Opinion of the Advocate General — ECLI:EU:C:2002:640
Date: 2002-11-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Pollution
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

SUMMARY — CASE C-322/00 
Summary of the Judgment 
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 l(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 
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of fertilisers — Requirement as to maximum amounts of fertiliser which may not be 
exceeded — Need to adopt use standards — Farms subject to making a declar­
ation — 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(l)(a) and 5 and Annex IIA(l)) 
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)) 
1. Under Article 5(4)(a) of Directive 
91/676 concerning the protection of 
waters against pollution caused by 
nitrates from agricultural sources, 
action programmes to reduce the pol­
lution of waters by nitrogen com­
pounds in vulnerable zones, which 
Member States are to implement, must 
contain certain mandatory measures 
referred to in Annex III to the Direc­
tive. Those mandatory measures must 
include rules relating to the capacity of 
storage vessels for livestock manure, in 
accordance with paragraph 1(2) of 
Annex III. It is apparent from that 
provision that their capacity must 
exceed that required for s torage 
throughout the longest period during 
which land application in the vulner­
able zone is prohibited, except where it 
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SUMMARY — CASE C-322/00 
can be demonstrated to the competent 
authority that any quantity of livestock 
manure in excess of the actual storage 
capacity will be disposed of in a 
manner which will not cause harm to 
the environment. 
Although the Directive allows the 
Member States a certain latitude as 
regards the precise method of imple­
menting that provision, the fact 
remains that the objectives of Directive 
91/676, in particular that of ensuring 
that for each farm or livestock unit the 
amount of livestock manure applied to 
the land each year, including by the 
animals themselves, does not exceed a 
specified amount per hectare, must be 
complied with by the Member States. 
Therefore, the final part of paragraph 
1(2) of Annex III to the Directive must 
be interpreted as not enabling Member 
States to depart from their obligation 
under the Directive to adopt binding 
laws or regulations as regards storage 
capacity for livestock manure on farms, 
but as merely allowing them to author­
ise certain farms to depart from the 
minimum standard set by those provi­
sions, on a case-by-case basis, to the 
extent that it is demonstrated that the 
livestock manure which cannot be 
stored on the farm will be disposed of 
in a manner which will not cause harm 
to the environment. Fragmentary legis­
lation cannot discharge the obligation 
of a Member State to establish an 
action programme which contains 
mandatory measures with a view to 
attaining the relevant specific objec­
tives of the Directive. 
(see paras 44-48) 
2. Under Article 5(4)(a) of Directive 
91/676 concerning the protection of 
waters against pollution caused by 
nitrates from agricultural sources, in 
conjunction with paragraph 1(3) of 
Annex III, the measures to be included 
in action programmes applying to vul­
nerable zones include rules relating to 
limits on the land application of ferti­
lisers based on a balance between the 
foreseeable nitrogen requirements of 
crops and the nitrogen supply to crops 
from the soil and from fertilisation. In 
accordance with paragraph 2 of 
Annex III to the Directive, those meas­
ures must ensure that the amount of 
livestock manure applied to the land 
each year does not exceed a specified 
amount per hectare. To the extent that, 
as provided in Article 2(e) of the 
Directive, the fertiliser applied to land 
may be livestock manure, that require­
ment can be satisfied only by means of 
use standards for fertilisers, that is to 
say, standards fixing the maximum 
amount of fertiliser which may be 
applied to soil. Loss standards such as 
those provided for under a system to 
regulate the use of fertilisers which has 
the aim of reducing farming losses of 
nitrogen and phosphates through seep­
age into the environment and under 
which farmers are required to declare 
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COMMISSION v NETHERLANDS 
input and output amounts for sub­
stances in relation to production on 
their farm and the difference between 
those two values (the 'loss'), must not 
exceed certain limits, unless the farmer 
is prepared to pay a tax, can only 
indirectly limit the land application of 
fertilisers and cannot limit the use of a 
specific kind of fertiliser. 
Use standards such as those required by 
Directive 91/676 are applied before­
hand and appear to be necessary for the 
purpose of reducing and preventing 
pollution, while the loss standards 
under that system, based on the idea 
of a balanced use of nitrogen and 
phosphates by farmers, are applied at 
a subsequent stage of the nitrogen 
cycle, and any exceeding of those loss 
standards will necessarily contribute to 
pollution. 
(see paras 71-72, 74) 
3. Under Article 5(4)(a) of Directive 
91/676 concerning the protection of 
waters against pollution caused by 
nitrates from agricultural sources, in 
conjunction with paragraph 1(3) of 
Annex III, the measures to be included 
in action programmes applying to vul­
nerable zones include rules relating to 
limits on the land application of ferti­
lisers based on a balance between the 
foreseeable nitrogen requirements of 
crops and the nitrogen supply to crops 
from the soil and from fertilisation, 
those rules having to take the form of 
use standards, that is to say standards 
fixing the maximum amount of ferti­
liser which may be applied to soil. 
In order to determine that balance, 
which appears to be essential for the 
purposes of setting the use standards, 
Member States must, inter alia, take 
into account, in accordance with the 
second indent of paragraph l(3)(ii) of 
Annex III to the Directive, the supply 
of nitrogen from net mineralisation of 
reserves of organic nitrogen in the soil. 
Furthermore, when establishing the 
balance required under paragraph 1(3) 
of Annex III, it is necessary to take into 
account all nitrogen inputs and out­
puts, in particular nitrogen input from 
nitrogen-fixing organisms living in the 
soil. Since papilionaceous plants are 
able to fix nitrogen, Directive 91/676 
requires that they be taken into 
account. 
(see paras 84-85, 94) 
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SUMMARY — CASE C-322/00 
4. The action programmes applying to 
v u l n e r a b l e z o n e s r e q u i r e d by 
Article 5(4) of Directive 91/676 con­
cerning the protection of waters against 
pollution caused by nitrates from agri­
cultural sources must contain the meas­
ures referred to in Annex III. Among 
those measures are rules relating to 
'limitation of the land application of 
fertilisers', which, in the words of the 
first subparagraph of paragraph 2 of 
the Annex, must ensure that 'for each 
farm or livestock unit, the amount of 
livestock manure applied to the land 
each year, including by the animals 
themselves, shall not exceed a specified 
amount per hectare'. 
First, as regards farms subject to mak­
ing a declaration and thus within the 
scope of a system which regulates the 
use of fertilisers with the aim of reduc­
ing farming losses of nitrogen and 
phosphates through seepage into the 
environment and under which farmers 
are required to declare input and 
output amounts for substances in 
relation to production on their farm, 
and the difference between those two 
values (the 'loss') must not exceed 
certain limits, unless the farmer is 
prepared to pay a tax, the loss stand­
ards established under such a system, 
inasmuch as they do not meet the 
obligation to include in the action 
programme the mandatory measures 
referred to in pa rag raph 1(3) of 
Annex III to Directive 91/676, do not 
correctly implement the Directive in 
that regard and therefore that system 
also cannot ensure compliance with the 
limits on the land application of live­
stock manure resulting from paragraph 
2 of Annex III. The wording of that 
provision makes it clear that it requires 
use standards, that is to say standards 
fixing the maximum amount of ferti­
liser which may be applied to soil, to be 
fixed so that Member States may lay 
down in advance that the amount of 
livestock manure applied to land is not 
to exceed the amount per hectare 
allowed. 
Secondly, as regards farms which are 
exempt from making a declaration and 
therefore not covered by that system, 
the measures adopted by Member 
States for the purpose of complying 
with the obligation flowing from para­
graph 2 of Annex III to Directive 
91/676 must have the effect of limiting 
the land appl ica t ion of l ivestock 
manure in accordance with the limits 
fixed by that directive. Even if a 
Member State is free to limit the 
application of livestock manure by 
means of use or input standards for 
phosphates, it must always demon­
strate that the conversion method 
which it uses for that purpose is such 
as to ensure that the amount of live­
stock manure which is allowed to be 
applied to land in accordance with the 
phosphate standards does not exceed 
the limits on nitrogen fixed by the 
Directive. 
(see paras 113-118) 
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COMMISSION v NETHERLANDS 
5. Paragraph 2(b) of Annex III to Direc­
tive 91/676 concerning the protection 
of waters against pollution caused by 
nitrates from agricultural sources pro­
vides that, if a Member State authorises 
the annual application to land of 
amounts of livestock manure per hec­
tare which differ from those expressly 
set out in that provision, it must inform 
the Commission, which will examine 
the justification in accordance with the 
procedure laid down in Article 9 of 
that directive. Those amounts must be 
fixed so as not to prejudice the achiev­
ement of the Directive's objectives and 
must be justified on the basis of 
objective criteria, such as long growing 
seasons or high net precipitation in the 
vulnerable zone. 
It is clear from that provision that it 
does not involve merely a procedure 
aimed at informing the Commission 
that derogating amounts are being 
adopted, but an obligation to justify 
the application for a derogation to the 
Commission, by reference to objective 
criteria. The Commission, for its part, 
may either accept the application for a 
derogation subject, where appropriate, 
to certain conditions or reject it. 
(see paras 122 to 123) 
6. Article 4(1)(a) of Directive 91/676 
concerning the protection of waters 
against pollution caused by nitrates 
from agricultural sources requires 
Member States to establish a code or 
codes of good agricultural practice 
with the aim of ensuring a general level 
of protection against pollution for all 
waters. The action programmes apply­
ing to vulnerable zones which the 
Member States are required to establish 
pursuant to Article 5 of that directive 
must contain certain mandatory meas­
ures, including those which Member 
States have prescribed in the codes of 
good agricultural practice established 
in accordance with Article 4. 
Paragraph A(1) of Annex II to that 
directive provides that codes of good 
agricultural practice, which seek to 
reduce pollution by nitrates and take 
account of conditions in the different 
regions of the Community, must con­
tain provisions covering various items 
'in so far as they are relevant', includ­
ing periods when the land application 
of fertiliser is inappropriate. In that 
regard, Article 2(e) of the Directive 
defines 'fertiliser' as any substance 
containing a nitrogen compound or 
compounds utilised on land to enhance 
growth of vegetation, including live­
stock manure. Article 2(f) defines 
'chemical fertiliser' as any fertiliser 
which is manufactured by an industrial 
process. It follows that Annex II A to 
that directive refers to all fertilisers, not 
merely those which, like livestock 
manure, are of organic origin. 
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SUMMARY — CASE C-322/00 
Similarly, while Annex II A to the 
Directive requires that Member States' 
codes of good agricultural practice 
contain provisions covering the land 
application of fertiliser to steeply slop­
ing ground, that obligation on the 
Member States is also subject to the 
condition that it be relevant. 
The relevance of the provisions referred 
to in Annex II A to Directive 91/676 
must be evaluated only on the basis of 
objective criteria relating to the physi­
cal, geological and climatic conditions 
of each region. It follows that econ­
omic arguments are not sufficient to 
establish that the adoption of provi­
sions concerning procedures for the 
land application of chemical fertilisers 
and livestock manure is not relevant. 
(see paras 130-134, 136, 
143, 155-156) 
7. Pursuant to Article 5(5) of Directive 
91/676 concerning the protection of 
waters against pollution caused by 
nitrates from agricultural sources, 
Member States are to take, in the 
framework of the action programmes 
applying to vulnerable zones, such 
additional measures or reinforced 
actions as they consider necessary if it 
becomes apparent, 'at the outset or in 
the light of experience gained in imple­
menting the action programmes', that 
the measures referred to in Article 5(4) 
will not be sufficient for achieving the 
objectives specified in Article 1. 
That provision does not allow Member 
States a choice as to which action 
programme will include additional 
measures or reinforced actions. They 
must take such measures or actions at 
the outset of the first action pro­
gramme or in the light of experience 
gained in implementing the action 
programmes and therefore when they 
first observe a need for them. 
(see paras 165-166) 
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