Commission Delegated Regulation (EU) 2023/330 of 22 November 2022 amending and correcting Delegated Regulation (EU) 2022/126 supplementing Regulation (EU) 2021/2115 of the European Parliament and of the Council with additional requirements for certain types of intervention specified by Member States in their CAP Strategic Plans for the period 2023 to 2027 under that Regulation as well as rules on the ratio for the good agricultural and environmental conditions (GAEC) standard 1

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2021/2115 of the European Parliament and of the Council of 2 December 2021 establishing rules on support for strategic plans to be drawn up by Member States under the common agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulations (EU) No 1305/2013 and (EU) No 1307/2013 ¹, and in particular Article 45, points (a) to (e), thereof,

Whereas:

• (1) Commission Delegated Regulation (EU) 2022/126 ² provides additional requirements for the design of the interventions to be specified in the CAP Strategic Plans of Member States. Some of those requirements need to be clarified and corrected in order to provide legal certainty to Member States and beneficiaries for the design and implementation of their CAP Strategic Plans and types of interventions.

• (2) In accordance with Article 12(3) of Delegated Regulation (EU) 2022/126, Member States are to take into account the additional costs incurred and income forgone resulting from the implementation of interventions related to agri-environment-climate objectives, when determining the expenditure to be covered. Considering that the total cost of expenditure is covered in case of investments in tangible and intangible assets and therefore, no differential costs exist, these investments shall not be taken into account when determining the expenditure to be covered resulting from interventions related to agri-environment-climate objectives.

• (3) Article 14 of Delegated Regulation (EU) 2022/126 lists the objectives of promotion, communication and marketing interventions, among which increasing consumer awareness of brands or trademarks of producer organisations, associations of producer organisations, transnational producer organisations, transnational associations of producer organisation. Those interventions should be extended to the subsidiaries of those organisations as provided in the previous regime under Commission Delegated Regulation (EU) 2017/891 ³.

• (4) In addition, a new objective should be added in the list of objectives laid down in Article 14 of Delegated Regulation (EU) 2022/126 in order to include the specific and sectoral objectives laid down in Article 6(1), point (i), and Article 46, point (i), respectively of Regulation (EU) 2021/2115.

• (5) Furthermore, it should be made clear in a separate paragraph of Article 14 of Delegated Regulation (EU) 2022/126 that the obligation to display the Union emblem and the funding statement applies to generic promotion and to the promotion of quality schemes. It is therefore necessary to replace the whole Article 14 by a new text.

• (6) As regards ‘green harvesting’ intervention as referred to in Article 17 of Delegated Regulation (EU) 2022/126, contrary to what is provided for in paragraph 8, point (b), of that Article, Member States must ensure that the harvested products are denatured in order to avoid that they are entering the market chain again. That provision should therefore be corrected accordingly.

• (7) In order to guarantee a safe and sound management of Union funds, it is appropriate to provide that payment of support should be based on reasonable actual costs incurred by the beneficiary. Article 21(1) of Delegated Regulation (EU) 2022/126 should be amended accordingly.

• (8) Considering some interventions may contribute to agri-environment-climate objectives or to research, development and sustainable production methods objectives but also to other objectives, it must be clarified how Member States are to consider these interventions as being exclusively linked to those objectives and are to count these interventions as contributing to the 15 % and 2 % of expenditure linked to agri-environment-climate objectives or to research, development and sustainable production methods objectives. For simplification purposes, expenditure linked to interventions contributing significantly and directly to agri-environment-climate objectives should be considered as contributing exclusively to those objectives. Article 22(4) of Delegated Regulation (EU) 2022/126 should be amended accordingly.

• (9) In order to clarify how Member States are to count the contribution of interventions to the objectives laid down in Article 46, points (a) to (k), of Regulation (EU) 2021/2115 and in Article 57, points (a) to (k), of that Regulation, specific rules should be established in respect of the time period to be considered. Therefore, a new paragraph should be added in Article 22 of Delegated Regulation (EU) 2022/126.

• (10) As regards the expenditure paid for administrative and personnel costs, Article 23(1), fifth subparagraph, of Delegated Regulation (EU) 2022/126 provides incorrectly for a limit of 50 % of the overall cost for ‘marketing actions and activities’. Therefore, that provision should be corrected accordingly.

• (11) Article 26(1) and Article 27(2), third subparagraph, of Delegated Regulation (EU) 2022/126 contain rules on the maximum level of Union financial assistance for market withdrawals, in particular as regards withdrawals for free distribution of processed fruits and vegetables listed in Annex V to that Delegated Regulation made from withdrawn products. Following Member States’ concerns on the implementation of those rules, those provisions should be clarified. With a view to avoiding any possible overcompensation, the financial support should be based, among others, on the average ‘ex-producer organisation’ market price of the products concerned at fresh stage level and not at processing level. In addition, payment in kind for free distribution of products withdrawn undergoing processing should only compensate for the processing costs. Transport costs should be excluded at this stage from the calculation of the level of Union financial assistance for market withdrawals.

• (12) Article 31 of Delegated Regulation (EU) 2022/126 lays down rules on the calculation of the value of marketed production as regards sectors referred to in Article 42, points (a), (e) and (f), of Regulation (EU) 2021/2115. However, the obligation set out in Article 31(2), first subparagraph, of Delegated Regulation (EU) 2022/126 requiring Member States to indicate in their CAP Strategic Plans how the value of marketed production is calculated for each sector should not apply to the fruit and vegetables sector. Furthermore, Article 31(7) of Delegated Regulation (EU) 2022/126 should provide for the possibility to calculate the value of marketed production in the case where a subsidiary is co-owned by more than one organisation.

• (13) With a view to avoiding distortion of competition in the internal market between members of transnational producer organisations or transnational associations of producer organisations, identical conditions and rules should apply to all members of those organisations irrespective of their geographical location. It is therefore appropriate to provide that the conditions and rules established by the Member State where the organisation has its head office should apply. Therefore, a new provision should be established in Delegated Regulation (EU) 2022/126.

• (14) Amounts fixed for conditioning costs for market withdrawals for free distribution in the fruit and vegetables sector should not be considered as lump sums but rather as maximum amounts. Therefore, Article 33 of Delegated Regulation (EU) 2022/126 should be amended accordingly.

• (15) With the view to allowing public schools in vitiviniculture that are also wine growers to benefit from interventions in the wine sector, Article 40(3) should be amended accordingly.

• (16) Annex II to Delegated Regulation (EU) 2022/126 lists non-eligible types of expenditures for sectoral interventions referred to in Article 42 of Regulation (EU) 2021/2115. Conditions relating to the non-eligibility of certain types of expenditures should be clarified in order to delimit the scope of that Annex. Annex II should therefore be amended.

• (17) Since this Regulation lays down rules on sectoral interventions, it should apply as from 1 January 2023, to ensure a level playing field and legal certainty for Member States and beneficiaries concerned by those sectoral interventions.

• (18) Delegated Regulation (EU) 2022/126 should therefore be amended and corrected accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Amendments to Delegated Regulation (EU) 2022/126

Delegated Regulation (EU) 2022/126 is amended as follows:

• (1) in Article 12, paragraph 3 is replaced by the following:

‘3.   When determining the expenditure to be covered, except for investments in tangible and intangible assets, Member States shall take into account the additional costs incurred and income foregone resulting from interventions linked to agri-environment-climate objectives, and the targets set.’

;

• (2) Article 14 is replaced by the following:

‘Article 14

Promotion, communication and marketing

1. When Member States include, in their CAP Strategic Plans, promotion, communication and marketing interventions in the fruit and vegetables sector, in the wine sector, in the hops sector, in the olive oil and table olives sector or in other sectors referred to in Article 42, point (f), of Regulation (EU) 2021/2115, they shall provide in their CAP Strategic Plans that the interventions covered pursue one of the following objectives:

• (a) increasing awareness of the merits of Union agricultural products and of the high standards applicable to their production methods in the Union;

• (b) increasing the competitiveness and consumption of Union agricultural products and certain processed products produced in the Union and raising their profile both inside and outside the Union for sectors other than wine;

• (c) increasing awareness about Union quality schemes both inside and outside the Union;

• (d) increasing the market share of Union agricultural products and certain processed products produced in the Union, specifically focusing on the markets in third countries that have the highest growth potential;

• (e) contributing, where relevant, to restore the normal market conditions in the Union market in the event of serious market disturbance, loss of consumer confidence or other specific problems;

• (f) increasing awareness of sustainable production;

• (g) increasing consumer awareness of brands or trademarks of producer organisations, associations of producer organisations, transnational producer organisations, transnational associations of producer organisation and their subsidiaries within the meaning of Article 31(7) of this Regulation in the fruit and vegetables sector;

• (h) diversifying, opening and consolidating the markets for Union wines in third countries and increasing awareness of the intrinsic qualities of Union wines on those markets. A reference to wine origin and brands may only be used when it complements the promotion, communication and marketing of Union wines in third countries;

• (i) informing consumers about the responsible consumption of wine;

• (j) increasing consumption of fresh or processed fruit and vegetables by improving consumer awareness on healthy diets, nutritious characteristics of the product, its high quality and its safety.

1. Member States shall ensure that promotional material for generic promotion and promotion of quality labels, bears the Union emblem and include the following funding statement: ‘Funded by the European Union’. The Union emblem and the funding statement shall be displayed in accordance with the technical characteristics laid down in Commission Implementing Regulation (EU) No 821/2014[^ntr*1-L_2023044EN.01000101-E0004].

[^ntr*1-L_2023044EN.01000101-E0004]: Commission Implementing Regulation (EU) No 821/2014 of 28 July 2014 laying down rules for the application of Regulation (EU) No 1303/2013 of the European Parliament and of the Council as regards detailed arrangements for the transfer and management of programme contributions, the reporting on financial instruments, technical characteristics of information, communication and visibility measures for operations and the system to record and store data (OJ L 223, 29.7.2014, p. 7).’;"

• (3) in Article 21(1), the first subparagraph is replaced by the following:

‘In the sectors referred to in Article 42 of Regulation (EU) 2021/2115, Member States shall provide for payments of support on the basis of the reasonable actual costs incurred by the beneficiary, supported by documents, such as invoices, submitted by the beneficiaries for the implementation of an intervention specified in their CAP Strategic Plan.’;

• (4) Article 22 is amended as follows:

• (a) in paragraph 4, the following subparagraph is added:

‘Expenditure linked to interventions referred to in Articles 11 and 12 of this Regulation pursuing agri-environment-climate objectives, but not exclusively, shall be considered as being exclusively linked to those objectives provided that those interventions contribute directly and significantly to those objectives. The full expenditure shall be counted against the 15 % and the 2 % of expenditure under operational programmes as referred to in Article 50(7), points (a) and (c), of Regulation (EU) 2021/2115, respectively, and against the 5 % of expenditure under interventions as referred to in Article 60(4) of that Regulation.’;

• (b) the following paragraph is added:

‘5.   Expenditure linked to interventions referred to in Title III, Chapter III, of Regulation (EU) 2021/2115 contributing to objectives laid down either in Article 46, points (a) to (k), or in Article 57, points (a) to (k), of that Regulation, shall be counted taking into account the entire duration period of operational programmes in the case of the types of interventions referred to in Article 42, points (a), (d), (e) and (f), of that Regulation or each financial year in the case of the types of interventions referred to in Article 42, point (c), of that Regulation.’

;

• (5) in Article 26, paragraph 1 is replaced by the following:

‘1.   For the type of intervention ‘market withdrawal for free distribution or other destinations’ referred to in Article 47(2), point (f), of Regulation (EU) 2021/2115, in relation to fruit and vegetables listed in Annex V to this Regulation, the conditioning costs of products withdrawn for free distribution referred to in Article 33 of this Regulation, added to the amount of support for market withdrawals, shall not exceed 80 % of the average ‘ex-producer organisation’ market price of the product concerned at fresh stage in the previous last 3 years.’

;

• (6) in Article 27(2), the third subparagraph is replaced by the following:

‘Member States may authorise payment in kind by the beneficiaries of free distribution to processors of products withdrawn from the market and undergoing processing, where such payment only compensates for processing costs and where the Member State in which the payment takes place has adopted rules ensuring that the processed products are intended for consumption by the final recipients referred to in the first subparagraph of this paragraph. The limit laid down in Article 26(1) shall apply.’;

• (7) Article 31 is amended as follows:

• (a) in paragraph 2, the first subparagraph is replaced by the following:

‘The value of marketed production shall be calculated at fresh stage or the first processing stage on which the product is normally marketed, in bulk where products are allowed to be marketed in bulk, and shall not include the cost of further processing or further conditioning or the value of final processed products. For the sectors referred to in Article 42, points (e) and (f), of Regulation (EU) 2021/2115, Member States shall indicate in their CAP Strategic Plans how the value of marketed production is calculated for each sector.’;

• (b) in paragraph 7, point (a) is replaced by the following:

• ‘(a) by one or more producer organisations, associations of producer organisations, transnational producer organisations, transnational associations of producer organisations or producer groups; or’;

• (8) in Title III, Chapter II, the following Section is added:

‘Section 4

Types of interventions implemented by transnational producer organisations and transnational associations of producer organisations

Article 32a

Rules applying to types of interventions implemented by transnational producer organisation and transnational associations of producer organisations

Types of interventions under operational programmes implemented by transnational producer organisation and transnational associations of producer organisations shall comply with the national strategic plan and the national rules of the Member State, where the head office of the transnational producer organisation or the transnational association of producer organisation is located in accordance with Article 14 or 21 of Commission Delegated Regulation (EU) 2017/891[^ntr*2-L_2023044EN.01000101-E0005].

[^ntr*2-L_2023044EN.01000101-E0005]: Commission Delegated Regulation (EU) 2017/891 of 13 March 2017 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011 (OJ L 138, 25.5.2017, p. 4).’;"

• (9) Article 33 is replaced by the following:

‘Article 33

Conditioning costs for free distribution

The payments of expenditure to the producer organisation, association of producer organisations, transnational producer organisation, transnational association of producer organisations related to the costs of conditioning of fruit and vegetables withdrawn from the market for free distribution under operational programmes shall not exceed the amount of the costs set out in Annex VII.

The first paragraph shall not apply to fruits and vegetables withdrawn from the market where the free distribution takes place after their processing.’

;

• (10) in Article 40(3), a new point (c) is added as follows:

• ‘(c) for interventions as referred to in Article 58(1) of Regulation (EU) 2021/2115, implemented by public schools in vitiviniculture that are also wine growers.’;

• (11) in Annex II, Part I is amended as follows:

• (a) point (2) is replaced by the following:

• ‘2. Reimbursement of loans taken out for an intervention which started to be implemented before the beginning of the operational programme.’;

• (b) point (12) is replaced by the following:

• ‘12. Interventions referred to in Article 11 not taking place on the holdings and/or premises of the producer organisation, association of producer organisations, or their producer members, or a subsidiary, or an entity within a chain of subsidiaries within the meaning of Article 31(7), or subject to Member State’s approval, by a cooperative which is member of a producer organisation.’.

Article 2

Corrections to Delegated Regulation (EU) 2022/126

Delegated Regulation (EU) 2022/126 is corrected as follows:

• (1) in Article 17(8), point (b) is replaced by the following:

• ‘(b) the harvested products are denatured;’;

• (2) in Article 23(1), the fifth subparagraph is replaced by the following:

‘For the interventions ‘promotion, communication’ and ‘communication actions’ referred to in Article 47(1), point (f), and (2), point (l), of Regulation (EU) 2021/2115 and for the actions undertaken by interbranch organisations and promotion and communication carried out in third countries as referred to in Article 58(1), first subparagraph, points (i), (j) and (k), of that Regulation, the expenditure paid for administrative and personnel costs directly incurred by the beneficiaries shall not exceed 50 % of the overall cost of the intervention.’.

Article 3

Entry into force and application

This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.

It shall apply from 1 January 2023.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 November 2022.

For the Commission

The President

Ursula VON DER LEYEN