Opinion of the Advocate General — ECLI:EU:C:1998:469
Date: 1998-10-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Pollution
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 
1. Environment — Protection of waters against pollution caused by nitrates from agricultural 
sources — Directive 91/676 — Identification of 'waters affected by pollution' — Designation 
of 'vulnerable zones' — Criteria — Whether application of the directive may vary according 
to the Member State — Permissible 
(Council Directive 91/676, Arts 2(j) and 3(1) and (2) and Annex I) 
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SUMMARY — CASE C-293/97 
2. Environment — Protection of waters against pollution caused by nitrates from agricultural 
sources— Directive 91/676 — Identification of 'waters affected by pollution' — Principle of 
proportionality — Polluter pays principle and principle that environmental damage should as 
a priority be rectified at source — Right to property — Whether infringed — No such infringe­
ment 
(Council Directive 91/676, Arts 3(1) and 5(3), (6) and (7) and Annex III) 
1. Articles 2(j) and 3(1) of Council Directive 
91/676 concerning the protection of waters 
against pollution caused by nitrates from 
agricultural sources and Annex I thereto 
must be interpreted as requiring the iden­
tification of surface freshwaters as 'waters 
affected by pollution', and therefore the 
designation as 'vulnerable zones' in accor­
dance with Article 3(2) of that directive of 
all known areas of land which drain into 
those waters and contribute to their pol­
lution, where those waters contain a con­
centration of nitrates in excess of 50 mg/l 
and the Member State concerned considers 
that the discharge of nitrogen compounds 
from agricultural sources makes a 'signifi­
cant contribution' to that overall concen­
tration of nitrates. 
Since, however, Community law cannot 
provide precise criteria for establishing in 
each case whether the discharge of nitrogen 
compounds of agricultural origin makes a 
significant contribution to the pollution, 
the directive may be applied by the Member 
States in different ways. Nevertheless, such 
a consequence is not incompatible with 
the nature of the directive, since it does 
not seek to harmonise the relevant national 
laws but to create the instruments needed 
in order to ensure that waters in the Com­
munity are protected against pollution 
caused by nitrates from agricultural 
sources. The Community legislature nec­
essarily accepted that consequence when, 
in Annex I to the directive, it granted 
the Member States a wide discretion in 
the identification of waters covered by 
Article 3(1). 
2. The fact that the concentration of nitrates 
of agricultural origin in waters identified 
as 'waters affected by pollution' under 
Article 3(1) of Directive 91/676 concerning 
the protection of waters against pollution 
caused by nitrates from agricultural sources 
may, in itself, not exceed 50 mg/1 does not 
infringe the principle of proportionality, 
the polluter pays principle, the principle 
that environmental damage should as a 
priority be rectified at source or the fun­
damental right to property of the farmers 
concerned. 
The flexibility of the measures, provided 
for in Article 5(3), (6) and (7) of the direc­
tive and Annex III thereto, concerning 
action programmes applicable to vulner­
able zones, suitable monitoring pro­
grammes to assess the effectiveness of those 
programmes and codes of good agricul­
tural practice enables the Member States 
to observe the principle of proportionality. 
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R v SECRETARY OF STATE FOR THE ENVIRONMENT AND MAFF EX PARTE STANDLEY AND OTHERS 
As regards the polluter pays principle, the 
directive does not mean that farmers must 
take on burdens for the elimination of 
pollution to which they have not contrib­
uted, because the Member States are to 
take account of the other sources of pol­
lution when implementing the directive 
and, having regard to the circumstances, 
are not to impose on farmers costs of 
eliminating pollution that are unnecessary. 
Viewed in that light, the polluter pays 
principle reflects the principle of propor­
tionality. The same applies to the principle 
that environmental damage should as a 
priority be rectified at source. 
Finally,: while it is true that the action pro­
grammes which are provided for in Article 
5 of the directive and are to contain the 
mandatory measures referred to in Annex 
III impose certain conditions on the 
spreading of fertiliser and livestock manure, 
so that those programmes are liable to 
restrict ¡the exercise by the farmers con­
cerned of the right to property, the system 
laid down in Article 5 reflects require­
ments relating to the protection of public 
health, and thus pursues an objective of 
general interest without the substance of 
the right to property being impaired. While 
the institutions and the Member States are 
bound by the principle of proportionality 
when pursuing such an objective, the direc­
tive does not offend against that principle. 
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