Case C‑237/12

European Commission

v

French Republic

‛Failure of a Member State to fulfil obligations — Directive 91/676/EEC — Article 5(4) — Annex II.A, points 1 to 3 and 5 — Annex III.1, points 1 to 3, and Annex III.2 — Protection of waters against pollution caused by nitrates from agricultural sources — Periods for land application — Capacity of storage vessels for livestock manure — Limitation of land application — Prohibition on land application on steeply sloping ground or on snow-covered or frozen ground — Non-compliance of national legislation’

Summary — Judgment of the Court (Second Chamber), 4 September 2014

1. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Obligations on Member States

   (Art. 191(1) and (2) TFEU; Council Directive 91/676, recital 11, Art. 5(1)(3)(a) and (b), and (4)(a) and (b), and Annex II A, para. 1)

2. Judicial proceedings — Application initiating proceedings — Subject-matter of the dispute — Delimitation — Alteration once proceedings have been started — Prohibition — New national legislation reproducing provisions which were the subject of complaints — Complaints limited, in the application, to earlier legislation and directed, in the reply, against provisions in the new legislation — Whether permissible

   (Art. 258 TFEU; Rules of Procedure of the Court of Justice, Art. 38(1)(c))

3. 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 in the reasoned opinion — National implementing legislation adopted before the expiry of that period — Provisions in that legislation which came into force after that date — Effect on the determination of the existence of an infringement

   (Art. 258 TFEU)

4. Member States — Obligations — Failure to fulfil obligations — National system pleaded as justification — Not permissible

   (Art. 258 TFEU)

5. Action for failure to fulfil obligations — Subject-matter of the dispute — Determination during the pre-litigation procedure — Subsequent enlargement — Not permissible

   (Art. 258 TFEU)

6. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Rules concerning periods of prohibition on land application with regard to certain types of fertilisers and crops — Rules for the calculation of livestock manure storage capacities — Rules permitting the field storage of solid straw manure — Rules for the calculation of the quantity of nitrogen which can be applied to land — Rules establishing nitrogen discharge values — Rules concerning conditions for land application on steeply sloping ground — No prohibition on land application of certain types of fertilisers on ground which is frozen or snow-covered — Failure to fulfil obligations

   (Council Directive 91/676, Art. 5(4) and Annexes II A, paras 1 to 3 and 5, and III(1), paras 1 to 3, and 2)

1.  Directive 91/676 seeks to create the instruments needed to ensure that waters in the European Union are protected against pollution caused by nitrates from agricultural sources.

   In order to achieve those objectives, Member States are obliged, as laid down in Article 5(1) of Directive 91/676, to draw up and implement action programmes for designated vulnerable zones.

   According to the eleventh recital in the preamble to the directive, the action programmes should include measures to limit the land application of all nitrogen-containing fertilisers and, in particular, to set specific limits for the application of livestock manure.

   Under Article 5(4)(a) and (b) of Directive 91/676, those action programmes, for the implementation of which Member States are responsible, must, more specifically, contain certain mandatory measures listed in Annexes II and III to that directive.

   Under Article 5(3)(a) and (b) of Directive 91/676, and Annex II.A, point 1, thereto, those action programmes are to take into account the best available scientific and technical data and the physical, geological and climatic conditions of each region.

   Further, although the directive allows the Member States a certain latitude as regards the precise methods of implementing the requirements of Directive 91/676, they are, in all circumstances, obliged to ensure that the objectives of that Directive, and consequently the objectives of European Union policy in the area of the environment, are achieved, in accordance with the requirements of Article 191(1) and (2) TFEU.

   Further, in relation to a directive which, like Directive 91/676, contains technical rules in the area of the environment, the Member States are under a particular duty, in order to satisfy fully the requirement of legal certainty, to ensure that their legislation intended to transpose that directive is clear and precise.

   (see paras 25-31)

2.  See the text of the judgment.

   (see paras 46-51)

3.  See the text of the judgment.

   (see paras 52-55)

4.  See the text of the judgment.

   (see paras 56, 57)

5.  See the text of the judgment.

   (see paras 73-75, 102, 103, 125-127)

6.  By not adopting the measures necessary to ensure the full and correct implementation of all the requirements imposed on it by Article 5(4) of Directive 91/676 concerning the protection of waters against pollution by nitrates from agricultural sources, read together with Annex II.A, points 1 to 3 and 5, Annex III.1, points 1 to 3, and Annex III.2, to that directive, a Member State fails to fulfil its obligations under that directive, in so far as the national legislation adopted in order to ensure the implementation of that directive:

   —	prescribes with regard to several types of fertilisers and crops periods of prohibition on land application which do not meet the requirements of that directive;

   —	establishes rules for the calculation of livestock manure storage capacities on the basis of scheduled times which do not meet the requirements of that directive;

   —	permits the field storage of solid straw manure for a period of excessive length;

   —	does not establish rules enabling farmers and the monitoring authorities to calculate correctly the quantity of nitrogen which may be applied to land in order to ensure balanced fertilisation;

   —	establishes nitrogen discharge values which do not make it possible to ensure compliance with the limit on the land application of livestock manure fixed by the directive at 170 kilogrammes of nitrogen per hectare per annum;

   —	does not establish satisfactory rules, containing criteria which are clear, specific and objective, concerning the conditions for the land application of fertilisers on steeply sloping ground;

   —	does not establish rules prohibiting the land application of certain types of fertilisers on ground which is frozen or snow-covered. (see para. 161, operative part)