C-322/00

COMMISSION v NETHERLANDS

OPINION OF ADVOCATE GENERAL LÉGER delivered on 7 November 2002 1

1. This action has been brought by the 3. Article 3(2) of the Directive requires the Commission of the European Communities Member States to designate as vulnerable to obtain a declaration that the Kingdom of zones all known areas of land in their the Netherlands has failed to fulfil its territories which drain into waters which obligations under Directive 91/676/EEC. 2 are or may become affected by pollution The Commission claims that the Nether- and which contribute to pollution. Under lands has not included in its action pro- Article 3(5), Member States are exempted gramme a number of the measures which from that obligation if they establish and should have been included, in accordance apply the action programmes referred to in with Article 5(4) and (5) in conjunction Article 5 throughout their national terri- with other provisions of the directive. tory.

I — The legal context 4. Article 5(1) of the Directive provides that such action programmes are to be established within a two-year period fol- lowing the designation of vulnerable zones. Under Article 5(4), the action programmes must be implemented within four years of A — Community provisions their establishment.

2. Article 1 of the Directive states that it has the objective of 'reducing water pollu- tion caused or induced by nitrates from agricultural sources and preventing further such pollution'. 5. In addition, Article 5(4)(a) and (b) of the Directive provides that action programmes 1 — Original language: French. are to consist of the measures in Annex III 2 —Council Directive 91/676/EEC of 12 December 1991 and the measures prescribed in the codes of concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1. good agricultural practice established in 'the Directive'). accordance with Article 4 of the Directive.

(a) soil conditions, soil type and slope;

— the supply of nitrogen through the net mineralisation of the (b) climatic conditions, rainfall and reserves of organic nitrogen in irrigation; the soil, I - 11276

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— additions of nitrogen com- may fix different amounts from those pounds from livestock manure, referred to above...

— additions of nitrogen com- If a Member State allows a different pounds from chemical and amount under subparagraph (b), it shall other fertilizers.' inform the Commission which will exam- ine the justification in accordance with the procedure laid down in Article 9...'.

7. Paragraph 2 of Annex III to the Directive provides that: 8. The second series of measures which must be included in the action programmes are specified in Article 4(1 )(a) of the Directive, which provides as follows: '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 amount per '1. With the aim of providing for all hectare. waters a general level of protection against pollution, Member States shall, within a two-year period following the notification of this Directive:

11. It appears from the observations sub- mitted by the Netherlands Government 3 that the national measures for implement- ing the directive provide for two systems. The first, known as the 'MINAS system', is a system for taxing nitrogen, nitrogen compounds and phosphate compounds. 4 (4) the conditions for land application of The second system regulates the maximum fertilizer near water courses; production of livestock manure. The pres- ent case involves only the MINAS system.5

12. The object of the MINAS system is to reduce nitrogen and phosphate losses on farms as a result of infiltration into the

(6) procedures for the land application, 3 — Defence, paragraphs 20 to 26. 4 — The Mineralenaanfgiftesysteem (mineral tax system). including rate and uniformity of 5 — The rights and obligations arising from the MINAS system spreading, of both chemical fertilizer are regulated in Articles 14 to 54 inclusive of the Wet van 27 november 1986 houdende regelen inzake het verhandelen and livestock manure, that will main- van meststoffen en de afvoer van mestoverschotten (Law of tain nutrient losses to water at an 2 7 November 1986 regulating trade in fertilizers and the disposal of surplus fertilizer), as amended by the law of acceptable level'. 16 September 1999, the 'Meststoffenwet'.

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environment. It lays down so-called 'loss' input standards. If the abovementioned standards. The phosphate and nitrogen input limits were exceeded, the farms were input on a farm must not exceed the output automatically required to submit a return. of those minerals from the farm, plus a permitted loss. The 'permitted loss' is laid down by the Meststoffenwet. Farmers must pay a tax if the phosphate and nitrogen losses from their farms exceed the standard losses. The MINAS system applies to the use of livestock manure as well as the use of 15. Apart from the MINAS system, the organic and chemical fertilizers. Netherlands regulated the use of fertilizers at certain times in the year and in certain circumstances. The relevant provisions will be set out so far as necessary for examining the submissions relating to them.

B — Forms of order sought by the parties

18. The Netherlands Government replied 21. The Commission's application was by letter of 7 December 1998. This reply received by the Court Registry on was supplemented by proposed amend- 30 August 2000. ments to the Meststoffenwet which were notified to the Commission on 4 April 1999.

22. The Commission claims that the Court should:

19. The Commission was not satisfied with the information supplied by the Nether- lands Government in reply to its formal notice and, by letter of 3 August 1999, it (1) declare that, by failing to adopt the delivered a reasoned opinion and requested necessary laws, regulations and admin- the Kingdom of the Netherlands to take the istrative measures to fulfil the obli- necessary measures to comply with the gations arising from Article 5(4) in opinion within two months of the notifi- conjunction with paragraphs 1(2), 1(3) cation thereof. and 2 of Annex III to the Directive, and with Article 4(1 )(a) in conjunction with paragraphs 1, 2, 4 and 6 of part A of Annex II, and arising from Article 5(5) of the directive, the Kingdom of the Netherlands has failed to fulfil its obligations under the directive, and

20. By letter of 28 September 1999, the Permanent Representation of the Nether- 7 — In paragraph 13 of its statement in reply, the Commission asserts that it never granted the extension requested but, for lands to the European Union requested an the purposes of the present action, it agrees to take as the additional two months in which to reply to reference date for assessing the alleged failure of the Netherlands in respect of its obligations the date of the the reasoned opinion. The Netherlands reply to the reasoned opinion.

— infringement of Article 5(4)(a) in con- junction with paragraph 1(2) of Annex III to the Directive, in that the — infringement of Article 5(4)(b) in con- Kingdom of the Netherlands failed to junction with Annex III to the Direc- include in its action programme provi- tive, and of Article 4(1 )(a) in conjunc- sions relating to the capacity of storage tion with Annex II to the Directive, in vessels for livestock manure; that the Kingdom of the Netherlands

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failed to include in its action pro- and include in its action programme provi- gramme measures relating to points sions fixing the capacity of storage vessels which should have been covered in the for livestock manure at a level exceeding code of good agricultural practice, and the capacity necessary for storage during the longest period during which land appli- cation is prohibited in the Netherlands.

— infringement of Article 5(5) of the Directive, in that the Kingdom of the Netherlands failed to include in its action programme additional measures or reinforced actions relating to dry, 28. The Commission considers that it is not sandy soil. sufficient for the national measures to ensure that livestock manure is disposed of in a manner which will not cause harm to the environment. It considers that the directive requires mandatory measures 25. At the hearing the Commission specifying the minimum capacity of each expressly withdrew the second plea in storage container. law. 8

manure in the Netherlands was much considers that it requires the Member States greater than that provided for by the to impose an obligation on farmers who directive. The Netherlands Government produce livestock manure to have storage submits that the Directive does not require vessels with a minimum capacity prescribed the capacity of storage vessels to be by law. The Netherlands Government, on assessed in relation to individual farmers the other hand, considers that it is sufficient and that it suffices if such capacity is if the aims of the Directive, that is to say, overall sufficient to store livestock manure the disposal of livestock manure in a during the longest period during which manner which is not harmful to the land application is prohibited. The Nether- environment, are attained by the national lands Government considers that the result legislation. intended by the directive is therefore attained by the Netherlands measures.

36. It is clear from the wording of the said provision that the Directive lays down the principle that the capacity of containers 34. It seems to me that paragraph 1(2) of must exceed the capacity necessary for Annex III to the Directive does not leave it storage during the longest period during to the Member States to choose the means which land application is prohibited. of preventing pollution during periods Farmers may have a smaller storage capac- when land application is prohibited, but ity only exceptionally, subject to the con- provides that the objectives must be dition that disposal will not cause harm to achieved by specifying the capacity of the environment and subject to individual storage containers. Consequently only authorisation by the competent authority. measures which aim to prescribe such capacity will constitute valid implemen- tation of the directive.

37. The Netherlands Government's inter- pretation turns this exception into the principle laid down by the provision and 35. It must also be observed that the nullifies the obligation set out in the first Netherlands Government's interpretation part. According to the Government, to is such as to render meaningless the first comply with the Directive it is sufficient if part of paragraph 1(2) of Annex III to the livestock manure is disposed of in a manner Directive, which provides that the capacity which will not cause harm to the environ- of storage vessels may be less than the ment. This conclusion cannot be accepted. storage capacity necessary throughout the

longest period during which land appli- to include in its action programme meas- cation is prohibited. ures limiting land application in accord- ance with the requirements of paragraph 1(3) of Annex III to the Directive. The Commission divides this plea into four parts as follows: 39. In this connection, it is sufficient to note that the Directive requires action programmes to contain 'mandatory meas- ures' specifying the capacity of containers. The Netherlands Government does not even claim that such capacity has been specified, even if only overall, and merely — incompatibility of the loss standards as indicates that 'in practice' sufficient storage such with the Directive; capacity exists in the Netherlands. How- ever, in the light of the wording and the objectives of the Directive, the existence 'in practice' of sufficient storage capacity can- not take the place of measures specifying the capacity of containers and ensuring compliance with the limits laid down by the — incompatibility of the level of 'loss' Directive. standards with the Directive;

40. I therefore propose that the Court declare that, by not including in the action — failure to take account of net minerali- programmes measures relating to the stor- sation, and age capacity of containers, the Kingdom of the Netherlands has failed to fulfil its obligation arising from Article 5(4)(a) in conjunction with paragraph 1(2) of Annex III to the Directive.

— failure to take account of the nitrogen input from nitrogen-fixing soil organ- isms.

IV — Third plea in law

41. With this plea, the Commission claims 42. I shall examine the different parts in the that the Kingdom of the Netherlands failed order shown above.

46. The Court has consistently held that in actions brought under Article 226 EC the 1. Admissibility p r e - l i t i g a t i o n s t a g e p r o v i d e d for in paragraph 1 of that article defines the subject-matter of the proceedings. It fol- lows that the reasoned opinion and the application must be based on identical complaints. 1 3 Nevertheless, the Court has (a) The parties' submissions held t h a t that requirement cannot be stretched so far as to mean that in every case the statement of the subject-matter of the proceedings in the reasoned opinion must be exactly the same as the form of order sought in the application if the subject-matter of the proceedings has not 4 4 . The Netherlands Government con- been extended or altered. 1 4 siders that the complaint that the loss standards as such are incompatible with the Directive is inadmissible. The Govern- ment observes that, as the Court has consistently held, the application must be based on the same complaints as those in the reasoned opinion and the purpose of 47. It seems to me that, contrary to the the pre-litigation procedure is to enable the argument of the Netherlands Government, Member State concerned to fulfil its obli- the Commission did not alter the subject- gations arising from Community law and matter of the proceedings as stated in the to defend itself against the Commission's reasoned opinion. complaints. In the present case, the Com- mission did no more in the pre-litigation procedure than criticise the level of the 13 — See, in particular, the judgments in Case C-157/91 Com- mission v Netherlands [1992] ECR 1-5899, paragraph 17; standards applicable to losses. The com- Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 13; Case C-296/92 Commission v Italy plaint that those standards were incom- [1994] ECR I-1, paragraph 11, and Case C-11/95 Com- patible is said to have been raised for the mission v Belgium [1996] ECR 1-411 J, paragraph 73. 14 — See the judgment in Case C-279/94 Commission v Italy first time in the application. [1997] ECR I-4743, paragraph 25.

52. Therefore I consider that the Nether- lands Government's objection of inadmis- 'The Commission considers these losses in sibility must be dismissed. contradiction with the requirement of the abovementioned balance'. 16

2. The substance of the plea 50. Accordingly the Commission com- plained to the Kingdom of the Netherlands that its action programme did not contain measures to ensure that land application (a) The parties' submissions would be based on a balance. The Com- mission considered that the fact that the Netherlands legislation authorised losses

15 — Paragraph 19. 53. The Commission points out that the 16 — Paragraph 20. Directive states that action programmes

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must include rules relating to the limitation 57. The Netherlands Government adds of the land application of fertilizers. that it was always aware that it had chosen According to the Commission, the Direc- 'a different method' in adopting the tive requires such rules to include input or MINAS system, but considers that it is utilisation standards, that is to say, stan- not incompatible with the directive. dards fixing the maximum quantities which can be applied to soil. These maximum quantities of fertilizer must be set at levels ensuring a balance between the input and output of nitrogen. (b) Assessment

(i) the foreseeable nitrogen require- ments of the crops, 61. It is therefore necessary to ascertain whether, as the Commission maintains, paragraph 1(3) of Annex III to the Direc- tive requires the adoption of utilisation standards or whether, on the contrary, it does not require a particular type of and standard, so that any system limiting, directly or indirectly, the land application of fertilizers would constitute proper imple- mentation of the directive.

— the utilisation standards are clear and 66. According to Article 1 of the Directive, simple for farmers to observe, so that its objective is to reduce water pollution there is no risk of pollution, which is and to prevent further such pollution. In the result of mistakes in applying the Standley and Others, cited above, 18 the standards. The loss standards, on the Court observed that the Directive aims to other hand, compel farmers to make create the instruments needed in order to complicated calculations and assess- ensure that waters in the Community are ments taking account of the character- protected against pollution caused by istics of the vulnerable zone and the nitrates from agricultural sources. Bearing balance between the foreseeable this objective in mind, the utilisation stan- nitrogen requirements of crops and dards seem more likely to reduce and the nitrogen supply to the crops from prevent pollution than the loss standards. the soil and from fertilizers. 20 An error The reason is that they have two advan- in calculating the amount of fertilizer tages in relation to the aims of the directive: which can be applied or a change in the relevant circumstances 21 may lead to nitrogen losses in the environment.

19 — This reasoning is consistent with Article 174 EC, which provides that Community policy on the environment should be based on the principle that environmental damage should as a priority be rectified at source. In his Opinion in Case C-161/00 Commission v Germany [2002] — the utilisation standards take effect ECR I-2753, paragraph 5 1 , Advocate General Geelhoed was also referring to this Treaty provision when he upstream. Consequently, if they are observed that the rectification of water pollution by nitrates must be commenced at as early a stage as possible. exceeded, this may be compensated 20 — Specialised studies confirm the difficulty of making this assessment. See J. Black, 'A Study of Manure Management in Pig Production', Spring 1999, http://res2.agr.ca/ini- tiatives/manurenet/download/black_nuffield-pdf (p. 18). 18 — P a r a g r a p h 39. 21 — For example, exceptionally high rainfall.

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73. The Netherlands Government claims it considered, at the time, that an alter- that the amounts specified in paragraph 2 native method of implementing the direc- of Annex III to the Directive do not tive was acceptable, provided that its constitute a utilisation standard, but merely objectives were attained. aim to indicate the effect which the meas- ures provided for by the action pro- grammes must have. The Government adds that several systems are conceivable, including the MINAS system. 2. Exempt farms

75. The Netherlands Government goes on to explain the method to be used for 77. The Commission goes on to dispute the calculating, on the basis of phosphate loss conversion system proposed by the Nether- standards, the amount of nitrogen applied lands Government for calculating the to land in the Netherlands. The calcu- amount of nitrogen in livestock manure lations show that the amount of nitrogen which may be applied in accordance with which can be applied to arable land, 210 kg the Netherlands phosphate standards. The of nitrogen per hectare, is the same as that Commission asserts that the system is not laid down by the Directive for the first such as to ensure adherence to the amounts action programme. On the other hand, for laid down by the directive. In its reply, the pasture land, the Netherlands Government Commission adds that, if the Kingdom of admits that the quantity of nitrogen which the Netherlands wishes to take the liberty can be applied, 300 kg per hectare, exceeds of setting standards limiting the input of the limit of 210 kg per hectare. It contends phosphates instead of that of nitrogen, it that it did not inform the Commission of its must at least present a convincing argu- intention to authorise that amount because ment.

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23 — The Netherlands Government contends, in paragraph 4 of its rejoinder, that this plea is inadmissible on tlie ground that it is materially different from the complaint in the reasoned opinion. On this point it is sufficient to observe 83. Paragraph 1 of Annex III to the Direc- that the Government does not indicate in what respect the fourth plea in law of the application differs from that in the tive sets out the measures which must be reasoned opinion. included in the Member States' action

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85. Therefore, as I consider that, in estab- 88. With regard to the first objection, I do lishing the MINAS system, the Kingdom of not share the Commission's view that the the Netherlands has not fulfilled its obli- Directive requires the measures limiting the gation to include in the action programme land application of manure to relate neces- the measures referred to in paragraph 1 of sarily to nitrogen. Annex III, it does not appear necessary to examine the question whether that system is such as to ensure observance of the limits on the land application of livestock manure in paragraph 2 of that Annex. 89. Paragraph 2 of Annex III to the Direc- tive merely states that the measures laid down in paragraph 1 must ensure that the livestock manure applied to the land each 2. Exempt farms year does not contain more than 170 kg of nitrogen per hectare. The Directive does not require the standards to mention expressly the amount of nitrogen which can be applied. It is sufficient if the 86. The standards applying to farms which, measures, whatever provisions they contain until 1 January 2001, were exempt from and however formulated, have the effect of limiting the land application of livestock manure by taking account of the limits laid 24 — Emphasis added. down by the Directive.

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90. On the other hand, if the Kingdom of applied to the land, in accordance with the the Netherlands wishes to limit the appli- Netherlands legislation, is greater than that cation of manure by means of input specified by the Netherlands Government. standards for phosphates, those standards Finally, the calculation proposed by the must still ensure that the maximum Government is based on the 'practice' of nitrogen input specified in paragraph 2 of Netherlands farmers, so that no mandatory Annex III is observed. Therefore it is standard ensures that the data taken into necessary to ascertain whether the conver- account do not change or that they are sion method proposed by the Netherlands valid for all Netherlands farms. Government ensures that the amount of livestock manure authorised by the phos- phate standards does not contain, even occasionally, 25 nitrogen levels prohibited by the directive.

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year, including by the animals themselves, — rules covering procedures for land does not exceed the amount specified by application limiting nutrient losses to the directive. water.

95. I shall consider these complaints in that order. VI — Fifth plea in law

94. The Commission complains that the A — Absence from the Netherlands action Kingdom of the Netherlands has not programme of rules covering periods when included in its action programme the fol- the land application of fertilizer other than lowing measures which ought to have been livestock manure is inappropriate included in the code of good agricultural practice:

1. The parties' submissions

are periods during which the land appli- 101. In my view, the requirement of rel- cation of fertilizer is harmful and must evance must be juxtaposed with the part of therefore be considered inappropriate. the provision which states that codes of good agricultural practice must take account of the 'conditions in the different regions of the Community'. 28 Con- sequently the measures listed in Annex II will be relevant or not, depending on the 98. The Netherlands Government con- conditions in each region. siders that the factors cited by the Com- mission are not the only ones which must be taken into account. The Government claims that the provisions determining the periods when the land application of chemical fertilizers is inappropriate are not relevant in the Netherlands because, owing to the MINAS system, farmers will 102. I consider that the words 'conditions not use fertilizer when it is inappropriate to [prevailing]' refer, as the Commission says, apply it to the land or bury it. to the natural, geological and climatic conditions of the different regions of Europe and not to the national legislation of each Member State. A law could not be said to 'prevail' in a region, but would be 'applicable' there. 2. Assessment

104. Therefore I consider that the measures referred to in part A of Annex II to the B — Absence from the Netherlands action Directive must be assessed by reference to programme of rules covering the land the geological and climatic characteristics application of fertilizer on steeply sloping of each region. ground

1. The parties' submissions

105. In the present case the Commission has asserted that a feature of the Nether- lands climate is heavy rainfall between September and January, which is not denied by the Netherlands Government. 108. The Commission claims that the This makes it necessary for the State to measures relating to the land application specify periods during which the land of fertilizer on steeply sloping ground were application of fertilizer is inappropriate so not adopted within the period allowed by as to reduce the pollution of water by the directive, namely before 20 December nitrates. 1995.

109. The Netherlands Government con- siders that the adoption of such measures 106. The Netherlands Government has not is not relevant, within the meaning of the proved or even asserted that, as at the end Directive, to the Netherlands. In this con- of the period granted by the reasoned nection, the Government contends, firstly, opinion, there were in existence in its that the Netherlands is a very flat country legislation rules relating to periods during and, secondly, that the MINAS system which the land application of fertilizer is should encourage farmers to use fertilizer inappropriate. sensibly on steeply sloping ground.

116. Accordingly it is necessary to consider whether the Commission has proved that it 113. Secondly, it must be made quite clear that the two provisions of the directive in question do not have the same subject- 29 — See, in particular, the judgments in Case 96/81 Commis- sion v Netherlands |1982] ECR 1791, paragraph 6; Case matter. Annex III requires the slope of the C-157/94 Commission v Netherlands [1997] I-5699, paragraph 59, and Case C-166/97 Commission v France ground to be taken into account, but does [1999] I-1719, paragraph 40.

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is relevant in the Netherlands to adopt must be deemed steeply sloping ground, provisions concerning the application of which would make it relevant to adopt fertilizer on steeply sloping ground, that is measures referred to in paragraph 2 of part to say, that there is in the Netherlands land A of Annex II to the Directive. dedicated to agriculture which has steep slopes within the meaning of the directive.

120. Consequently I propose that the Court dismiss this complaint. 117. In the present case, the Commission has merely stated that the percentage specified in a draft amendment of the Netherlands law appeared to be insuffi- cient. However, I consider that, given the silence of the Directive, the Commission ought to have stated what the incline C — Absence from the Netherlands action should be in order for land to be deemed programme of rules covering the conditions steeply sloping and for what reasons, so as for the land application of fertilizer near to enable the Netherlands to fulfil its water courses obligations arising from the Directive and to present an effective defence, and also to enable the Court to determine whether the obligations of the Netherlands have not been fulfilled. 1. The parties' submissions

One of the national provisions in ques­ Government claims, 31this law was enacted tion, 3 0 which prohibits the discharge of after the date fixed by the Directive. It is fertilizer into surface water, is said to have clear from the file 32 that it was adopted on been in force long before 20 December 27 January 2000. 1999, and the second, the Lozingenbesluit open teelt en veehouderij, is said to have come into force on 1 March 2000. The Government considers that this law was not adopted belatedly because the period set by the directive expired on 20 December 125. I therefore propose that the Court 1999, not 20 December 1995. declare that, by not adopting the measures relating to the land application of fertilizer near water courses before the expiry of the period allowed, the Kingdom of the Netherlands has failed to fulfil its obli­ gation arising from Article 5(4)(b) in con­ junction with Article 4(1 )(a) and paragraph 2. Assessment 4 of part A of Annex II to the Directive.

123. I consider that the arguments of the Netherlands Government cannot succeed. D — Absence from the Netherlands action With regard to the first submission, that a programine of rules covering methods of provision exists prohibiting the discharge land application limiting nutrient losses to of fertilizer into surface water, it seems to water me that such a provision cannot be regarded as a measure relating to the application of fertilizer near water courses, as required by the Directive. 1. The parties' submissions

127. The Netherlands Government claims that such measures are not relevant because of the existence of the MESÍAS system. It considers that a farmer who applies live- stock manure or chemical fertilizer in a non-uniform manner or in the wrong pro- portions and who exceeds the loss stan- 130. With regard to the legislative amend- dards will have to pay a tax. The Govern- ments which are said to be in preparation, ment adds that factors other than those it is sufficient to observe that, as the Court relating to the geology and climate of land, has consistently held, the question whether such as the MINAS system, must be taken a Member State has failed to fulfil its into account to assess the 'relevance' of the obligations must be determined by refer- measures provided for in Annex II. ence to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. 33 It appears from the statements of the Netherlands Government 34 that the legislative measures 128. The Government states that, in any relating to chemical fertilizers had still not case, an amendment of the law on livestock been enacted on 11 December 2000, 35 manure is in preparation, as well as meas- whereas the period fixed in the reasoned ures specifically relating to the use of opinion expired in December 1999. chemical fertilizers.

2. Assessment

132. The Commission states that, during the pre-litigation stage, the Netherlands Government admitted that its current gen- eral policy was inadequate for dry, sandy soil and that additional measures were necessary. The Commission considers that 136. Article 5(5) provides as follows: it follows that those measures ought to have been taken as early as in the first action programme, in accordance with Article 5(5) of the directive.

'Member States shall moreover take, in the framework of the action programmes, such additional measures or reinforced actions 133. The Netherlands Government con- as they consider necessary if, at the outset siders that Article 5(5) does not specify a or in the light of experience gained in period for the adoption of additional implementing the action programmes, it- measures or reinforced actions. It argues becomes apparent that the measures that such additional measures will enter referred to in paragraph 4 will not be into force within the period allowed by the sufficient for achieving the objectives spec- Directive, namely in 2003. ified in Article 1...'.

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137. The Court has consistently held that, prevent water pollution by nitrates. The in interpreting a provision of Community entire practical effect of the Directive law, it is necessary to consider not only its would thereby be called into question. I wording but also the context in which it think it would be inconsistent if, on the one occurs and the objectives of the rules of hand, the Directive were to lay down strict which it forms part. 36 deadlines for the adoption of the measures referred to in Article 5(4) and provide for monitoring the effectiveness of the action programmes and, if necessary, revising them and, on the other hand, permit water pollution to continue because the necessary additional measures had not been adopted.

141. However, the documents in the file 38 139. It seems to me that it is clear from show that the Netherlands Government those articles and from the objectives of the was aware from the outset of the need to Directive that the measures to which this provision refers must be taken as soon as they are found to be necessary. If that were 37 — Additional measures may be included in later action not the case, it would mean that the programmes only where the need for such measures Directive authorises the Member States to becomes apparent from the experience gained in imple- menting the action programmes. Even in that case, apply measures which neither avoid nor however, I do not think the Member States will be free to choose the action programme in which the additional measures are to be included and they will have to incorporate them in the first action programme approved after they are found necessary. 36 — See the judgments in Case 337/82 St. Nikolaus Brennerei 38 — Letter from the Minister for Agriculture, the Natural und Likörfabrik [1984] ECR 1051, paragraph 10; Case Heritage and Fisheries, 6 October 1995, relating to the C-156/98 Germany v Commission [2000] ECR I-6857, policy concerning fertilizers and ammonia (p. 15), and the paragraph 50, and Case C-161/00 Commission v Ger- Netherlands Government's reply to the letter of formal many, cited above, paragraph 39. notice (page 2).

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adopt such additional measures in relation VIII — Costs to dry, sandy soil. Nevertheless, it is common ground that they were not included in the first action programme.

(2) dismiss the Commission's claim for a declaration that the Kingdom of the Netherlands has failed to fulfil its obligation arising from Article 5(4)(b) in conjunction with Article 4(1 )(a) and with paragraph 2 of part A of Annex II to the same directive, on the ground that it has failed to include in its action programme rules covering the conditions for the application of fertilizer to steeply sloping ground, and

(3) order the Kingdom of the Netherlands to pay the costs.

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