Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations — Subject‑matter of the dispute — Determined during the pre-litigation procedure — Purely formal alteration of the objections after the issue of the reasoned opinion, on account of an amendment to the national legislation — Legislation partially remedying the objections complained of in the reasoned opinion — Permissible — New objections contesting the amended national legislation — Whether inadmissible

(Art. 226 EC)

2. Actions for failure to fulfil obligations — Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down by the reasoned opinion — Implementing measures subsequently adopted — Retroactive effect — Effect on the examination of a failure to fulfil obligations — None

(Art. 226 EC)

3. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Identification of waters threatened by pollution — Designation of vulnerable zones — Obligations of the Member States — Scope

(Council Directive 91/676, Art. 3(1) and (2) and Annex I)

4. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Re-examination of the list of designated vulnerable zones — Scope

(Council Directive 91/676, Art. 3(4))

Summary

1. An action for failure to fulfil obligations brought under Article 226 EC is delimited by the pre-litigation procedure provided for by that article so that the action cannot be founded on any objections other than those stated in the pre-litigation procedure. That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that 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.

An action is admissible when it concerns 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 is 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. 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.

(see paras 38-41)

2. In the context of treaty-infringement proceedings under Article 226 EC, it cannot be accepted, owing to the risk of allowing Member States to evade those proceedings, that adoption by the Member States of laws, regulations or administrative provisions outside the time-limit set by the Commission in the reasoned opinion can constitute an implementing measure which the Court should take into account in assessing the existence of an infringement as at that date, merely because the entry into force of those measures has been made retroactive.

(see para. 60)

3. Under Article 3(1) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources, read in conjunction with Annex I thereto, the Member States are required to identify as waters that are affected by pollution, or could be affected by pollution if action pursuant to Article 5 is not taken, all surface freshwaters which contain or are liable to contain more than 50 mg/l of nitrates. They are also required, under Article 3(2) of the Directive, to designate vulnerable zones on the basis of the waters identified in accordance with Article 3(1) of the Directive, unless they choose to establish and apply the action programmes referred to in Article 5 of the Directive throughout their national territory.

It follows that a mere power to identify waters affected or potentially affected by pollution and to designate vulnerable zones is not sufficient for transposition and implementation of the Directive. As is clear from the wording of Article 3(1) and (2) of the Directive, the identification of all waters that are affected by pollution or could be so affected if action pursuant to Article 5 of the Directive is not taken, first, and, secondly, the subsequent designation, on the basis of the waters thus identified, of vulnerable zones, constitute distinct obligations which must be fulfilled specifically and separately.

(see paras 64-65, 73)

4. Article 3(4) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources is concerned only with circumstances in which a Member State reviews and, if appropriate, revises or adds to the existing list of designated vulnerable zones, in order to take account of changes and factors that were unforeseeable at the time of the earlier designation. It does not, in contrast, relate to the initial procedure provided for in Article 3(1) and (2) of that directive, consisting of identifying waters actually or potentially affected by pollution and then designating vulnerable zones on the basis of the waters thus identified.

(see para. 80)