Definitions
For the purposes of this Chapter, the definitions in Title IV, Chapter IV of Regulation (EU) 2021/2116 shall apply.
The following definitions shall also apply:
(a)
‘non-compliance’ means: non-compliance with the statutory management requirements under Union legislation referred to in Article 12(4) of Regulation (EU) 2021/2115, or with the standards for good agricultural and environmental condition of land set by the Member States in accordance with Article 13 of that Regulation;
(b)
‘standards’ means any of the standards as set by the Member States in accordance with Article 13 of Regulation (EU) 2021/2115;
(c)
‘year of the finding’ means the calendar year in which the administrative or on-the-spot check was carried out;
(d)
‘areas of conditionality’ means any of the three different areas referred to in Article 12(1) of Regulation (EU) 2021/2115.
General principles concerning non-compliances
1. For the purpose of determining the reoccurrence of a non-compliance, non-compliances with the rules of cross-compliance determined in accordance with Delegated Regulation (EU) No 640/2014 shall be taken into account.
2. The ‘extent’ of a non-compliance shall be determined taking account, in particular, whether the non-compliance has a far-reaching impact or whether it is limited to the farm itself.
3. The ‘severity’ of a non-compliance shall depend, in particular, on the importance of the consequences of the non-compliance taking account of the aims of the requirement or standard concerned.
4. Whether a non-compliance is of ‘permanence’ shall depend, in particular, on the length of time for which the effect lasts or the potential for terminating those effects by reasonable means.
5. For the purposes of this Chapter, non-compliances shall be deemed to be ‘determined’ if they are established as a consequence of any kind of controls carried out in accordance with Regulation (EU) 2021/2116 or after having been brought to the attention of the competent control authority or, where applicable, the paying agency, in whatever other way.
General principles of administrative penalties
1. The administrative penalty provided for in Article 84(1) of Regulation (EU) 2021/2116 shall only be imposed if a non-compliance is found within 3 consecutive calendar years calculated from and including the year where the non-compliance occurred.
2. Where the same non-compliance is occurring continuously throughout several calendar years, an administrative penalty shall be applied for each calendar year in which the non-compliance occurred. The administrative penalties shall be calculated on the basis of the payments granted or to be granted to the beneficiary concerned in respect of aid applications or payments claims that have been submitted or will be submitted in the course of the calendar years in which the non-compliance occurred.
3. Where in the calendar year of the finding the beneficiary does not submit an aid application or the administrative penalty exceeds the total amount of the payments granted or to be granted to the beneficiary in respect of aid applications that the beneficiary has submitted or will submit in the course of the calendar year of the finding, the administrative penalty shall be recovered in accordance with Article 30 of Commission Implementing Regulation (EU) 2022/128 ( 10 ) .
Percentages of reductions in the case of non-intentional non-compliance
1. For determined non-intentional non-compliances the paying agency may decide, on the basis of the assessment of the non-compliance provided by the competent control authority taking into account the criteria referred to in Article 85(1), second subparagraph, of Regulation (EU) 2021/2116, to decrease the percentage laid down in Article 85(2) of that Regulation to up to 1 %.
2. Where a determined non-intentional non-compliance has grave consequences for the achievement of the objective of the standard or requirement concerned or constitutes a direct risk to public or animal health, the paying agency may decide, on the basis of the assessment of the non-compliance provided by the competent control authority taking into account the criteria referred to in Article 85(1), second subparagraph, of Regulation (EU) 2021/2116, to increase the percentage referred to in Article 85(5) of that Regulation to up to 10 %.
3. Where a determined non-intentional non-compliance with the same requirement or standard persists within 3 consecutive calendar years, the percentage of reduction laid down in Article 85(6), first subparagraph, of Regulation (EU) 2021/2116 shall apply only where the beneficiary has been informed of the previous determined non-compliance. Where the same non-compliance further persists without justified reason by the beneficiary it shall be considered to be a case of intentional non-compliance.
4. Where a determined non-compliance has no or only insignificant consequences for the achievement of the objective of the standard or requirement concerned and no administrative penalty is imposed in accordance with Article 85(3), first subparagraph, of Regulation (EU) 2021/2116, the non-compliance shall not be considered for the purpose of determining the reoccurrence or persistence of a non-compliance.
5. Where a Member State uses the area monitoring system referred to in Article 66(1), point (c), of Regulation (EU) 2021/2116 to detect cases of non-compliance, the reduction to be imposed for determined non-intentional non-compliances may be lower than the reduction provided for in paragraph 1 of this Article, but at least 0,5 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of that Regulation.
Percentages of reductions in the case of intentional non-compliance
The percentage reduction for a determined intentional non-compliance shall be at least 15 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of Regulation (EU) 2021/2116. On the basis of the assessment of the non-compliance provided by the competent control authority taking into account the criteria referred to in Article 85(1), second subparagraph, of that Regulation the paying agency may decide to increase that percentage to up to 100 %.
Calculation of reductions for several non-compliances in the same calendar year of occurrence
1. Where a determined non-compliance with a standard also constitutes a non-compliance with a requirement, the non-compliance shall be considered to be one single non-compliance. For the purpose of the calculation of reductions, the non-compliance shall be considered as part of the area of conditionality of the requirement.
2. Where more than one determined non-recurring non-intentional non-compliances have occurred in the same calendar year, the procedure for the fixing of the reduction shall be applied individually to each non-compliance and the resulting percentages shall be added together. However the total reduction shall not exceed:
(a)
5 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of Regulation (EU) 2021/2116 where none of the non-compliances has grave consequences for the achievement of the objective of the standard or requirement concerned or constitutes a direct risk to public or animal health; or,
(b)
10 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of Regulation (EU) 2021/2116 where at least one non-compliance has grave consequences for the achievement of the objective of the standard or requirement concerned or constitutes a direct risk to public or animal health.
3. Where more than one determined recurring non-intentional non-compliance has occurred in the same calendar year, the procedure for the fixing of the reduction shall be applied individually to each non-compliance and the resulting percentages of reductions shall be added together. However, the reduction shall not exceed 20 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of Regulation (EU) 2021/2116.
4. Where more than one determined intentional non-compliance have occurred in the same calendar year the procedure for the fixing of the reduction shall be applied individually to each non-compliance and the resulting percentages of reductions shall be added together. However, the reduction shall not exceed 100 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of Regulation (EU) 2021/2116.
5. Where multiple instances of non-intentional, recurring and intentional non-compliance have occurred in the same calendar year, the resulting percentages of reductions, and where relevant after the application of paragraphs 2, 3 and 4 of this Article, shall be added together. However, the reduction shall not exceed 100 % of the total amount resulting from the payments and support referred to in Article 83(1), points (a), (b) and (c), of Regulation (EU) 2021/2116.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
