C-258/00

COMMISSION v FRANCE

O P I N I O N OF ADVOCATE GENERAL GEELHOED delivered on 29 November 2001 1

I — Introduction 3. Under Article 5(1) of the Nitrates Direc- tive, action programmes must be estab- lished in respect of the vulnerable zones designated in this way, for the purpose of reducing the addition of nitrogen to the soil. This will reduce the risk that nitrogen compounds not taken up by plants will 1. The implementation of Council Direc- leach out of the soil and ultimately end up tive 91/676/EEC of 12 December 1991 in surface waters which are already pol- concerning the protection of waters against luted or at risk of becoming so. pollution caused by nitrates from agricul- tural sources 2 (hereinafter the 'Nitrates Directive') continues to give rise to dif- ferences of interpretation between the Member States and the Commission. Those differences of interpretation are frequently technical in nature. This is also the case in 4. It is clear that there is a link between the these infringement proceedings. extent to which surface waters are ident- ified as being polluted or at risk of becom- ing polluted by nitrogen compounds and the surface area of the vulnerable zones to be designated. It is also clear that the area of the vulnerable zones in turn has con- sequences for the extent and the degree to which agricultural production methods 2. Under Article 3(1) of the Nitrates Direc- must be adapted. tive, the Member States are required to identify which waters are affected by pollution with nitrogen compounds from agricultural sources and which waters could be affected if action is not taken to reduce the nitrogen input from agricultural sources. To that end, they are required to 5. In view of the possible ecological and designate as 'vulnerable zones' the agricul- economic consequences of the identifica- tural areas which drain into the waters tion of surface waters polluted or at risk of identified as polluted by nitrogen com- becoming polluted with nitrogen com- pounds or at risk of becoming so. pounds, similar criteria should be used throughout the Community for identifying those waters. The criteria for identifying 1 — Original language: Dutch. surface w a t e r s are laid down in 2 — OJ 1991 L 375, p. 1. Annex 1(A)(3) to the Nitrates Directive.

'A. Waters referred to in Article 3(1) shall I I — Legal framework be identified making use, inter alia, of the following criteria:

A — The relevant provisions of the Nitrates Directive

1. whether surface freshwaters, in 8. Article 3(1) and (2): particular those used or intended for the abstraction of drinking water, contain or could contain, if action pursuant to Article 5 is not taken, more than the concentration ' 1 . Waters affected by pollution and waters of nitrates laid down in accordance which could be affected by pollution if with Directive 75/440/EEC;

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2. whether groundwaters contain 3. the current understanding of the more than 50 mg/1 nitrates or could impact of the action taken pur- contain more than 50 mg/1 nitrates suant to Article 5.' if action pursuant to Article 5 is not taken;

Whereas, by encouraging good agricultural 11. Specifically, the Commission claims practices, Member States can provide all that the Court should: waters with a general level of protection against pollution in the future (eighth recital);

Whereas certain zones, draining into waters — declare that, by failing to take appro- vulnerable to pollution from nitrogen com- priate steps to identify waters affected pounds, require special protection (ninth by pollution and, in consequence, to recital); designate the corresponding vulnerable zones, as provided for by Article 3 of and Annex I to Directive 91/676, the French Republic has failed to fulfil its obligations under that directive; Whereas it is necessary for Member States to identify vulnerable zones and to establish and implement action programmes in order to reduce water pollution from nitrogen compounds in vulnerable zones (10th recital)'.

— order the French Republic to pay the costs.

III — Procedure

10. The reasoned opinion and the Com- mission's application contain four objec- 12. The French Republic claims that the tions. In the course of the proceedings Court should dismiss the Commission's before the Court, the French Government appeal and order it to pay the costs. has dealt with two of them. At this stage, the Commission still has two objections. It still rejects the method used by the French authorities to designate waters polluted or at risk of becoming polluted with nitrogen as incompatible with the Nitrates Directive. In addition, it maintains that the French authorities wrongly failed to designate the 13. The Kingdom of Spain has been Seine bay as a body of water polluted with allowed to intervene in support of the nitrogen. observations of the French Republic. I - 5964

19. However, it is not always effective to tackle eutrophication via the limiting fac- 16. In cases where the ratio between tor. Cases may arise in which nitrogen is nitrogen and phosphorus is high — i.e. indeed the limiting factor but there is no there is a relatively large amount of point in reducing its availability because nitrogen available in the environment — the plants present in the aquatic environ- phosphorus is the limiting factor for plant ment — especially blue algae — meet growth. If eutrophication occurs with such their nitrogen requirements by taking it a ratio, resulting in excessive plant growth, from the air. In those cases, reducing the reduction of the quantity of phosphorus nitrogen as a nutrient is ineffective. present in the (aquatic) environment is the Nitrogen is indeed the limiting factor, but most efficient way of controlling the eut- not the controlling factor for reducing rophication. eutrophication.

17. On the other hand, in cases where the ratio between nitrogen and phosphorus is 20. On the basis of the argument repro- relatively low — where there is a relatively duced here, the aforementioned annex dis- large amount of phosphorus available in tinguishes between different types of waters

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OPINION OF MR GEELHOED — CASE C-258/00

depending on whether their eutrophication ("de façon prépondérante"), of agricultural can be reduced by reducing nitrogen as a origin. 4 In the opposite case, there will be limiting and controlling factor. no reason to designate a particular vulner- able zone on the basis of that criterion.'

24. In cases where it is not nitrogen but phosphorus that is the limiting factor, nitrogen may enrich the water, but that enrichment does not bring about an accel- erated growth of algae and higher forms of After observations and studies have made it plant life. In those cases, nitrogen cannot be possible to describe ... the state of eut- regarded as the controlling factor in reduc- rophication of waters, the working group ing eutrophication. Consequently, even the will, on the basis of the considerations set measures as referred to in Article 5 of the out above, determine in which cases Nitrates Directive would have no effect. nitrogen is the controlling factor in the phenomenon of eutrophication. It will then also have to determine whether the 4 — In the revised version of the circular dated 24 July 2000, the words 'de façon prépondérante' are replaced by the words nitrogen is in fact, at least predominantly 'de façon significative' (significantly).

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29. In the course of the written procedure, 27. The Commission contests the views of both the French Government and the the French authorities as laid down in the Commission have attempted to substanti- circular of 5 November 1992. It points out ate the scientific tenability of their view- that the method worked out in that circular points with numerous references to scien- does not take adequate account of the tific studies. Perusal of the material sub- variations which may arise, depending on mitted confirms the comment made in the the different species of plant, in the take-up circular of 5 November 1992 that, in the of nutrients. Such variations might also light of the complexity of eutrophication occur in the course of the growth cycle of processes, current knowledge remains various forms of plant life. In those cases, incomplete and inexact. That material also identifying phosphorus as the limiting and appears to confirm the view that the role controlling factor would have the result and significance of nitrogen and phosphate that the excessive growth of forms of plant in the eutrophication process may vary life for which nitrogen is the limiting factor widely depending on place, time and form would remain unimpeded. of plant life.

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V — Assessment 34. The first has already been referred to above at point 23, namely that the method described by the French Government in its circular of 5 November 1992 follows on from the description of the term eutrophi- 30. The scientific studies and data put cation given in Article 2(i) within the forward by the French Government and meaning of the Nitrates Directive: the Commission do not permit an unam- biguous conclusion as to the scientific tenability of the method used by the French authorities to designate waters which have become or are at risk of becoming eut- — the enrichment of water by nitrogen rophic due to nitrogen. compounds, causing an accelerated growth of algae and higher forms of plant life;

States were accorded wide discretion in the uses of water. In a wider context, it also choice of methods by which vulnerable refers to the protection of the North Sea. zones were to be designated under the Nitrates Directive.

39. In the light of those objectives, the restrictive interpretation and application of 36. Against the first argument, the Com- the definition in Article 2(i) in identifying mission submits that the definition in eutrophic waters, as arises from the circular Article 2(i) of the Directive is not intended of 5 November 1992, is not tenable. to list three cumulative conditions to be used to decide whether eutrophication is present in one case or another. Its purpose is to specify the role of nitrogen in the eutrophication process.

40. Apart from the scientific objections which could be raised against it — the Commission emphasised these in its reply — the result of the French method might be that large sections of surface 37. The Commission has opposed the sec- freshwaters, brackish water estuaries and ond argument in its written documents and parts of coastal waters could never be at the hearing. If an argument in favour of a designated as eutrophic, however serious margin of discretion for the Member States the (threat of) pollution with nitrogen from can be derived from the Standley judg- agricultural sources. ment 6in identifying waters threatened by eutrophication, that margin should not have the result that a very substantial proportion of the waters polluted with nitrogen could not be designated.

42. The contested method, which has the consideration. Such a result is irreconcil- result that certain categories of waters are able with the intended protection of the automatically exempted from the scope of North Sea from contamination by nitrogen. the Directive purely on the basis of generic assumptions concerning nitrogen or phos- phorus as limiting and controlling factors in the eutrophication phenomenon is also at odds with the r e q u i r e m e n t in Annex 1(B)(1) which provides that Member States shall also take account of the physi- 44. On the basis of the above, I conclude cal and environmental characteristics of the that the method chosen by the French waters and land. This requirement calls for authorities for the designation of eutrophic a specific investigation of nitrogen pollu- waters and waters at risk of eutrophication tion and the eutrophication phenomena is inadequate in the light of the objectives and risks of the individual waters and the of the Nitrates Directive. land draining into them. Only then can the vulnerable zones referred to in Article 3 of the Directive be meaningfully identified and the appropriate action programmes set up. 45. The fact that the Member States have a certain discretion in the choice of method by which they designate surface waters which have already become or are at risk of becoming eutrophic does not alter this conclusion. The differences in geographical conditions and the differences in soil use within the Community provide sufficient 43. Finally, the contested method appears reason, even in the light of the scientific to disregard the fact that flowing fresh- uncertainty which still persists with respect water in particular may pass through to the phenomenon of eutrophication. environments with different physical char- acteristics. A stream may rise on an acidi- fied plateau poor in nutrients, pass through a low-lying area with limestone-based soil in a brackish estuary and finally emerge into a purely marine environment with a 46. In paragraphs 37 to 40 of the afore- high salt content. Should that water mentioned Standley judgment, the Court become seriously polluted with nitrogen at confirmed that the Directive may be any time en route, the consequences, in applied by the Member States in different terms of accelerated plant growth with ways. This is not incompatible with the serious implications for the natural nature of the Directive, '... since it does not environment, might not become noticeable seek to harmonise the relevant national until it reached the coastal waters. In the laws but to create the instruments needed compartmentalised approach which is a in order to ensure that waters in the consequence of the method chosen by the Community are protected against pollution French authorities, the source of the caused by nitrates from agricultural nitrogen pollution might not be taken into sources ...'.

52. Irrespective of this technical and scien- 49. In view of the above, I need not dwell tific debate, it is my view that the Com- long on the second objection, which mission's argument that the Seine bay accuses the French Government of wrongly contributes to the eutrophication of the failing to designate the Seine bay as eut- eastern part of the North Sea is more rophic and therefore infringing Article 3(1) important — and decisive. Where it is of and Annex 1(A)(3) to the Nitrates Direc- uncontested that the pollution of the water tive. with nitrates in that bay is extensive and where the parties agree that, in the salt water of the North Sea, nitrogen is the main limiting factor for the occurrence of accelerated growth of algae and higher forms of plant life, the contribution made by the Seine bay to the eutrophication of 50. It should be inferred from the exchange the North Sea cannot be disregarded, even of documents and the scientific studies if the eutrophication phenomenon does not referred to in those documents that the occur in the bay itself.

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53. The fourth recital of the preamble to cation of the North Sea is not taken into the Nitrates Directive, which refers in so account. many words to the protection of the North Sea as one of the motivations for the Directive, opposes an interpretation and application of that directive in which the contribution made by rivers and estuaries 54. As a result, it is my view that this polluted with nitrogen to the eutrophi- objection raised by the Commission is also unfounded.