Dear Mr Bonde,Reference is made to your letter of 15 January 2013 (Ares (2013)104770) in which youask for the opinion of the Commission services on the possible consequences of a recentannulment of the Danish River Basin Management Plans (RBMPs) for theimplementation of a measure in the Danish RDP under Article 38 of Regulation (EC) No1698/2005.In your letter the following background information is provided:• The 23 RBMP under the Water Framework Directive (WFD) for Denmark wereadopted on 22 December 2011.• As part of the implementation of Article 11(4) of the WFD, 10-metre wide cultivation,spraying and fertiliser free buffer zones have been established along all watercoursesand lakes above 100 m2in Denmark. The buffer zone requirement is implementedthrough an Act of Parliament which went into force on 1 September 2012.• In order to provide compensation to farmers for the disadvantages resulting from thebuffer zone requirement a measure was introduced into the RDP in 2012 inaccordance with Article 38 of Regulation (EC) No 1698/2005. Under this measurefarmers will be able to claim compensation for the period beginning at the enteringinto force of the requirement on 1 September 2012. Applications for compensationshould be submitted in spring 2013 and payments are expected to fall due by the endof2013.• On 6 December 2012 the Environmental Board of Appeals (ЕВА) declared theRBMPs null and void. The Decision of the ЕВА was based solely on the fact that theMinisteriet for Fødevarer, Landbrug og FiskeriNaturErhvervsstyrelsenCenter for Arealtilskud - BæredygtighedAtt.: Enhedschef Steen BONDENyropsgade 301780 KØBENHAVN VDANEMARK

time period fixed for a supplementary public hearing in 2011 (8 days) was too shortand thus contrary to Section 30 of the Environmental Aims Act.• As a consequence of the decision of the ЕВА, the Danish authorities will now carryout a supplementary public hearing and subsequently adopt a new decision concerningnew RBMPs. This decision is expected in the first half of 2013.• In the meantime the Buffer Zone Act remains in force, as the EBA's decision to annulthe RBMPs does not affect the validity of the Act.On this basis the question raised is to which extent the compensation scheme underArticle 38 of Regulation (EC) No 1698/2005 is linked to the existence of valid RBMPsand, more specifically, if the annulment of the RBMPs might be considered to precludethe applicability of the compensation scheme.In the letter three scenarios are presented:(1)No consequence: The measure can be applied irrespective of the existence ofRBMPs.Temporary non-compliance: The compensation scheme is temporarily not incompliance with the Regulations, but the situation can be repaired by the adoptionof new RBMPs. The scheme can be applied as provided for in the RDP.Compensation can still cover the whole period from September 2012. Nopayments will be made before the new RBMPs are in place.Annulment/need for resubmission: The compensation scheme is considered not tohave been approved by the Commission. Denmark will have to resubmit aprogramme modification to reinsert the measure in the RDP. In this case thescheme can be applied as provided for in the new measure. Compensation canstill cover the whole period from September 2012. No payments will be madebefore the new RBMPs are in place.

Thefirst Scenariowould require that there is no legal link between the Article 38measure and the existence of valid RBMPs. However, such a link clearly does exist.Indeed, your letter quotes several provisions of Regulation (EC) No 1698/2005 andRegulation (EC) No 1974/2006 to this effect.Regulation (EC) No 1698/2005:Article 50(5):agricultural areas included in river basin management plans accordingto Directive 2000/60/EC shall be eligible for payments provided for in Article 36(a)(iii)Regulation (EC) No 1974/2006:Article 26a (2)(a): Support pursuant to Article 38(1) of Regulation (EC) No1698/2005 linked to Directive 2000/60/EC shall be provided only with regard to thecost incurred and the income foregone that result from disadvantages related tospecific requirements that were introduced by Directive 2000/60/EC, are inaccordance with the programmes of measures of the river basin management plansfor the purpose of achieving the environmental objectives of that Directive and go

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beyond the measures required to implement other Union legislation for theprotection of water.Article 34(1):Agricultural areas referred to in Article 50(5) of Regulation (EC) No1698/2005, which are included in river basin management plans in accordance withDirective 2000/60/EC, shall be eligible for payments pursuant to Article 38 ofRegulation (EC) No 1698/2005 if a relevant river basin management plan isestablished and implemented in those areas.In relation to thesecond scenario,it should first be recalled that under the principle ofshared management, it is for the Member State to take all the measures necessary toensure that subsidies are granted correctly and to prevent and deal with irregularities. Inthis context, your suggested approach would seem possible, provided the followingconditions are fulfilled, i.e. that:• the envisaged RBMPs can indeed be adopted with retroactive effect, as describedin your letter;• continuity of the conditions set out with regard to this measure in the annulledand the new RBMPs will be ensured;• the restrictions for which compensation is paid under the measure remain inplace, i.e. the requirements for which beneficiaries will be compensated as ofSeptember 2012 under the envisaged new RBMPs should be the same as thoserequirements for which beneficiaries would have been compensated as ofSeptember 2012 in the absence of an annulment of the RBMPs and that there wasno interruption of implementation of these restrictions;• and that the necessary controls are carried out as required under Regulation (EU)No 65/2011 for the whole period.In relation to thethird scenario,please note that Article 19(1) of Regulation (EC) No1698/2005 establishes the general rule that rural development programmes can beadapted for the remainder of the programming period (i.e. in principle without retroactiveeffect). Any such adaptation would then be assessed by the Commission services on thebasis of the information to be included in the modification proposal, and such assessmentcannot be prejudged by the present letter.The present opinion is provided on the basis of the facts as set out in your letter of 15January 2013 and on the understanding that in the event of a dispute involving Union lawit is, under the Treaty on the Functioning of the European Union, ultimately for theEuropean Court of Justice to provide a definitive interpretation of the applicable Unionlaw.Yours sincerely,