Case C‑197/18

Proceedings initiated by Wasserleitungsverband Nördliches Burgenland and Others

(Request for a preliminary ruling from the Verwaltungsgericht Wien)

Judgment of the Court (First Chamber), 3 October 2019

(Reference for a preliminary ruling — Environment — Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Objective of reducing pollution — Waters affected by pollution — Maximum nitrate level of 50 mg/l — Action programmes adopted by the Member States — Rights of individuals to have such a programme amended — Locus standi before the national authorities and courts)

1. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Infringement by a Member State of the obligations provided for in the directive — Locus standi of natural or legal persons before the national authorities and courts — Conditions — Persons to be directly concerned by the infringement of the obligations relied on — Possibility of relying directly on the obligations provided for in the directive — Obligations to be clear, precise and unconditional

   (Art. 288 TFEU; Council Directive 91/676, Arts 1, 5(4) and (5))

   (see paragraphs 30-35, 40-46, 70-73)

2. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Inadequate definition of waters which are polluted or are vulnerable to pollution — Criteria — Nitrate content of groundwaters exceeding or at risk of exceeding the threshold of 50 mg/l

   (Council Directive 91/676, Arts 2(j), 3(1) and 5, and Annex I A, point 2)

   (see paragraphs 36-39)

3. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes in respect of vulnerable zones — Clear, precise and unconditional obligation on the part of Member States to take all additional measures with a view to achieving the objective set by the directive — Scope — Monitoring of the status of the waters — Elements to be taken into consideration

   (Council Directive 91/676, recital 12 and Arts 1, 3(1) and 5, and Annexes I A and III)

   (see paragraphs 50-69)

Résumé

The directive concerning the protection of waters against pollution caused by nitrates from agricultural sources entitles persons concerned by water pollution to require national measures with a view to reducing the concentration of nitrates

In the judgment in Wasserleitungsverband Nördliches Burgenland and Others (C‑197/18), delivered on 3 October 2019, the Court stated, for the first time, that natural and legal persons directly concerned by the pollution of groundwaters can rely, before the national courts, on certain provisions of Directive 91/676 concerning the protection of waters from pollution caused by nitrates from agricultural sources (‘the Nitrates Directive’).

That judgment has been delivered in the context of a dispute between, on the one hand, the Water Association of North Burgenland (Austria), an Austrian municipality operating a municipal well, and an individual who owns a domestic well, as applicants, and, on the other hand, the Austrian Federal Ministry for Sustainability and Tourism. The applicants complain of the pollution of the groundwaters in their region, the nitrate level of which regularly exceeds the threshold of 50 mg/l provided for in the Nitrates Directive. In that context, they made requests seeking the adoption of measures allowing the reduction of the nitrate levels of those waters. The Ministry, on the other hand, contested the applicants’ locus standi to request such measures. Thus, the Court was asked to clarify whether natural and legal persons such as the three applicants can rely on the provisions of the Nitrates Directive with a view to demanding the adoption or amendment of national measures provided for in that directive so as to lower the nitrate concentration in the groundwaters.

First, the Court stated that, in order to preserve the binding effect of directives as well as their effectiveness, national law cannot exclude, in principle, the possibility for individuals to rely on the provisions provided for in those acts of EU law. At least the natural or legal persons directly concerned by an infringement of the provisions of a directive should be in a position to require the competent authorities to observe the obligations in question, if necessary by bringing an action before the courts.

Subsequently, the Court stated that nitrate level of groundwaters that exceeds or is at a risk of exceeding the threshold of 50 mg/l provided for in the Nitrates Directive is contrary to the main objective of that directive. That directive seeks to allow individuals to make legitimate use of water. If that threshold is not observed, the waters must be deemed polluted. Thus, the risk of exceeding the threshold of 50 mg/l can already interfere with the normal use of water and requires the implementation of decontamination measures by water source rightholders. Those natural or legal persons are therefore directly concerned by the infringement of the main objective of the Nitrates Directive and should be in a position to bring an action before the national authorities and courts so as to require them to comply with the obligations imposed on the Member States.

In that regard, the Court recalled that, when nitrates of agricultural origin significantly contribute to water pollution, the Nitrates Directive applies and obliges the Member States to launch action programmes and take all the necessary measures with a view to reducing the concentration of nitrates so as to avoid that the nitrate level of the water exceeds 50 mg/l or avoid the risk of that level being exceeded. To that end, the Member States are also required to strictly control the status of the waters within the framework of monitoring programmes and by means of selected measuring points, taking into account the best available scientific and technical data.

The obligation imposed on the Member States to adopt the necessary measures to lower the nitrate level of groundwaters provided for in the Nitrates Directive, is clear, precise and unconditional and can therefore be relied on directly by individuals vis-à-vis the Member States.

In the light of those considerations, the Court held that, when an agricultural activity significantly contributes to the pollution of groundwaters, the natural and legal persons whose legitimate use of water in respect of their water sources is interfered with should be in a position to require the national authorities to amend an existing action programme or adopt other measures provided for in the Nitrates Directive, as long as the nitrate levels of the groundwaters exceed or could exceed, in the absence of those measures, 50 mg/l.