Opinion of the Advocate General — ECLI:EU:C:2005:278
Date: 2005-05-12
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

summary form, the legal and factual particulars on which those complaints are based. It must state, in particular, the facts and circumstances on which the alleged infringement is based so that the Court is able to rule on the case as submitted to it by the Commission. (29) 82. In this case it is apparent from the application that the Commission is objecting to the fact that the pig farm at issue was constructed and expanded without an impact assessment being conducted. It also makes it clear that it considers this to be an infringement of Articles 2 and 4 of Directive 85/337 even though it refers to either the original ‘or’ the amended version of that directive because, as it has stated, it is not sure of the exact dates of the infringements. 83. In my opinion, therefore, the subject‑matter of this case was sufficiently circumscribed in the application to fulfil the admissibility requirements. The Commission is clearly asking the Court to examine, with regard to both the original and the amended versions of the directive, whether in the light of the circumstances stated by the Commission there has been an infringement of Community law. The word ‘or’ is therefore to be construed in this context as ‘and/or’ and the Commission could therefore have objected to the failure to conduct an impact assessment either at the time of construction or at the time of expansion of the pig farm in separate fashion both as an infringement of the original version of the directive and as an infringement of the amended version of the directive, without either one of those objections being inadmissible. If it had done so, however, one of those two objections would have been unfounded because the scope of application of each directive would not extend to both periods of time. 84. In the same way, in this case the issues of the date of the failure to fulfil obligations and of the applicability of each particular version of the directive have to be treated in the context of the consideration of substance. Any shortcomings by the Commission in providing specific details of those matters therefore present a problem concerned with adequate grounds for the complaint, not a problem of admissibility. 85. It must also be said that the Commission remains at liberty to withdraw certain charges or limit its complaints during the course of the proceedings before the Court in the light of the assertions made by the respondent Member State, just as that respondent Member State is free not to dispute or to concede the substance of a complaint by the Commission during the course of the proceedings. It is therefore permissible for the Commission in its reply to have limited the complaint of failure to conduct an impact assessment to the expansion of the pig farm since this is not detrimental to the respondent Member State. C – Substance 86. The Commission accuses the Kingdom of Spain, in connection with the expansion of the pig farm at issue, of failing to fulfil its obligation to conduct a prior impact assessment of that project as required under the original or amended versions of Directive 85/337. 87. The Court has consistently held that, in proceedings under Article 226 EC for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on presumptions. (30) 88. In order to prove infringement of an obligation laid down in a directive it is first necessary to show that the facts concerned fall within the field of application of that directive. 89. In the opinion of the Commission the expansion of the pig farm falls, time-wise, within the field of application of the original version of Directive 85/337 because an application for authorisation for the pig farm was made on 26 March 1999 and the expansion of the operation had clearly taken place before that date. If the aforementioned date of the application itself were critical the amended version of the directive would apply. 90. It is clear that the Commission is not accusing the Kingdom of Spain in general of not having taken the necessary measures to ensure that projects such as the pig farm in question are subject to a prior impact assessment under the original or amended version of Directive 85/337. It concludes that there is a failure to fulfil obligations from the specific fact that, as it states in its reply, the pig farm at issue was not actually subject to an impact assessment before its expansion. 91. Only the date of actual expansion, not the later date on which the application for permission was filed, can therefore be relevant to a determination of the substance of this claim. 92. The Commission has nevertheless conceded in the application to the Court that it does not know when the pig farm was expanded. On the basis of the statements made by the Spanish Government in the defence the Commission has said in its reply that the expansion did in any event take place before March 1999. As the Spanish Government did not then refute this or make any specific statement about it this can be assumed to be correct. 93. The deadline for transposition of the amended version of the directive (Directive 97/11) expired on 16 March 1999, which was after the expansion at issue had taken place. The substance of the Commission’s complaint in relation to Directive 85/337 must therefore be examined in its original version and the complaint in relation to the amending directive is unfounded. 94. It can be assumed – as does the Commission – that an expansion of the pig farm took place some time before March 1999. It is not denied that this expansion was undertaken at least without any prior impact assessment being carried out. 95. However, I do not consider that this is sufficient proof of an infringement of Directive 85/337. 96. The question with which this case is concerned is whether the Kingdom of Spain has fulfilled its obligation under Article 2 of the directive to take all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment of their impact on the environment. 97. An infringement of this obligation – especially as it is an obligation as to the result to be achieved – can, of course, arise from a specific case. (31) However, the specific case must point to an omission to adopt the necessary measures on the part of the Member State concerned. 98. Article 2 of the directive does admittedly impose an unequivocal obligation on the competent authorities in the individual Member States to subject certain projects to an impact assessment. The Court has also ruled that in order to prove an infringement of this article the Commission might determine that a project likely to have significant effects on the environment was not the subject of an impact assessment although it should have been. (32) 99. However, this relates to the case where an authority in a Member State has given authorisation for a project without carrying out an adequate assessment of its effects on the environment. (33) In my opinion, therefore, if no impact assessment has been carried out, for example, because no application for authorisation has been made contrary to national legislation and the project is carried out completely unlawfully, there must be other circumstances which show that the Member State concerned has not fulfilled the obligations laid down in the directive. 100. In other words, it cannot automatically be inferred from the fact that a situation is not in conformity with the objectives laid down in Article 2 of Directive 85/337 – in this case from the fact that the pig farm in question was expanded without a prior impact assessment because no application for a permit had been lodged – that the Member State concerned has necessarily failed to fulfil its obligations under that provision. (34) To prove such failure it would also be necessary to show, for example, that this (illegal) situation has persisted over a protracted period without any action being taken by the competent authorities and without appropriate measures having been set in motion. (35) 101. In this case the Commission has not been able to say precisely when the pig farm expansion at issue took place, so that it is not possible to state with any more certainty how long the ‘illegal’ situation has already been continuing and to what extent the competent authorities can be accused of failure to act. Failure by the Kingdom of Spain to fulfil its obligations under Article 2 of Directive 85/337 might, for example, have been demonstrated by evidence that the competent authorities had been aware of the illegal expansion or – assuming that the authorities are responsible for at least minimal control (notwithstanding Article 13) – that they should have been aware of it – because of the protracted period that the modification had existed or other circumstances – but that the authorities nevertheless took no effective measures to impose sanctions for unlawful expansion or to subject it to an ex post facto assessment of its impact on the environment. It must again be emphasised that the Commission’s complaint specifically omits mention of the procedure adopted by the authorities as a result of the application for permission for the expanded pig farm having been made in March 1999 and is based simply on the fact that no impact assessment was carried out in any event prior to the expansion of that farm. As I have already stated, however, it cannot be automatically inferred from this fact alone that the Kingdom of Spain has failed to fulfil its obligations under Article 2 of Directive 85/337 because it is not clear to what extent the authorities in the Member State were responsible for this situation. 102. The Commission has not therefore provided sufficient evidence in law of the existence of failure to fulfil obligations under Directive 85/337 in its original or amended versions. This charge is therefore unfounded. VII – Infringement of the Groundwater Directive A – The parties’ main arguments 103. The Commission takes the view that by failing to carry out a prior hydrogeological study in the area affected by the pig farm in question the Kingdom of Spain has failed to fulfil its obligations under Article 3(b), 5(1) and 7 of the Groundwater Directive. 104. A hydrogeological study would have been necessary because the groundwater in the relevant area could have been polluted by hazardous substances as a result of the pig farm spreading its slurry on farm fields. It claims that this is supported by a report which confirms the permeability of the soil. 105. The Commission confines its submissions to the possible pollution of the groundwater by nitrates. It takes the view that nitrates are dangerous substances within the meaning of the Groundwater Directive because they come within category 3 of list II. 106. The Spanish Government takes the view that the application of slurry to land in order to fertilise it does not constitute disposal of substances covered by the Groundwater Directive (second indent in the first subparagraph of Article 5 of the Groundwater Directive) but the recovery of residues from animal production for use as fertiliser. 107. Even if the Groundwater Directive were to be applicable, it claims, there could not be any pollution caused by dangerous substances within the meaning of that directive in any event as the nitrates cited by the Commission are not included in that list II. It also refers to a report which comes to the conclusion that the soil in the relevant area is for the most part impermeable. B – Appraisal 108. It is necessary to examine whether the obligation to conduct a hydrogeological study pursuant to the Groundwater Directive encompasses circumstances of fact such as those in existence in this case. 109. Under Article 3(b) of the Groundwater Directive the Member States have to take the necessary steps to limit the introduction into groundwater of substances in list II of the directive so as to avoid pollution of this water by these substances. To comply with that obligation the Member States must inter alia make subject to prior investigation ‘the disposal or tipping for the purpose of disposal of these substances which might lead to indirect discharge’. Under Article 7 of the directive that prior investigation must include a hydrogeological study. 110. The applicability of that obligation is conditional, first of all, on this being the discharge of a substance which is covered by the Groundwater Directive. In the opinion of the Commission this condition is fulfilled because – as it states with reference to a report – the groundwater in the area concerned is polluted by nitrates and nitrates are a substance which comes within category 3 of list II in the directive. 111. However, this category refers to substances ‘which have a deleterious effect on the taste and/or odour of groundwater …’. 112. It is established that not even the Commission has alleged that nitrates have a deleterious effect on the taste and/or odour of the groundwater. 113. As far as the second type of substance that is covered by category 3 of list II is concerned, namely ‘compounds liable to cause the formation of such substances in such water and to render it unfit for human consumption’, it has not been argued that nitrates can cause the formation of such substances. Furthermore, the addition ‘and to render it unfit for human consumption’ cannot be separated from the rest of the sentence and read as an alternative description of a category of substance, under which nitrates would then certainly be classified. In the first place, an alternative enumeration would have been expressed differently, such as with an ‘and/or’ – as was done earlier in the same sentence. In the second place, this would also form a general category of substances at variance with a system whereby compounds in list II are stated by name or meticulously defined. It must therefore be considered that nitrates do not come under category 3 of list II cited by the Commission. 114. It must also be quite generally assumed that heavy metals such as nitrates, which are known to be particularly widespread in areas used for agricultural purposes and are detrimental to health, would have been included in list I or list II in the directive if the Groundwater Directive had been intended to encompass that substance. 115. In relation to the particular facts on which the Commission has based this claim, that is to say pollution from nitrates caused by a farming operation, there is a Nitrates Directive in existence that constitutes legislation more specifically tailored to such circumstances. 116. It has not therefore been shown that in the present case there has been a discharge of a substance that comes within the scope of application of the Groundwater Directive. 117. It is also clear that the intention of this directive was to prevent or limit ‘discharges’ into groundwater (see, for example, the seventh recital and Article 3 of the directive), the term ‘discharge’ being defined as ‘the introduction into groundwater of substances …’ (Article 1(2)(b) and (c) of the directive). I consider this to be a most inadequate description of the application of slurry to land in farming and in the absence of any mention of such a process in the directive I also doubt whether it is intended to be covered by the directive at all. 118. Nor can it necessarily be inferred from the fact that slurry should in certain circumstances be classified as ‘waste’ within the meaning of the Waste Framework Directive (as I have found above) that the application of slurry to the land should be classified under the ‘disposal … of these substances which might lead to indirect discharge’ within the meaning of the second indent in the first subparagraph of Article 5(1) of the Groundwater Directive. The objectives pursued by the Waste Framework Directive are different from those pursued by the Groundwater Directive and the ‘discarding’ element on which the term ‘waste’ is based in the former directive is not necessarily identical to the concept of ‘disposal’ in the second indent of the first subparagraph of Article 5(1) of the Groundwater Directive. 119. Finally, it should also be noted that the control and authorisation machinery in the Waste Framework Directive is basically linked to the individual operation as such, whilst the obligation to conduct a prior investigation under the second indent of the first subparagraph of Article 5(1) of the Groundwater Directive is coupled in general with the disposal of substances which might lead to indirect discharge. 120. To categorise the spreading of slurry in general as such disposal would then mean that any (or at least the initial?) application of slurry to the land in farming would require a prior investigation, including a hydrogeological study, of the area concerned irrespective of the purpose and extent of application of slurry to the land and of the type of farming operation. I consider such an obligation to be simply over-bureaucratic and absurd. 121. It is not without good reason that the Nitrates Directive, which is specifically targeted at nitrate pollution from farming, should be principally based on area-embracing or district-related instruments such as action programmes and on the adoption of general measures, both binding and non-binding. 122. I therefore consider that the Groundwater Directive is not relevant in the present context and that the Commission’s accusation that this directive has been infringed by failure to conduct a hydrogeological study is therefore unfounded. There is therefore no need to go into other issues such as the permeability of the soil concerned. VIII – Infringement of the Waste Water Directive A – The parties’ main arguments 123. The Commission accuses the Kingdom of Spain of failing to fulfil its obligations under Article 5(2) of the Waste Water Directive by not subjecting urban waste water from the agglomeration of Vera to treatment which is more stringent than that described in Article 4 of the directive. 124. It submits that urban waste water is being discharged into the river Antas, which should have been identified as a sensitive area within the meaning of Article 5(1) in conjunction with Annex II A of the Waste Water Directive. It bases this allegation on a report by the ERM Institute. 125. A report by the Tecnoma Institute shows that there is a natural lagoon along the lower course of the river that is fed only by the Antas, a river that acts as a discharge channel for the waste water treatment plant for the agglomeration of Vera. That report also shows that the urban waste water was insufficiently treated. 126. Based on details of population and tourists from websites for regional offices the Commission also calculates a local population equivalent far in excess of the population equivalent of ‘more than 10 000 p.e.’ required for the application of Article 5(2). 127. The Spanish Government denies that the whole region of the river Antas should have been identified as a sensitive area. It argues that it does not automatically follow from the identification of the Antas coastal lagoon that the whole river should have been identified. The Antas is primarily a river that flows underground in which no eutrophication can take place at all in the absence of daylight. 128. The Spanish Government also puts forward various arguments to dispute the accuracy of the population equivalent calculated by the Commission. It claims that what is relevant is not the year 2003 from which the Commission’s figures come, but the year 2001 as per the reasoned opinion. At that date the region concerned had a much lower population equivalent than that calculated by the Commission. B – Appraisal 129. The Commission’s objection is that the urban waste water from the agglomeration of Vera does not undergo treatment which is more stringent than that described in Article 4 of the Waste Water Directive before it enters the river Antas. 130. Under Article 5(2) of the Waste Water Directive such treatment is only required as from 31 December 1998 if it is waste water that enters sensitive areas and stems from collecting systems for agglomerations of more than 10 000 p.e. 131. First, with regard to the condition that it enter a sensitive area it is agreed that the Kingdom of Spain has not identified the river Antas, into which the Commission says the urban waste water from the agglomeration of Vera is discharged, as a sensitive area within the meaning of Article 5(1) of the Waste Water Directive. 132. However, this case does not turn on whether the river Antas was itself identified as a sensitive area or, as the Commission claims, whether it should have been so identified. 133. The Court has already had occasion to rule that the obligation under Article 5(2) of the Waste Water Directive to subject urban waste water from collecting systems to more stringent treatment before it is discharged also applies to the case where waste water is only indirectly discharged into a sensitive area. (36) 134. The river Antas into which the waste water from the purifying plant for the agglomeration of Vera is discharged flows, in any event, into the Antas coastal lagoon, which – it is agreed – has been identified by the Kingdom of Spain as a sensitive area within the meaning of Article 5(1) of the Waste Water Directive. Hence, waste water from the agglomeration of Vera is being indirectly discharged into a sensitive area. 135. As far as the population equivalent of more than 10 000 as a further prerequisite of more stringent treatment is concerned, therefore, this population equivalent – as shown by Article 2(6) of the Waste Water Directive – is a figure that expresses the assumed average load for water per inhabitant. 136. Because the population equivalents stated in the Waste Water Directive give certain loads, (37) when calculating such equivalents on the basis of population figures only those inhabitants whose waste water runs into the treatment plant are counted. The idea is to establish how many people actually live within the intake of the treatment plant concerned and not whether those persons are registered as inhabitants of the agglomeration. 137. The Commission therefore quite rightly also included in its calculations people who stay in the Vera area as tourists. 138. The Commission is permitted to have reference to the high tourist season when determining the population equivalent because under Article 4(4) of the Waste Water Directive the load expressed in p.e. is to be calculated ‘on the basis of the maximum average weekly load entering the treatment plant during the year’. 139. As far as the actual population equivalent of the agglomeration of Vera is concerned, the Spanish Government has confirmed that in the year 2001 Vera had a (permanent) population of 7 664 and Antas 2 844. It is irrelevant for this purpose that the Commission initially based its calculations on statistics from the year 2003. Admittedly, the Spanish Government has also claimed that it has not been shown that Antas forms part of the agglomeration of Vera but it has not specifically denied this. It is therefore permissible to assume a permanent population figure of over 10 000. 140. Furthermore, the Commission (albeit based on statistics for the year 2003) calculated a figure of over 9 000 for other persons present in the area concerned, based on the figures for hotel and camping capacity, holiday apartments, second homes and residential areas present in the agglomeration of Vera. 141. It is established from this information that the Spanish Government does in any event confirm the availability of 43 beds in guest houses and 659 beds in hotels. According to the documentation produced by the Commission the local campsite also has a capacity of 2 700 persons. 142. Even if, as the Spanish Government has argued, some of the residential areas included by the Commission should not form part of the agglomeration of relevance here and even if a number of inhabitants might have been counted twice – in the case of second homes – it is my view that, even allowing for greater imprecision, the Commission has adduced evidence to show that a population equivalent of more than 10 000 is to be assumed for the agglomeration of Vera, in any event, without any more details being required for the purposes of Article 4(2) of the Waste Water Directive. 143. Because waste water from the agglomeration of Vera, an agglomeration with a population equivalent of more than 10 000, indirectly discharges into a sensitive area that waste water should have been subject to more stringent treatment than that described in Article 4 of the directive – because under Article 4(2) of the Waste Water Directive that obligation has been in existence since 31 December 1998. 144. However, the Spanish Government has not disputed the fact that the waste water in question is not subject to any such treatment and has indeed stated that it has asked the company that runs the purification plant concerned for a study of the agglomeration’s waste water but that this has not yet been received. 145. In the light of the foregoing considerations the Commission’s fourth complaint is substantiated. IX – Infringement of the Nitrates Directive A – The parties’ main arguments 146. Under its fifth head of claim the Commission charges the Kingdom of Spain with failure to fulfil its obligations under Article 3(1), (2) and (4) of the Nitrates Directive by failing to designate the Rambla de Mojácar a vulnerable zone even though this zone drains into the coastal lagoon of the river Antas that has been designated a sensitive area. 147. The Commission rejects the Spanish Government’s plea of inadmissibility in respect of this complaint on the grounds that, first, a whole page is devoted to that complaint in the reasoned opinion and, second, that the ne bis in idem principle either does not apply at all to proceedings for failure to fulfil obligations under the Treaty or is in any event not relevant in this case. 148. The Commission again backs up its claim in substance with the study by the ERM Institute, which shows that the waters in question are eutrophic, with a high concentration of nitrates. It claims that it is apparent from Annex I to the Nitrates Directive that a nitrate content of more than 50 mg/l nitrates is not necessary in order for the area concerned to have to be designated a vulnerable zone because it is sufficient if the groundwater could contain such a quantity. The same would apply to the eutrophication criterion. It also refers to data from the Instituto Geológico y Minero de España, which shows that the Bajo Almanzora hydrogeological unit 06.06 contained more than 50 mg/l nitrates. In its opinion, in the light of a further publication by that institute from 1999 on the chemical quality and pollution of groundwater in Spain, which relates to the period from 1982 to 1993, it would seem that the origin of the nitrate pollution is agricultural. 149. The Spanish Government regards the complaint of infringement of the Nitrates Directive inadmissible for two reasons. First, because in the reasoned opinion the Nitrates Directive is simply mentioned in the possible applications to be made to the Court in the form of a subordinate clause in connection with Directive 85/337. Second, because another letter of formal notice from the Commission had already been sent to it in different proceedings for failure to fulfil its obligations under the Treaty before the proceedings were instituted in this case; that letter of formal notice referred to the same complaint as in these proceedings so that the Commission is therefore in breach of the ne bis in idem principle. 150. Alternatively, the Spanish Government disputes the extent of the nitrate pollution cited by the Commission as well as its agricultural origin, which is not proven by the ERM Institute’s study – which is flawed in several respects. The Bajo Almanzora, to which the 1999 publication quoted by the Commission relates, is not comparable with the area with which this case is concerned. It says that the courses of the rivers Antas and Aguas are separate from the Bajo Almanzora area from the hydrogeological point of view and are also situated in an area predominantly used by tourists. 1. Appraisal a) Admissibility 151. It is necessary, first of all, to look into the argument that this particular complaint is inadmissible because it was not mentioned in the operative part of the reasoned opinion. 152. The Court has consistently ruled that the grounds of complaint that are later raised in the application must have already been precisely specified in the reasoned opinion. That requirement is essential in order to delimit the subject-matter of the dispute prior to any initiation of contentious procedure and in order to ensure that the Member State in question is accurately apprised of the grounds of complaint maintained against it and can thus bring an end to the alleged infringements or put forward its arguments in defence prior to any application to the Court by the Commission. (38) 153. Therefore although, in principle, the wording of the reasoned opinion should be the same as that in the application to the Court, (39) an omission of a ground of complaint in the wording of the reasoned opinion does not make that ground of complaint inadmissible in the contentious procedure if it is clearly discernible to the Member State concerned from the rest of the content of the letter that this ground of complaint is being raised against it. In these circumstances it is possible for the Member State to avail itself of its right to defend itself. 154. This is the case here because, as the Spanish Government has also conceded, the Commission devoted almost a whole page of the reasoned opinion to the charge of infringement of the Nitrates Directive and also mentioned that ground of complaint on the cover page and in the introduction. The whole content of the reasoned opinion therefore shows quite unequivocally that the Commission also intended to charge it with that infringement. 155. The Spanish Government then put forward the argument that there had been a breach of the principle of ne bis in idem, according to which the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset. (40) It should be noted, firstly, in agreement with the Commission, that proceedings for failure to fulfil obligations under Article 226 EC simply lead to an objective finding that the Member State – according to the situation applicable on the date of relevance to the judgment – has failed to fulfil its obligations under the Treaty. (41) These proceedings are not sanction proceedings as such so that for this reason alone I can assume that the ne bis in idem principle is not relevant in this context. (42) Furthermore, it is not possible in any event for other proceedings for failure to fulfil obligations under the Treaty that are not instituted until after the present proceedings to make the present proceedings inadmissible. 156. The Commission’s fifth ground of complaint is therefore admissible. B – Substance 157. Under Article 3(2) of the Nitrates Directive Member States must designate as vulnerable zones all areas of land in their territories which drain into the waters affected by pollution within the meaning of Article 3(1). 158. When identifying such waters the Member States have to apply the criteria set out in Annex I. According to those criteria, waters are to be identified as affected by pollution where groundwaters contain more than 50 mg/l nitrates or where natural freshwater lakes, estuaries, coastal waters and marine waters are found to be eutrophic. Under both Article 3(1) and paragraph A.1 of Annex I to the Nitrates Directive, however, there can be an obligation to identify an area as vulnerable not just if pollution has already occurred but if pollution of the water in an area could become polluted. 159. The Spanish Government’s assertion with regard to the actual nitrate content alone is not therefore sufficient to refute the Commission’s charge. It is also established that the Antas coastal lagoon into which, according to the Commission, the Rambla de Mojácar area drains has been identified as a sensitive area within the meaning of the Waste Water Directive specifically because of the danger of nitrate pollution and eutrophication, as stated by the Spanish Government. 160. However, even if it could be assumed that the water in the Antas coastal lagoon meets the criteria for identifying waters in Annex I to the Nitrates Directive it is clear from the judgment of the Court in Standley that it is for the Commission to show that the pollution of that water is caused to a significant extent by agricultural sources. (43) 161. First, as far as the study by the ERM Institute is concerned, this does not provide any information about the agricultural origin of the pollution in the Antas coastal lagoon. Indeed, that study, to which the Commission has also referred in these proceedings, gave intensive tourist activity in this area as one of the causes of water pollution. The 1999 publication cited by the Commission also relates, first, to the Bajo Almanzora, the hydrogeological relevance of which to the Antas coastal lagoon has been disputed by the Spanish Government; second, this publication referring to the years 1982 to 1993 only mentions farming as a possible cause of pollution of the groundwater in less specific terms, without it therefore being possible to establish with absolute certainty that the addition of nitrogen compounds from agricultural sources makes a significant contribution to the overall pollution in the Antas coastal lagoon region. 162. Having regard also to the wide discretion that is afforded to the Member States when identifying waters within the meaning of Article 3(1), (44) it must be found in the light of the foregoing considerations that the Commission has not provided adequate proof in law to show that the Rambla de Mojácar drains into water that is affected by pollution within the meaning of Article 3(1) of the Nitrates Directive in conjunction with Annex I, so that it should therefore have been identified as a vulnerable zone. 163. The Commission’s ground of complaint that the Kingdom of Spain has infringed Article 3 of the Nitrates Directive by failing to declare the Rambla de Mojácar a vulnerable zone is therefore unfounded. X – Costs 164. Under Article 69(3) of the Rules of Procedure the Court may order that the costs be shared or that the parties bear their own costs if each party succeeds on some and fails on other heads or where the circumstances are exceptional. In the light of the fact that both parties have succeeded on some and failed on other heads and having regard to the merits of the arguments submitted by both parties or the absence thereof I propose that the parties should be ordered to bear their own costs. 165. Under Article 69(4) the United Kingdom, which has intervened in these proceedings, should bear its own costs. XI – Conclusion 166. In the light of the foregoing I propose that the Court of Justice should: (1) declare that – by failing to adopt the measures necessary to comply with its obligations under Articles 4, 9 and 13 of Directive 75/442/EEC, as amended by Directive 91/156/EEC, by not taking the necessary measures to ensure that waste from the pig farm located in ‘El Pago de la Media Legua’ is disposed of or recovered without endangering human health and without harming the environment, by not having granted the said farm the authorisation required under the directive and having failed to carry out the periodic checks necessary for such establishments; – by not subjecting urban waste water from the agglomeration of Vera to treatment which is more stringent than that described in Article 4, as required under Article 5(2) of Directive 91/271/EEC; the Kingdom of Spain has failed to fulfil its obligations under the Treaty; (2) dismiss the rest of the application; (3) order the Commission, the Kingdom of Spain and the United Kingdom to each pay their own costs. 1 – Original language: German. 2 – OJ 1975 L 194, p. 39. 3 – OJ 1991 L 78, p. 32. 4 – OJ 1985 L 175, p. 40. 5 – OJ 1997 L 73, p. 5. 6 – OJ 1980 L 20, p. 43. 7 – OJ 1991 L 135, p. 40. 8 – OJ 1991 L 375, p. 1. 9 – See above, point 1. 10 – Case C-9/00 Palin Granit [2002] ECR I-3533, paragraph 22. 11 – Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 26. 12 – Although ‘except in the case of waste excluded under Article 2(1)(b)(iii)’. I shall come back to this exception again later on. 13 – See Joined Cases C-418/97 and C-419/97 ARCO Chemie [2000] ECR I-4475, paragraphs 51 and 82. 14 – See Case C-457/02 Niselli [2004] ECR I‑0000, paragraph 36; on the other hand, however, it is possible that the use of a substance in a manner such as that described in Annex II B to the Waste Framework Directive as ‘operations which may lead to recovery’ provides a starting point for the assessment, to be conducted having regard to all of the circumstances, of whether the holder of the substance concerned discards or intends or is required to discard that substance so that it must therefore be ‘waste’; see ARCO Chemie (cited in footnote 13), paragraph 69. 15 – See Joined Cases C-206/88 and C-207/88 Vessoso and Zanetti [1990] ECR I‑1461, paragraph 12, and Palin Granit (cited in footnote 10), paragraphs 23 and 24. 16 – ARCO Chemie (cited in footnote 13), paragraph 84, and Niselli (cited in footnote 14), paragraph 43. 17 – See Palin Granit (cited in footnote 10), paragraphs 34 and 35, and Niselli (cited in footnote 14), paragraph 44. 18 – See ARCO Chemie (cited in footnote 13), paragraph 86. 19 – Palin Granit (cited in footnote 10), paragraphs 34 to 36, and Niselli (cited in footnote 14), paragraphs 44 and 45. 20 – Case C-114/01 AvestaPolarit [2003] ECR I-8725, paragraphs 35 to 37. 21 – Ibid., paragraph 38. 22 – See ARCO Chemie (cited in footnote 13), paragraphs 66 to 68. 23 – AvestaPolarit (cited in footnote 20), paragraphs 50 and 51. 24 – Ibid., paragraphs 51, 52 and 59. 25 – See inter alia Case C-209/02 Commission v Austria [2004] ECR I-1211 and Case C-11/95 Commission v Belgium [1996] ECR I-4115. 26 – See Case C-420/02 Commission v Greece [2004] ECR I‑0000, paragraphs 21 to 24. 27 – See Case C-408/97 Commission v Netherlands [2000] ECR I-6417, paragraph 18, and Case C‑145/01 Commission v Italy [2003] ECR I-5581, paragraph 17. 28 – See inter alia Case C-139/00 Commission v Spain [2002] ECR I-6407, paragraph 18, and Case C-375/95 Commission v Greece [1997] ECR I-5981, paragraph 37. 29 – See inter alia Case C-202/99 Commission v Italy [2001] ECR I-9319, paragraph 20, Commission v Greece (cited in footnote 28), paragraph 35, Case C-52/90 Commission v Denmark [1992] ECR I-2187, paragraph 17, and Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 28. 30 – See inter alia Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6, Case C‑404/00 Commission v Spain [2003] ECR I-6695, paragraph 26, and Case C-434/01 Commission v United Kingdom [2003] ECR I-13239, paragraph 21. 31 – See inter alia Case C-139/00 Commission v Spain (cited in footnote 28), paragraph 27. 32 – Case C-117/02 Commission v Portugal [2004] ECR I-5517, paragraph 82. 33 – Ibid., paragraph 1. 34 – See Case C-420/02 Commission v Greece (cited in footnote 26), paragraph 22. 35 – Ibid., paragraph 22. 36 – Case C-396/00 Commission v Italy [2002] ECR I-3949, paragraph 29 et seq. 37 – See Article 4(4) of the Waste Water Directive. 38 – See inter alia Case C-350/02 Commission v Netherlands [2004] ECR I-6213, paragraphs 18 to 21, and the case-law cited there. 39 – See Case C-139/00 Commission v Spain (cited in footnote 28), paragraph 18. 40 – See inter alia Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others [2004] ECR I-123, paragraph 338. 41 – See inter alia Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 14. 42 – See also in this vein the Opinion delivered by Advocate General Geelhoed on 21 October 2004 in Case C-212/03 Commission v France [2005] ECR I‑0000, paragraph 23. 43 – Case C-293/97 Standley and Others [1999] ECR I-2603, paragraph 40. 44 – See Standley and Others (cited in footnote 43), paragraphs 37 and 39.