Opinion of the Advocate General — ECLI:EU:C:2014:14
Date: 2014-01-16
Language of the case: French
Subject matter: Environment;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: France

summary of a study, the substance of which is not contested by the Commission, which shows that various kinds of fertiliser, in particular compact straw manure, initially absorb more mineralised nitrogen than they release. (32) Even if they are applied a relatively long time before the beginning of the growing season, the risk of water pollution is therefore limited. A more recent study published by the Commission arrives at similar conclusions. (33) 79. It would also seem that grassland can consume nitrogen over distinctly longer periods than other crops. The 2011 study published by the Commission therefore indicates that considerably shorter storage periods should be set aside for grassland than for other crops (in France, between two and six months depending on the region). (34) That study is material to the present case as it updates the scientific evidence contained in the 2001 study cited by the Commission. 80. There being no need to examine in detail the other objections raised by France, it may therefore be concluded that the fixed periods of five or six months which the Commission seeks to enforce are not justified for France as a whole. 81. Thus, those periods would probably be too long for a livestock farm operating an extensive grazing system in the south of France. On the other hand, an intensive fattening farm in the north, which devotes its land entirely to forage production, may have to use even longer periods to calculate the storage capacities it requires. 82. Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex II.A, point 5, and Annex III.1, point 2, to, the Nitrates Directive in so far as the livestock manure storage capacities prescribed in Article 2(I)(1) and (2) of, and Annex I, Part II, to, the Order of 19 December 2011 are calculated on the basis of land application prohibition periods which are too short. This limb of the ground of complaint is otherwise unfounded. 3. Field storage 83. By the last limb of the second ground of complaint, the Commission complains that almost all of France’s action programmes allow compact straw manure to be stored on fields for a period of ten months without requiring that the manure be sealed off from the ground or covered. As a result, nitrates could escape into the groundwater and, in heavy rain, into surface waters, too. The Commission takes issue, for the first time in the reply, with the fact that the conditions governing storage laid down in French law are not verifiable. 84. France rightly objects, first of all, that, in the reasoned opinion, (35) the Commission still considered temporary storage of a few weeks to be permissible. That limb of the ground of complaint is therefore admissible only in so far as the Commission objects to storage of more than a few weeks. 85. As regards the verifiability of compliance with those conditions, too, the criticism raised by the Commission in the reply expands the subject-matter of the proceedings. After all, that criticism does not directly concern the pollution risks connected with the permitted practice but the risk posed by the prohibited field storage of livestock manure, which had not previously been addressed. 86. On the other hand, in so far as the Commission takes issue in the application with the conditions governing storage, that is to say the lack of a requirement that the manure should be sealed from the ground and covered, its complaint was, contrary to the view taken by France, at least implicitly contained in the complaint of excessively long field storage raised in the pre-litigation procedure. After all, those conditions define the risk of water pollution connected with that practice. That complaint is therefore admissible. 87. It is true that France relies on rules which, in accordance with Article 2(II) of the Order of 19 December 2011, did not take effect until after the expiry of the time-limit laid down in the reasoned opinion, that is to say those contained in Annex I, Part II(2). According to the uncontested information provided by France, however, those rules are provided for in the 4th action programmes, which were in force beforehand. They can therefore be taken into account in the present case. 88. Those rules reduce the risk of water pollution because compact straw manure must initially be stored for two months to allow any nitrate-containing liquids to escape. The resulting dry manure releases hardly any excess nitrates initially, as mineralised nitrogen is re-absorbed by micro-organisms. (36) 89. According to further information supplied by the French Government, however, the absorption of mineralised nitrogen by microbes is limited in time, essentially to autumn and winter. (37) As the manure may be stored for up to ten months, however, it must be assumed that, in warmer seasons, it will after all release excess mineralised nitrogen. It is at that point, if not sooner, that the absence of a requirement that the manure be sealed off from the ground and covered also becomes a significant factor. Compact straw manure which is left exposed can be again augmented by rainwater which absorbs the mineralised nitrogen and conveys it to the groundwater or surface waters. 90. Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex II.A, point 5, and Annex III.1, point 2, to the Nitrates Directive in so far as Annex I, Part II(2), to the Order of 19 December 2011 permits the field storage of compact straw manure for up to ten months without requiring that the manure be sealed off from the ground and covered. F – Third ground of complaint – Balanced fertilisation 91. The Court has already held that, under Article 5(4)(a) of the Nitrates Directive, in conjunction with point 1(3) of Annex III, the measures to be included in action programmes 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. (38) That interpretation of Annex III.1, point 3, to the directive is, moreover, confirmed by the objective of the directive, namely to create the instruments needed to ensure that waters in the Community are protected against pollution caused by nitrates from agricultural sources. (39) 92. The Commission complains that, although the French legislation reiterates those principles, it does not transpose them in a directly applicable set of rules. What is needed, the Commission submits, is a reliable method of calculation and the establishment of the parameters necessary to enable farmers to calculate the quantities of fertiliser they can apply. Those parameters must, in particular, take into account the relevant crops, the effectiveness of nitrogen in the type of fertiliser concerned and the nitrogen already present in the soil. 93. France essentially raises two objections to that ground of complaint. First, it argues, the Nitrates Directive does not require such precise regulation and, secondly, Annex I, Part III(1), to the Order of 19 December 2011 is even better suited to ensuring balanced fertilisation than the requirements prescribed by the Commission. 94. As regards the first objection, the Court has already held that Annex III.1, point 3 to the Nitrates Directive must be transposed precisely. (40) The degree of precision required must be determined by reference to the persons to whom the rules adopted are addressed. They must be able to understand the obligations incumbent on them. Where the rules in question are addressed to farmers, they must be able, by using the resources available to them, to make a reliable assessment of the quantities of manure they may apply. 95. The question whether those requirements can be fulfilled only by the system advocated by the Commission need not be answered. 96. The provisions cited by France failed to satisfy those requirements not least because they were still not applicable to farmers at the time when the time-limit laid down in the reasoned opinion expired. After all, Annex I, Part III(1)(c), to the Order of 19 December 2011, which lays down the obligations incumbent on farmers, was not applicable until 1 September 2012, in accordance with Article 2(II) of the Order. 97. Although the system laid down in Annex I, Part III(1)(a) and (b), to the Order of 19 December 2011 was in force at the material time, it also could however not yet be applied. After all, point (a) requires the establishment of implementing provisions, that is to say, the formulation of detailed operational rules, including parameters. In accordance with point (b), these must be established by the regions for each crop and for grassland. According to information supplied by the Commission, those provisions did not enter into force until after the expiry of the material time-limit, that is to say on 1 September 2012. 98. In so far as the Commission objects to shortcomings in the substance of those regional provisions and to certain detailed provisions in the Order of 19 December 2011 for the first time in the reply, it attempts to expand the subject‑matter of the present proceedings. That submission is therefore inadmissible. 99. As concerns finally the old provisions of paragraph 2(3) of the Annex to the Order of 6 March 2001, which were almost certainly still applicable to farmers at the material time, they require only that farmers adhere to a balanced application of fertiliser within the meaning of Annex III.1, point 3, to the Nitrates Directive. 100. My understanding of France’s argument in relation to these provisions is that they require farmers to determine themselves what fertiliser application is permissible for each individual area of land. Such a solution, France contends, is preferable to the establishment of specific parameters, since it allows full account to be taken of local conditions. 101. In theory, this approach makes for optimum fertiliser application. The present proceedings show, however, that determining the permissible level of fertiliser application is an extremely complex undertaking. It cannot be taken for granted that every farmer would be able to perform that task without more specific directions. (41) Also, in the absence of easily verifiable criteria, there is a considerable risk of abuse. Furthermore, when it adopted the new rules, even France abandoned that approach, replacing it with regional implementing provisions. 102. Consequently, France has failed to fulfil its obligations under Article 5(4) of, and Annex III.1, point 3, to, the Nitrates Directive in so far as, in the Order of 6 March 2001, it did not lay down sufficiently specific provisions on the balanced application of fertiliser. G – Fourth ground of complaint – Safeguarding the upper limit of 170 kg N per hectare per year 103. This ground of complaint concerns the method used in France to ensure compliance with the upper limit of 170 kg Nitrogen per hectare per year laid down in Annex III.2 to the Nitrates Directive. Annex III.3 allows that amount to be determined on the basis of animal numbers. That is the method used in France, inasmuch as the legislation specifies for each species of animal the amount of nitrogen contained in the manure of a specimen animal applied over one year. 104. Determining the permissible amount of nitrogen on the basis of animal numbers is obviously intended to make it easier to apply the upper limit. Farmers do not have to check how much nitrogen they are actually applying. As long as the number of animals does not exceed the absorption capacity of the areas fertilised, it is sufficient for them to distribute the manure evenly in order to satisfy the requirements. 105. However, the Commission complains that the amounts of nitrogen which France assumes to be present in the applied fertiliser from the various animal species are too small. 106. It is true that France wrongly relies, in relation to this ground of complaint too, on the new rules contained in the Order of 19 December 2011, that is to say Annex II, which, in accordance with Annex I, Part V, in conjunction with Article 2(II), was not applicable until the autumn of 2012. However, this is relevant only in regard to the assessment of the excretion values of dairy cows, since the values for other productive livestock were retained. 1. Dairy cows 107. The Commission bases its objection to the excretion values for dairy cows on two scientifically-based arguments. First, the cows’ milk production is not taken into account. That is because, as milk production increases, more nitrogen is excreted. Secondly, the Commission complains that the so-called volatilisation coefficient applied is too high. 108. France does not contest the Commission’s argument relating to milk production or, in particular, the scientific bases for that argument. In fact, Annex II(B) of the Order of 19 December 2011 confirms the Commission’s position. Instead of a single excretion value, that annex lays down a number of values varying according to milk production. To that extent, therefore, this limb of the ground of complaint is well founded. 109. The second argument, relating to the so-called volatilisation coefficient, requires some explanation. This coefficient makes it possible to deduct from the amounts of excreted nitrogen a proportion which escapes into the atmosphere prior to land application. That deduction is inferred from a judgment of the Court of Justice in which the Court held that the decisive criterion for applying the annual upper limit of 170 kg is the amount of nitrogen applied with the manure. The volatilisation of nitrogen during land application must not therefore be taken into account by way of reduction. (42) The Commission, however, does not call into question the idea that, for these purposes, it is possible to take into account nitrogen which has been subject to volatilisation prior to land application, that is to say in animal housing and during storage of the manure. 110. In order to make that deduction, France applies the volatilisation coefficient. Before the Order of 19 December 2011, that coefficient was 30% for dairy cows. France therefore assumed that 30% of the nitrogen excreted in the cowshed is released into the atmosphere either there or during storage of the manure. The Commission, however, relies on a scientific article from 2007 (43) which gives a coefficient of only 24%. 111. France’s evaluation of the relevant literature confirms that value. (44) Accordingly, the Order of 19 December 2011 is no longer based on a coefficient of 30% but on one of 25%. 112. Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex III.2 and 3 to, the Nitrates Directive to the extent that, in establishing the excretion values for dairy cows, the Order of 6 March 2001 did not take proper account of the differences in milk production and was based on an excessively high volatilisation coefficient. 113. In so far as the Commission takes issue with a transitional provision applicable in the period from 1 September 2012 to 31 August 2013, it must be concluded that that provision did not form part of the subject-matter of the pre‑litigation procedure. This submission is therefore inadmissible. 2. Other productive livestock 114. In the case of other productive livestock, the Commission’s criticism is limited to the respective volatilisation coefficients, which remained the same before and after the Order of 19 December 2011. The Commission has, however, withdrawn its action in relation to pigs. 115. In this regard, the Commission, in relation to cattle excluding dairy cows, recognises the first objection raised by France to the effect that, when substantiating those claims in the application, it made a miscalculation which resulted in an incorrect description of the consequences of the coefficient complained of. It also does not dispute France’s argument that the same error also affects the description of those consequences in the case of other productive livestock. However, that miscalculation does not in itself undermine the complaint that the coefficients applied were too high. 116. Moreover, it should be pointed out that, in a table relating to other types of cattle, the Commission incorrectly gives a coefficient of 30% as being applicable, even though it actually applies a coefficient of 21%. (45) This may have led to the misconception on France’s part that the Commission no longer took issue with the French coefficients. (46) That interpretation cannot, however, be attributed to what is obviously a clerical error by the Commission, since the context and the values actually stated show that it continues to take the view that the coefficients should be lower. 117. France also argues that the contested coefficients were determined using a better method than the values relied on by the Commission. The Commission’s values, it contends, are derived from the amounts of nitrogen released from cowsheds and manure stores into the surrounding atmosphere. The French values, on the other hand, are based on a comparison of the excreted nitrogen with the nitrogen which is still contained in the manure when it leaves the animal housing or storage to be applied to the land. 118. Although the Commission does not expressly contest this at first sight plausible argument, it does so at least implicitly inasmuch as it maintains its own values. 119. The French position is open to question, since the survey of relevant literature submitted by France does not indicate a preference for a particular method, but explains that all values in the literature cited are based on empirical research which takes into account only the specific conditions of animal husbandry examined in each case. (47) The survey also stresses the considerable margin of fluctuation in the values obtained and states that the French coefficients are very close to the values in the literature. (48) Lastly, it also includes the study cited by the Commission, which it does not call into question. 120. Moreover, consultation of the French documents in which the volatilisation coefficients for cattle that are still in force are identified for the first time reveals that these are simply an average of the values contained in the literature then available on the volatilisation of nitrogen excreted by dairy cows. (49) No discussion of method is apparent. 121. It cannot therefore be assumed that any methodological differences in the determination of the coefficients are such as to call into question the scientific basis of this ground of complaint raised by the Commission. 122. Greater significance might be attached to France’s objection that the scientific data obtained reveal considerable variation in the volatilisation of nitrates in the cowshed and during storage. Such a margin of fluctuation indicates that it is not advisable to regard any particular value as the only correct volatilisation coefficient. This might be taken to mean that the Member States are in principle free to establish a volatilisation coefficient which falls within the framework set by the differing results of the scientific studies. 123. However, such legislative discretion would be incompatible with the principle of preventive action that must be observed when applying the Nitrates Directive (50) and also, therefore, when transposing Annexes III.2 and III.3. Consequently, the excretion amount established per animal must necessarily ensure that the upper limit of 170 kg is not breached. This is possible only if that amount is set so low that, whatever the margin of fluctuation in the actual volatilisation values, the volume of nitrates applied never exceeds 170 kg. 124. There would otherwise be a danger that, because of climatic conditions or customary practices in certain regions, the amount of nitrogen released into the atmosphere before land application is consistently less than that assumed for the purposes of the volatilisation coefficient. The volume of nitrogen applied to land in those regions would therefore exceed 170 kg per year per hectare. This could give rise to the forms of water pollution which the action programmes are required to prevent. 125. Consequently, when determining excretion amounts for the purposes of applying the upper limit on the basis of animal numbers, in accordance with Annexes III.2 and III.3 to the Nitrates Directive, volatilisation coefficients may be established only by reference to the lowest scientifically verifiable volatilisation. 126. If Member States none the less wish to enable farmers to make full use of the maximum permissible amount in all cases, they cannot establish the permissible amounts of livestock manure applicable to land by means of a simple categorisation based on animal numbers. Each categorisation must include a safety margin sufficient to prevent the upper limit from being exceeded in certain cases. 127. As the low volatilisation coefficients called for by the Commission are based largely on a scientific article from 2007 (51) which France does not refute with better data, they are therefore material to the present ground of complaint. 128. However, France applies distinctly higher volatilisation coefficients for the remaining types of productive livestock than is permissible according to the data relied on by the Commission, that is to say 30% instead of 21% for the remaining cattle, 60% instead of 30% for poultry, 30% instead of 9.5% for both sheep and goats, 30% instead of 13% for horses and 60% instead of 45% for rabbits. 129. Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex III.2 and III.3 to the Nitrates Directive in so far as the establishment of excretion values for cattle other than dairy cows and for poultry, sheep, goats, horses and rabbits in Annex II to the Order of 19 December 2011 was based on excessively high volatilisation coefficients. H – Fifth ground of complaint – land application to sloping ground 130. In accordance with Annex II.A, point 2, to the Nitrates Directive, codes of good agricultural practice should contain provisions covering the land application of fertiliser to steeply sloping ground, in so far as they are relevant. Account is also to be taken of the gradient, in accordance with Annex III.1, point 3(a) to the directive. 131. By the fifth ground of complaint, the Commission complains that, although France prohibits the application of fertiliser to such ground, it does not prescribe what gradient is permissible. In the case of fields, the application of fertiliser should be prohibited where the gradient is in excess of 8% and, in the case of grassland, gradients of up to 15% are permissible. 132. France, on the other hand, takes the view that the gradient must not be prescribed. Many other factors are also relevant to the risk of water pollution. A prohibition framed in general terms which allows farmers to take those factors into account is therefore sufficient, France contends. 133. Although the Commission does not call into question the significance of other factors, it submits a study which proceeds on the assumption that any gradient in excess of 5% represents a considerable risk and recommends the application of fertiliser only up to a gradient of 7%. Where suitable equipment is used or in mountainous terrain, fertiliser may be applied up to a gradient of 10%. However, slurry, that is to say liquid manure, should in any event be applied only up to a gradient of 7%. (52) 134. France does not put forward any scientific arguments to contest those recommendations. This might be interpreted as meaning that the Commission’s argument has not been rebutted. As the action programmes must be based on the best available scientific evidence, France would therefore have failed to adopt adequate rules on the land application of fertiliser to steeply sloping ground. 135. However, a more recent study published by the Commission online advises against the surface application of fertiliser only on fallow land with a gradient in excess of 8% and, in particular, where the length of the gradient exceeds 100 metres. Only in the case of gradients in excess of 15% is a complete prohibition against the application of fertiliser recommended. Both recommendations apply primarily to ground in proximity to surface waters. (53) 136. The reference to a gradient length greater than 100 metres is intended merely to illustrate particular risks associated with gradients in excess of 8%. It is not therefore to be regarded as a necessary condition of the obligation to prohibit the land application of fertiliser. 137. At first sight, it might be assumed that the same applies to ground in proximity to surface waters as to gradient length. However, the study limits its description of the risks associated with the land application of fertiliser on steep slopes to surface water pollution. According to the study, the application of fertiliser on sloping ground is problematic because livestock manure or nitrogen compounds already dissolved in water can be transported downslope by run-off water. Any nearby surface waters can be directly polluted. 138. Although specific risks to groundwater caused by the application of livestock manure to sloping ground are conceivable, they are not mentioned either in the study or in the Commission’s submission. The Commission has not therefore demonstrated that prohibitions on the application of fertiliser to sloping ground are necessary in the absence of any surface waters nearby. 139. Nevertheless, the French rules on the application of livestock manure to land in proximity to surface waters, contained in Annex I, Part VI, to the Order of 19 December 2011, do not meet this ground of complaint. First, in accordance with Article 2(II) of the Order, those provisions, too, did not enter into force until 1 September 2012, after the material time-limit had expired, and are not therefore relevant to the present case. Secondly, there is no evidence that the distances provided for in those provisions would counter the risk of pollutant penetration on steeply sloping ground. After all, they apply irrespective of the gradient of the neighbouring ground and have therefore, even from an objective point of view, been calculated far too conservatively. The safety distances range only between 2 and 35 metres. In the case of waters lying at the foot of slopes, such distances cannot preclude the direct penetration of nitrates. 140. Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex II.A, point 2, and Annex III.1, point 3(a), to, the Nitrates Directive to the extent that, in the case of ground in proximity to surface waters, it does not prohibit the application of fertiliser to slopes with a gradient in excess of 15% or the surface application of fertiliser to fallow land with a gradient of between 8% and 15%. Otherwise, this ground of complaint must be rejected. I – Sixth ground of complaint – Frozen or snow-covered ground 141. In accordance with Annex II.A, point 3, to the Nitrates Directive, action programmes must contain provisions on the land application of fertiliser to frozen or snow-covered ground. In accordance with Annex III.1, point 3(b), climatic conditions must be taken into account. 142. By the sixth ground of complaint, the Commission complains that, in accordance with point 2.5(3) of the Annex to the Order of 6 March 2001, farmers may under certain conditions apply Type I and Type III fertiliser to frozen ground. The same is true of the land application of Type I fertiliser to snow-covered ground. Where the ground alternately thaws and freezes again within 24 hours, all types of fertiliser may be applied. 143. In response, France contends that the Nitrates Directive does not lay down an absolute prohibition on the application of fertiliser to frozen or snow-covered ground. 144. In this regard, too, however, the latitude enjoyed by the Member States when it comes to transposition is limited by the objectives of the Nitrates Directive and the present state of scientific knowledge. (54) It is clear from the study submitted by the Commission that the application of fertiliser to frozen or snow-covered ground must never be permitted, as it poses considerable risks to the groundwater and surface waters. (55) The same study states that it is precisely the alternate freezing and thawing of the ground that promotes the mineralisation of nitrogen. The nitrogen compounds that arise are water-soluble and can therefore contribute to the pollution of groundwater in particular, as plants cannot absorb nitrogen at such low temperatures. (56) 145. France does not contest that scientifically-based argument. 146. Although the more recent study published by the Commission envisages the possibility of adding a qualification to the prohibition on land application in the case of dry frozen ground exposed to a particular risk of compression by traffic,(57) the French exceptions do not cover that situation. 147. Consequently, France has failed to fulfil its obligations under Article 5(4) of, in conjunction with Annex II.A, point 3 and Annex III.1, point 3(b), to, the Nitrates Directive in so far as paragraph 2.5(3) of the Annex to the Order of 6 March 2001 permits fertiliser to be applied to ground which alternately thaws and freezes again within 24 hours and provides for the possibility, under certain conditions, of permitting the application of Type I and Type III fertiliser to frozen ground and the application of Type I fertiliser to snow-covered ground. V – Costs 148. In accordance with Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission claimed that the French Republic should be ordered to pay the costs and the latter has been largely unsuccessful, even taking into account the withdrawal of a limb of one of the grounds of complaint and the Commission’s inadmissible complaints, the French Republic must be ordered to pay the costs. VI – Conclusion 149. I therefore propose that the Court should rule as follows: (1) The French Republic has failed to fulfil its obligations under Article 5(4) of, and Annexes II.A, points 1, 2, 3 and 5, and III.1, points 1 to 3, III.2 and III.3 to, Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources in so far as: – the Order of 6 March 2001 concerning the national action programmes to reduce water pollution caused by nitrates from agricultural sources to be implemented in vulnerable zones does not contain any prohibition on the land application of Type I fertiliser in the case of large autumn crops; – Annex I, Part I, to the Order of 19 December 2011 concerning the national action programmes to reduce water pollution caused by nitrates from agricultural sources to be implemented in vulnerable zones contains only minor restrictions on the application of Type I fertiliser to grassland which has been sown for over six months; – the Order of 6 March 2001 prohibited the land application of Type I fertiliser in the case of large spring crops only between 1 July and 31 August; – the Order of 6 March 2001 prohibited the land application of Type II fertiliser in the case of large autumn crops only between 1 November and 15 January; – the Order of 6 March 2001 prohibited the land application of Type III fertiliser in the case of large autumn crops and Type II fertiliser in the case of large spring crops only up until 15 January, – Annex I, Part I, to the Order of 19 December 2011 does not prohibit the application of Type II fertiliser to grassland which has been sown for over six months from 15 September, – Annex I, Part I, to the Order of 19 December 2011 does not prohibit the application of Type III fertiliser to grassland which has been sown for over six months in mountain areas in February, when the temperatures there remain below 5 degrees; – the livestock manure storage capacities prescribed in Article 2(I)(1) and (2) of, and Annex I, Part II, to, the Order of 19 December 2011 are calculated on the basis of land application prohibition periods which are too short; – Annex I, Part II(2), to the Order of 19 December 2011 permits the field storage of compact straw manure for up to ten months without requiring that the manure be sealed from the ground and covered; – the Order of 6 March 2001 did not contain sufficiently specific provisions on the balanced application of fertiliser; – in establishing the excretion values for dairy cows, the Order of 6 March 2001 did not take proper account of the differences in milk production and was based on an excessively high volatilisation coefficient; – the establishment of excretion values for cattle other than dairy cows and for poultry, sheep, goats, horses and rabbits in Annex II to the Order of 19 December 2011 was based on excessively high volatilisation coefficients; – in the case of ground in proximity to surface waters, there is no prohibition on the application of fertiliser to slopes with a gradient in excess of 15% or the surface application of fertiliser to fallow land with a gradient of between 8% and 15%; and – point 2.5(3) of the Annex to the Order of 6 March 2001 permits fertiliser to be applied to ground which alternately thaws and freeze again within 24 hours and provides for the possibility, under certain conditions, of permitting the application of Type I and Type III fertiliser to frozen ground and the application of Type I fertiliser to snow-covered ground. (2) The action is dismissed as to the remainder. (3) The French Republic is ordered to pay the costs. 1 – Original language: German. 2 – 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), as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 adapting a number of instruments subject to the procedure laid down in Article 251 of the Treaty to Council Decision 1999/468/EC, with regard to the regulatory procedure with scrutiny (OJ 2008 L 311, p. 1). 3 – Report from the Commission to the Council and the European Parliament on the implementation of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources based on Member State reports for the period 2008–2011 (COM(2013) 683 final). 4 – Commission staff working document accompanying the Report on the implementation of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources based on Member State reports for the period 2008-2011, SWD(2013) 405 final, Part ¾, p. 41. 5 – Commission document SWD(2013) 405 final (cited in footnote 4, p. 17). 6 – JORF of 13 January 2001, p. 655. 7 – JORF of 25 March 2001, p. 4712. 8 – JORF of 21 December 2011, p. 21556. 9 – Case C‑235/04 Commission v Spain [2007] ECR I‑5415, paragraph 52, Case C‑150/11 Commission v Belgium [2012] ECR, paragraph 43, and Case C‑286/12 Commission v Hungary [2012] ECR, paragraph 41. 10 – See, similarly, Case C‑221/03 Commission v Belgium [2005] ECR I‑8307, paragraph 24 et seq. 11 – Case 45/64 Commission v Italy [1965] ECR 857, 864 et seq., Case C‑105/91 Commission v Greece [1992] ECR I‑5871, paragraph 13, and Commission v Belgium (cited in footnote 10, paragraph 39). 12 – Case C‑203/03 Commission v Austria [2005] ECR I‑935, paragraph 30, and Commission v Belgium (cited in footnote 10, paragraph 40). 13 – Commission v Belgium (cited in footnote 10, paragraph 41). 14 – Case C‑322/00 Commission v Netherlands [2003] ECR I‑11267, paragraph 46. 15 – Commission v Netherlands (cited in footnote 14, paragraph 46). 16 – See Case C‑60/05 WWF Italia and Others [2006] ECR I‑5083, paragraph 27, Case C‑334/04 Commission v Greece [2007] ECR I‑9215, paragraph 32, and Case C‑418/04 Commission v Ireland [2007] ECR I‑10947, paragraph 63. 17 – Environmental Resources Management, Evaluation des programmes d’action élaborés par les États membres (2001), Annex A-10 to the application. 18 – Gac, A., F. Béline, T. Bioteau, and K. Maguet (2007) ‘A French inventory of gaseous emissions (CH4, N20, NH3) from livestock manure management using a mass-flow approach’, Livestock Science 112 (2007) 252 to 260. 19 – DLO-Alterra Wageningen UR and Others, Recommendations for establishing Action Programmes under Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (http://ec.europa.eu/environment/water/water-nitrates/pdf/study4.zip). 20 – Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p 7). 21 – Case C‑6/04 Commission v United Kingdom [2005] ECR I‑9017, paragraph 26, Case C‑508/04 Commission v Austria [2007] ECR I‑3787, paragraph 73, and Commission v Ireland (cited in footnote 16, paragraph 219). 22 – See my Opinion in Case C‑526/08 Commission v Luxembourg [2010] ECR I‑6151, point 99. 23 – Paragraph 108, last sentence, of the application. 24 – P. 446 of the annexes to the application. 25 – See footnote 7 to Annex I, Part I, to the Order of 19 December 2011. 26 – See point 26 above. 27 – Commission v Netherlands (cited in footnote 14, paragraph 136). 28 – See the 2011 study (cited in footnote 19, Part B, Farming practices in relation to water pollution risks, p. 46). 29 – Http://www.inst-elevage.asso.fr/IMG/pdf/Dexel_Methode_et_referentiel.pdf, p. 63. 30 – See point 36 et seq. above. 31 – Cited in footnote 17. 32 – Annex 3 to the defence, p. 93. 33 – See the 2011 study (cited in footnote 19, Part B, Farming practices in relation to water pollution risks, p. 43). 34 – Cited in footnote 19, Part D, Recommendations for Measures, p. 47. 35 – P. 392 and 394 of the annexes to the application. 36 – See point 78 above. 37 – See Annex 3 to the defence, p. 97. 38 – Commission v Netherlands (cited in footnote 14, paragraph 71). 39 – Commission v Netherlands (cited in footnote 14, paragraph 73). 40 – Case C‑266/00 Commission v Luxembourg [2001] ECR I‑2073, paragraph 30. 41 – See point 36 above. 42 – Case C‑161/00 Commission v Germany [2002] ECR I‑2753, paragraph 46. 43 – Cited in footnote 18. 44 – Annex 5 to the defence, p. 101 et seq. 45 – Paragraph 132 of the reply. 46 – Paragraph 171 of the rejoinder. 47 – Annex 5 to the defence, p. 103. 48 – Annex 5 to the defence, p. 103 et seq. 49 – CORPEN, Estimation des flux d’azote, de phosphore et de potassium associés aux bovins allaitants et aux bovins en croissance et à l’engrais, issus des troupeaux allaitants et laitiers et à leur système fourrager (2001), p. 6, by reference to the values for dairy cows in CORPEN, Estimation des flux d’azote, de phosphore et de potassium associés aux vaches laitières et à leur système fourrager (1999), p. 5. 50 – See point 31 above. 51 – Cited in footnote 18. 52 – 2001 study (cited in footnote 17, p. 18). 53 – 2011 study (cited in footnote 19, Part D, Recommendations for Measures, p. 54 et seq.). 54 – See point 31 et seq. above. 55 – 2001 study (cited in footnote 17, p. 16). 56 – 2001 study (cited in footnote 17, p. 17). 57 – 2011 study (cited in footnote 19, Part D, Recommendations for Measures, pp. 55 and 56).