On 30 May 2024, the European Commission issued a Communication addressed to the European Council regarding force majeure and exceptional circumstances provided by the Regulation (EU) 2021/2116 of the European Parliament and of the Council on the financing, management and monitoring of the common agricultural policy.
The scope of the communication is to clarify the use of notion of force majeure and exceptional circumstances for the EU agricultural sector in the event of unpredictable and extreme meteorological events and aims to clarify Article 3(2) of Regulation (EU) 2021/2116, which allows the application of force majeure and exceptional circumstances on an area-by-area basis rather than on a case-by-case assessment.
The European Commission defines the concept of force majeure in accordance with the case law of the Court of Justice of the European Union: “It follows from settled case law in various areas of EU law that the concept of force majeure must be understood as meaning circumstances which are foreign to the person claiming them, unusual and unforeseeable, the consequences of which could not have been avoided despite the diligence shown“.
Force majeure allows farmers who are unable to meet the Common Agricultural Policy (CAP) requirements because of unforeseeable events (e.g. drought, floods) to avoid losing CAP support. The application of this concept is decided by Member States based on relevant evidence and EU agricultural legislation.
The concept of force majeure adopted by the agricultural regulations takes account of the specific nature of the public law relationship between operators and the national administration and the objectives of these regulations. Typically, a case-by-case check should be made to establish that a farmer is affected by force majeure.
Member States may assume that, where farmers in an area are affected by an unusual event whose consequences could not be prevented despite due diligence, the farmers concerned may invoke force majeure without the need for individual applications or verification that the conditions of force majeure have been met at individual level. However, Member States should establish the area concerned and the population affected by the event in the area in a way that allows a reasonable presumption that the farmers concerned individually fulfil the conditions of force majeure.
The European Commission consider that this extended scope will reduce the administrative burden for farmers and national authorities, thus facilitating a quick response from Member States.
To this end, Member States must first confirm the occurrence of a serious natural disaster or severe meteorological event and delimit the geographical area which has been seriously affected by the event. For this delimitation, Member States could rely, for instance, on satellite data or data of equivalent value on the area concerned without checking each individual establishment.
Furthermore, in accordance with the concept of force majeure, when determining the affected population, Member States should also consider the subjective element of force majeure, i.e. whether farmers affected by the serious natural disaster or severe climatic event could reasonably have taken effective measures to avoid the situation of non-compliance caused by the event, excluding those involving excessive losses.
In conclusion, this recent Communication from the European Commission to the European Council represents a significant effort to ensure the stability and resilience of the EU agricultural sector in the face of extreme circumstances and reaffirms the commitment to protect the interests of farmers and to ensure a uniform application of the Common Agricultural Policy in all Member States.
The Communication adopted by the Commission to the Council has more of a clarifying role. In practice, the Commission provides its own, but non-definitive, interpretation to assist Member States in the application of EU law.
