1. Ministry of ecology, sustainable development, transports and housing
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Article 38 and the State Aid guidelines agriculture and forestry sector
Clément JAUBERTIE
Ministry of ecology, sustainable development, transports and housing
April, 3th, 2012
Ministère de l'Écologie,
du Développement durable, des Transports et du Logement
DGALN - Direction de l'Eau et de la Biodiversité

2. Water Framework Directive
Member States (MS) shall implement the necessary measures to prevent deterioration of the status of all water bodies
Diffuse pollution is a key issue for the achievement of WFD environmental objectives
Art 11 : Each MS shall ensure the establishment for each river basin district, or for the part of an international river basin district within its territory, of a program of measures (PoM)
“Basic” measures (paragraph 3)
“Supplementary” measures (paragraph 4)
Some measures of PoM may involve aid allocated to farmers
Mainly based on Reg (EC) n°1698/2005 (advisory services, agri-environment payments, investment in physical assets)
Could be not sufficient enough particularly in protected areas
DGALN - Direction de l'Eau et de la Biodiversité

3. Presentation of Art 38 implementation provisions – Reg (EC) n°108/2010
To compensate farmers for the disadvantages resulting from the implementation of the WFD
Requirements stemming from other Community legislations for the protection of water fall out the scope of Art.38
Annual area related payment
500 €/ha/year for the 5 first years
200 €/ha/year after
Min. 50€/ha
Possibility of derogation for duly justified cases
Compensation for the additional cost and income foregone resulting from the disadvantages introduced by the WFD
Article 38 does not cover voluntary measures
Article 38 does not cover investments and related operations
The use of Art 38 by MS in their RDP requires the PoM to be established
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4. Implementation of Art 38 of Reg (EC) n°108/2010
France situation :
strategic guidelines adopted in France for RDP do not offer possibility of financing this measure with national EAFRD fund
Only national funding could be mobilized for Art 38 measures
Inconsistency between State Aid guidelines and Art 38 Reg (EC) 108/2010
Art 38 : “compensate beneficiaries permanent disadvantages due to the obligation to comply with the specific requirements for achieving the environmental objective of WFD”
State Aid (§ 59 & 60) : payments granted as compensation for an environmental constraint must be exceptional, temporary and digressive if they do not comply with the polluter pays principle
DGALN - Direction de l'Eau et de la Biodiversité

5. Aims of French Ministry of Ecology
using the tool defined in Article 38 in order to compensate :
farmers affected by the mandatory implementation of measures,
in some specifics areas,
already in 2013,
with national fund
Out of Art 38, recognize the environmental services of agriculture and allow public subsidy for such service, without distortion of competition rules
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6. Thank you for your attention !
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