C-396/01
ECLI:EU:C:2003:379
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COMMISSION v IRELAND
OPINION OF ADVOCATE GENERAL GEELHOED delivered on 26 June 2003 1
I — Introduction regarded as action programmes within the meaning of Article 5 of the directive. If those measures may be regarded as such Ireland would be exempt under Article 3(5) of the directive from the obligation to identify vulnerable zones. The Commission 1. The Commission has brought this action disputes that Ireland has established action for failure to fulfil obligations owing to the programmes as mentioned in the directive. fact that Ireland has not in due time adopted measures in order fully to comply with its obligations under Articles 3, 4, 5 and 6 of Council Directive 91/676/EEC of 12 December 1991 concerning the protec- tion of waters against pollution caused by nitrates from agricultural sources 2 (herein- 3. That is the nub of the legal dispute after 'the directive'). More specifically, Ire- between the Commission and Ireland. Since land has not fully identified the waters the Commission's other allegations are of a which have been or might be affected by more factual nature and are not contested nitrates from agricultural sources and by the Irish Government, I shall confine notified the Commission thereof, has not myself in this opinion to that disputed legal proceeded to identify vulnerable zones, has issue. established no action programmes and has not monitored the state of the waters.
I I— Legislation 2. The Irish Government is challenging only in part the infringement alleged by the Commission. The principal point at issue concerns the question whether the measures adopted by it may or may not be 4. According to Article 1 thereof, the directive has the objective of reducing water pollution caused or induced by nitrates 1 — Original language: Dutch. from agricultural sources and of preventing 2 —OJ 1991 L 375, p. 1. further such pollution.
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5. Article 3(1) of the directive reads as notify the Commission of any revision or follows: addition to the designations within six months.'
'1. Waters affected by pollution and waters which could be affected by pollution if action pursuant Article 5 is not taken shall be identified by the Member States in accordance with the criteria set out in 7. Article 3(5) contains the following Annex I.' exception to that obligation:
6. Article 3 imposes the following obliga- tions on Member States: '5. Member States shall be exempt from the obligation to identify specific vulnerable zones, if they establish and apply action programmes referred to in Article 5 in '2. Member States shall, within a two-year accordance with this Directive throughout period following the notification of this their national territory.' Directive, designate as vulnerable zones all known areas of land in their territories which drain into the waters identified according to paragraph 1 and which con- tribute to pollution. They shall notify the Commission of this initial designation within six months. 8. In that regard Article 5 of the directive obliges the Member States within specified periods to establish action programmes in respect of designated vulnerable zones, for the purpose of realising the objectives 3. ... specified in Article 1. Those action pro- grammes are to take into account available scientific and environmental conditions in the relevant regions. That provision further lays down requirements as to the content of 4. Member States shall review and if the action programmes. On the one hand necessary revise or add to the designation they are to consist of the mandatory of vulnerable zones as appropriate at least measures laid down in Annex III to the every four years, to take into account directive (Article 5(4)). On the other hand, changes and factors unforeseen at the time Article 5(5) provides that Member States of the previous designation. They shall are to take additional measures or rein-
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forced actions if the measures provided for failure to comply with the abovementioned in the directive do not appear to be obligations. The Commission also alleged sufficient for achieving the objectives speci- that Ireland had infringed Article 10 EC by fied in Article 1. not obtaining in due time the information requested. Since it was of the opinion that the measures notified and information furnished in that connection by Ireland were still unsatisfactory, on 10 October 2001 the Commission brought the present proceedings before the Court. 9. Finally, under Article 12 the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification. That period expired on 19 December 1993. 11. The Commission claims that the Court should:
— declare that Ireland has failed to fulfil its obligations under Directive III— Procedure 91/676/EEC concerning the protec- tion of waters against pollution caused by nitrates from agricul- tural sources by failing, within the time-limits provided for in the 10. These infringement proceedings were directive, to completely identify preceded by a protracted prelitigation stage. waters pursuant to Article 3(1) in That stage was initiated on 29 May 1995 accordance with the criteria set out by service by the Commission of a formal in Annex I and to notify these to letter of notice concerning the fact that the Commission, to designate vul- Ireland had not within the period laid down nerable zones pursuant to Article 3 informed the Commission of the laws, (2) and/or 3(4), to establish action regulations and administrative provisions programmes in accordance with adopted by it in order to give effect to the Article 5, and to correctly and directive, that it had omitted to designate completely carry out monitoring vulnerable zones and also had failed to and review of waters in accordance establish a code or codes of good agricul- with Article 6(1)(a), (b) and (c); tural practices. Following a series of sup- plementary formal letters of notice from the Commission and reactions to them by the Irish Government, on 9 February 2001 the Commission finally addressed a reasoned opinion to Ireland in connection with its — order Ireland to pay the costs.
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12. There was no oral procedure in this Member States and whether the Irish case. measures comply with them.
15. In that connection I would point out IV — Assessment that although the issue of compliance with Article 5 of the directive by several Member States has been before the Court in a number of infringement proceedings, in its judgments the Court has not hitherto 13. As I stated in my introduction Ireland further examined the requirements to be contests only in part the infringement satisfied by an action programme within the alleged by the Commission of the obliga- meaning of that provision. For the pur- tions under the directive. The point at issue poses of a review of compliance with the concerns the question whether, viewed obligations under that provision it is none together, the measures adopted by Ireland the less useful to provide clarification on in order to reduce or prevent pollution of that point. water by nitrates from agricultural sources may be regarded as action programmes within the meaning of Article 5 of the Directive. If that is the case Ireland may rely on the exception in Article 3(5) pursuant to which the Member States are exempt from the obligation specifically to designate 16. Neither in Article 2 (definitions) nor in vulnerable zones if they establish the action Article 5 (action programmes) does the programmes mentioned in Article 5 and directive provide a definition of 'action apply them to the whole of their territory. programme'. Nor does it lay down any express requirements concerning the form of the action programmes to be established by the Member States. That may be accounted for by the fact that it is to a certain extent obvious what is meant thereby. In general terms it will be a 14. In that connection I would point out document which serves as an overarching that reliance by the Irish Government on framework for a series of projected mea- the exception in Article 3(5) is weakened by sures aimed at the attainment of a specific the fact that, in regard to the action objective within a specific time span. The concerning infringement of Article 5, it has conceded that the measures adopted do not wholly satisfy the requirements of that provision. None the less, it must be 3 — Judgments in Case C-274/98 Commission v Spain [2000] examined what requirements the directive ECR I-2823, Case C-69/99 Commission v United Kingdom [2000] ECR I-10979, Case C-266/00 Commission v lays down in connection with the action Luxembourg [2001] ECR I-2073, Case C-127/99 Commis- sion v Italy [2001] ECR I-8035 and Case C-161/00 programmes to be established by the Commission v Germany [2002] ECR I-2753.
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notion of an action programme further which all language versions provide that, presupposes that those measures are appro- 'in the framework of the action pro- priate to that objective and that they are grammes', the Member States, are to adopt sufficiently coherent. additional measures or reinforced actions in the situation referred to.
17. In other words an action programme is a self-standing policy instrument that is generally drawn up prior to the measures adopted for attainment of the policy object- 19. Article 5 goes on to set out, in ive concerned. Naturally that chronology conjunction with Annex III to the directive, does not preclude existing measures from a series of requirements which the national also being incorporated into such a pro- action programmes must satisfy. They must gramme. The material factor is that an be aimed at attaining the twofold objective action programme constitutes an autono- of the directive, namely the reduction and mous and recognisable framework for a set prevention of the pollution of waters by of measures by which it is sought to achieve nitrates from agricultural sources (Article 5 a policy objective. That means that an (1)). As regards their territorial scope action action programme cannot merely by impli- programmes may relate to all vulnerable cation comprise a series of measures estab- zones in the territory of the Member State lished for a specific objective. or to different vulnerable zones or parts of zones (Article 5(2)). By way of quality requirement they must be established in light of the available scientific and technical data and local environmental conditions (Article 5(3)). As to their content they must 18. It is in that sense that the notion of contain a number of specific mandatory action programme in Article 5 of the measures (Article 5(4), in conjunction with directive must be construed. That an action Annex III), whilst Member States must take programme constitutes a more comprehen- additional measures or reinforced actions if sive whole than a series of measures is also the measures provided for in the directive apparent from the wording and structure of appear not to be sufficient for achieving the that provision. Indeed, although in certain objectives specified in Article 1 (Article 5 language versions of Article 5(4) an action (5)). Finally, they must also be established programme may be regarded as equivalent for a period of four years (Article 5(7) in to the measures to be adopted ('bestaan uit conjunction with Annex III, point 2(a) and ... maatregelen', 'consist of ... measures', (b)). 4 'consisterán en ... medidas'), other language versions suggest that the action programme must in fact be more comprehensive ('con- A — For the sake of completeness I would also p o i n tout that tiennent les mesures ...', 'enthalten ... Article 5 further lays down two obligations which are not mandatory in regard to the action programmes as Maßnahmen', 'comprendono le misure such. Those are obligations concerning programmes for ...'). That the latter construction is the monitoring the effectiveness of action programmes (Article 5 (6)) and the periodic review of the action programmes correct one is confirmed by Article 5(5) in (Article 5(7)).
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20. It is in light of the foregoing that an environmental risks (which may result in assessment must be made as to whether the warning letters) and on the Rural Environ- Irish Government can rely on Article 3(5). mental Protection Scheme (hereinafter 'REPS').
23. The Irish Government is of the view that those measures viewed together may 21. In support of its reliance on Article 3(5) substantively be regarded as action pro- the Irish Government pointed to a series of grammes within the meaning of Article 5 of measures adopted by both it and individual the directive. None the less it acknowledges local authorities in order to implement the that it had not enacted all measures directive. Principally those are bye-laws necessary in order to give effect to Article enacted by four counties and referred to in 5 at the time when the reasoned opinion Ireland's defence as 'Local Action Pro- was issued. It also acknowledges that it may grammes'. Those bye-laws differ from be necessary to transpose certain of the county to county depending on the relevant measures adopted into binding rules in local circumstances and environmental con- order fully to satisfy the requirements of ditions. In regard to those bye-laws the Irish Annex III to the directive. It also points out Government observes that the Commission that where certain measures were coupled has acknowledged that as to their content with the grant of a subsidy the Commission those bye-laws accord with the provisions has incorrectly stated that those measures of Annex III to the directive. For its part, it are voluntary. acknowledges none the less that those bye- laws are not applicable to certain intensive agricultural units which come under a special licensing scheme.
24. The Commission is of the view that the measures mentioned by the Irish Govern- ment can neither individually nor collect- ively be regarded as an action programme within the meaning of Article 5 of the directive. Nor were those measures com- municated to the Commission as measures giving effect to that provision. The meas- 22. Further, under the heading of National ures adopted by the counties viewed Action Programmes it has mentioned an together have only limited territorial scope. information booklet on good farming Substantively the measures adopted are on practice, nutrient management plans, pro- a number of points at variance with the posals by local authorities for the conduct requirements of Article 5 and Annex III. of farm surveys in order to determine Thus Article 5 of the directive does not
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provide for the possibility of an exception ment do not form part of a general policy for participation in a scheme such as REPS framework aimed at the attainment of a or for intensive agriculture. As regards the closely defined objective, as required by latter sector there is no guarantee that the Article 5(1) of the directive. Moreover, requirements of the directive will be satis- those measures do not demonstrate a fied by virtue of the licensing scheme to sufficient degree of coherence in order which it is subject. Moreover, participation themselves to be deemed to constitute by in REPS is voluntary and thus does not implication an action programme. In add- satisfy the requirements of Article 5 of the ition there is no clear timetable for the directive. The same holds true of the attainment of a predetermined result. Nor, encouragement of good agricultural prac- finally, do the Irish measures, in view of the tices. In regard to the power of local fact that they are non-mandatory, comply authorities to compel intensive agricultural substantively with the requirements laid units to establish nutrient management down in Article 5(4) in conjunction with plans the Commission points out that this Annex III. power has not hitherto been availed of. The possibility of surveys in order to determine risks, which may result in a warning letter, cannot provide a substitute for the specific measures provided for in Annex III.
27. The Irish Government has also indi- cated that it has not sought to contend that it has fully complied with the requirements of Article 5 of the directive. None the less, it is of the view that the measures outlined by it should be deemed to constitute the 25. The point of law central to this case is, elements of an action programme. as I have already stated, whether the Irish Government has established an action programme within the meaning of Article 5 of the directive. In light of the foregoing observations in connection with the instru- ment known as the action programme the reply to this question will be brief.
28. Yet, as has already been adverted to above, a clear distinction must be drawn between, on the one hand, an action programme and, on the other, the measures adopted within that framework. Measures which may be adopted outside that frame- work cannot, even when viewed together, provide a substitute for the action pro- 26. First and foremost it is plain that the grammes required by Article 5 of the measures mentioned by the Irish Govern- directive.
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29. In those circumstances and on the basis fulfil its obligations under Article 3(1), (2) that the Irish Government does not contest and (4), Article 5 and Article 6(1)(a), (b) the Commission's allegations I am of the and (c) of the directive. view that the Irish Government has failed to
V — Conclusion
30. Accordingly I propose that the Court should:
— declare that Ireland has failed to fulfil its obligations under Directive 91/676/ EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources by failing, within the time-limits provided for in the Directive, to completely identify waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I and to notify these to the Commission, to designate vulnerable zones pursuant to Article 3(2) and/or 3 (4), to establish action programmes in accordance with Article 5, and to correctly and completely carry out monitoring and review of waters in accordance with Article 6(1 )(a), (b) and (c);
— order Ireland to pay the costs.
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