C-266/00

OPINION OF MR GEELHOED — CASE C-266/00

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 14 December 2000 1

1. Under Article 226 EC the Commission which could be affected by pollution if seeks from the Court a declaration that, by specific action is not taken, shall be identi- failing to adopt all the laws, regulations fied by Member States in accordance with and administrative provisions necessary to the criteria set out in Annex I to the implement Council Directive 91/676/EEC Directive (Article 3(1)). Member States of 12 December 1991 concerning the pro- shall designate the vulnerable zones within tection of waters against pollution caused two years of notification of the Directive by nitrates from agricultural sources, 2the (Article 3(2)). Notification took place on Grand Duchy of Luxembourg has failed to 19 December 1991. fulfil its obligations under that directive. More specifically, the Commission seeks a declaration of failure to fulfil obligations under Articles 5(4) and (6) and 10(1) of, in conjunction with Annex II A, Annex III 1, point 3, and Annex V 4(e) to, the Direc- tive. Within two years of notification and with the aim of providing for all waters a general level of protection against pollution, Mem- ber States are to establish a code or codes of good agricultural practice, to be implemen- ted by farmers on a voluntary basis, which should contain provisions covering at least the items mentioned in Annex II A to the Directive (Article 4(1)(a)).

Legal background

Within a two-year period following the designation of the vulnerable zones Mem- ber States are required, for the purpose of 2. The Directive aims to reduce water realising the objectives of the Directive, to pollution caused or induced by nitrates establish action programmes in respect of from agricultural sources (Article 1). these zones (Article 5(1)). Where Member Waters affected by pollution and waters States establish action programmes throughout their national territory, the obligation to designate specific vulnerable 1 — Original language: Dutch. zones does not apply (Article 3(5)). The 2 — OJ 1991 L 375, p. 1 (hereinafter 'the Directive'). action programmes must consist of the

'A code or codes of good agricultural practice with the objective of reducing pollution by nitrates and taking account of conditions in the different regions of the 6. procedures for the land application, Community should contain provisions cov- including rate and uniformity of

I - 2075

OPINION OF MR GEELHOED — CASE C-266/00

spreading of both chemical fertiliser (c) land use and agricultural practices, and livestock manure, that will main- including crop rotation systems; tain nutrient losses to water at an acceptable level.'

and to be based on a balance between:

Annex III to the Directive concerns mea- sures to be included in action programmes pursuant to Article 5(4)(a) of the Directive. According to point 1.3: (i) the foreseeable nitrogen require- ments of the crops,

COMMISSION V LUXEMBOURG

— additions of nitrogen com- 3. Luxembourg chose the option provided pounds from livestock manure, for in Article 3(5) of the Directive and designated its entire territory as a vulner- able zone. The Directive was transposed into Luxembourg law by the Grand-Ducal Regulation of 20 September 1994 concern- ing the use of organic fertilisers in agricul- — additions of nitrogen com- ture and amending the Grand-Ducal Reg- pounds from chemical and ulation of 14 April 1990, as amended, other fertilisers.' relating to sewage sludge. 3

Pursuant to Annex V, point 4(e), to the Directive, the information to be included in reports referred to in Article 10 shall con- tain: The pre-litigation procedure

The Commission's complaints The Commission considers that the legisla- tion concerning water management and protection also fails to meet the require- ments in respect of land application of fertilisers close to water courses. In 5. The Commission makes five complaints response, the Luxembourg Government in support of its application. referred to the Law of 29 July 1993 relating to water management and protec- tion. 5 Under Article 4 of that law polluting substances may not be brought into direct or indirect contact with surface or ground- water. 6. The first complaint concerns the con- tents of the action programmes and the non-fulfilment of obligations in respect of chemical fertilisers. Under Article 2(e) and (f) of the Directive the term 'fertiliser' covers both organic fertilisers and chemical In the Commission's view, the national fertilisers. The Grand-Ducal Regulation of provisions on which the Luxembourg 20 September 1994 deals only with the use authorities rely are too general and too of organic fertilisers in agriculture, how- vague. They fail to provide farmers with ever, and it is the Commission's view that sufficiently precise information as to the the other regulations are equally insuffi- way in which they are to comply with the cient. obligation to strike a balance between the various ways in which nitrogen can be applied and to prevent the pollution of surface waters by avoiding land application of artificial fertilisers. It follows that the Luxembourg authorities have not taken any measures to comply with their obliga- In respect of the obligations arising from the Directive concerning fertilisers, the national legislation concerning the fertiliser 4 — Règlement grand-ducal du 14 mai 1992 relatifau commerce trade falls short. The Luxembourg Govern- des engrais et des amendements du sol, Mémorial A — No 33/1992, p. 1408. ment relies on Article 6(5) of the Grand- 5 — Loi du 29 juillet 1993 relative à la gestion et à la protection Ducal Regulation of 14 May 1992 con- de l'eau, Mémorial A — No 70/1993, p. 1302.

9. The fourth complaint is that Luxem- bourg has failed in the Commission's view to introduce a suitable monitoring pro- gramme within the meaning of Article 5(6) 8. The third complaint also relates to of the Directive. The information provided climatic conditions during the spreading by the Luxembourg Government does not of organic fertilisers. Annex II A, point 3, show that the Grand Duchy has a repre- to the Directive requires the code(s) of good sentative monitoring network in respect of agricultural practice, in so far as relevant, all of its surface waters and groundwater to contain provisions relating to the land exposed to pressure from farming, which application of fertiliser to water-saturated, would allow an objective assessment of the flooded, frozen or snow-covered ground. extent of the pollution and the impact of The Commission takes the view that this the action programmes as required by provision is particularly relevant to coun- Article 5(6) of the Directive. Furthermore, tries with a transitional climate, such as the it would seem that Luxembourg is failing to

I - 2079

OPINION OF MR GEELHOED — CASE C-266/00

11. During the pre-litigation stage Luxem- bourg justified the delay in transposing the Directive on the grounds of, inter alia, the complex and technical nature of the Direc- tive and the need for close collaboration between the Ministry of the Environment and the Ministry of Agriculture. In the defence, received by the Court on 24 June 2000, the Luxembourg Government does not contest the infringement as such. How- 10. The fifth and last complaint concerns ever, it draws the Court's attention to the the incomplete nature of the periodical fact that a draft Grand-Ducal regulation report presenting the information required was adopted by the Conseil de Gouverne- under Annex V which Luxembourg is ment on 16 June 2000. It states that the required to submit to the Commission draft transposes the Directive accurately under Article 10(1). Annex V provides in and fully into domestic law. It was sub- point 4(e) that the report in question is to mitted to the Chambre d'Agriculture for its contain an overview of the action pro- opinion on 30 June 2000. The emergency grammes implemented in accordance with procedure is being used for the adoption of Article 5 and in particular in respect of the the regulation. The Luxembourg Govern- assumptions made by the Member State as ment invited the Commission to take note to the likely timescale within which the of the recent draft and inform it of any measures proposed in the action pro- complaint arising from it. The Luxembourg grammes are expected to have an effect Government clearly hoped to persuade the on the waters designated in accordance Commission to abandon the proceedings. with Article 3(1) of the Directive, indicat- As the Commission has maintained the ing the degree of uncertainty in those action, its application should be granted.

I - 2081