C-161/00

'(b) those measures which Member States have prescribed in the code(s) of good agricultural practice established in accord- 2. Under Article 1, the Directive has the ance with Article 4...'. objective of reducing water pollution

1 — Original language: Dutch. 5. Annex III provides in point 1 that the 2 — OJ 1991 L 375, p. 1. measures to be included in action pro-

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grammes as referred to in Article 5(4) must (i) the foreseeable nitrogen require- include the following rules: ments of the crops,

'... and

6. Point 2 in Annex III is worded as follows: — long growing seasons;

'2. These measures will ensure that, for each farm or livestock unit, the amount of livestock manure applied to the land — crops with high nitrogen each year, including by the animals uptake; themselves, shall not exceed a specified amount per hectare.

The specified amount per hectare shall — high net precipitation in the be the amount of manure containing vulnerable zone; 170 kg N. However:

(a) for the first four-year action pro- — soils with exceptionally high gramme Member States may allow denitrification capacity. an amount of manure containing up to 210 kg N;

If a Member State allows a different (b) during and after the first four-year amount under subparagraph (b), it action programme, Member States shall inform the Commission which may fix different amounts from will examine the justification in those referred to above. These accordance with the procedure laid amounts must be fixed so as not down in Article 9.'

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the obligations under Article 5(4)(b) of, 4 The Federal Republic of Germany claims and points 1(2) and 2 in Annex III to, the that the action should be dismissed and the Directive. On the basis of the information Commission ordered to pay the costs. provided by the German Government, the Commission decided to confine its criticism from then on solely to the Düngeverord- nung, which, in its view, was not in accordance with the requirements of Article 5(4)(a) of, and point 2 in Annex III 13. In these proceedings, the President of to, the Directive. The application in the the Court has granted the Kingdom of present case was lodged at the Court Spain and the Kingdom of the Netherlands Registry on 28 April 2000. leave to intervene in support of the Federal Republic of Germany.

12. The applicant claims that the Court should: IV — Pleas in law and main arguments

14. The Commission is of the opinion that the German rules, as laid down in the Düngeverordnung, are likely to cause the (1) declare that the Federal Republic of application of manure to the land in Germany has failed to fulfil its obli- quantities exceeding the maximum quan- gations under Article 5(4)(a) of, and tity of fertilisers which any one arable and point 2 in Annex III to, Council Direc- livestock farm is allowed to apply per tive 91/676/EEC of 12 December 1991 hectare and per year. The provisions in concerning the protection of waters question are therefore not in accordance against pollution caused by nitrates with Article 5(4)(a) of, and points 1(3) and from agricultural sources; 2 in the Annex to, the directive.

livestock manure applied to the land each nitrogen is regarded as a 'normal' loss year, including by the animals themselves, arising from volatilisation of the nitrogen. shall not exceed a specified amount per hectare'. That specified amount per hectare is to be the amount of manure containing 170 kg N (nitrogen), although for the first four-year action programme Member 18. However, according to the Commis- States may allow an amount of manure sion, that disregards the fact that a large containing up to 210 kg N, and even proportion of the amounts of nitrogen thereafter, under point (b) of the second which escape into the air eventually fall subparagraph of point 2 in Annex III to the back onto the land and into watercourses, directive, derogations based on objective thereby contributing to water pollution. grounds are possible. However, the purpose of the Directive is to combat water pollution, by which the Directive understands the discharge, both directly and indirectly, of nitrogen com- pounds from agricultural sources.

16. However, the effect of the German rules in question is that more than 170 and/or 210 kg of nitrogen may end up on 19. The Commission further argues that the land and therefore in waters. the Directive fixes in absolute terms the maximum permitted amount of nitrogen which may be applied to the land, without any provision for the possibility of deduc- tions. The Directive does not contain any legal basis for taking into account losses arising during the land application process.

21. The Commission acknowledges that is to say, on or in the ground, which the different language versions of point 2 matters. That interpretation accords with in Annex III to the Directive are not com- the purpose of the provision. pletely identical. The German version uses the term 'die auf den Boden ausgebrachte Dungmenge' ('the amount of livestock manure applied to the land'). That is, to some extent, a pleonasm, since Article 2(h) 23. The German Government, supported in defines 'Ausbringen' ('land application') as this by the intervening Member States, 'Aufbringen auf den Boden...' ('addition of counters the Commission's view with a materials to land'). The term 'auf den number of arguments based on the word- Boden' is therefore expressed twice. The ing, purpose and scheme of the Directive. same thing occurs in the English version The taking into account of nitrogen losses where point 2 in Annex III has 'manure is in accordance with the Directive and the applied to the land' and the definition in Commission also gave the impression of Article 2(h) is worded: '"land application": allowing it. the addition of materials to land...'. The French-language version speaks in Annex III of 'quantité d'effluents d'élevage épan- due' and Article 2(h) refers to '"épandage": l'apport au sol de matières...'. The Italian wordings are, respectively, 'quantitativo di V — Assessment effluente di allevamento sparso sul terreno' and 'per "applicazione al terreno": si intende l'apporto di materiale al terreno'; in the Spanish version, those wordings are 'la cantidad de estiércol aplicada a la tierra' 24. The answer to the question of law and '"aplicación sobre el terreno": la raised in this case — whether inevitable incorporación de sustancias al mismo'. losses may be taken into account in calcu- lating the maximum allowable amount of nitrogen — is in essence dependent on the answer to another question, namely, at what moment the calculation of the maxi- mum permitted amount of 170 or 210 kg of nitrogen must take place. The issue is whether, as the Commission believes, the decisive moment is when the nitrogen is present in the fertiliser, or whether, as the Federal Republic of Germany and the intervening Member States argue, it is 22. A comparison of those different lan- when the nitrogen actually enters the soil. guage versions leads the Commission to It is common ground that the Member conclude that, despite the differences exist- States are not entitled to decide at their ing between them, and even the incon- own discretion on the method of calculat- sistency which appears within one language ing the limit value. The method and version, the moment of land application moment of measurement must be deter- must, as a rule, be decisive for the purposes mined objectively and in a consistent and of the calculation. It is not the moment identical manner throughout the Commu- when the nitrogen is on or in the land, that nity.

25. In my view, the Commission has shown 28. Since the wording of point 2 in Annex satisfactorily that, in the light of the word- III is not clear, the provision must be ing, objectives and context of the Directive, interpreted in the light of the objectives the decisive moment for the calculation of and context of the Directive. 5 the maximum permitted amount of nitrogen is when the fertiliser — and thus the nitrogen — is actually applied, and not the moment when the nitrogen is on the land or even in the soil, that to say, below the surface of the land. 29. In the Community, nitrates from agri- cultural sources are the main cause of water pollution from diffuse sources. The Direc- tive, which is based on Article 130s of the 26. The Directive gives few explicit indi- EC Treaty (now, after amendment, cations as to how the Member States are to Article 175 EC), is therefore intended to determine the maximum permitted amount reduce or prevent water pollution caused or of nitrogen on the basis of 'the amount of induced by those sources. The purpose of livestock manure applied to the land' that is to protect human health and living within the meaning of point 2 in Annex III. resources and aquatic ecosystems and to 'Land application' is defined in Article 2(h) safeguard other legitimate uses of water. 6 of the Directive as 'the addition of materials to land whether by spreading on the surface of the land, injection into the land, placing below the surface of the land or mixing with the surface layers of the land'. An examination of the different language versions, to which the Commis- sion refers, does not give a clear picture. 30. For the purpose of identifying waters affected by pollution, the Directive refers to the limit value of 50 milligrams per litre laid down in Directive 75/440/EEC. 7The measurement of water pollution caused by 27. The German Government argued dur- nitrates from agricultural sources is dif- ing the procedure that, because of the use ficult and dependent on various factors. of the past tense in the phrase 'amount... The degree to which groundwater pollution applied' in point 2 in Annex III, account occurs is connected, for example, with the could also be taken, for the purpose of the soil structure, the crops grown, and the calculation, of the emission losses which season in which the measurement is carried took place before the nitrogen actually settled on the ground. However, I share 5 — Settled case-law; see recently Case C-191/99 Kvaerner the Commission's view that the Directive in [2001] ECR I-4447, paragraph 30. no way makes a distinction between the 6 — See the fifth and sixth recitals in the preamble to the start and the end of the land application Directive. 7 — Council Directive of 16 June 1975 concerning the quality process. The precise moment of addition is required of surface water intended for the abstraction of drinking water in the Member States (OJ 1975 L 194, not stated. It may be when the fertiliser is p. 26). That directive was replaced by Directive 2000/60/EC injected into the ground, but it may also be of the European Parliament and of the Council of 23 Oc- tober 2000 establishing a framework for Community action before that. in the field of water policy (OJ 2000 L 327, p. 1).

34. In its statement in intervention, the 32. On one point, however, the Directive N e t h e r l a n d s G o v e r n m e n t invokes does not leave the Member States any point 2(b) in Annex III to the Directive. discretion whatsoever. In respect of pollu- Under that provision, different amounts are tion by nitrates from livestock manure, the allowed, provided that the achievement of Directive lays down an unequivocal and the objectives specified in Article 1 is not absolute limit value. Point 2 in Annex III prejudiced and that such amounts are clearly states that the measures to be justified on the basis of objective criteria, adopted by the Member States must ensure such as long growing seasons, crops with high nitrogen uptake, high net precipitation in the vulnerable zone, and soils with 8 — See Case C-293/97 Standley and Others [1999] ECR I-2603, exceptionally high denitrification capacity. paragraph 39. However, it is beyond dispute that the 9 — Standley and Others, cited in footnote 8, paragraphs 37 to 39. generally applicable deduction rule in the

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36. According to the German Government, the nitrogen balance is achieved less by the 38. In my opinion, that argument is unten- fact that the nitrogen needed by the plants able both in the light of the scheme of the is present in the fertiliser at any given Directive and on the basis of the Düng- moment than by the fact that the nitrogen everordnung itself. is still actually present in the specified proportion at the time when the fertiliser is applied to the land. The decisive factor is thus the quantity of nitrogen which actually ends up in the soil. Only that quantity can reach the roots of the plants and thus meet the calculated nitrogen requirements. 39. The nitrogen balance system in the According to the German Government, Directive implies that, in determining what the required supply of nitrogen to the crops measures will most effectively combat pol- I - 2764

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compounds from chemical and other ferti- any circumstances. If the Community legis- lisers. According to the Spanish Govern- lature had intended account to be taken of ment, such 'other fertilisers' might include nitrogen losses in the calculation of the the ammonia which, generally speaking, is maximum amount of livestock manure discharged via the atmosphere by, for which may be applied per hectare of land example, chemical fertilisers, municipal each year, that intention would have had to waste and municipal waste water. It argues be expressly stated in the directive. Since that disposal into the atmosphere should be that is not the case, a Member State may regulated in a comprehensive framework. not unilaterally increase the maximum From a technical point of view, there does values. Consequently, when the maximum not seem to be any justification for regulat- amount is calculated, due allowance must ing only the atmospheric deposition of be made for storage loss in the case of livestock manure. farmyard manure and inevitable losses arising during spreading in the case of slurry and liquid manure. Those losses may not be added to the maximum permissible amounts of 170 or 210 kg, but must form part thereof.

43. It is true that under that provision the Member States must take account of all fertilisers when adopting measures con- cerning the nitrogen balance. However, as the Commission rightly observes, that fact is not relevant when assessing the limit values in point 2 in Annex III to the 45. That conclusion is reinforced by a Directive. The latter provision is in fact number of further arguments. concerned exclusively with livestock manure, that is to say, with animal excreta, and not with other possible fertilisers which also contain nitrates and pollute water.

50. Furthermore, an interpretation such as that advocated by the German Government is not in line with the tendency nowadays not to combat negative environmental effects in isolation, but in a comprehensive and integrated manner. Under point 2 in Annex III to the Directive, the limit value 48. The risk of divergent percentages must be calculated per hectare and on an appearing is even greater if each Member annual basis 'for each farm or livestock State determines as it sees fit the loss unit'. The best system would therefore be coefficients which may be taken into to base that calculation on the fertiliser account. The German Government's obser- cycle within a farm. Other loss factors vation that other Member States also take which arise up to the time of land appli- account of losses through volatilisation and cation, such as losses in the stables and that the values in the Düngeverordnung are during spreading, will then be covered. The not excessive in comparison with the rules fact that the Directive takes no account of in other Member States is clearly not a the nitrogen losses after the land appli- sufficient argument for retaining the deduc- cation of the fertiliser does not prevent tion system in the Düngeverordnung. If that. other Member States exceed the maximum nitrogen values permitted by the Directive, that cannot in any circumstances justify an infringement of the provisions of the Direc- tive by the Federal Republic of Germany.

51. Moreover, a strict interpretation is in keeping with the principle enshrined in the Treaty that pollution should be rectified as close as possible to the source. 10 In this case, that means that the rectification of

52. It remains for me to examine the Commission's approach, which has been criticised on two points. First, the German and Spanish Governments point out that the Commission's position in these pro- ceedings does not accord with the view expressed by the Commission represen- tative during a meeting, held on 11 April 2000, of the Nitrates Committee estab- lished pursuant to the Directive. At that meeting, the Commission had indicated, on 54. The same applies mutatis mutandis the basis of a presentation and a working with regard to the German Government's document, that it was preparing a proposal argument that it can be inferred from a for harmonising the calculation of nitrogen letter of 3 December 1997 from the Com- losses. At the same time, the Nitrates mission's Environment Directorate-General Committee had come to the conclusion at to the Permanent Representation of the that meeting that ammonia discharges from Federal Republic of Germany that the livestock manure which is not actually Commission approved of the provisions applied to the land do not have to be taken concerning losses in the Düngeverordnung. into account in the calculation of the limit That letter contains a response to a debate values laid down in point 2 of Annex III about the interpretation of point 2 in either. Annex III at a meeting of the Nitrates Committee held on 12 June 1997. The Commission can in no way be bound by that letter in these proceedings. That would not be of much help to the Federal Republic of Germany in any case. It should be observed for the record that the letter relates primarily to the losses which arise 53. However, as the German Government after the land application of the manure, had to admit in the rejoinder, no official whereas the Commission confirms in its Commission position concerning a pro- letter that the amounts specified in the posal for harmonisation was put forward directive are to be understood as amounts at the abovementioned meeting of 11 April 'as from the place of storage'.

(c) declare that the Kingdom of Spain and the Kingdom of the Netherlands are to bear their own costs pursuant to Article 69(4) of the Rules of Procedure.

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