France and the EU Commission lose a case before the EU Court of Justice regarding whether authorities may enter private property without the owner’s consent. The EU Court of Justice establishes that, despite EU rules allowing unannounced inspections, the authorities were not allowed to enter without the farmer’s consent.
Read lawyer Hans Sønderby Christensen’s article published on Thursday, December 6, 2018, on Jyllands-Posten’s website here.
In its judgment, the EU Court of Justice establishes that the control authorities’ authority for unannounced inspections of whether the conditions for awarding EU subsidies are met does not authorise the control personnel to enter the agricultural holding without the farmer’s consent.
As part of the Common Agricultural Policy, the EU annually provides support and subsidies to a wide range of different areas. The EU subsidies are managed at national level in the member states, which are obliged to carry out controls and annual audits to ensure that the money is used in a transparent and responsible manner.
The case in question concerned the EU’s common market organisation for wine, where the member states are obliged – based on a number of principles laid down in the EU rules – to introduce controls to ensure that the subsidies are used correctly.
The case arose from the wine producer Château du Grand Bois’ (hereinafter the wine producer) rejection of an application for EU support for restructuring and conversion of its wine-growing areas for the production years 2008/2009. The background was that Établissement national de produits de l’agriculture et de la mer (national body for agricultural and fisheries products, France) (hereinafter the authority) had carried out an on-the-spot check, where the authority had found that the conditions for obtaining support were not met.
Subsequently, the Tribunal administratif de Nantes (Administrative Court in Nantes, France) (hereinafter the Administrative Court) annulled the authority’s rejection of the application. The authority appealed the decision, after which the Cour administrative d´appel de Nates (Court of Appeal in administrative cases in Nantes, France) (hereinafter the Court of Appeal) overturned the Administrative Court’s decision.
The wine producer appealed the Court of Appeal’s decision to the Conseil d´État (Supreme Court in administrative cases, France). It was the wine producer’s view that the fact that the authority had entered the agricultural property without permission during the unannounced inspection had an impact on the legality of the authority’s decision.
The Supreme Court in administrative cases chose to postpone the case and submit questions to the EU Court of Justice. The French court wished to establish whether the control personnel’s authorisation to carry out unannounced inspections also gave the authorities permission to enter an agricultural holding’s areas without having obtained consent from the farmer beforehand.
The EU Court of Justice initially noted that the EU law provisions regarding the allocation of support schemes within the wine sector are checked, where relevant, by on-the-spot checks. The checks are carried out unannounced, as prior notification can be given to the strictly necessary extent – however, on the condition that the purpose of the check is not jeopardised thereby.
Each individual member state is then obliged to introduce national schemes with unannounced inspections to check that the conditions for the support schemes in accordance with the EU law agricultural support rules are met. According to the EU rules, the controls must be effective, proportionate to the risk of fraud, and have a deterrent effect, so that they provide the Union’s financial interests with the necessary protection.
The EU Court of Justice then noted that it did not appear from the wording of the EU rules that the EU member states are subject to an obligation to arrange on-the-spot checks that authorise the control personnel to enter the agricultural holding without the farmer’s permission.
The fact that the checks are carried out unannounced cannot, according to the EU Court of Justice, either mean that the control personnel, when they have arrived without prior notification, can enter the agricultural holding without having obtained consent from the farmer. That is to say, according to the EU Court of Justice, a line cannot be drawn between access to unannounced inspection and access to enter without consent.
The EU Court of Justice thereby rejected the French government’s and the EU Commission’s argument that the farmer – simply by applying for the allocation of EU funds – implicitly gives a general, prior consent to the control personnel being able to enter the agricultural holding.
The EU Court of Justice then referred to the fact that the protection against public authorities’ intervention in matters of a private nature – whether it concerns persons or companies – and which are arbitrary or disproportionate, constitutes a general EU legal principle. The EU Court of Justice noted that such an intervention must be authorised and justified by reasons laid down by law.
The EU Court of Justice thereby concluded that the authorities’ access to unannounced inspection is not synonymous with the authorities being able to enter an agricultural holding without consent from the farmer. According to the EU Court of Justice, the farmer’s support can only exceptionally be denied if the farmer, by failing to give consent, directly prevents the implementation of the inspection. This means that the farmer will be able to invoke a number of legitimate reasons for failing to give consent.
The fundamental EU judgment has direct significance for European farmers, also outside France’s borders, who receive agricultural support every year, and who are therefore subject to authority control. An example is the EU law cross-compliance control, where the authorities can sanction the farmers with a percentage deduction in the EU support (cross-compliance deduction) if a number of EU requirements for the environment, animal welfare and good agricultural condition, etc., are not complied with.
With the present judgment, it is now expressly and clearly established that European control authorities in connection with, for example, cross-compliance control must respect that unannounced inspection does not in itself mean the right to enter an agricultural holding without the owner’s consent.