Keywords
Summary

Keywords

1. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Obligation of Member States to limit the amount of livestock manure applied to land each year — Obligation of Member States to adopt binding provisions concerning livestock manure storage capacity — Possibility of derogation — None — Member States allowed to authorise certain farms to depart from the minimum standard set by those provisions — Condition — Disposal, in a manner which will not cause harm to the environment, of manure which cannot be stocked — Burden of proof — (Council Directive 91/676, Art. 5(4)(a) and Annex III, point 1(2))

2. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Mandatory measures for limiting the land application of fertilisers — Requirement as to maximum amounts of fertiliser which may not be exceeded — Need to adopt use standards — Inadequacy of loss standards introduced by a national system — (Council Directive 91/676, Arts 2 and 5(4)(a), and Annex III, points 1(3) and (2))

3. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Mandatory measures for limiting the land application of fertilisers — Taking into account of the balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to crops from the soil and from fertilisation — Obligation of Member States to take into account both the supply of nitrogen from net mineralisation of reserves of organic nitrogen in the soil and all nitrogen inputs and outputs — (Council Directive 91/676, Art. 5(4)(a), and Annex III, point 1(3)(ii), second indent)

4. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Mandatory measures for limiting the land application of fertilisers — Requirement as to maximum amounts of fertiliser which may not be exceeded — Need to adopt use standards — Farms subject to making a declaration — Inadequacy of a system imposing loss standards — Farms exempt from making a declaration — Obligation of Member States to demonstrate the use of a permissible conversion method — (Council Directive 91/676, Art. 5(4) and Annex III, points 1(3) and 2, first subpara.)

5. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Mandatory measures for limiting the land application of fertilisers — Requirement as to maximum amounts of fertiliser which may not be exceeded — Application by a Member State seeking to obtain a derogation — Justification — Objective criteria — Commission's discretion — (Council Directive 91/676, Art. 9 and Annex III, point 2 subpara. 2(b))

6. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Obligation of Member States to establish codes of good agricultural practice and to adopt provisions relating thereto which are subject to the condition that they be relevant — Objective criteria — (Council Directive 91/676, Arts 2(e) and (f), 4(1)(a) and 5 and Annex II A(1))

7. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Implementation of action programmes applying to vulnerable zones — Obligation of Member States to take all additional measures necessary for the purpose of achieving the objective laid down by the Directive — Obligation to implement them at the outset of the first action programme or at the time when they are first found to be necessary — (Council Directive 91/676, Arts 1 and 5(4) and (5))

Summary

1. Under Article 5(4)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources, action programmes to reduce the pollution of waters by nitrogen compounds in vulnerable zones, which Member States are to implement, must contain certain mandatory measures referred to in Annex III to the Directive. Those mandatory measures must include rules relating to the capacity of storage vessels for livestock manure, in accordance with paragraph 1(2) of Annex III. It is apparent from that provision that their capacity must exceed that required for storage 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 livestock manure in excess of the actual storage capacity will be disposed of in a manner which will not cause harm to the environment.

Although the Directive allows the Member States a certain latitude as regards the precise method of implementing that provision, the fact remains that the objectives of Directive 91/676, in particular that of ensuring that for each farm or livestock unit the amount of livestock manure applied to the land each year, including by the animals themselves, does not exceed a specified amount per hectare, must be complied with by the Member States. Therefore, the final part of paragraph 1(2) of Annex III to the Directive must be interpreted as not enabling Member States to depart from their obligation under the Directive to adopt binding laws or regulations as regards storage capacity for livestock manure on farms, but as merely allowing them to authorise certain farms to depart from the minimum standard set by those provisions, on a case-by-case basis, to the extent that it is demonstrated that the livestock manure which cannot be stored on the farm will be disposed of in a manner which will not cause harm to the environment. Fragmentary legislation cannot discharge the obligation of a Member State to establish an action programme which contains mandatory measures with a view to attaining the relevant specific objectives of the Directive.

see paras 44-48

2. Under Article 5(4)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources, in conjunction with paragraph 1(3) of Annex III, the measures to be included in action programmes applying to vulnerable zones 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. In accordance with paragraph 2 of Annex III to the Directive, those measures must ensure that the amount of livestock manure applied to the land each year does not exceed a specified amount per hectare. To the extent that, as provided in Article 2(e) of the Directive, the fertiliser applied to land may be livestock manure, that requirement can be satisfied only by means of use standards for fertilisers, that is to say, standards fixing the maximum amount of fertiliser which may be applied to soil. Loss standards such as those provided for under a system to regulate the use of fertilisers which has the aim of reducing farming losses of nitrogen and phosphates through seepage into the environment and under which farmers are required to declare input and output amounts for substances in relation to production on their farm and the difference between those two values (the "loss" ), must not exceed certain limits, unless the farmer is prepared to pay a tax, can only indirectly limit the land application of fertilisers and cannot limit the use of a specific kind of fertiliser.

Use standards such as those required by Directive 91/676 are applied beforehand and appear to be necessary for the purpose of reducing and preventing pollution, while the loss standards under that system, based on the idea of a balanced use of nitrogen and phosphates by farmers, are applied at a subsequent stage of the nitrogen cycle, and any exceeding of those loss standards will necessarily contribute to pollution.

see paras 71-72, 74

3. Under Article 5(4)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources, in conjunction with paragraph 1(3) of Annex III, the measures to be included in action programmes applying to vulnerable zones 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, those rules having to take the form of use standards, that is to say standards fixing the maximum amount of fertiliser which may be applied to soil.

In order to determine that balance, which appears to be essential for the purposes of setting the use standards, Member States must, inter alia, take into account, in accordance with the second indent of paragraph 1(3)(ii) of Annex III to the Directive, the supply of nitrogen from net mineralisation of reserves of organic nitrogen in the soil.

Furthermore, when establishing the balance required under paragraph 1(3) of Annex III, it is necessary to take into account all nitrogen inputs and outputs, in particular nitrogen input from nitrogen-fixing organisms living in the soil. Since papilionaceous plants are able to fix nitrogen, Directive 91/676 requires that they be taken into account.

see paras 84-85, 94

4. The action programmes applying to vulnerable zones required by Article 5(4) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources must contain the measures referred to in Annex III. Among those measures are rules relating to "limitation of the land application of fertilisers" , which, in the words of the first subparagraph of paragraph 2 of the Annex, must ensure that "for each farm or livestock unit, the amount of livestock manure applied to the land each year, including by the animals themselves, shall not exceed a specified amount per hectare" .

First, as regards farms subject to making a declaration and thus within the scope of a system which regulates the use of fertilisers with the aim of reducing farming losses of nitrogen and phosphates through seepage into the environment and under which farmers are required to declare input and output amounts for substances in relation to production on their farm, and the difference between those two values (the "loss" ) must not exceed certain limits, unless the farmer is prepared to pay a tax, the loss standards established under such a system, inasmuch as they do not meet the obligation to include in the action programme the mandatory measures referred to in paragraph 1(3) of Annex III to Directive 91/676, do not correctly implement the Directive in that regard and therefore that system also cannot ensure compliance with the limits on the land application of livestock manure resulting from paragraph 2 of Annex III. The wording of that provision makes it clear that it requires use standards, that is to say standards fixing the maximum amount of fertiliser which may be applied to soil, to be fixed so that Member States may lay down in advance that the amount of livestock manure applied to land is not to exceed the amount per hectare allowed.

Secondly, as regards farms which are exempt from making a declaration and therefore not covered by that system, the measures adopted by Member States for the purpose of complying with the obligation flowing from paragraph 2 of Annex III to Directive 91/676 must have the effect of limiting the land application of livestock manure in accordance with the limits fixed by that directive. Even if a Member State is free to limit the application of livestock manure by means of use or input standards for phosphates, it must always demonstrate that the conversion method which it uses for that purpose is such as to ensure that the amount of livestock manure which is allowed to be applied to land in accordance with the phosphate standards does not exceed the limits on nitrogen fixed by the Directive.

see paras 113-118

5. Paragraph 2(b) of Annex III to Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources provides that, if a Member State authorises the annual application to land of amounts of livestock manure per hectare which differ from those expressly set out in that provision, it must inform the Commission, which will examine the justification in accordance with the procedure laid down in Article 9 of that directive. Those amounts must be fixed so as not to prejudice the achievement of the Directive's objectives and must be justified on the basis of objective criteria, such as long growing seasons or high net precipitation in the vulnerable zone.

It is clear from that provision that it does not involve merely a procedure aimed at informing the Commission that derogating amounts are being adopted, but an obligation to justify the application for a derogation to the Commission, by reference to objective criteria. The Commission, for its part, may either accept the application for a derogation subject, where appropriate, to certain conditions or reject it.

see paras 122 to 123

6. Article 4(1)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources requires Member States to establish a code or codes of good agricultural practice with the aim of ensuring a general level of protection against pollution for all waters. The action programmes applying to vulnerable zones which the Member States are required to establish pursuant to Article 5 of that directive must contain certain mandatory measures, including those which Member States have prescribed in the codes of good agricultural practice established in accordance with Article 4.

Paragraph A(1) of Annex II to that directive provides that codes of good agricultural practice, which seek to reduce pollution by nitrates and take account of conditions in the different regions of the Community, must contain provisions covering various items "in so far as they are relevant" , including periods when the land application of fertiliser is inappropriate. In that regard, Article 2(e) of the Directive defines "fertiliser" as any substance containing a nitrogen compound or compounds utilised on land to enhance growth of vegetation, including livestock manure. Article 2(f) defines "chemical fertiliser" as any fertiliser which is manufactured by an industrial process. It follows that Annex II A to that directive refers to all fertilisers, not merely those which, like livestock manure, are of organic origin.

Similarly, while Annex II A to the Directive requires that Member States' codes of good agricultural practice contain provisions covering the land application of fertiliser to steeply sloping ground, that obligation on the Member States is also subject to the condition that it be relevant.

The relevance of the provisions referred to in Annex II A to Directive 91/676 must be evaluated only on the basis of objective criteria relating to the physical, geological and climatic conditions of each region. It follows that economic arguments are not sufficient to establish that the adoption of provisions concerning procedures for the land application of chemical fertilisers and livestock manure is not relevant.

see paras 130-134, 136, 143, 155-156

7. Pursuant to Article 5(5) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources, Member States are to take, in the framework of the action programmes applying to vulnerable zones, such additional measures or reinforced actions as they consider necessary if it becomes apparent, "at the outset or in the light of experience gained in implementing the action programmes" , that the measures referred to in Article 5(4) will not be sufficient for achieving the objectives specified in Article 1.

That provision does not allow Member States a choice as to which action programme will include additional measures or reinforced actions. They must take such measures or actions at the outset of the first action programme or in the light of experience gained in implementing the action programmes and therefore when they first observe a need for them.

see paras 165-166