34.

The application lodged by the three applicants was dismissed by the decision now being contested before the Verwaltungsgericht Wien (Administrative Court, Vienna, Austria) on the ground that the application was inadmissible by reason of the lack of subjective public-law rights or the lack of direct concern. The Verwaltungsgericht (Administrative Court) has therefore referred the following question to the Court: ‘Is Article 288 TFEU, in conjunction with Article 5(4) or with Article 5(5) of, in conjunction with paragraph 2 of Annex I to the Nitrates Directive, to be interpreted as meaning that: (a) a public water supplier, which provides water services and which in that regard, prior to delivering the drinking water to consumers (with compulsory connection), treats this water with high nitrate values taken from the wells available to it for that purpose in such a way as to attain a value of less than 50 mg/l nitrate concentration prior to delivery to consumers, and which is also required by law to supply water within a specified geographical area, is directly concerned within the meaning of the case-law of the Court of Justice of the European Union (in this case possibly by failure to implement the Nitrates Directive), in so far as it is concerned by what are claimed to be inadequate action plans (as the value of 50 mg/l nitrate concentration in the water in this water supplier’s area is exceeded) and must for that reason take measures to treat the water and is therefore granted subjective rights under the Nitrates Directive (a.1) to amendment of an action programme already adopted nationally to implement the Nitrates Directive (pursuant to Article 5(4) of the Nitrates Directive) in such a way that stricter measures with the aim of attaining the objectives of Article 1 of the Nitrates Directive and specifically attaining a value of up to a maximum 50 mg/l nitrate concentration in the groundwaters at individual intake points are thus adopted? (a.2) to the adoption of additional measures or reinforced actions (pursuant to Article 5(5) of the Nitrates Directive) with the aim of achieving the objectives laid down in Article 1(1) of the Nitrates Directive and specifically attaining a value of up to a maximum 50 mg/l nitrate concentration in the groundwaters at individual intake points? (b) a consumer, who would be authorised by law to use the water from his own domestic well for his personal consumption and who does not use this water on account of high nitrate values (and who was unable to use it at the time of the application underlying the proceedings and who could, admittedly, use it at the time of the present application to the Court of Justice of the European Union, even though it is common ground that a further increase of the nitrate value to above 50 mg/l nitrate concentration in the water is to be expected), but who rather receives the water from a public water supplier, is to that extent directly concerned within the meaning of the case-law of the European Union (in this case possibly by failure to implement the Nitrates Directive), in so far as he is concerned by what are claimed to be inadequate action plans and the value of 50 mg/l nitrate concentration in the water of his water intake (domestic well) is exceeded, with the result that he is unable to exercise his legal right to make limited use of the groundwaters on his property and is therefore granted subjective rights under the Nitrates Directive (b.1) to amendment of an action programme already adopted nationally to implement the Nitrates Directive (pursuant to Article 5(4) of the Nitrates Directive) in such a way that stricter measures with the aim of attaining the objectives of Article 1 of the Nitrates Directive and specifically attaining a value of up to a maximum 50 mg/l nitrate concentration in the groundwaters at individual intake points are thus adopted? (b.2) to the adoption of addition measures or reinforced actions (pursuant to Article 5(5) of the Nitrates Directive) with the aim of achieving the objectives laid down in Article 1(1) of the Nitrates Directive and specifically attaining a value of up to a maximum 50 mg/l nitrate concentration in the groundwaters at individual intake points? (c) a municipality, which, as a public body, uses or makes available a communal well, which it operates, only for non-drinking water on account of nitrate values of over 50 mg/l nitrate concentration — without this affecting the drinking water supply — is directly concerned within the meaning of the case-law of the Court of Justice of the European Union (in this case possibly by failure to implement the Nitrates Directive as a result of inadequate action plans in this regard) in so far as the value of 50 mg/l nitrate concentration in the water at the source is exceeded and therefore a use as drinking water is not available, and is therefore granted subjective rights under the Nitrates Directive (c.1) to amendment of an action programme already adopted nationally to implement the Nitrates Directive (pursuant to Article 5(4) of the Nitrates Directive) in such a way that stricter measures with the aim of attaining the objectives of Article 1 of the Nitrates Directive and specifically attaining a value of up to a maximum 50 mg/l nitrate concentration in the groundwaters at individual intake points are thus adopted? (c.2) to the adoption of additional measures or reinforced actions (pursuant to Article 5(5) of the Nitrates Directive) with the aim of achieving the objectives laid down in Article 1(1) of the Nitrates Directive and specifically attaining a value of up to a maximum 50 mg/l nitrate concentration in the groundwaters at individual intake points? In all three cases the protection of consumer health is safeguarded in any event either — in cases (b) and (c) — by taking the water from water suppliers providing it (with compulsory connection and a right to connection) or — in case (a) — by the corresponding treatment measures.’