidelines in the agricultural and forestry sectors or the Guidelines in the fishery and aquaculture sector.

36. Ireland, on the other hand, maintains that the compensation at issue constitutes compensation for the loss sustained or compensation for a service provided in the general interest by the owner of a protected site, who is required to bear an additional environmental responsibility, and, accordingly, does not confer an advantage that may constitute State aid within the meaning of Article 107 TFEU. Nor is that compensation selective, moreover, since the beneficiaries are not in a comparable situation with that of persons whose sites have not been designated as protected sites. The Netherlands Government, which intervened at the hearing, also argued that there is no State aid in the case in the main proceedings, since the Member State is required, on the basis of Article 17(1) of the Charter, to pay compensation for damage caused by the fulfilment of certain public-law obligations, in application of the ‘birds’ and ‘habitats’ directives, that entail a disproportionate and excessive burden for the owner.

37. By way of preliminary point, I note that, according to the Court’s settled case-law, the classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires that the following conditions be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort, or threaten to distort, competition. (20) In addition, the concept of ‘State aid’ is an objective legal concept. The Court has consistently held that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them according to their effects. (21)

38. The question submitted by the referring court concerns principally whether the compensation at issue confers an advantage on its recipient, having regard to what is claimed to be its compensatory nature.

39. In that regard, the Court has also consistently held that measures which, whatever their form, are likely directly or indirectly to benefit undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid. (22) Thus, measures which mitigate the charges that are normally borne by the budget of an undertaking and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect are considered to constitute State aid. (23) In that regard, the concept of a ‘charge which is normally borne by the budget of an undertaking’ covers, in particular, the additional costs which undertakings must bear by virtue of obligations imposed by law, regulation or agreement which apply to an economic activity. (24)

40. It follows that the existence of an advantage is not called in question by what is claimed to be the ‘compensatory’ nature of a measure designed to make good the losses sustained by an economic operator following the application of an obligation deriving from EU legislation or to compensate for the damage caused by the occurrence of natural events linked with the normal conditions of the exercise of the economic activity in question.

41. First, the costs associated with compliance with the mandatory rules on environmental protection constitute normal operating costs for an undertaking in the aquaculture sector. (25) Consequently, the measures to compensate for those costs are measures which mitigate the charges normally borne by an undertaking’s budget and which must be regarded as an economic advantage which the recipient undertaking would not have obtained in normal market conditions.

42. Second, it follows from the very wording of Article 107(2)(b) TFEU that aid to make good the damage caused by natural disasters or exceptional occurrences is to be compatible with the internal market. It follows that, according to the FEU Treaty, those types of measures, while having a ‘compensatory’ objective, are regarded as State aid within the meaning of paragraph 1 of that article. That is a fortiori the case for damage caused by quite ordinary and foreseeable natural occurrences, such as the passage of wild birds. Furthermore, as the Commission has observed in its written observations, measures designed to make good the damage caused by protected animals, which are very frequent in the agriculture, fisheries and aquaculture sectors, are regularly classified as ‘State aid’ and are subject to examination of their compatibility within the meaning of the Guidelines in the agricultural and forestry sectors (26) or the Guidelines in the fishery and aquaculture sector.

43. Nor does the compensation at issue come within the situations in which the Court has held that State contributions were of a fundamentally different legal nature from that of aid and that they therefore could not constitute an advantage that may constitute State aid within the meaning of Article 107(1) TFEU.

44. First of all, the fact, highlighted by the referring court, that the compensation at issue was granted in application of the ‘birds’ and ‘habitats’ directives, on the assumption that it is correct, does not show that that compensation satisfies the conditions, laid down in the ‘Altmark’ case-law, (27) according to which a measure in favour of an undertaking which has public-service obligations to discharge does not constitute an advantage that may constitute State aid within the meaning of Article 107(1) TFEU.

45. In that regard, first, the mere fact that the State obligations relating to the Natura 2000 network area are imposed in application of EU law, namely the ‘birds’ directive, does not of itself suffice to show that Satini-S was required to carry out clearly defined public-service obligations within the meaning of the first of the four cumulative conditions laid down in that case-law. (28) On the contrary, far from classifying the compensation at issue as ‘compensation for costs incurred in providing a public service’, the Latvian authorities, during the administrative procedure, and the Latvian Government, before the Court, described it as (de minimis) ‘aid’.

46. Second, it is not apparent from the file submitted to the Court that the other conditions laid down in that case-law are fulfilled. On the contrary, even though it is for the referring court to verify that those conditions are satisfied in the present case, it seems to me prima facie that they are not. (29)

47. Next, it is true that, in the judgment in Asteris and Others v Greece and EEC, (30) the Court considered that the damages which the national authorities may be ordered to pay to undertakings as compensation for damage which they have caused to those undertakings does not constitute ‘State aid’ within the meaning of Article 107(1) TFEU. The Court held that State aid, that is to say measures of the public authorities favouring certain undertakings or certain products, is fundamentally different in its legal nature from damages which national authorities may be ordered to pay to individuals as compensation for the damage which they have caused to those individuals and that the damages do not constitute aid within the meaning of Articles 107 and 108 TFEU.

48. However, I consider that the interpretation applied in the judgment of 27 September 1988, Asteris and Others v Greece and EEC (106/87 to 120/87, EU:C:1988:457), is not relevant so far as the case in the main proceedings is concerned, since that case does not concern sums payable or paid on the basis of the non-contractual liability of the Member State concerned, but compensation for the costs – deriving from regulatory obligations or natural occurrences – normally borne by the undertakings concerned in the context of their economic activities. (31)

49. Last, as the Commission has observed in its written observations, it is clear that the compensation at issue does not come within the situation of the reimbursement of taxes unlawfully levied (32) or that of payment of compensation for expropriation. (33) In those two situations, the Member State was required to pay the sums unlawfully levied or to pay the value of an asset of which the owner had been deprived. Unlike the compensation at issue, the payments concerned charges that could not be classified as ‘charges which, in normal market conditions, are borne by the budget of an undertaking’ within the meaning of the case-law cited in point 39 of this Opinion.

50. Accordingly, while it cannot be precluded, in principle, that in other particular situations compensation for an exceptional charge by reference to normal market conditions may escape being classified as State aid, within the meaning of Article 107(1) TFEU, (34) that is not the case here.

51. I therefore propose that the answer to the second question should be that the compensation at issue constitutes an advantage that may constitute State aid within the meaning of Article 107(1) TFEU, provided that the other conditions laid down are fulfilled, which it is for the referring court to ascertain. (35)

52. By its third and last question, the referring court asks, in essence, whether, in a case where the compensation at issue constitutes State aid, the de minimis ceiling provided for in Article 3(2) of the ‘fishery de minimis’ regulation must apply.

53. According to the referring court, it follows from Article 1 of that regulation, read in the light of recital 15 thereof, that that regulation is not prima facie applicable to that compensation.

54. The Latvian Government and the Commission contend that the compensation at issue comes within the scope of the ‘fishery de minimis’ regulation, in view of the fact that the Republic of Latvia has chosen to apply that regulation.

55. In order to answer the question, it seems to me to be helpful to draw a distinction between, on the one hand, the applicability of the ‘fishery de minimis’ regulation to a situation such as that of the present case and, on the other, the actual application of that regulation by the Latvian authorities.

56. As regards the former aspect, I consider that, if the compensation at issue constitutes ‘State aid’, the ‘fishery de minimis’ regulation is applicable, in so far as none of the exceptions to the application of that regulation listed in Article 1 applies in the present case.

57. Furthermore, recital 15 of the ‘fishery de minimis’ regulation, on which the referring court relies, and Article 4 of that regulation state, in particular, that the regulation is not to apply to aid for which it is possible to calculate precisely the gross grant equivalent ex ante without any need to undertake a risk assessment (‘transparent aid’), such as, for example, subsidies. Since the compensation at issue consists in ex post compensation, it corresponds, in essence, to a subsidy in that it enables the gross grant equivalent to be calculated precisely ex ante. In my view, it therefore constitutes ‘transparent aid’ within the meaning of that regulation.

58. As regards the second aspect, I would emphasise that, when the ‘fishery de minimis’ regulation is applicable, the Member State may either notify the compensation at issue to the Commission for its approval as aid compatible with the internal market or merely classify it as ‘de minimis aid’. It follows that, in this instance, the Latvian authorities could lawfully classify that compensation as ‘de minimis aid’.

59. Accordingly, I propose that the answer to the third question should be that a Member State may apply the de minimis ceiling referred to in Article 3(2) of the ‘fishery de minimis’ regulation to payments made available in respect of the damage caused to aquaculture in a Natura 2000 network area by wild birds protected under the ‘birds’ directive.

60. In the light of the foregoing considerations, I propose that the Court answer the questions for preliminary ruling referred by the Augstaka tiesa (Supreme Court, Latvia) as follows:

(1) The Court of Justice of the European Union does not have jurisdiction to answer the first question.

(2) The compensation awarded by a Member State for the losses caused to aquaculture in a Natura 2000 network area by birds protected under Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds constitutes an advantage that may constitute State aid within the meaning of Article 107(1) TFEU, provided that the other conditions laid down are fulfilled.

(3) A Member State may apply the de minimis ceiling referred to in Article 3(2) of Commission Regulation (EU) No 717/2014 of 27 June 2014 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the fishery and aquaculture sector to payments made available in respect of the damage caused to aquaculture in a Natura 2000 network area by wild birds protected under Directive 2009/147.

2 Commission Regulation of 27 June 2014 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid in the fishery and aquaculture sector (OJ 2014 L 190, p. 45; ‘the “fishery de minimis” regulation’).

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

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

5 Regulation of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council (OJ 2014 L 149, p. 1).

6 Commission Regulation of 18 December 2013 on the application of Articles 107 and 108 [TFEU] to de minimis aid (OJ 2013 L 352, p. 1).

7 Commission Regulation of 18 December 2013 on the application of Articles 107 and 108 [TFEU] to de minimis aid in the agriculture sector (OJ 2013 L 352, p. 9).

12 Regulation of the European Parliament and of the Council of 11 December 2013 on the common organisation of the markets in fishery and aquaculture products, amending Council Regulations (EC) No 1184/2006 and (EC) No 1224/2009 and repealing Council Regulation (EC) No 104/2000 (OJ 2013 L 354, p. 1).

13 Namely Article 30 of Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 (OJ 2013 L 347, p. 487).

15 OJ 2014 C 204, p. 1 (‘the Guidelines in the agricultural and forestry sectors’).

16 OJ 2015 C 217, p. 1 (‘the Guidelines in the fishery and aquaculture sector’).

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

18 See, to that effect, judgment of 22 May 2014, Érsekcsanádi Mezogazdasági (C-56/13, EU:C:2014:352, paragraph 48 and the case-law cited).

19 See, to that effect, judgment of 22 May 2014, Érsekcsanádi Mezogazdasági (C-56/13, EU:C:2014:352, paragraph 53 and the case-law cited).

20 See judgments of 16 March 2021, Commission v Poland (C-562/19 P, EU:C:2021:201, paragraph 27 and the case-law cited), and of 16 March 2021, Commission v Hungary (C-596/19 P, EU:C:2021:202, paragraph 33 and the case-law cited).

21 See judgments of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission (C-71/09 P, C-73/09 P and C-76/09 P, EU:C:2011:368, paragraph 94), and of 26 October 2016, Orange v Commission (C-211/15 P, EU:C:2016:798, paragraph 38).

22 See judgment of 4 March 2021, Commission v Fútbol Club Barcelona (C-362/19 P, EU:C:2021:169, paragraph 58 and the case-law cited).

23 See judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C-74/16, EU:C:2017:496, paragraph 66 and the case-law cited), and Opinions of Advocate General Kokott in Commission v Poland (C-562/19 P, EU:C:2020:834, point 32) and in Commission v Hungary (C-596/19 P, EU:C:2020:835, point 39).

24 See judgment of the General Court of 25 March 2015, Belgium v Commission (T-538/11, EU:T:2015:188, paragraph 76 and the case-law cited), upheld on appeal by the judgment of 30 June 2016, Belgium v Commission (C-270/15 P, EU:C:2016:489, paragraphs 36 and 37).

25 I note, moreover, that the obligations arising in particular from the application of the ‘birds’ directive are merely the indirect cause of the damage claimed by Satini-S, the direct cause of that damage being the passage of the protected birds. While the ‘birds’ directive prohibits the killing of those animals, I consider that that extreme remedy is only one – and probably not the most effective – of the measures that might be envisaged in order to protect stocks of farmed fish.

27 Judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415). I would observe, in passing, that compensation for the costs of public-service obligations, according to the criteria established in the ‘Altmark’ case-law, does not constitute a situation in which the finding that an economic advantage has been granted does not lead to the measure at issue being categorised as ‘State aid’ within the meaning of Article 107(1) TFEU (as observed in the judgment of 26 October 2016, Orange v Commission, C-211/15 P, EU:C:2016:798, paragraph 44), but rather a situation in which the undertaking providing public-service obligations does not enjoy a real financial advantage (see judgment of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C-71/09 P, C-73/09 P and C-76/09 P, EU:C:2011:368, paragraphs 90 to 92).

28 See judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415, paragraph 89).

29 See judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415, paragraphs 90 to 93). In fact, there is nothing in the case in the main proceedings to suggest, first of all, that the parameters on the basis of which the compensation is calculated were established ex ante in an objective and transparent manner; next, that the compensation does not exceed what is necessary to cover all or part of the costs incurred in the discharge of public-service obligations; and, last, that the undertaking was selected by means of a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least costs to the community, or that the level of compensation needed was determined on the basis of analysis of the costs which a typical undertaking, well run and adequately provided with means so as to be able to meet the necessary public-service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations. On the contrary, the referring court and the Latvian Government have made clear that the compensation at issue was not necessarily linked to – and might be greater than – the amount of the damage actually caused to aquaculture.

30 See judgment of 27 September 1988 (106/87 to 120/87, EU:C:1988:457, paragraphs 23 and 24).

31 Not forgetting the fact that, as stated by the referring court and the Latvian Government, the method used to calculate the compensation at issue took into account, principally, the surface area of the fish ponds and therefore did not correspond to the actual losses sustained by the owners, so that that compensation was not strictly linked to – and might be greater than – the amount of the damage actually caused to aquaculture.

32 See judgments of 27 March 1980, Amministrazione delle finanze dello Stato v Denkavit italiana (61/79, EU:C:1980:100, paragraphs 29 to 32), and of 10 July 1980, Amministrazione delle finanze dello Stato v Ariete (811/79, EU:C:1980:195, paragraph 15).

33 See judgment of the General Court of 1 July 2010, Nuova Terni Industrie Chimiche v Commission (T-64/08, not published, EU:T:2010:270, paragraphs 59 to 63 and 140 to 141).

34 By way of example, in the judgment of 23 March 2006, Enirisorse (C-237/04, EU:C:2006:197, paragraphs 46 to 48), the Court held that national legislation which merely ensures that the budget of an undertaking should not include a charge which, in a normal situation, would not have existed does not confer on that undertaking an advantage that may constitute State aid within the meaning of Article 107(1) TFEU. That case concerned a ‘double derogation’ arrangement, which, by reference to a first derogation from the general arrangement (the exceptional right of some members to withdraw), provided for a second derogation intended to neutralise the advantage conferred by the first derogation (a dispensation from reimbursement of the amount of the shares held by the members which had exercised the exceptional right to withdraw from the company in question).

35 Without wishing to encroach on the jurisdiction of the referring court, I shall merely state that, on the basis of the material supplied by that court, it seems to me that those conditions are prima facie satisfied in the present case. First, the compensation at issue was granted directly by State authorities, with the use of public resources; second, contrary to Ireland’s contention, that compensation is paid only to undertakings which, like Satini-S, were victims of losses caused to aquaculture in a Natura 2000 network area by birds protected under the ‘birds’ directive; and, third, as the market in aquaculture is open to competition and to trade between Member States, it is highly likely that that compensation is capable of distorting competition and affecting trade between Member States. If the facts as I thus see them were confirmed by the referring court, the inevitable conclusion would be that that compensation constitutes ‘State aid’ within the meaning of Article 107(1) TFEU.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Satini-S (State aid - Concept of 'advantage' - damage caused to aquaculture by protected wild birds - Opinion) [2021] EUECJ C-238/20_O (09 September 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C23820_O.html Cite as: [2021] EUECJ C-238/20_O, EU:C:2021:735, ECLI:EU:C:2021:735

Court of Justice of the European Communities (including Court of First Instance Decisions)