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* Original language: French. 1 — OJ 1991 L 375, p. 1. 2 — The following Council directives in particular have been adopted within that framework: Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member 6. 'Vulnerable zone' is to be understood as States (OJ 1975 L 194, p. 26); Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ referring to the areas of land designated by 1976 L 31, p. 1); Directive 79/869/EEC of 9 October 1979 the Member States in accordance with concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (OJ 1979 L 271, p. 44); Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11); and Directive 91/271/EEC of 21 May 3 — In addition, as indicated above, Directive 91/271 has been 1991 concerning urban waste water treatment (OJ 1991 L 135, adopted in order to combat water pollution caused by nitrates p. 40). from urban sources.

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Article 3(2) (Article 2(k)). The areas in ques- 1). The maximum permissible concentration tion are 'all known areas of land in their ter- of nitrates iri waters intended for human con- ritories which drain into the waters identified sumption is set at 50 mg/l (Article 7(3) of according to [Article 3(1)] and which con- Directive 80/778, amending Directive 75/440). tribute to pollution' (Article 3(2)).

12. The action programmes provided for by Article 5 of the Directive are intended to 9. Directive 75/440, whose objective is 'to reduce or prevent water pollution caused or protect public health and, to this end, to exer- induced by nitrates from agricultural sources. cise surveillance over surface water intended The measures they contain must therefore be for the abstraction of drinking water and over appropriate to that form of pollution. That is the purification treatment of such water' (sec- why Article 5(3) provides, in particular, that ond recital in its preamble), is concerned with 'action programmes shall take into account: 'the quality requirements which surface fresh- (a) available scientific and technical data, water used or intended for use in the abstrac- mainly with reference to respective nitrogen tion of drinking water ... must meet after contributions originating from agricultural application of appropriate treatment' (Article and other sources' and Article 5(6) requires

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the Member States to ensure that the meas- 16. They may, for example, lay down less ures are adapted to changes of circumstance. restrictive measures. Subparagraphs (a) and (b) of paragraph 2 of Annex III to the Direc- tive provide:

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— soils with exceptionally high denitri- contain at least the items mentioned in fication capacity. Annex II. A (Article 4). 4

Facts and procedure

If a Member State allows a different amount under subparagraph (b), it shall inform the Commission which will 19. Two actions have been brought before examine the justification ...'. the High Court of Justice, Queen's Bench Division, in which, amongst other persons, Mr Standley and Mr Metson, 5 who are farmers in the predominantly rural area of East Anglia, seek the annulment of decisions adopted by the competent national authorities, 6 first, identifying certain rivers, including the River Waveney, and their tributaries as 'surface 17. The Member States may also adopt more freshwaters affected by pollution' and, sec- restrictive measures. Article 5(5) of the Direc- ondly, designating the areas which drain into tive provides: 'Member States shall ... take ... those waters as vulnerable zones within the such additional measures or reinforced actions meaning of Article 3(2) of the Directive. as they consider necessary if, at the outset or in the light of experience gained in implem- enting the action programmes, it becomes apparent that the measures referred to in paragraph 4 will not be sufficient for achieving the objectives specified in Article 1. In selecting 20. It is apparent from the order for refer- these measures or actions, Member States ence that the approach taken by those authori- shall take into account their effectiveness and ties when effecting that designation was to their cost relative to other possible preventive identify tightly defined catchments of waters measures.' with a concentration of nitrates in excess of 50 mg/l taking all sources of nitrate pollution together. They then identified the known areas of land draining into those waters and, having regard, in particular, to land use and other characteristics of the areas of land and bodies

23. The High Court of Justice, Queen's Bench Division, took the view that the outcome of the case turned on the interpretation of the relevant Community provisions and an assess- ment as to their validity, and so referred the 21. That application of the Directive is chal- following questions to the Court for a pre- lenged by the applicants in the main proceed- liminary ruling: ings, who own and farm land in the vulner- able zones thus identified. Since designation obliges the competent national authorities to implement, in each vulnerable zone, the action programmes specifically provided for by Article 5 of the Directive, the applicants in '1. Does Council Directive 91/676/EEC of the main proceedings allege that the restric- 12 December 1991 concerning the pro- tion on the agricultural use of their land which tection of waters against pollution caused must ensue is unjustified. They consequently by nitrates from agricultural sources ("the applied to the appropriate national court, Nitrates Directive") require Member claiming that the national authorities had States, in accordance, in particular, with Articles 2(j) and 3(1) and Annex I thereof, infringed Community law. It should be noted, to identify surface freshwaters as "waters however, that the national court has provided affected by pollution", and then to des- no information regarding the measures actu- ignate as vulnerable zones in accordance ally adopted or envisaged by the United with Article 3(2) thereof all known areas Kingdom under Article 5 of the Directive. of land which drain into such waters and which contribute to pollution:

Question 1

(iii) on some other basis and, if so, what basis? 24. By its first question, the referring court wishes to ascertain the meaning of 'surface freshwaters affected by pollution' for the pur- poses of Article 3(1) of the Directive. More precisely, it asks the Court whether, in order 2. If Question 1 is answered otherwise than for the identification of 'surface freshwaters in sense (ii) above, is the Nitrates Direc- affected by pollution' to be justified, it is nec- tive invalid (to the extent of its applica- essary for the concentration of nitrates in tion to surface freshwaters) on the excess of 50 mg/1 present in those waters to grounds that it infringes: be exclusively due to the discharge of nitrogen compounds from agricultural sources or whether it is sufficient for such discharges to make a 'significant contribution' to that pol- lution. Should the latter be the case, the national court asks the Court to define 'sig- (i) the principle that the polluter should nificant contribution'. In other words, it asks pay; and/or the Court to determine whether the way in

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which the competent United Kingdom author- 28. The applicants in the main proceedings ities have applied Article 3(1) and (2) is con- also state that, by expressly restricting the sistent with the Directive. definition of 'pollution' in Article 2 0 of the Directive to the 'discharge ... of nitrogen compounds from agricultural sources into the aquatic environment', the Community legis- lature intended to give a single meaning to that term. Accordingly, whenever that term appears in a provision of the Directive, and in 25. There are two opposing views: that of the particular in Article 3(1), the meaning to be Commission and the intervening Member ascribed to it is solely the 'discharge of nitrogen States, who defend the approach adopted by compounds exclusively agricultural in origin'. the United Kingdom, 8 and that of the appli- cants in the main proceedings and the N F U .

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Member States maintain that the interpreta- 34. They observe that the interpretation put tion placed on the Directive by the compe- forward by the applicants in the main pro- tent United Kingdom authorities is correct. It ceedings cannot be reconciled with Article follows that 'waters affected by pollution' 3(5) of the Directive, which allows the Member within the meaning of Article 3(1) of the States not to identify 'waters affected by pol- Directive must be understood as surface fresh- lution' — in which case they must designate waters used for drinking water supplies con- the whole of their national territory as a taining a concentration of nitrates in excess of nitrate vulnerable zone, even if the concentra- 50 mg/l, where nitrates from agricultural tion of nitrates per litre of water throughout sources make a significant contribution to the that territory does not exceed 50 mg/1. By the overall level of that concentration. same token they consider that, in allowing the Member States to avoid identifying waters affected by pollution, the Community legis- lature clearly indicated that it did not con- sider identification necessary either in order to protect property rights or under general principles of Community law.

32. They point out that paragraph A.1 of Annex I in no way requires that a concentra- tion of nitrates found to be in excess of 50 mg/1 should be 'exclusively' agricultural in origin.

35. They maintain, furthermore, that major technical difficulties would be encountered if, when identifying waters, it had to be estab- lished that nitrates were exclusively agricul- tural in origin.

(a) available scientific and technical data, mainly with reference to respective nitrogen contributions originating from agricultural and other sources.' 39. As provided in paragraph A.l of Annex I, surface freshwaters used or intended for the abstraction of drinking water are to be regarded as 'waters affected by pollution' if they 'contain or could contain, if action pur- suant to Article 5 is not taken, more than the 42. That wording also shows clearly that pol- concentration of nitrates laid down in accor- lution caused by nitrates from agricultural dance with Directive 75/440/EEC'. 10 sources must be dealt with in cases where the source of the nitrate pollution is not to be found in agricultural practices alone.

40. As we have seen, that value is 50 mg/l. Since there is no indication at all as to what 43. Furthermore, I consider that by choosing, in paragraph A.l of Annex I, to define the 9 — See, for example, Case C-28/95 Leur-Bloem ν Inspecteur der level of nitrates allowed by the words 'more Belastingdienst/Ondernemingen Amsterdam 2 [1997] ECR I-4161, paragraph 47. than the concentration of nitrates laid down 10 — Emphasis added. in accordance with Directive 75/440/EEC'

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rather than by explicitly stating '50 mg/1' — quences. 12 Those conclusions are uncontested a level expressly referred to in paragraph A.2 (even by the applicants in the main proceed- of Annex I 1 1— the Community legislature ings). 13 intended to make it clear that the objective pursued is the protection of public health and that in those circumstances 50 mg/1 is the maximum permissible threshold for all sources of nitrate pollution taken together.

12 — See the Report of the Commission to the Council and Euro- pean Parliament on the implementation of Council Direc- tive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (COM(97) 473 final, p. 4; hereinafter 'the Report').It should also be noted that in April 1997 the World Health Organisa- 45. That value of 50 mg/1 complies with public tion reviewed its guideline value for nitrate and nitrite in drinking water and concluded that, on the basis of the latest health requirements (Article 1 of Directive scientific evidence, the value of 50 mg/1 should be main- tained (ibid.; note at the foot of p. 4). 75/440) and corresponds to a limit whose 13 — The Report states that 'nitrate in drinking water is consid- infringement — whether the nitrate pollution ered to be á public health problem because nitrate rapidly reduces to nitrite in the body. The major effect of nitrite is was caused by agriculture or by industry the oxidation of blood haemoglobin to methaemoglobin — would have major public health conse- which is unable to transport oxygen to the tissues. The reduced oxygen transport manifests itself particularly in young infants up to six months old and causes the condi- tion methaemoglobinaemia or blue-baby syndrome. This phenomenon has only been observed at nitrate levels sig- nificantly above the 50 mg/1 level; therefore this level delivers 11 — Which states that, in the case of groundwaters, waters sufficient protection against this occurring. In addition, nitrite affected by pollution within the meaning of Article 3(1) of reacts with compounds in the stomach to form products the Directive are those which 'contain more than 50 mg/1 which have been found to be carcinogenic in many animal nitrates or could contain more than 50 mg/1 nitrates if action species, although the link to cancer in humans is at the pursuant to Article 5 is not taken'. moment suggestive'.

to identify 'waters affected by pollution', 49. Accordingly, the interpretation put for- requiring them instead to designate the whole ward by the applicants in the main proceed- of their national territory as a nitrate vulner- ings and the N F U cannot be upheld. able zone, even if the concentration of nitrates per litre of water throughout that territory does not exceed 50 mg/l. I take that to indi- cate that the Community legislature envisages that action programmes may be adopted even if the level of nitrates does not exceed the threshold of 50 mg/1 and even if the pollu- tion is not exclusively agricultural in origin. 50. Their interpretation, to the effect that the identification of 'waters affected by pollution' is restricted solely to surface freshwaters con- taining or at risk of containing a concentra- tion of nitrates in excess of 50 mg/1 which is exclusively agricultural in origin, would make it impossible to implement the action pro- grammes provided for by Article 5 of the Directive in all cases where the harmful effects are due almost exclusively to agricultural sources. It is clear that in such cases the inter- pretation put forward by the applicants in the 48. Nevertheless, inasmuch as the Directive main proceedings and the N F U would not be seeks to 'reduce water pollution caused or appropriate to the circumstances of the pol- induced by nitrates from agricultural sourc- lution, as defined in Article 2(j) of the Direc- es 14 and to prevent further such pollution' 15 tive, because it would not guarantee that sur- and to '[encourage] good agricultural prac- face freshwaters are protected against pollution tices ... [in order to] provide all waters with a caused by nitrates of agricultural origin, and general level of protection against pollution would have very serious consequences for in the future', 16 it is necessary but also suf- both public health and the environment. In firent for that form of pollution to originate other words, that interpretation would be in part from agricultural practices. That is inconsistent with the objectives set by the why the joint action programmes introduced Directive and would impair its effectiveness. by the Community legislature to achieve that dual objective seek 'to limit the land- application of all nitrogen-containing fertil- isers and in particular to set specific limits for the application of livestock manure' 17 and thereby to 'protect human health and living resources and aquatic ecosystems ...'. 18

52. The referring court additionally asks the 55. Furthermore, it is clear from the very Court to specify the proportion of nitrates of wording of the Directive that the Member agricultural origin at or above which surface States have some latitude both when identi- freshwaters should be identified as affected fying waters affected by pollution 19 and when by pollution within the meaning of the Direc- deciding on the mandatory measures to be tive. More precisely, it asks whether a practice adopted. 20 For those reasons I consider that such as that of identifying waters as affected the practice whereby a Member State identi- by pollution where they contain a concentra- fies freshwaters as affected by pollution where tion of nitrates in excess of 50 mg/1 and the they contain a discharge of nitrogen com- discharge of nitrogen compounds from agri- pounds from agricultural sources which makes cultural sources makes a 'significant contribu- a 'significant contribution' to that overall con- tion' to that pollution is consistent with Article centration of nitrates meets the requirements 3(1) of the Directive. of the Directive.

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Question 2 60. However, it has also stated that that right does not constitute an unfettered prerogative and that it is possible to deny the owner his right or restrict the exercise thereof 'provided that those restrictions in fact correspond to objectives of general interest pursued by the 57. The correct interpretation of Article 3 of Community and that they do not constitute the Directive being that 'surface freshwaters a disproportionate and intolerable interfer- affected by pollution' are to be understood as ence which infringes upon the very substance waters in which the discharge of nitrogen of the rights guaranteed'. 23 compounds from agricultural sources is partly responsible for the concentration of nitrates in excess of 50 mg/1, the referring court asks the Court of Justice to determine whether that legislation is valid in the light of the right to property, the principle of proportionality and the polluter pays principle.

61. An act denying the owner his right to property is one which results in his being prevented from disposing of his right and putting it to all other uses not prohibited by The right to property law (such as an expropriation). An act restricting the exercise of his right is one which limits some aspect of the rights of ownership (for example a prohibition on planting certain types of plant or a limitation on the production capacity of an area of land). 58. The applicants in the main proceedings assert that the effect of such an interpretation is to impose on farmers alone the burden of reducing concentrations of nitrates originating from non-agricultural sources and that their right to property is thereby infringed.

64. Measures adopted on the basis of Article 5 of the Directive preclude intensive arable farming and restrict the possibilities for inten- sive stock farming. They therefore limit aspects of the farmer's rights of ownership. In addi- tion, by reducing the yield per hectare of agricultural land, and therefore farm income, those measures lead in the short term to a 67. We have already seen that the reasons for reduction in land value. 24 those measures relate to the protection of public health. They are mandatory once the threshold of 50mg/l of nitrates in waters intended for human consumption is reached. It can therefore hardly be doubted that the objective is one of general interest.

65. In accordance with Article 3(1) of the Directive, in conjunction with Article 5(4)(a) and Annex III, the financial burden of those measures is borne, first, by farmers (in par- ticular, the construction of storage vessels for

68. The first requirement, that the restric- 24 — I consider, however, that in the medium or long term the value of agricultural land farmed in accordance with those tions must in fact correspond to objectives of codes of good agricultural practice may be increased by the general interest pursued by the Community, quality of the produce obtained and of the conserved land (see, in particular, the development of organic farming). is thus satisfied.

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69. With regard to the second requirement, it safeguard both the general interest and the is necessary to review whether, having regard farming world's own interests. Intervention to the objective pursued, the restrictions con- by the Community legislature is something stitute a 'disproportionate and intolerable which is not only to be allowed but is required interference which infringes upon the very within the framework of a common policy substance of the rights guaranteed'. 25 founded on Article 13 Or of the Treaty.

25 — Schräder, cited above, paragraph 15. See also Germany ν Council, cited above, paragraph 78. 26 — See, in particular, Case 240/83 Procureur de L· République v 27 — Case C-306/93 Winzersekt v Land Rheinland-Pfalz [1994] ADBHU [1985] ECR 531, paragraph 13; Case 302/86 Com- ECR I-5555, paragraph 24. mission v Denmark [1988] ECR 4607, paragraph 8; Case C-284/95 Safety Hi-Tech v S. & T. [1998] ECR 1-4301, para- 28 — As we have seen, they have a discretion as regards the mea- graph 64; and Case C-341/95 Bettati v Safety Hi-Tech [1998] sures to be adopted. ECR I-4355, paragraph 62. 29 — See, in particular, Bettati, cited above, paragraph 56.

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75. Nor does examination of Article 5 of the 78. Consequently, where other sources con- Directive alone disclose any factor of such a tribute to the pollution, the Member States kind as to affect its validity in the light of the may take remedial action only by relying on principle of proportionality. other legislation. 33

76. It follows from Article 5(3)(a) and (b), 79. It is clear that measures of the kind which read in conjunction with Article 5(5) and (6), may be adopted on the basis of Article 5 of that the Member States are required to estab- the Directive would be totally ineffective if lish action programmes which are effective 30 they were used to remedy nitrate pollution and appropriate 31 to the circumstances of the not originating in agricultural practices. pollution scientifically established and to the environmental conditions in the relevant regions of the Member State concerned.

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81. I must therefore conclude that the Direc- 85. In the absence of any information tive meets the requirement of 'proportionate regarding the measures actually adopted by action' and complies with the principle of the competent national authorities in this case, proportionality. it is impossible to check whether measures such as may have been adopted or envisaged by those national authorities are consistent with the principle of proportionality defined by the case-law of the Court.

82. Finally, it is apparent from the material before the Court that Article 5(4)(a) of the Directive neither encroaches upon the very substance of the right to property nor sub- stantially prevents its exercise. Indeed, the 86. Furthermore, as I have already shown, applicants in the main proceedings do not examination of Article 5 of the Directive alone assert as much; at most they complain that discloses no factor of such a kind as to affect the manner in which they may exercise their its validity in the light of the principle of pro- right is restricted. portionality. I can only refer to my previous reasoning.

83. Examination of the Directive thus dis- The polluter pays principle closes no factor of such a kind as to affect its validity in the light of the right to property.

94. It can therefore be applied in different ways. 36

90. Article 130r(2) provides: 'Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles 95. Thus, it may be applied either after the that preventive action should be taken, that event or preventively before the harm occurs. environmental damage should as a priority be In the latter case the point is to prevent a rectified at source and that the polluter should human activity from causing environmental pay ...'. harm. The legislation adopted for that pur- pose may establish a system for assessing the environmental effects of certain public and private projects. Article 2 of Council Direc- tive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and

91. The powers conferred on the Commu- 34 — See P. Thieffry, 'La responsabilité civile du pollueur: les pro- nity legislature by Article 13 Or of the Treaty jets communautaires et la convention du Conseil de l'Europe' (Gazette du Palais, 5 August 1993, p. 965). must therefore be taken as the framework 35 — See J. Duren, 'Le pollueur-payeur: l'application et l'avenir du within which to examine whether the meas- principe' (Revue du Marché Commun, N o 305, March 1987, p. 144), and also Jurisclasseur, under the heading environ- ures in issue comply with the polluter pays ment. principle. 36 — See J. Duren, cited above.

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— the holder who has waste handled by a waste collector or by an undertaking referred to in Article 8;

99. It follows from the foregoing that exami- nation of the second question raised has dis- 37 — OJ 1985 L 175, p. 40. closed no factor of such a kind as to affect the 38 — Directive 75/442/EEC of 15 July 1975 (OJ 1975 L 194, p. 39). validity of the Directive.

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Conclusion

100. For the reasons set out above, I propose that the Court should reply as follows to the questions referred to it by the High Court of Justice (England and Wales), Queen's Bench Division: