C-69/99

OPINION OF MR LÉGER — CASE C-69/99

OPINION OF ADVOCATE GENERAL LÉGER delivered on 13 July 2000 *

1. By the present action, brought under indirectly, of nitrogen compounds from Article 169 of the Treaty (now Article 226 agricultural sources into the aquatic envir- EC), the Commission of the European onment, the results of which are such as to Communities asks the Court for a declara- cause hazards to human health, harm to tion that, by failing to adopt all the living resources and to aquatic ecosystems, measures necessary to comply with its damage to amenities or interference with obligations under Article 3(1) and (2) and other legitimate uses of water'. 3 Article 5 of Council Directive 91/676/ EEC, 1 the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive. The Commission also seeks an order of costs against the United Kingdom.

or solve problems of water pollution which against pollution, in accordance with Art- is caused by nitrates from agricultural icle 4, the Member Stales arc required to sources. establish within two years from notification of the Directive codes of good agricultural practice, which are to be implemented by farmers on a voluntary basis, and where necessary to set up programmes, including the provision of training and information for farmers, promoting the application of those codes. 4. The designation of vulnerable zones must be carried out within two years from notification of the Directive4 and notified to the Commission within six months. The action programmes for meeting the object- 7. Finally, Article 10(1) of the Directive ives of the Directive, as set out in Article 1, provides that, within four years following must be established within two years from notification of the Directive, the Member the designation referred to in Article 3(2). 5 States are to report to the Commission on the preventive action taken to avoid pollu- tion of waters, draw up a map showing the waters identified and the location of the designated vulnerable zones, and provide a summary of the monitoring results for those zones and of the action programmes drawn up pursuant to Article 5. 5. The Member States are also required to revise the list of vulnerable zones originally designated in order to take account of changes and factors unforeseen at the time of the initial designation.6 Similarly, they 8. The Directive was notified to the Mem- are to revise the action programmes initi- ber States on 19 December 1991. 8 ally established by them. 7

10. Following an exchange of correspond- ence concerning the measures adopted by 1. Failure to comply with the obligations the United Kingdom, the Commission, flowing from Article 3(1) of the Directive dissatisfied with the answers provided, issued a reasoned opinion on 9 June 1998 in which it contended that the United Kingdom had infringed Article 3(1) and (2) and Article 5 of the Directive and called 13. The Commission notes that, under on the United Kingdom to comply with the Article 3(1), the Member States are opinion within two months. required to identify, in accordance with the criteria set out in Annex I, waters affected by pollution and waters which could be affected by pollution if action pursuant to Article 5 is not taken. Accord- ing to those criteria, surface freshwaters, in particular those used or intended for the 11. In its response by letters of 14 October, abstraction of drinking water, which con- 23 November and 7 December 1998 and tain or could contain, if action pursuant to 11 January 1999, the United Kingdom Article 5 is not taken, more than the conceded that the complaints set out by concentration of nitrates laid down in the Commission were well founded and accordance with Directive 75/440/EEC 9 undertook to render its national legislation are to be identified as waters affected by consistent with the Directive. pollution. 10 The same holds for ground- waters which have a nitrate content in excess of 50 milligrams per litre or could have such a nitrate content if action pursuant to Article 5 is not taken, 1 1and

2. Failure to comply with the obligations laid down in Article 3(2)

15. The Commission also points out that, according to the report, only groundwater sources intended for human consumption 17. The Commission notes that, as at were accepted as capable of being classified 18 December 1997, the United Kingdom as waters affected by pollution within the Government still had not drawn up a list of meaning of Article 3(1) of the Directive. vulnerable zones in Northern Ireland, even That approach is contrary to both the letter though at least one area had been identified and the spirit of paragraph A.2 of Annex I under Article 3(1) of the Directive as to the Directive. It is clear from the containing waters which were affected by provisions referred to above that identifica- pollution or could be so affected. It adds that although, as at 1 1 January 1999, three zones had been designated for Northern 12 — As provided m Article 2(i) of the Directive, 'eutrophica¬ Ireland, the United Kingdom's incorrect tion' means 'the enrichment of water by nitrogen com- definition of waters affected by pollution pounds, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance within the meaning of Article 3(1), as to the balance of organisms present i n the water and to the quality of the water concerned'. alleged under the first complaint, necessar- 13 — Paragraph A.3 of Annex I. ily entails the risk that the designation of

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OPINION OF MR LÉGER — CASE C-69/99

vulnerable zones required by Article 3(2) and (3) and Article 5 of the Directive. It will be incorrect. points out that it has already adopted certain measures in order to transpose the Directive into national law correctly. Fur- thermore, the Directive will soon be fully and faithfully transposed throughout national territory inasmuch as all the measures necessary for that purpose are in the course of being adopted.

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COMMISSION V UNITED KINGDOM

has failed to fulfil its obligations must be 24. In addition, Article 5 of the Directive determined by reference to the situation obliges the Member States to establish, by prevailing in the Member State at the end 20 December 1995 at the latest, action of the period laid down in the reasoned programmes for avoiding the problems of opinion and that the Court cannot take water pollution caused by nitrates from account of any subsequent changes'. 15 agricultural sources relating to the vulner- able zones designated under Article 3(2) of the Directive or for remedying those prob- lems.

23. In the present case, Article 3(1) and (2) of the Directive obliges the Member States to do the following by 20 December 1993 25. It is clear from the documents on the at the latest: file that, on expiry of the time-limit set in the reasoned opinion, 16 the United King- dom had not complied with those obliga- tions — a fact which it moreover does not deny.

— identify as waters affected by pollution or as waters which could be affected by pollution if action pursuant to Article 5 26. The Commission's application should of the Directive is not taken all surface therefore be granted. freshwaters and groundwaters which have or could have a nitrate concentra- tion in excess of 50 milligrams per litre, and not only waters intended for human consumption (Article 3(1));

V — Costs

(2) order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

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