«(Failure of a Member State to fulfil obligations – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – Article 5(4) and (5), paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III – Capacity of storage vessels for livestock manure – Limitation of 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 – Ensuring that the amount of livestock manure applied to land each year does not exceed a specified amount per hectare – Provisions contained in a code of good agricultural practice and covering periods, conditions and procedures for the land application of fertilisers – Obligation to adopt any additional measures or reinforced actions necessary)»

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))

JUDGMENT OF THE COURT (Sixth Chamber) 2 October 2003 (1)

((Failure of a Member State to fulfil its obligations – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – Article 5(4) and (5), paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III – Capacity of storage vessels for livestock manure – Limitation of 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 – Ensuring that the amount of livestock manure applied to land each year does not exceed a specified amount per hectare – Provisions contained in a code of good agricultural practice and covering periods, conditions and procedures for the land application of fertilisers – Obligation to adopt any additional measures or reinforced actions necessary))

In Case C-322/00,

applicant,

v

defendant,

APPLICATION for a declaration that, by failing to adopt the necessary legislative and administrative provisions laid down in Article 4 and Article 5(4) and (5) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1) and in paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III thereto, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive,

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, V. Skouris, F. Macken (Rapporteur) and N. Colneric, Judges,

Advocate General: P. Léger,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 20 June 2002, at which the Commission was represented by G. Valero Jordana and H. van Vliet, acting as Agent, and the Kingdom of the Netherlands by J.G.M. van Bakel and H.G. Sevenster, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 7 November 2002,

gives the following

Community legislation

...

...

...

...

National legislation

...Article 15

Article 16The quantity of taxable fertiliser is defined as the sum of the quantity of input fertiliser and the quantity of livestock manure produced, diminished in turn by:

Article 18The absorption of fertiliser by crops, as referred to in Article 16(b), is as follows for each hectare of the average agricultural area belonging to a farm in the calendar year in question:

The first plea, alleging infringement of Article 5(4)(a) of the Directive, in conjunction with paragraph 1(2) of Annex III

Arguments of the parties

Findings of the Court

The third plea, alleging infringement of Article 5(4)(a) of the Directive, in conjunction with paragraph 1(3) of Annex III

Incompatibility with the Directive of the loss standards, the level at which they are fixed and the amount of tax due when they are exceeded

─ Arguments of the parties

─ Findings of the Court

Failure to take into account the net mineralisation of reserves of organic nitrogen in the soil

─ Arguments of the parties

─ Findings of the Court

Failure to take into account nitrogen input from nitrogen-fixing organisms living in the soil

─ Arguments of the parties

─ Findings of the Court

The fourth plea, alleging infringement of Article 5(4)(a) of the Directive, in conjunction with paragraph 2 of Annex III

Arguments of the parties

─ Farms subject to the requirement for a declaration

─ Exempt farms

Findings of the Court

─ Farms subject to the requirement for a declaration

─ Exempt farms

The fifth plea, alleging infringement of Article 5(4)(b) of the Directive, in conjunction with Article 4(1)(a) and with paragraphs A(1), (2), (4) and (6) of Annex II

The absence of provisions covering periods when the land application of fertiliser other than livestock manure is inappropriate

─ Arguments of the parties

─ Findings of the Court

The absence of provisions covering the land application of fertiliser to steeply sloping ground

─ Arguments of the parties

─ Findings of the Court

The absence of provisions covering the conditions for land application of fertiliser near water courses

─ Arguments of the parties

─ Findings of the Court

The absence of provisions covering the procedures for land application of chemical fertiliser and livestock manure in order to limit nutrient losses to waters

─ Arguments of the parties

─ Findings of the Court

The sixth plea, alleging infringement of Article 5(5) of the Directive

Arguments of the parties

Findings of the Court

the Kingdom of the Netherlands has failed to fulfil its obligations under the Directive.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

Puissochet

Gulmann

Skouris

Macken

Colneric

Delivered in open court in Luxembourg on 2 October 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber