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From: Hendrik Viaene Sent: vrijdag 4 maart 2011 7: 09 Subject

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From: Hendrik Viaene
Sent: vrijdag 4 maart 2011 7:09
Subject: PN 254/2009 - Now N308/2010

Dear members of the case team,


We refer to our phone call of February 21. Having again examined the replies of the Dutch authorities by letter of 4 February 2011 to the questions raised by the Commission in its letter of 17 December 2010, we do not wish to reiterate at length the reservations of the Vereniging Gelijkberechtiging Grondbezitters ('VGG', 'Association for Equal Rights for Landowners') in relation to the notified subsidy scheme for the acquisition of land (N308/2010) . The concerns of the VGG were extensively spelled out in previous submissions to the Commission (see a.o. the observations of the VGG of 8 December 2009, 1 September 2010 and 8 November 2010). Instead, we briefly wish to assert that the replies of the Dutch authorities are - in our view - off-the-mark and fail to alleviate the aforementioned reservations.


As far as the Commission's first question is concerned, the Dutch Minsitry of Economic Affairs, Agriculture and Innovation (ELI) merely insists that there is, strictly speaking, no risk of cumulation between the subsidy scheme for the acquisition of nature land, the subsidy scheme for nature management, and the subsidy scheme for the transformation of agricultural land into nature land. Thus, it is stressed that beneficiaries of a subsidy for the acquisition of agricultural land are excluded from the subsidy scheme for the transformation of agricultural land into nature land. However, the Dutch authorities do not deny that it is perfectly possible that a farmer receives a subsidy compensating the loss of value resulting from the transformation of agricultural land into nature land; that he subsequently sells the transformed land to a buyer who enjoys a 100% acquisition subsidy, and; that, on top of this, the buyer of the nature land can additionally benefit from a nature management subsidy. In this context, given the pre-existing subsidy schemes for nature management and for the transformation of agricultural land into nature land, the Dutch authorities fail to properly explain why there is need for a third subsidy scheme, compensating the full acquisition cost of nature land. No justification whatsoever is provided as to the added value of the notified subsidy scheme. Neither has ELI brought forward any elements dispelling our concerns regarding the price-increasing effect of the notified scheme.


In relation to the Commission's second question, ELI acknowledges that no transparent and objective criteria have been defined to decide whether subsidy applicants have the necessary expertise to manage certain 'nature management types' in the sense of Article 2 of the notified scheme. According to ELI, it is clear that the provincial authorities will have to motivate decisions rejecting subsidy applications . Moreover, it is stressed that rejection decisions can be appealed against. Against this, however, the VGG insists that, absent pre-determined objective criteria, and irrespective of any appeal option, the provincial authorities will have broad discretion in deciding who qualifies as a beneficiary and who doesn't. On the basis of its past experiences, the VGG therefore holds legitimate fears of continued preferential treatment of the TBOs (Terreinbeherende Organisaties) as opposed to other private landowners.


Other observations submitted by the VGG in its letter of 8 November 2010 (e.g., in relation to the 'tailor-made' application of the exemption option of Article 18(4) of the subsidy scheme) were not addressed by ELI.


In sum, the VGG remains of the opinion that the notified subsidy scheme is incompatible with EU State aid law and moreover lacks the necessary guarantees to properly ensure its transparent, objective and non-discriminatory character.


On behalf of the VGG,




Hendrik Viaene *


T +32 2 533 54 21

F +32 2 533 53 97

* bvba

Stibbe cvba/scrl, advocatenassociatie/association d'avocats
Central Plaza – Loksumstraat 25 rue de Loxum – BE-1000 Brussels

0429 914 688 - RPM Brussels - T +32 2 533 52 11 - F +32 2 533 52 12

Stibbe, Herbert Smith LLP and Gleiss Lutz are three independent firms which have a formal alliance.

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