Lawyer Hans Sønderby questions why the state has not legally and financially secured the farmers by seeking the EU Commission’s approval in advance. He believes that the state’s recent application to the EU Commission for a new compensation scheme on lowland soil is a “legal confession case.”
Article published in Effektivt Landbrug on December 2, 2023
It is not like lawyer Hans Sønderby to say in this case: “What did I say?”
The case is too serious for that, as he fears that farming families may suffer serious financial damage now and in the future. But if it were up to him, this would be a case where it would be uttered.
Lawyer Hans Sønderby from Sønderby Legal, specializing in EU law, is furious on behalf of farmers that the state has not secured the farmers in due time against what he calls “being sent out on a legal ice floe in warm rubber boots.”
Hans Sønderby has for many years dealt with all sorts of agreements between public authorities and farmers. And it is a legal minefield, which is always extraordinarily more complicated than a simple handshake. And therefore, it does not surprise him that it has now come to light, after an assessment from the State Attorney, that hundreds of Danish farmers must pay back support to the Environmental Protection Agency for the removal of lowland soil. This concerns a total amount of DKK 9.6 million – with 11 percent interest, mind you – whereby many farmers now only stand to receive a fraction of the promised funds.
Warned from the start
The lawyer has warned against voluntary agreements from the beginning, and he advises that the state should always secure the EU Commission’s approval in advance.
– All actors in Danish agriculture should demand a legal quality check of all support schemes that the public lures or pushes with, to avoid the farmers ending up on the paper-thin legal and economic ice floe, he points out.
– I usually joke that the only set of rules I fear legally is the state aid rules, and the only agreements I legally despise are voluntary agreements with the public, because of the state aid rules, says Hans Sønderby and repeats his mantra:
– We advise farmers not to sign without a guarantee for the money, and that can only be given by the EU Commission.
– If the state had wanted to make voluntary agreements something that Danish farmers could calmly participate in, why did they not secure their legal position and assets by getting the EU Commission’s approval in advance. The Danish state is lying as it has made its bed. Namely, at the feet of the EU Commission, but it is reprehensible to let aid recipients become victims, as is risked here, he says.
Does not come as a surprise to Sønderby
It does not come as a surprise to Hans Sønderby that the Danish farmers have ended up as victims despite the fact that most probably inadvertently assumed that an agreement with the Danish authorities is an agreement one would be able to count on.
– It is too poor that this should even be discussed in agriculture, he says and continues:
– It should be a legal condition for any farmer and advisor to even consider agreements with the public that the support scheme is approved by the EU Commission in advance. If you want to harm agriculture, you just have to close your eyes. Those who may think that Danish agriculture should be closed down will then think that it is really good that the public enters into voluntary agreements with farmers. And that the state is then forced to withdraw the support afterwards, even though the obligation for the farmer remains.
– It is namely a serious legal danger to the farmers’ legal position and economy that the state leaves them in the lurch with support schemes without the EU Commission’s prior approval, says Hans Sønderby.
He emphasizes that this is not a lone swallow, and that the failure occurs in several areas. Also on action plans and BNBO. Here, there is also no approval from the EU Commission.
Hans Sønderby points out that for the EU Commission, the name of the support is of no importance.
– You can call it “support scheme”, “compensation” or “Christmas help” or something completely different. No matter what you call it, illegal EU support is illegal. It will trigger a dispute between the Danish government and the EU Commission, which we are currently seeing other countries challenge, but if I were an advisor to a small member state, I would advise against it, says Hans Sønderby.
– If we were to turn it upside down. How would we in Denmark feel if someone like Berlusconi had received a lot of funds for some land that he had long tried to get rid of, and which was rejected as illegal state aid. After which the Italian state just went in and gave him compensation on the grounds that he has been in good faith? My claim is that most Danes would have a very hard time with that, says the lawyer. When it comes to the others, we ourselves would insist that then it is just a matter of repaying illegal support. Therefore, the rules are so unpleasantly square as they are, he points out.
– U-turn is “legal confession”
Hans Sønderby refers to the latest announcement of November 22, where Minister Jacob Jensen’s ministry announced that it will establish a new compensation option for landowners on lowland soil for removal.
Hans Sønderby notes that in this scheme, the EU Commission is precisely being applied to for approval.
– In the world of law, we call that a “confession case”. If such an approval had been available, hundreds of farmers would not have been standing on an ice floe. Thus, the ministry acknowledges that the only way Danish farmers can be safe with voluntary agreements is for the state to have the EU Commission approve the support scheme in advance. This is only acted upon now, after years of sitting and watching while the farmers were pushed and lured into entering into voluntary agreements. The state has naturally known all along that the EU Commission’s approval is necessary. Because it is enshrined in the treaty.
Hans Sønderby will not rule out that an advisor who fails to warn about the risk of full or partial repayment may be liable for damages to some extent. It would perhaps be particularly obvious to consider in cases where the advisor has even encouraged entering into voluntary agreements that have not been approved by the Commission in advance, Hans Sønderby assesses.
– I hope that the whole of Danish agriculture will soon reach the point of setting as a legal condition for participating in current and future support schemes, including BNBO and action plans, that the EU Commission has approved them, says the lawyer.
Read the article via the link: Effektivt Landbrug 2. december 2023
