I – Introduction

II – European Union legal framework

III – Procedure and forms of order sought

IV – Assessment

A – Legal background

B – The French legislation relevant at the material time

C – The criterion for assessing the transposition of items listed in the annexes to the Nitrates Directive

D – First ground of complaint – periods of land application

1. The substantively uncontested limbs of the first ground of complaint

2. The application of Type II fertiliser to grassland which has been sown for over six months

3. The application of Type III fertiliser to grassland which has been sown for over six months

E – The second ground of complaint – Storage capacities for livestock manure

1. The absence of precise rules on the determination of required storage capacities

2. The duration of the maximum storage periods to be covered

3. Field storage

F – Third ground of complaint – Balanced fertilisation

G – Fourth ground of complaint – Safeguarding the upper limit of 170 kg N per hectare per year

1. Dairy cows

2. Other productive livestock

H – Fifth ground of complaint – land application to sloping ground

I – Sixth ground of complaint – Frozen or snow-covered ground

V – Costs

VI – Conclusion

1.

The Nitrates Directive ( 2 ) is of major importance to water quality in the European Union. It concerns the land application of nitrogen-containing fertilisers, in particular livestock manure, in farming. The purpose of the directive is to ensure that farmers do not apply to the land more nitrogen than is required by plants at a particular time. If that quantity is exceeded, there is a risk that the nitrogen will not be used by plants but released into the environment.

2.

The significant factor in this regard is not nitrogen as such, which is known to be present in large quantities in the atmosphere, but certain nitrogen compounds which plants need for growth, especially nitrates. These forms of nitrogen are referred to as ‘mineralised’ nitrogen. Besides mineralised nitrogen, livestock manure also contains large proportions of organic nitrogen, for example in proteins and amino acids. This organic nitrogen must be ‘mineralised’ by micro‑organisms before it can be used by plants.

3.

Nitrates which are not used by plants can pollute waters. They dissolve in water and can thus leach into groundwater or surface waters. In addition, surface waters can be polluted by nitrates in surface run-off. Organic nitrogen which is first mineralised in water can also be transported and cause pollution in this way.

4.

In surface waters, nitrates act as fertilisers and thus promote, in particular, the growth of certain algae. These can impair water quality and the biodiversity of waters. Types of algae which secrete toxic substances can also proliferate. Nitrate pollution of groundwater can, in particular, impair the quality of drinking water.

5.

The Commission recently reported on improvements in the quality of surface waters, although there were hardly any noticeable changes in groundwater. ( 3 ) This is true not least in France, where since the year 2000 over 10% of all monitoring stations have been recording nitrate values of over 50 mg/l in groundwater for each reporting period. Such values are much rarer in the case of surface waters and there is also a discernible trend towards a reduction in problematic measurement readings. ( 4 ) In any event, much still needs to be done to reduce the nitrate pollution of waters.

6.

This is not the first time, therefore, that the Court has concerned itself with the Nitrates Directive. However, the present proceedings mark a new stage in its implementation. Whereas previous proceedings were in essence aimed at ascertaining whether Member States were actually adopting the prescribed measures in the first place, in this case, the Commission is intently focused on the quality of the transposition measures.

7.

As such, the present case is concerned in part with difficult technical questions, such as the periods during which the land application of livestock manure is to be prohibited, the capacity for storing livestock manure which this makes necessary, and under which conditions and in which quantities livestock manure may be applied to land, as well as with the land application of livestock manure on sloping, frozen or snow-covered ground.

8.

The objectives of the Nitrates Directive are laid down in Article 1:

‘This Directive has the objective of:

9.

For this purpose, Member States must, in accordance with Article 4 of the Nitrates Directive, establish non-binding codes of good agricultural practice covering at least the items mentioned in Annex II.A and, in accordance with Article 3, identify vulnerable zones requiring special protection which are defined in more detail in Article 5:

‘1.   … Member States shall, for the purpose of realizing the objectives specified in Article 1, establish action programmes in respect of designated vulnerable zones.

2.   …

3.   Action programmes shall take into account:

4.   Action programmes shall be implemented within four years of their establishment and shall consist of the following mandatory measures:

5.   …

6.   …

7.   Member States shall review and if necessary revise their action programmes, including any additional measures taken pursuant to paragraph 5, at least every four years. They shall inform the Commission of any changes to the action programmes’.

10.

The present case relates in particular to the following measures in Annexes II and III:

‘ANNEX II

Code(s) of good agricultural practice

‘ANNEX III

Measures to be included in action programmes as referred to in Article 5(4)(a)

11.

The Commission began examining the French legislation in 2009. After inviting France to submit its observations, on 28 October 2011 the Commission sent a reasoned opinion in which France was given a time-limit of 28 December 2011 to fulfil its obligations under European law. As France’s reply did not satisfy the Commission, the Commission brought the present action on 16 May 2012.

12.

The Commission claims that the Court should:

13.

The French Republic contends that the Court should:

14.

The parties submitted written observations and presented oral argument at the hearing on 7 November 2013.

15.

In accordance with Article 1, the Nitrates Directive has the objective of reducing water pollution caused or induced by nitrates from agricultural sources and preventing further such pollution.

16.

For that purpose, the Member States are required, inter alia, to designate vulnerable zones which are or may be polluted by nitrates if protective action is not taken. In accordance with Article 5(1), Member States must establish action programmes for those zones.

17.

It is with those action programmes, which cover approximately half of French national territory, ( 5 ) that the present proceedings are concerned.

18.

In accordance with Article 5(4)(a) and (b) of the Nitrates Directive, the action programmes must prescribe the mandatory measures provided for in Annex III and in the codes of good agricultural practice. In accordance with Article 4(1)(a), the codes of good agricultural practice must contain provisions covering at least the items mentioned in Annex II.A.

19.

In the pre-litigation procedure and in the action, the Commission took issue in particular with Decree No 2001-34 of 10 January 2001 ( 6 ) and an Order of 6 March 2001, ( 7 ) both of which concerned the national action programmes to protect waters from pollution caused by nitrates from agricultural sources, and with action programmes of various departments.

20.

France, however, relies exclusively on more recent legislation, in particular an Order of 19 December 2011, ( 8 ) and the Commission also comments on these provisions.

21.

It should be noted in this regard that, in accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down by the reasoned opinion. Changes which have occurred subsequently cannot, in principle, be taken into account by the Court. ( 9 )

22.

In its reasoned opinion of 28 October 2011, the Commission gave France until 28 December 2011 to fulfil its obligations.

23.

The Order of 19 December 2011 entered into force before the expiry of that time-limit and must therefore, in principle, be taken into account in the present case. ( 10 ) However, Article 2 (section II) of that Order specifies various provisions which were not to enter into force until 1 September 2012, that is to say, after the expiry of the time-limit laid down in the reasoned opinion. Moreover, certain provisions do not have to be complied with until 1 July 2016, in other words, at an even later stage. Both those sets of provisions are therefore immaterial in the present case.

24.

It must also be considered whether the Commission is able to object to the remaining provisions of the Order of 19 December 2011. Although they did not form part of the subject-matter of the pre‑litigation procedure, the national provisions mentioned in the reasoned opinion and in the application cannot always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient if the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application. ( 11 )

25.

The Court has also held that an action was admissible when it was concerned with new national measures introducing some exceptions into the system forming the subject-matter of the reasoned opinion, thus redressing in part the ground for complaint. Not to accept that the action was admissible in such circumstances could enable a Member State to block treaty-infringement proceedings by making a slight amendment to its legislation every time a reasoned opinion was notified, while in fact maintaining the legislation at issue. ( 12 )

26.

In contrast, such would not be the case for complaints not included in the reasoned opinion and made against national measures adopted after the reasoned opinion with a view to remedying the defects complained of in that opinion. ( 13 )

27.

Consequently, the admissibility of each of the complaints set out in the application must be examined in order to determine to what extent it can be taken into account by the Court.

28.

In response to a number of the complaints raised against it, France states that the Nitrates Directive leaves it to the Member States to decide what provisions must be adopted in order to transpose the individual items listed in Annexes II and III. Consequently, the Commission can object only to clearly inappropriate provisions.

29.

It must be conceded in this regard that the items listed in the annexes at issue are formulated relatively loosely. Although the Member States must adopt provisions or rules on specific matters, it is not always clear from the wording alone what the substance of the transposing rules must be. The Nitrates Directive therefore allows the Member States a degree of latitude with regard to implementation. ( 14 )

30.

That latitude is limited, however, first and foremost by the objective, laid down in Article 1 of the Nitrates Directive, of reducing water pollution caused by nitrates from agricultural sources and preventing further such pollution. ( 15 ) The directive is thus intended to realise the objective of improving the quality of the environment set out in the first indent of Article 191(1) TFEU and the principle of preventive action laid down in Article 191(2) TFEU.

31.

When establishing the necessary measures in the action programmes, the Member States must also take account in accordance with Article 5(3) of the Nitrates Directive – and with reference to Article 191(3) TFEU – of the available scientific and technical data. ( 16 )

32.

The Commission can therefore object to any shortcomings in national action programmes which impede the effective reduction and prevention of water pollution caused by nitrates from agricultural sources. In so doing, it must rely in particular on the best available scientific evidence.

33.

In the present case, three studies are of particular interest in this regard. The Commission expressly relies on a study produced at its request in 2001 ( 17 ) and a scientific article from 2007 ( 18 ) which although not submitted to the Court, is not substantively called in question by France. Moreover, the Commission has published online a more recent study from 2011 ( 19 ) which it also commissioned. It is true that the latter study cannot be relied on against France, as the parties make no reference to it in support of their case. However, since the Commission clearly considers it to be significant, it must be assumed to contain scientific evidence which is more up-to-date than that contained in the 2001 study. It may therefore, in principle, rebut or at least qualify the science-based arguments put forward by the Commission.

34.

In addition, France can rebut such objections, in particular, by adducing more recent or better scientific evidence. It submits a number of documents to that end.

35.

Finally, it is also important to emphasise the need for the Nitrates Directive to be transposed in such a way as to be capable of being put into practice by farmers. With regard to the transposition of the Habitats Directive, ( 20 ) the Court has held that, in the context of that directive, which lays down complex and technical rules in the field of environmental law, the Member States are under a particular duty to ensure that their legislation intended to transpose that directive is clear and precise. ( 21 ) As the present proceedings illustrate, the provisions of the Nitrates Directive are also complex and technical. Moreover, the task of putting them into practice falls primarily not to the authorities, which must have the necessary specialist knowledge, but to farmers. The provisions transposing that directive must therefore be sufficiently clear and precise to enable it to be put into effect even by those not trained in the environmental sciences. ( 22 )

36.

The first ground of complaint comprises five limbs relating to the periods for the land application of fertiliser. In accordance with Annex II.A, point 1, to the Nitrates Directive, a code of good agricultural practice should contain provisions governing periods in which the land application of fertiliser is inappropriate, in so far as these are relevant. Again, in accordance with Annex III.1, point 1, to the Nitrates Directive, the action programmes must include rules concerning the periods when the land application of certain types of fertiliser is prohibited.

37.

France, on the other hand, relies exclusively on Annex I (section I) to the Order of 19 December 2011, which contains new provisions concerning most of the limbs of the first ground of complaint. Although that order entered into force before 28 December 2011, the relevant provisions were not to be applied – as France concedes – until 1 September 2012, in accordance with Article 2 (section II). They did not therefore determine the legal position at the relevant time.

38.

The material rules, therefore, are the previously applicable rules contained in the Order of 6 March 2001. Like the new rules they also distinguish, on the one hand, between different crops and, on the other hand, between various types of fertiliser. In the case of crops, a distinction is drawn between the large spring and autumn crops and on whether grassland has been sown for over six months. Type I of the fertiliser classification covers the more solid forms of manure while Type II covers the more liquid forms of manure, that is to say, slurry or sludge. Type III covers artificial chemical fertilisers, for example.

39.

The Commission complains that France has failed to fulfil those obligations in so far as it:

40.

As regards the complete failure to impose prohibitions, the Commission argues that Member States are, in principle, required to impose such prohibitions in accordance with Annex II.A, point 1, and Annex III.1, point 1, to the Nitrates Directive. The non-imposition of prohibitions therefore needs to be justified.

41.

In so far as the Commission objects to the existing prohibitions on the ground that they are insufficient, it explains that no fertiliser should be applied after the end or before the beginning of the growing season.

42.

France, however, does not attempt to justify the absence of prohibitions or the duration of the prohibitions which have been criticised. It confines its argument to describing or defending the minimum prohibitions on land application introduced by Annex I, Part I, to the Order of 19 December 2011.

43.

France thus leaves uncontested the claim that the rules in place before 2011 were insufficient. As the new rules were not yet in force at the material time, however, these limbs of the first ground of complaint are well founded.

44.

On the other hand, in so far as the Commission objects to the new rules, ( 23 ) its submission must be rejected, not least on the ground, rightly relied on by France, that, contrary to Article 21(1) of the Statute and Article 38(1)(c) (now Article 120(c)) of the Rules of Procedure in force at the time when the action was brought, those complaints cannot be inferred from the application, but only from an annex to the reasoned opinion. ( 24 )

45.

This is particularly important in the present case given that the Commission confines itself in the application to criticising certain prohibition periods as being insufficient and explains only in the annex to the application which prohibition periods it considers to be appropriate. The latter submission would, however, alter the subject-matter of the action and should therefore have been set out in a clearly recognisable manner in the application itself (and in the pre-litigation procedure). In accordance with Article 42(2) (now Article 127(1)) of the Rules of Procedure in force at the time when the reply was submitted, the corresponding statements in the reply are out of time.

46.

This does not mean, however, that Annex I, Part I, to the Order of 19 December 2011 is unaffected by the present ground of complaint. After all, France has provided only an incomplete description of the new rules governing the application of fertiliser to grassland. They contain an exception for the land application of Type I fertiliser with low nitrogen content to grassland up to a limit of 20 kg N per hectare for the prohibition period from 15 December until 15 January. ( 25 ) If farmers were to apply so much nitrogen every month, however, this would amount to a value of 240 kg N per year, which is thus significantly more than is permissible under Annex III.2 to the Nitrates Directive. In the light of that therefore very far-reaching exception, Annex I, Part I, to the Order of 19 December 2011 must, consequently, be regarded as only as a minor change to the earlier legal position in relation to the application of Type I fertiliser to grassland. Those rules thus form part of the subject-matter of the present proceedings in so far as they permit the application of Type I fertiliser to grassland throughout the year. ( 26 )

47.

France has therefore failed to fulfil its obligations under Article 5(4) of, and Annex II.A, point 1, and Annex III.1, point 1, to, the Nitrates Directive in so far as:

48.

The Commission claims that France should prohibit the application of Type II fertiliser to grassland from 15 September at the latest and not merely from 15 November as provided for in the Orders of 6 March 2001 and 19 December 2011. It explains that plants grow and hence absorb nitrogen only at an external temperature of 5 degrees Celsius or above. In addition, organic nitrogen is mineralised, that is to say converted into a form which makes it available to plants, even at low temperatures. In order to avert the risk of such nitrogen leaching, fertiliser must be applied no later than 15 days before the end of the growing season. In its reply, the Commission goes on to say that Type II fertiliser contains particularly high concentrations of mineralised nitrogen. The risk of water pollution is therefore particularly high.

49.

France considers that further factors must be taken into account. Its arguments, however, focus largely on Type I fertiliser, which is irrelevant to the present complaint.

50.

As regards Type II fertiliser, France argues in relatively general terms that the organic nitrogen contained in such fertiliser is not mineralised as rapidly as the Commission assumes. In order to ensure that there is sufficient mineralised nitrogen available at the beginning of the growing season, it is advisable to apply the fertiliser late in the preceding autumn.

51.

However, France does not contest the Commission’s conclusive argument concerning the relatively high proportion of already mineralised nitrogen in the fertiliser. Applying the fertiliser in autumn therefore increases the risk that mineralised nitrogen will be leached over the winter and will thus contribute towards water pollution instead of being consumed by plants.

52.

Even the argument concerning the nitrogen deficiency (‘faim d’azote’) resulting from the immobilisation of nitrogen by micro-organisms cannot justify land application in the autumn. The danger is rather that large proportions of the nitrogen applied in autumn will be either immobilised or leached by the spring. The risk of immobilisation can be countered only by applying fertiliser at a time as close to the growing season as possible.

53.

Consequently, France has infringed Article 5(4) of, and Annex II.A, point 1 and Annex III.1, point 1 to, the Nitrates Directive in so far as Annex I, Part I, to the Order of 19 December 2011 does not prohibit the application of Type II fertiliser to grassland which has been sown for over six months from 15 September.

54.

The Commission claims that the application of Type III fertiliser to grassland should also be prohibited in February in mountain areas, where the temperatures remain below 5 degrees Celsius during that period. This is not taken into account either by the Order of 6 March 2001 or by the Order of 19 December 2011.

55.

The conclusiveness of that argument follows from the fact that plants do not grow, and therefore do not absorb any nitrogen, at lower temperatures. Moreover, the Court has already held that the relevance of the provisions referred to in Annex II.A to the Nitrates Directive must be evaluated on the basis of objective criteria such as the geological and climatic characteristics of each region. ( 27 ) In the case of the requirements laid down in Annex III.1, point 1, this follows not least from Article 5(3)(b). The fact that low temperatures persist longer in mountain areas must therefore be taken into account in provisions prohibiting the land application of fertiliser.

56.

France does not dispute the Commission’s compelling argument.

57.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex II.A, point 1, and Annex III.1, point 1 to, the Nitrates Directive in so far as Annex I, Part I, to the Order of 19 December 2011 does not prohibit the application of Type III fertiliser to grassland which has been sown for over six months in mountain areas in February, when the temperatures there remain below 5 degrees.

58.

By the second ground of complaint, the Commission takes issue with the French rules governing the storage of livestock manure.

59.

In accordance with Annex II.A, point 5, to the Nitrates Directive, codes of good practice should contain provisions covering the capacity and construction of storage vessels for livestock manure, including measures to prevent water pollution by run-off and seepage into the groundwater and surface waters of liquids containing livestock manure and effluents from stored plant materials such as silage, in so far as they are relevant. Again, in accordance with Annex III.1, point 2, action programmes must include rules relating to the capacity of storage vessels for livestock manure. That capacity must exceed that required for storage of the manure throughout the longest period during which land application in the vulnerable zone is prohibited, except where it can be demonstrated to the competent authority that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which will not cause harm to the environment.

60.

The Commission criticises France for not having laid down any precise rules on the verifiable calculation of required storage capacities. In so far as specific periods are laid down for the purposes of such calculation, they are too short, and storing solid livestock manure in fields cannot be permitted.

61.

The Commission considers that it is not sufficient that French law reproduces the objectives of the rules on required storage capacities in the abstract but does not lay down any specific rules for calculating the required storage capacities of individual farms. Neither farmers nor the supervisory authorities can determine what capacities are required.

62.

France does not dispute the need for specific rules but states in response to the Commission’s argument that Annex II, Part II(1), to the Order of 19 December 2011 contains the necessary criteria. The storage capacities, it contends, must cover the periods when the land application of livestock manure is prohibited and must be calculated using the DEXEL (Diagnostic Environnement de l’Exploitation d’Elevage) (Livestock Unit Environment Diagnostics) method.

63.

That provision formally entered into force directly upon publication of the Order. According to the uncontested information provided by France, it was immediately applicable on the basis of the existing land application prohibition periods. Accordingly, it was already applicable when the time-limit laid down in the reasoned opinion expired on 28 December 2011 and must be taken into account in the present case.

64.

The Commission complains, however, that even the DEXEL method is not clear enough, as it does not lay down simple criteria for determining the livestock manure that will accumulate. Rather, it contains a complex set of rules which must be applied by accredited experts to each individual farm.

65.

It is, however, not apparent that the introduction of experts for the purposes of determining required storage capacities is inappropriate or excluded by the Nitrates Directive. On the contrary, a study by the Commission itself shows that the precise determination of required storage capacities is a very complex task ( 28 ) which may very well necessitate the involvement of experts.

66.

Furthermore, even in the pre-litigation procedure, the Commission criticised the fact that the DEXEL method leads to inadequate storage capacities. In the reply, it duly spells out that criticism by stating that there is no provision for any safety margin and that, in determining storage capacities, the method also takes into account the economic and agronomic constraints of the farm.

67.

The need for a safety margin follows from the wording of Annex III.1, point 2, to the Nitrates Directive. This provides that the capacity of storage vessels for livestock manure must exceed that required for storage throughout the longest period.

68.

France rightly points out, however, that a minimum safety margin is provided for in Annex I, Part II(1)(3), to the Order of 19 December 2011. This provides that account is to be taken of climatic risks, that is to say the risk of additional periods during which livestock manure must not be applied, for example, because the ground is frozen. This limb of the Commission’s ground of complaint is therefore unfounded.

69.

As far as economic and agronomic constraints are concerned, the Nitrates Directive does not at any point provide that such constraints justify a derogation from its requirements. Rather, where a farm cannot provide the required storage capacities and cannot otherwise show that manure will be disposed of in an environmentally sustainable manner, it must limit its livestock numbers accordingly.

70.

The passages from the document on the DEXEL method which are cited by the Commission ( 29 ) do not, however, support the assumption that, in determining the required storage capacities, that method is informed by economic and agronomic constraints. They seek rather to ensure compliance with the requirements of the Nitrates Directive without unnecessary expense.

71.

The most that can be said by way of criticism is that the DEXEL method provides for transitional measures prior to the establishment of the required storage capacities and thus, contrary to the Nitrates Directive, accepts land application so long as sufficient storage capacities are not already in place. It seems unrealistic in practice to insist that farmers do not apply any livestock manure even though their storage capacity is already exhausted, but to maintain that Member States are in breach of the Nitrates Directive if they condone such behaviour. Instead, Member States must ensure that, if necessary, farmers find some other means of storing excess livestock manure or dispose of it in a proper manner. This point does not form part of the subject-matter of the action, however.

72.

This limb of the ground of complaint is therefore unfounded.

73.

By the second limb of its second ground of complaint, the Commission expressly complains that the calculation of storage capacities leads to excessively short maximum storage periods.

74.

That complaint is well founded, not least because, in accordance with Article 2(I)(2) of the Order of 19 December 2011, the calculation of the required storage capacities is not to be used as a basis for the new prohibition periods until three years after adoption of the 5th action programme and must be so used by 1 July 2016 at the latest. As the prohibition periods laid down to date are still too short, ( 30 ) the storage capacities provided for inevitably do not yet meet the requirement.

75.

The Commission goes further, however. It takes the view that periods of at least six months must be adopted in all departments in the regions of Brittany, Lower Normandy, Upper Normandy, Picardy, Champagne-Ardenne, Lorraine, Alsace, Poitou-Charentes, Franche-Comté, Ile-de-France, Rhône-Alpes, Auvergne, Burgundy, Pays de Loire, Nord-Pas-de-Calais and Centre, and that periods of at least five months must be adopted in the departments in the regions of Languedoc-Roussillon, Aquitaine, Midi-Pyrénées and the Côte d’Azur. By way of justification for those periods, the Commission relies on the 2001 study. ( 31 )

76.

In response to the Commission’s contention, France states that those requirements are inadequately differentiated. There are, it submits, many factors which must be taken into account and may call for different periods.

77.

Special mention must be made of two of those factors: on the one hand, the handling of solid manure or compact straw manure (‘fumier compact pailleux’), which is defined in France as Type I fertiliser, and, on the other hand, the meaning of grassland.

78.

France submits a summary of a study, the substance of which is not contested by the Commission, which shows that various kinds of fertiliser, in particular compact straw manure, initially absorb more mineralised nitrogen than they release. ( 32 ) Even if they are applied a relatively long time before the beginning of the growing season, the risk of water pollution is therefore limited. A more recent study published by the Commission arrives at similar conclusions. ( 33 )

79.

It would also seem that grassland can consume nitrogen over distinctly longer periods than other crops. The 2011 study published by the Commission therefore indicates that considerably shorter storage periods should be set aside for grassland than for other crops (in France, between two and six months depending on the region). ( 34 ) That study is material to the present case as it updates the scientific evidence contained in the 2001 study cited by the Commission.

80.

There being no need to examine in detail the other objections raised by France, it may therefore be concluded that the fixed periods of five or six months which the Commission seeks to enforce are not justified for France as a whole.

81.

Thus, those periods would probably be too long for a livestock farm operating an extensive grazing system in the south of France. On the other hand, an intensive fattening farm in the north, which devotes its land entirely to forage production, may have to use even longer periods to calculate the storage capacities it requires.

82.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex II.A, point 5, and Annex III.1, point 2, to, the Nitrates Directive in so far as the livestock manure storage capacities prescribed in Article 2(I)(1) and (2) of, and Annex I, Part II, to, the Order of 19 December 2011 are calculated on the basis of land application prohibition periods which are too short. This limb of the ground of complaint is otherwise unfounded.

83.

By the last limb of the second ground of complaint, the Commission complains that almost all of France’s action programmes allow compact straw manure to be stored on fields for a period of ten months without requiring that the manure be sealed off from the ground or covered. As a result, nitrates could escape into the groundwater and, in heavy rain, into surface waters, too. The Commission takes issue, for the first time in the reply, with the fact that the conditions governing storage laid down in French law are not verifiable.

84.

France rightly objects, first of all, that, in the reasoned opinion, ( 35 ) the Commission still considered temporary storage of a few weeks to be permissible. That limb of the ground of complaint is therefore admissible only in so far as the Commission objects to storage of more than a few weeks.

85.

As regards the verifiability of compliance with those conditions, too, the criticism raised by the Commission in the reply expands the subject-matter of the proceedings. After all, that criticism does not directly concern the pollution risks connected with the permitted practice but the risk posed by the prohibited field storage of livestock manure, which had not previously been addressed.

86.

On the other hand, in so far as the Commission takes issue in the application with the conditions governing storage, that is to say the lack of a requirement that the manure should be sealed from the ground and covered, its complaint was, contrary to the view taken by France, at least implicitly contained in the complaint of excessively long field storage raised in the pre-litigation procedure. After all, those conditions define the risk of water pollution connected with that practice. That complaint is therefore admissible.

87.

It is true that France relies on rules which, in accordance with Article 2(II) of the Order of 19 December 2011, did not take effect until after the expiry of the time-limit laid down in the reasoned opinion, that is to say those contained in Annex I, Part II(2). According to the uncontested information provided by France, however, those rules are provided for in the 4th action programmes, which were in force beforehand. They can therefore be taken into account in the present case.

88.

Those rules reduce the risk of water pollution because compact straw manure must initially be stored for two months to allow any nitrate-containing liquids to escape. The resulting dry manure releases hardly any excess nitrates initially, as mineralised nitrogen is re-absorbed by micro-organisms. ( 36 )

89.

According to further information supplied by the French Government, however, the absorption of mineralised nitrogen by microbes is limited in time, essentially to autumn and winter. ( 37 ) As the manure may be stored for up to ten months, however, it must be assumed that, in warmer seasons, it will after all release excess mineralised nitrogen. It is at that point, if not sooner, that the absence of a requirement that the manure be sealed off from the ground and covered also becomes a significant factor. Compact straw manure which is left exposed can be again augmented by rainwater which absorbs the mineralised nitrogen and conveys it to the groundwater or surface waters.

90.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex II.A, point 5, and Annex III.1, point 2, to the Nitrates Directive in so far as Annex I, Part II(2), to the Order of 19 December 2011 permits the field storage of compact straw manure for up to ten months without requiring that the manure be sealed off from the ground and covered.

91.

The Court has already held that, under Article 5(4)(a) of the Nitrates Directive, in conjunction with point 1(3) of Annex III, the measures to be included in action programmes include rules relating to limits on the land application of fertilisers based on a balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to crops from the soil and from fertilisation. ( 38 ) That interpretation of Annex III.1, point 3, to the directive is, moreover, confirmed by the objective of the directive, namely to create the instruments needed to ensure that waters in the Community are protected against pollution caused by nitrates from agricultural sources. ( 39 )

92.

The Commission complains that, although the French legislation reiterates those principles, it does not transpose them in a directly applicable set of rules. What is needed, the Commission submits, is a reliable method of calculation and the establishment of the parameters necessary to enable farmers to calculate the quantities of fertiliser they can apply. Those parameters must, in particular, take into account the relevant crops, the effectiveness of nitrogen in the type of fertiliser concerned and the nitrogen already present in the soil.

93.

France essentially raises two objections to that ground of complaint. First, it argues, the Nitrates Directive does not require such precise regulation and, secondly, Annex I, Part III(1), to the Order of 19 December 2011 is even better suited to ensuring balanced fertilisation than the requirements prescribed by the Commission.

94.

As regards the first objection, the Court has already held that Annex III.1, point 3 to the Nitrates Directive must be transposed precisely. ( 40 ) The degree of precision required must be determined by reference to the persons to whom the rules adopted are addressed. They must be able to understand the obligations incumbent on them. Where the rules in question are addressed to farmers, they must be able, by using the resources available to them, to make a reliable assessment of the quantities of manure they may apply.

95.

The question whether those requirements can be fulfilled only by the system advocated by the Commission need not be answered.

96.

The provisions cited by France failed to satisfy those requirements not least because they were still not applicable to farmers at the time when the time-limit laid down in the reasoned opinion expired. After all, Annex I, Part III(1)(c), to the Order of 19 December 2011, which lays down the obligations incumbent on farmers, was not applicable until 1 September 2012, in accordance with Article 2(II) of the Order.

97.

Although the system laid down in Annex I, Part III(1)(a) and (b), to the Order of 19 December 2011 was in force at the material time, it also could however not yet be applied. After all, point (a) requires the establishment of implementing provisions, that is to say, the formulation of detailed operational rules, including parameters. In accordance with point (b), these must be established by the regions for each crop and for grassland. According to information supplied by the Commission, those provisions did not enter into force until after the expiry of the material time-limit, that is to say on 1 September 2012.

98.

In so far as the Commission objects to shortcomings in the substance of those regional provisions and to certain detailed provisions in the Order of 19 December 2011 for the first time in the reply, it attempts to expand the subject‑matter of the present proceedings. That submission is therefore inadmissible.

99.

As concerns finally the old provisions of paragraph 2(3) of the Annex to the Order of 6 March 2001, which were almost certainly still applicable to farmers at the material time, they require only that farmers adhere to a balanced application of fertiliser within the meaning of Annex III.1, point 3, to the Nitrates Directive.

100.

My understanding of France’s argument in relation to these provisions is that they require farmers to determine themselves what fertiliser application is permissible for each individual area of land. Such a solution, France contends, is preferable to the establishment of specific parameters, since it allows full account to be taken of local conditions.

101.

In theory, this approach makes for optimum fertiliser application. The present proceedings show, however, that determining the permissible level of fertiliser application is an extremely complex undertaking. It cannot be taken for granted that every farmer would be able to perform that task without more specific directions. ( 41 ) Also, in the absence of easily verifiable criteria, there is a considerable risk of abuse. Furthermore, when it adopted the new rules, even France abandoned that approach, replacing it with regional implementing provisions.

102.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex III.1, point 3, to, the Nitrates Directive in so far as, in the Order of 6 March 2001, it did not lay down sufficiently specific provisions on the balanced application of fertiliser.

103.

This ground of complaint concerns the method used in France to ensure compliance with the upper limit of 170 kg Nitrogen per hectare per year laid down in Annex III.2 to the Nitrates Directive. Annex III.3 allows that amount to be determined on the basis of animal numbers. That is the method used in France, inasmuch as the legislation specifies for each species of animal the amount of nitrogen contained in the manure of a specimen animal applied over one year.

104.

Determining the permissible amount of nitrogen on the basis of animal numbers is obviously intended to make it easier to apply the upper limit. Farmers do not have to check how much nitrogen they are actually applying. As long as the number of animals does not exceed the absorption capacity of the areas fertilised, it is sufficient for them to distribute the manure evenly in order to satisfy the requirements.

105.

However, the Commission complains that the amounts of nitrogen which France assumes to be present in the applied fertiliser from the various animal species are too small.

106.

It is true that France wrongly relies, in relation to this ground of complaint too, on the new rules contained in the Order of 19 December 2011, that is to say Annex II, which, in accordance with Annex I, Part V, in conjunction with Article 2(II), was not applicable until the autumn of 2012. However, this is relevant only in regard to the assessment of the excretion values of dairy cows, since the values for other productive livestock were retained.

107.

The Commission bases its objection to the excretion values for dairy cows on two scientifically-based arguments. First, the cows’ milk production is not taken into account. That is because, as milk production increases, more nitrogen is excreted. Secondly, the Commission complains that the so-called volatilisation coefficient applied is too high.

108.

France does not contest the Commission’s argument relating to milk production or, in particular, the scientific bases for that argument. In fact, Annex II(B) of the Order of 19 December 2011 confirms the Commission’s position. Instead of a single excretion value, that annex lays down a number of values varying according to milk production. To that extent, therefore, this limb of the ground of complaint is well founded.

109.

The second argument, relating to the so-called volatilisation coefficient, requires some explanation. This coefficient makes it possible to deduct from the amounts of excreted nitrogen a proportion which escapes into the atmosphere prior to land application. That deduction is inferred from a judgment of the Court of Justice in which the Court held that the decisive criterion for applying the annual upper limit of 170 kg is the amount of nitrogen applied with the manure. The volatilisation of nitrogen during land application must not therefore be taken into account by way of reduction. ( 42 ) The Commission, however, does not call into question the idea that, for these purposes, it is possible to take into account nitrogen which has been subject to volatilisation prior to land application, that is to say in animal housing and during storage of the manure.

110.

In order to make that deduction, France applies the volatilisation coefficient. Before the Order of 19 December 2011, that coefficient was 30% for dairy cows. France therefore assumed that 30% of the nitrogen excreted in the cowshed is released into the atmosphere either there or during storage of the manure. The Commission, however, relies on a scientific article from 2007 ( 43 ) which gives a coefficient of only 24%.

111.

France’s evaluation of the relevant literature confirms that value. ( 44 ) Accordingly, the Order of 19 December 2011 is no longer based on a coefficient of 30% but on one of 25%.

112.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex III.2 and 3 to, the Nitrates Directive to the extent that, in establishing the excretion values for dairy cows, the Order of 6 March 2001 did not take proper account of the differences in milk production and was based on an excessively high volatilisation coefficient.

113.

In so far as the Commission takes issue with a transitional provision applicable in the period from 1 September 2012 to 31 August 2013, it must be concluded that that provision did not form part of the subject-matter of the pre‑litigation procedure. This submission is therefore inadmissible.

114.

In the case of other productive livestock, the Commission’s criticism is limited to the respective volatilisation coefficients, which remained the same before and after the Order of 19 December 2011. The Commission has, however, withdrawn its action in relation to pigs.

115.

In this regard, the Commission, in relation to cattle excluding dairy cows, recognises the first objection raised by France to the effect that, when substantiating those claims in the application, it made a miscalculation which resulted in an incorrect description of the consequences of the coefficient complained of. It also does not dispute France’s argument that the same error also affects the description of those consequences in the case of other productive livestock. However, that miscalculation does not in itself undermine the complaint that the coefficients applied were too high.

116.

Moreover, it should be pointed out that, in a table relating to other types of cattle, the Commission incorrectly gives a coefficient of 30% as being applicable, even though it actually applies a coefficient of 21%. ( 45 ) This may have led to the misconception on France’s part that the Commission no longer took issue with the French coefficients. ( 46 ) That interpretation cannot, however, be attributed to what is obviously a clerical error by the Commission, since the context and the values actually stated show that it continues to take the view that the coefficients should be lower.

117.

France also argues that the contested coefficients were determined using a better method than the values relied on by the Commission. The Commission’s values, it contends, are derived from the amounts of nitrogen released from cowsheds and manure stores into the surrounding atmosphere. The French values, on the other hand, are based on a comparison of the excreted nitrogen with the nitrogen which is still contained in the manure when it leaves the animal housing or storage to be applied to the land.

118.

Although the Commission does not expressly contest this at first sight plausible argument, it does so at least implicitly inasmuch as it maintains its own values.

119.

The French position is open to question, since the survey of relevant literature submitted by France does not indicate a preference for a particular method, but explains that all values in the literature cited are based on empirical research which takes into account only the specific conditions of animal husbandry examined in each case. ( 47 ) The survey also stresses the considerable margin of fluctuation in the values obtained and states that the French coefficients are very close to the values in the literature. ( 48 ) Lastly, it also includes the study cited by the Commission, which it does not call into question.

120.

Moreover, consultation of the French documents in which the volatilisation coefficients for cattle that are still in force are identified for the first time reveals that these are simply an average of the values contained in the literature then available on the volatilisation of nitrogen excreted by dairy cows. ( 49 ) No discussion of method is apparent.

121.

It cannot therefore be assumed that any methodological differences in the determination of the coefficients are such as to call into question the scientific basis of this ground of complaint raised by the Commission.

122.

Greater significance might be attached to France’s objection that the scientific data obtained reveal considerable variation in the volatilisation of nitrates in the cowshed and during storage. Such a margin of fluctuation indicates that it is not advisable to regard any particular value as the only correct volatilisation coefficient. This might be taken to mean that the Member States are in principle free to establish a volatilisation coefficient which falls within the framework set by the differing results of the scientific studies.

123.

However, such legislative discretion would be incompatible with the principle of preventive action that must be observed when applying the Nitrates Directive ( 50 ) and also, therefore, when transposing Annexes III.2 and III.3. Consequently, the excretion amount established per animal must necessarily ensure that the upper limit of 170 kg is not breached. This is possible only if that amount is set so low that, whatever the margin of fluctuation in the actual volatilisation values, the volume of nitrates applied never exceeds 170 kg.

124.

There would otherwise be a danger that, because of climatic conditions or customary practices in certain regions, the amount of nitrogen released into the atmosphere before land application is consistently less than that assumed for the purposes of the volatilisation coefficient. The volume of nitrogen applied to land in those regions would therefore exceed 170 kg per year per hectare. This could give rise to the forms of water pollution which the action programmes are required to prevent.

125.

Consequently, when determining excretion amounts for the purposes of applying the upper limit on the basis of animal numbers, in accordance with Annexes III.2 and III.3 to the Nitrates Directive, volatilisation coefficients may be established only by reference to the lowest scientifically verifiable volatilisation.

126.

If Member States none the less wish to enable farmers to make full use of the maximum permissible amount in all cases, they cannot establish the permissible amounts of livestock manure applicable to land by means of a simple categorisation based on animal numbers. Each categorisation must include a safety margin sufficient to prevent the upper limit from being exceeded in certain cases.

127.

As the low volatilisation coefficients called for by the Commission are based largely on a scientific article from 2007 ( 51 ) which France does not refute with better data, they are therefore material to the present ground of complaint.

128.

However, France applies distinctly higher volatilisation coefficients for the remaining types of productive livestock than is permissible according to the data relied on by the Commission, that is to say 30% instead of 21% for the remaining cattle, 60% instead of 30% for poultry, 30% instead of 9.5% for both sheep and goats, 30% instead of 13% for horses and 60% instead of 45% for rabbits.

129.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex III.2 and III.3 to the Nitrates Directive in so far as the establishment of excretion values for cattle other than dairy cows and for poultry, sheep, goats, horses and rabbits in Annex II to the Order of 19 December 2011 was based on excessively high volatilisation coefficients.

130.

In accordance with Annex II.A, point 2, to the Nitrates Directive, codes of good agricultural practice should contain provisions covering the land application of fertiliser to steeply sloping ground, in so far as they are relevant. Account is also to be taken of the gradient, in accordance with Annex III.1, point 3(a) to the directive.

131.

By the fifth ground of complaint, the Commission complains that, although France prohibits the application of fertiliser to such ground, it does not prescribe what gradient is permissible. In the case of fields, the application of fertiliser should be prohibited where the gradient is in excess of 8% and, in the case of grassland, gradients of up to 15% are permissible.

132.

France, on the other hand, takes the view that the gradient must not be prescribed. Many other factors are also relevant to the risk of water pollution. A prohibition framed in general terms which allows farmers to take those factors into account is therefore sufficient, France contends.

133.

Although the Commission does not call into question the significance of other factors, it submits a study which proceeds on the assumption that any gradient in excess of 5% represents a considerable risk and recommends the application of fertiliser only up to a gradient of 7%. Where suitable equipment is used or in mountainous terrain, fertiliser may be applied up to a gradient of 10%. However, slurry, that is to say liquid manure, should in any event be applied only up to a gradient of 7%. ( 52 )

134.

France does not put forward any scientific arguments to contest those recommendations. This might be interpreted as meaning that the Commission’s argument has not been rebutted. As the action programmes must be based on the best available scientific evidence, France would therefore have failed to adopt adequate rules on the land application of fertiliser to steeply sloping ground.

135.

However, a more recent study published by the Commission online advises against the surface application of fertiliser only on fallow land with a gradient in excess of 8% and, in particular, where the length of the gradient exceeds 100 metres. Only in the case of gradients in excess of 15% is a complete prohibition against the application of fertiliser recommended. Both recommendations apply primarily to ground in proximity to surface waters. ( 53 )

136.

The reference to a gradient length greater than 100 metres is intended merely to illustrate particular risks associated with gradients in excess of 8%. It is not therefore to be regarded as a necessary condition of the obligation to prohibit the land application of fertiliser.

137.

At first sight, it might be assumed that the same applies to ground in proximity to surface waters as to gradient length. However, the study limits its description of the risks associated with the land application of fertiliser on steep slopes to surface water pollution. According to the study, the application of fertiliser on sloping ground is problematic because livestock manure or nitrogen compounds already dissolved in water can be transported downslope by run-off water. Any nearby surface waters can be directly polluted.

138.

Although specific risks to groundwater caused by the application of livestock manure to sloping ground are conceivable, they are not mentioned either in the study or in the Commission’s submission. The Commission has not therefore demonstrated that prohibitions on the application of fertiliser to sloping ground are necessary in the absence of any surface waters nearby.

139.

Nevertheless, the French rules on the application of livestock manure to land in proximity to surface waters, contained in Annex I, Part VI, to the Order of 19 December 2011, do not meet this ground of complaint. First, in accordance with Article 2(II) of the Order, those provisions, too, did not enter into force until 1 September 2012, after the material time-limit had expired, and are not therefore relevant to the present case. Secondly, there is no evidence that the distances provided for in those provisions would counter the risk of pollutant penetration on steeply sloping ground. After all, they apply irrespective of the gradient of the neighbouring ground and have therefore, even from an objective point of view, been calculated far too conservatively. The safety distances range only between 2 and 35 metres. In the case of waters lying at the foot of slopes, such distances cannot preclude the direct penetration of nitrates.

140.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex II.A, point 2, and Annex III.1, point 3(a), to, the Nitrates Directive to the extent that, in the case of ground in proximity to surface waters, it does not prohibit the application of fertiliser to slopes with a gradient in excess of 15% or the surface application of fertiliser to fallow land with a gradient of between 8% and 15%. Otherwise, this ground of complaint must be rejected.

141.

In accordance with Annex II.A, point 3, to the Nitrates Directive, action programmes must contain provisions on the land application of fertiliser to frozen or snow-covered ground. In accordance with Annex III.1, point 3(b), climatic conditions must be taken into account.

142.

By the sixth ground of complaint, the Commission complains that, in accordance with point 2.5(3) of the Annex to the Order of 6 March 2001, farmers may under certain conditions apply Type I and Type III fertiliser to frozen ground. The same is true of the land application of Type I fertiliser to snow-covered ground. Where the ground alternately thaws and freezes again within 24 hours, all types of fertiliser may be applied.

143.

In response, France contends that the Nitrates Directive does not lay down an absolute prohibition on the application of fertiliser to frozen or snow-covered ground.

144.

In this regard, too, however, the latitude enjoyed by the Member States when it comes to transposition is limited by the objectives of the Nitrates Directive and the present state of scientific knowledge. ( 54 ) It is clear from the study submitted by the Commission that the application of fertiliser to frozen or snow-covered ground must never be permitted, as it poses considerable risks to the groundwater and surface waters. ( 55 ) The same study states that it is precisely the alternate freezing and thawing of the ground that promotes the mineralisation of nitrogen. The nitrogen compounds that arise are water-soluble and can therefore contribute to the pollution of groundwater in particular, as plants cannot absorb nitrogen at such low temperatures. ( 56 )

145.

France does not contest that scientifically-based argument.

146.

Although the more recent study published by the Commission envisages the possibility of adding a qualification to the prohibition on land application in the case of dry frozen ground exposed to a particular risk of compression by traffic, ( 57 ) the French exceptions do not cover that situation.

147.

Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex II.A, point 3 and Annex III.1, point 3(b), to, the Nitrates Directive in so far as paragraph 2.5(3) of the Annex to the Order of 6 March 2001 permits fertiliser to be applied to ground which alternately thaws and freezes again within 24 hours and provides for the possibility, under certain conditions, of permitting the application of Type I and Type III fertiliser to frozen ground and the application of Type I fertiliser to snow-covered ground.

148.

In accordance with Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission claimed that the French Republic should be ordered to pay the costs and the latter has been largely unsuccessful, even taking into account the withdrawal of a limb of one of the grounds of complaint and the Commission’s inadmissible complaints, the French Republic must be ordered to pay the costs.

149.

I therefore propose that the Court should rule as follows: