C-127/99

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 31 May 2001 1

Table of contents

I — Introduction I - 8308 II — Legal framework I - 8308 III — Facts and procedure 1-8314 IV — Assessment of the dispute I-8315 A — Preliminary issues I-8315 1. Admissibility of the application 1-8315 (a) Arguments of the parties I - 8315 (b) Criteria of admissibility I-8318 (c) Assessment I - 8320 2. Legal effects of the judgment in Case C-195/97 I - 8322 (a) Arguments of the parties I - 8322 (b) Assessment I - 8322 V — Substance of the case I - 8325 A — Complaint relating to Article 5 of the Directive I - 8325 1. Arguments of the parties I - 8325 2. Assessment I - 8326 B — Complaint relating to Article 6 of the Directive I - 8326 1. Arguments of the parties I - 8326 2. Assessment I - 8328 C — Complaint relating to Article 10 of the Directive I - 8330 1. Arguments of the parties I - 8330 2. Assessment I - 8331 VI — Costs 1-8331 VII— Conclusion I - 8331

1 — Original language: Dutch.

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3. Action programmes shall take into 5. The mandatory measures are listed in account: Annex III to the Directive, which I quote in full given its importance in this case.

(a) available scientific and technical data, mainly with reference to respective nitrogen contributions originating '1. The measures shall include rules relat- from agricultural and other sources; ing to:

(b) environmental conditions in the rele- vant regions of the Member State concerned. (1) periods when the land application of certain types of fertiliser is prohibited;

4. Action programmes shall be implemen- ted within four years of their establishment and shall consist of the following manda- tory measures: (2) the capacity of storage vessels for livestock manure; this capacity must exceed that required for sto- rage throughout the longest period during which land application in the vulnerable zone is prohibited, (a) the measures in Annex III; except where it can be demonstra- ted to the competent authority that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which will (b) those measures which Member States not cause harm to the environ- have prescribed in the code(s) of good ment; agricultural practice established in accordance with Article 4, except those which have been superseded by the measures in Annex III.

— the supply of nitrogen through the net minerali- sation of the reserves of organic nitrogen in the soil, (c) land use and agricultural prac- tices, including crop rotation systems;

— additions of nitrogen com- pounds from livestock manure,

and to be based on a balance between:

— additions of nitrogen com- pounds from chemical and other fertilisers.

(i) the foreseeable nitrogen requirements of the crops, 2. These measures will ensure that, for each farm or livestock unit, the amount of livestock manure applied to the land each year, including by the animals themselves, shall not exceed a specified and amount per hectare.

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revising the designation of vulnerable gramme need be repeated only zones, Member States shall: every eight years;

(a) within two years of notification of the Directive, monitor the nitrate concentration in freshwaters over a period of one year: (c) review the eutrophic state of their fresh surface waters, estuarial and coastal waters every four years.

(i) at surface water sampling sta- tions, laid down in Article 5(4) of Directive 75/440/EEC and/ or at other sampling stations which are representative of surface waters of Member 2. The reference methods of measurement States, at least monthly and set out in Annex IV shall be used.' more frequently during flood periods;

(ii) at sampling stations which are representative of the ground- water aquifers of Member 7. Annex IV lays down the reference meth- States, at regular intervals and ods. It provides as follows for chemical taking into account the provi- fertilisers: sions of Directive 80/778/EEC;

'1. Member States shall, in respect of the (b) the location of the designated vul- four-year period following the notifica- nerable zones, distinguishing tion of this Directive and in respect of between existing zones and zones each subsequent four-year period, sub- designated since the previous mit a report to the Commission con- report. taining the information outlined in Annex V.

3. A summary of the monitoring results obtained pursuant to Article 6, includ- ing a statement of the considerations 2. A report pursuant to this Article shall which led to the designation of each be submitted to the Commission within vulnerable zone and to any revision of six months of the end of the period to or addition to designations of vulner- which it relates.' able zones.

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4. A summary of the action programmes I I I— Facts and procedure drawn up pursuant to Article 5 and, in particular:

10. On 25 April 1997 the Commission sent a letter of formal notice to the Italian Government on account of the fact that it had failed to send the report described in (a) the measures required by Art- Article 10 of the Directive. The letter also icle 5(4)(a) and (b); pointed out that the Commission had not been informed of the action programmes described in Article 5 and the monitoring laid down in Article 6. The Italian Govern- ment replied to the formal notice by letter of 16 July 1997, informing the Commis- (b) the information required by sion of the measures adopted in Italy. Annex 111(4);

— the assertion that, by this application, the Commission is claiming that the 13. On 11 May 1999 a new legislative Court should deliver a judgment iden- measure was enacted in Italy by Legislative tical to that in Case C-195/97, 4in Decree No 152 (published on 29 May which Italy was found to have failed to 1999). Among other things, that decree fulfil its obligations under the Direc- establishes the rules on the designation of tive. The Italian Government cites the vulnerable zones in accordance with Arti- principle of non bis in idem in this cle 3 of the Directive. The Italian Govern- respect. ment considers that it has complied with the judgment, referred to above, in Case C-195/97, by means of that provision.

1. Admissibility of the application

IV — Assessment of the dispute (a) Arguments of the parties

15. The Italian Government and the Com- mission stated their respective positions on the first preliminary issue in detail during A — Preliminary issues the written phase of the proceedings and at the hearing. I shall summarise the main arguments stated by each of the parties, before giving my opinion. 14. In the present case before us two preliminary issues of a procedural nature, 4 — See point 2 of this Opinion.

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17. According to the Italian Government, the Commission made those changes to the complaints after examining the report of 18 September 1998. However, in its view, — finds that Italy failed to fulfil its the Commission should have re-submitted obligations and, despite the letter of

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formal notice of 25 April 1997, that it 22. With regard to the legal basis referred did not adopt the measures necessary to by the Italian Government, the Commis- to enable the Commission to verify the sion points out that the procedure under implementation of those obligations; Article 226 EC does not only aim to protect the rights of the Member States, but also aims to define the subject-matter of the proceedings before the Court. In the present case, the assertion that the com- plaints in the application were changed as compared with the wording given to them in the reasoned opinion is incorrect. The objections of the Commission were once — concludes that Italy failed to fulfil its again not that the programmes, monitoring obligations under Articles 5, 6 and 10 and reports were omitted completely, but of the Directive. that they were incomplete and incorrect. Therefore, in its opinion, the Italian Gov- ernment failed to implement Articles 5, 6 and 10 of the Directive.

(b) Criteria of admissibility 27. On reading the reasoned opinion and the application we can immediately see a clear difference. The opinion is a brief document in which Italy, as a Member State, is charged in rather general terms 25. Before I give my view on this question, with failing to comply with its obligations I should like to point out that, as the Court under Articles 5, 6 and 10. It is also true has consistently held, the existence of a that the opinion refers to the written failure of a Member State to fulfil obliga- response by the Italian Government on tions must be assessed in relation to the 16 July 1997 to the letter of formal notice situation as it existed on the expiry of the of 25 April 1997. The Commission uses period laid down in the reasoned opinion. this point to conclude that this information The Court cannot take account of later is insufficient for it to be possible to find changes. 5 that Italy had complied with the obliga- tions under Articles 5, 6 and 10 of the Directive. However, the application exam- ines the measures adopted by Italy in the meantime in detail and states in what respects they do not meet the requirements 26. The parties agree that the Italian Gov- of the Directive. It is quite clear that the ernment was late in replying to the rea- emphasis is mainly on incorrect implemen- soned opinion in its letter dated 18 Sep- tation, and not as much on failure to tember 1998. I do not intend, however, to implement. The problem now is to ascer- conclude that the measures described tain whether that shift of emphasis renders therein were therefore late. The mere fact the Commission's application inadmissible. that the Commission tried to verify whether they allowed the obligations under Arti- cles 5, 6 and 10 of the Directive to be complied with and the fact that the Com- mission, in this action, has not raised any complaint concerning the possible lateness of those measures, lead me to consider that

30. I shall answer that question as follows. The reasoned opinion provides the frame- work within which the application before the Court must remain. There would only be inadmissibility if the application refers 23 As the Court has consistently held... the to more or other obligations than those subject-matter of an action brought described in the reasoned opinion. In other under Article 169 of the Treaty is words, the reasoned opinion defines the delimited by the pre-litigation proce- boundaries within which the application dure provided for by that article. must remain: no different obligation, no Consequently, the action cannot be other obligation. This does not mean that founded on any complaints other than the application must, in terms of its con- those formulated in the reasoned opi- tent, agree with the opinion in every way: nion ... the complaints can be more specific than those stated in the reasoned opinion, pro- vided that they concern the same obliga- tions.

24 The Court has also held... that the reasoned opinion must contain a 31. That conclusion also follows from the cogent and detailed exposition of the procedure described in Article 226 EC. It is reasons which led the Commission to by its nature swift and dynamic. It is the the conclusion that the Member State Commission which puts forward the concerned had failed to fulfil one of its charges against the Member State. On the obligations under the Treaty.' basis of the response from that Member State, it decides whether to issue a reasoned opinion and on the content of that opinion. 6 — Case C-96/95 Commission v Germany [1997] ECR I - 1 6 5 3 . In its subsequent response the Member

— it must give a sufficiently precise defi- nition of the failures to fulfil obliga- 34. The following points emerge from the tions which are complained of, taking pre-litigation procedure: into consideration the information pro- vided by the Member State concerned in the pre-litigation procedure.

— in the letter of formal notice of 25 April 1997 the Commission charges In short, the application must constitute the foreseeable logical progression of the dia- logue which took place in the pre-litigation 7 — Case C-431/92 Commission v Germany [1995] procedure between the Commission and ECR 1-2189.

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the Italian Republic with failing to and as regards their content. Its com- fulfil its obligations under Articles 5, plaints in the application are directed, 6 and 10 of the Directive; in particular, to persisting incomplete- ness and insufficiencies.

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2. Legal effects of the judgment in Case able zones as laid down under Article 3 of C-195/97 the Directive. 10In that context, the Com- mission also refers to the judgment of 2 August 1993 in Commission v Spain, 11 which concerned the late implementation of Directive 79/409/EEC, on the conserva- tion of wild birds. 12

(a) Arguments of the parties

38. By the judgment of 25 February 1999, 8 (b) Assessment Italy has already been found to have failed to comply with its obligations under Arti- cle 3(2) of the Directive. Italy had failed to designate the vulnerable zones. Legislative Decree No 152 of 11 May 1999 was enacted to comply with that judgment. 40. The positions taken by the Commission The Italian Government states that the and Italy differ fundamentally on the principle of non bis in idem precludes the significance of the consequences of the link Commission from initiating a second between this case and the proceedings infringement procedure, subsequently, which led to the judgment in Case which essentially concerns the same prob- C-195/97. Given this difference of opinion lem. I think it is important to begin by placing the dispute in a more general context.

39. The Commission contends that the position taken by the Italian Government 41. Under the directives on environmental is untenable in the light of the judgment of protection, such as the directive in this case, 13 April 2000 in Commission v Spain. 9In which aim to reduce current levels of that judgment Spain was found to have pollution caused by particular substances, failed to prepare action programmes, as to avoid further environmental damage, stated in Article 5 of the Directive, after and in the meantime, to remedy the damage previously having been found — inter alia — to have failed to designate vulner- 10 — Case C-71/97 Commission v Spain [1998] ECR 1-5991. 11 — Case C-355/90 Commission v Spain [1993] ECR 1-4221, paragraphs 20 to 22. 8 — See footnote 3. 12 — Council Directive 79/409/EEC of 2 April 1979, OJ 1979 9 — Case C-274/98 Commission v Spain [2000] ECR 1-2823. L 103, p. 1.

43. In my opinion, it is possible to identify four important reasons for which, specifi- cally in the case of this directive, actual 44. It is clear from the foregoing that implementation of the actions provided for vigilance concerning the implementation therein merits close attention from the of and compliance with the Directive is Member States. First, this directive is certainly not a simple matter, but never- intended to bring about an improvement theless it is vitally important for the aims in the quality of the environment, taking stated therein. For that reason the Directive into consideration the differences within introduces a system of action programmes, and between Member States. There are monitoring and reports. This system, on

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one hand, ensures that, taking local cir- failure to comply with the obligation of cumstances into account, measures will be designation laid down in Article 3 necessa- adopted which will effectively lead to a rily entails the impossibility of fulfilling the reduction in nitrate pollution. On the other obligations under Articles 5, 6 and 10. hand, it makes it possible to ensure com- pliance with the Directive.

50. The obligation to present a report, as stated in Article 10 of the Directive, may, without further analysis, be considered to 47. In my opinion, there is no substantive be unconnected with the designation of link between the obligations such that vulnerable zones.

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V — Substance of the case impossible to draw up any action programme appropriate to the envir- onmental conditions in which it should have been applied;

A — Complaint relating to Article 5 of the Directive — for central and southern Italy no mea- sures from among those indicated in Annex III to the Directive were adopted. This concerns specifically the Regions of Abruzzi, Puglia and Calab- ria, and also, in practice, other regions; 1. Arguments of the parties

— for certain regions in northern Italy 51. In its application the Commission lists (Piedmont, Lombardy, Veneto and a number of factors from which, in its view, Emilia Romagna) not all the specific it is evident that Italy has failed to comply obligations relating to the action pro- with its obligations under Article 5 of the grammes described in Annex III were Directive: fulfilled;

53. The Italian Government points out that Lombardy, Veneto and Emilia Romagna) it had already designated vulnerable zones some action programmes were drawn up in Piedmont, Lombardy, Veneto and Emilia but, according to the Commission, they did Romagna. Action programmes were estab- not meet the requirements of the Directive, lished for those zones. For the remaining inter alia because a number of measures regions action programmes were not estab- required by Annex III to the Directive were lished as no vulnerable zone had been not taken. The Italian Government designated. objected to this complaint, describing it as 'ambiguous' and 'general', but did not dispute the validity of the Commission's assertion. It also did not discuss the exam- ples given by the Commission of measures missing from the action programmes. In those circumstances, it is in my view 54. In the reply and rejoinder the debate sufficiently established that the Italian between the Commission and the Italian Government did not provide for action Government is directed to the defence of programmes which met the requirements of the Italian Government, mentioned above, the Directive, even for the four northern to the effect that it was not possible to regions indicated. implement Article 5 of the Directive until the vulnerable zones were designated.

2. Assessment B — Complaint relating to Article 6 of the Directive

55. The assessment of this complaint can, in the light of the foregoing, be brief and can be summarised as follows. For part of the territory — central and southern Italy — the Italian authorities had not 1. Arguments of the parties established any action programme on the expiry of the period laid down in the reasoned opinion. The Italian Government does not dispute that point, but states in its defence that the establishment of the pro- grammes was also not possible, as the vulnerable zones had not been designated. 56. The Commission recalls that Article 6 As I have already pointed out at point 45 of requires Member States to monitor the this Opinion, that defence cannot succeed. concentration of nitrates. In particular, the For the four northern regions (Piedmont, Directive provides for a first series of

57. It is clear from the information pro- duced by the Italian Government that in at least five regions the monitoring was not 59. In its reply, the Commission states that carried out in accordance with the Direc- the obligation under Article 6 is a specific tive, that in five other regions and two obligation which is quite distinct from the provinces the monitoring was carried out in other obligations under the Directive. A a partially unsatisfactory manner, and that correct application of Article 6 requires the there was no information at all for three national authorities to adhere to the time- regions (Abruzzi, Puglia and Calabria). limits and procedures laid down in that Consequently, Italy has not fully complied article. It is not sufficient to carry out the with its obligations under Article 6 of the monitoring prescribed in the directives Directive. mentioned in Article 6, the results of which are sent to the Commission in accordance with Council Directive 91/692/EEC stan- dardising and rationalising reports on the implementation of certain directives relat- ing to the environment. 13 In particular, Directive 91/676 lays down different requirements concerning the frequency of sampling, networks of sampling points and the interpretation and treatment of the data 58. The Italian Government holds the view obtained. The Commission also points out that Article 6 concerns implementation that Directive 91/692 was adopted after measures which cannot be dissociated from Directive 91/676, but that it does not refei- the designation of vulnerable zones under to it. In short, the information provided on Article 3. In its view, failure to implement the basis of Directive 91/692 has no value Article 6 only exists if it involves a breach for the purposes of the application of of Article 3 of the Directive, failing to Directive 91/676. Finally, the Commission designate the vulnerable zones. The Com- recalls having asked the Italian authorities mission does not claim that the incomplete in the pre-litigation procedure to demon- monitoring led to a breach of Article 3. strate that they had complied with Arti- Alternatively, the Italian Government con- cle 6. The data produced shows that this siders the complaint by the Commission to was not the case. be unfounded, as it is stated in general and imprecise terms and is not substantiated. Finally, it considers that the monitoring 13 —Council Directive 91/692/EEC of 23 December 1991 was carried out, in application of (OJ 1991 L 377, p. 48).

61. The primary defence raised by the Italian Government to this complaint appears to be based on the fact that under Article 6 there is no obligation for a Member State which is unconnected with the designation of vulnerable zones. That defence clearly conflicts with the wording 63. I attach more importance to the Italian and the purpose of Article 6. The monitor- Government's defence to the effect that the ing, in the form of samples, must provide complaint by the Commission is too gen- data as a basis for the designation of eral, insufficiently precise and not substan- vulnerable zones. In addition, this monitor- tiated. The Commission does not specify on ing has a role in evaluating progress in what basis it is apparent that in at least five achieving the Directive's aims. Italian regions the monitoring was not carried out in accordance with the Direc- tive and that in five other regions and two provinces the monitoring was carried out 14 — The French text of the Directive gives 'résumé', the English text 'summary' and the Italian text 'sommario'. partially unsatisfactorily. From the consid-

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64. The situation regarding the complaint concerning the monitoring in the Regions of Abruzzi, Puglia and Calabria is different. The Commission states, without being contradicted by the Italian Government, that for those regions there is absolutely no information. Nor does the Italian Govern- ment claim that the monitoring required by 66. On the basis of the above, I conclude Article 6 was carried out in those regions, that Italy, by failing to implement Article 6 nor that it was not compulsory. I therefore of the Directive as regards the Regions of conclude that the complaint relating to the Abruzzi, Puglia and Calabria, has failed to fulfil its obligations under that article in conjunction with Annex IV, while, as to the 15 — Case C-96/95 Commission v Germany [1997] remainder, with regard to Article 6, the ECR I-1653, paragraph 24. application must be dismissed.

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C — Complaint relating to Article 10 of — there is no detailed map of the (possi- the Directive ble) polluted waters and vulnerable zones, as required under point 2 of Annex V;

1. Arguments of the parties — for almost half of the regions there is no indication of the monitoring results for nitrate concentrations; 67. Under Article 10 of the Directive Mem- ber States are obliged to submit a report every four years. The first report, covering the first four years, had to be sent to the Commission by 20 June 1996. The report must contain all the information outlined in — the overview given of the action pro- Annex V. The Italian Government had not grammes is unsatisfactory. It merely sent any report before that date. provides an account of some measures and only for some regions. There is no systematic report on the matters speci- fied under point 4 of Annex V.

2. Assessment 73. Consequently, I find that, by providing the Commission with a late report, which was also incomplete and unsatisfactory, the Italian Government has failed to fulfil its 72. In my view, first of all, it is not in obligations under Article 10 of the Direc- dispute between the parties that the Italian tive in conjunction with Annex V thereto. Government sent a report to the Commis- sion which was late, that is after 20 June 1996. That alone, in my view, is already a breach of Article 10 of the Directive. To this the following may be added. By letter of 18 September 1998 — and therefore well after the expiry of the period laid down in the Directive — Italy sent a report to the Commission. Annex V to the Direc- VI — Costs tive indicates precisely the information to be contained in the report. The Commis- sion specified in its application, with equal precision, what the missing information was. The Italian Government does not dispute that, but states in its defence, inter 74. It is clear from the foregoing that the alia, that a general outline could be suffi- Commission's complaints are almost all cient and that Article 10 and Annex V are well founded. Only on one, limited, point not precise enough to justify, on that basis, do I suggest that the application be dis- a charge of failure to fulfil obligations. It missed. In those circumstances, it is in my should be clear that I do not agree with this opinion reasonable that Italy should be argument. ordered to pay all the costs.

VII — Conclusion

75. In the light of all the facts and the circumstances set out above, I propose that the Court should:

— or in any case, by failing to inform the Commission of those measures,

has failed to fulfil its obligations under that directive;

(c) Order Italy to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.

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