Current legal challenges in identifying and penalising the creation of artificial conditions to obtain payments under the EU’s Common Agricultural Policy

Abstract

This study examines the identification and sanctioning, within Polish administrative and judicial practice, of beneficiaries creating so-called ‘artificial conditions’ under the European Union’s Common Agricultural Policy, as referred to in Article 4(3) of Regulation No 2988/95, Article 60 of Regulation No 1306/2013, and Article 62 of Regulation No 2021/2116. Two hypotheses relating to the Agency for Restructuring and Modernisation of Agriculture’s law enforcement practice are tested. One is that excluding the application of fundamental administrative procedure principles (Articles 7, 9, 10, 75(1), 77(1), 79a and 81 of the Code of Administrative Procedure) from the Agency’s proceedings infringes the right to good administration under Article 41 of the Charter of Fundamental Rights of the European Union. The other is that the prevailing punitive interpretation in Poland, leading to the complete deprivation of support for beneficiaries creating ‘artificial conditions,’ is contrary to EU regulations and the principle of proportionality. In the context of the reference for a preliminary ruling submitted by the Supreme Administrative Court (Case I GSK 1486/22), the author advocates a corrective interpretation. According to this approach, establishing artificial conditions should result in the withdrawal only of the portion of aid constituting an unjustified surplus, rather than the entirety of the support granted.