Report of the Commission to the Council and European Parliament - The implementation of Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources
Date: 1997-10-01
Institutions: European Commission
Subjects: application of EU law, chemical fertiliser, pollution control measures, pollution from agricultural sources, water pollution

COMMISSION OF THE EUROPEAN COMMUNITIES 

* 

Tir 

Brussels,  01.10.1997 
COM(97) 473 final 

REPORT  OF THE  COMMISSION  TO THE  COUNCIL 
AND  EUROPEAN  PARLIAMENT 

The Implementation of Council Directive 
91/676/EEC concerning the Protection of 
Waters against Pollution caused by 
Nitrates from Agricultural  Sources 

1. INTRODUCTION. 

2. BACKGROUND  TO T*HE DIRECTIVE 

2.1 The Nitrate Problem 

2.2 The Causes of the Nitrate Problem 

2.3 History of Directive 

2.4 Outline of Directive 

3. IMPLEMENTATION  OF THE DIRECTIVE 

3.1 Transposition  into National Law 

3.2 Codes of Good Agricultural  Practice 

3.3 Designation  of Vulnerable Zones 

3.4 Monitoring 

3.5 Action Programmes 

3.6  Summary Reports... 

4. INFRINGEMENT  PROCEEDINGS 

: 

5. A REVISION  OF THE DIRECTIVE? 

6. CONCLUSION 

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1. 

INTRODUCTION 

Six  years  after  the  adoption  of  the  Nitrates  Directive1  most  Member  States  have 
failed  to  implement  it.  As  a result,  the  pollution  of  waters  by  nitrates  continues  to 
be  a  problem  in  all  the  countries  of  the  Community.  Many  sources  of  drinking 
water  exceed  the  50  mg/1 level  set  on  public  health  grounds  in  both  the  "Surface 
Water  for  Abstraction  of  Drinking  Water"2  and  the  "Drinking  Water  Directive"3. 
Environmentally,  the inputs  of  nitrate from  Member  States  to  the North  Sea, Baltic 
Sea,  Mediterranean  and  Black  Sea  are  particularly  significant 
in  causing 
eutrophication.  The  diffuse  nature  of  nitrate  pollution  makes  its  reduction  a 
challenge  for  Community  environmental  policies,  a fact  that  is  compounded  by  the 
principal  polluters,  the  agricultural  industry,  being  particularly  vulnerable  to  land-
use changes which impact upon their economic viability. 

Six years  ago, in  1991, the Council  adopted  the Nitrates  Directive,  which  sought  to 
reduce water pollution caused or induced by nitrates from  agricultural  sources  and to 
This  represented  an  important  step  in  the 
prevent  further  such  pollution. 
development  of  water  policy  with  the Directive  adhering  to  both  the  polluter  pays, 
and  the  prevention  at  source  principles,  and  seeking  to  tackle  diffuse  pollution. 
Although  the  most  significant  of  the  Directive's  measures  remain  to  be  taken  in 
many  of  the  Member  States  it  is  apparent  already  that  there  is  strong  resistance  to 
the  requirements  of  the  Directive  in  certain  quarters,  which  is  likely  to  be 
contributing to the poor state of implementation  across the Community.  The present 
situation  the  Commission  considers  to  be extremely  grave.  At  the  present  time  13 
out of the  15 Member  States are the subject of legal  proceedings  with  respect to both 
the  non-transposition  and/or  the  incorrect  application  of  the  Directive.  This 
implementation  report,  required  under  Article  11  of  the  Directive  represents 
therefore  a timely  opportunity  to  highlight  the significant  lack  of  progress  made by 
Member  States  in their application of the Directive. 

The  report  will  commence  with  a  brief  examination  of  the  background  to  the 
Directive  before  analysis  of  the  current  status  of  implementation  is  presented.  The 
final  section  clearly  demonstrates  why,  given  the tardy  state of  implementation,  the 
Commission  considers  it  inappropriate  to  come  forward  with  proposals  for  a 
revision of the Directive at this time. 

1  OJ  No  L  375  31.12.1991,  pi.  Council  Directive  91/676/EEC  of  12  December  1991  concerning  die 

protection  of waters  against pollution  caused by nitrates from agricultural  sources 

2  OJ  No  L  194.  25.7.1975,  p26.  Council  Directive  75/440/EEC  of  16  June  1975  concerning  die  quality 

required  of surface  water intended  for  the abstraction  of drinking water  in the Member  States 

3  OJ No  L 229  30.8.1980.  pi  1. Council  Directive  80/778/EEC of  l5.July  1980 relating  to die quality  of  water 

intended  for human  consumption 

2.  BACKGROUND  TO THE  DIRECTIVE 

2.1  The Nitrate Problem 

In  the  European  Union  the  concentration  of  nitrate  in  drinking  waters  has  been 
regulated  since  1980  by  the  Drinking  Water  Directive.  This  establishes  a  guide 
level  of  nitrate  of  25  mg/1 and.a  maximum  admissible  concentration  of  50  mg/1. 
These  levels  are  now»widely  accepted  on  human  health  grounds,  and  significantly, 
have  not  been  challenged  by  Member  States  during  the  negotiations  on  the 
Commission's  proposal  for  a revision  of the Directive.  Nitrate  in drinking waters is 
considered  to be a public health  problem  because nitrate rapidly  reduces to nitrite in 
the  body.  The  major  effect  of  nitrite  is  the  oxidation  of  blood  haemoglobin  to 
methaemoglobin  which  is  unable  to  transport  oxygen  to  the  tissues.  The  reduced 
oxygen  transport  manifests  itself  particularly  in young  infants  up to six  months  old, 
and  causes  the  condition  methaemoglobinaemia  or  blue-baby  syndrome.  This 
phenomenon  has only been observed  at nitrate levels significantly  above the 50 mg/1 
In 
level  therefore  this  level  delivers  sufficient  protection  against  this  occurring. 
addition,  nitrite reacts with  compounds  in the stomach  to form  products  which  have 
been found  to be carcinogenic in many animal  species, although  the link to cancer in 
humans  is  at  the  moment  suggestive.  Nevertheless,  these  two  factors  together 
totally  justify  a  precautionary  approach  being  taken  in  the  establishment  of  this 
parameter4. 

The  Dobris  assessment5  quotes  model  concentrations  of  nitrate  leaching  from 
agricultural  soils that  indicate that 87% of the agricultural  area  in  Europe has nitrate 
concentrations  in  the  groundwater  that  are  above  the  guide  level  value  of  25 mg/1, 
and  22% that are above the 50 mg/1 level.  In many  areas  these  levels  are  increasing 
with  existing  sources  of  drinking  water  having  to  be  closed  or  being  subject  to 
expensive treatment processes at the expense of the consumer. 

Elevated  levels  of  nitrates  are  also  significant  contributors  to  eutrophication, 
particularly  in marine and coastal  areas.  In these  areas, they  stimulate  high  levels of 
algal  growth  which  lead  to  marked  changes  in  the  nature  of  the  ecosystem,  usually 
to  its  detriment.  Large  areas  of  the  North  Sea  coastlines  have  been  identified  as 
suffering  from  eutrophication,  as  well  as  areas  of  the  Mediterranean.  The  most 
efficient  way  of  reducing  such  eutrophication  is  to  reduce  the  inputs  of  nitrate  and 
other nitrogen  sources. 

4  It  is  also  relevant  to  note  that  in  April  1997.  the  World  Health  Organisation  reviewed  tlieir  guideline 
value  for  nitrate  and  nitrite  in drinking  water,  and  concluded  thai  on  the  basis  of  the  latest  scientific 
evidence, the value of 50 mg/1 should be  maintained. 

5  Stanners D. Bourdeau  P. Eds.. (1995) Europe's  Environment. The Dobris  Assessment.  EEA. 

2.2  The Causes  of the Nitrate Problerii 

Post  war  agricultural  policies  have  focused  on  maximising  production.  Price 
support  and  guaranteed  markets  have  tended  to  result  in  intensive  production 
methods.  This has been the case in the EU with the Common Agricultural  Policy as 
in other countries.  Overall, the policy, which has been  very successful  in  achieving 
increased production, has had what can now be seen to be a detrimental  effect  on the 
environment.  In the context of nitrate pollution,  intensive production  has resulted  in 
increased  use  of  chemical  fertilisers,  and  more  significantly  large  numbers  of 
livestock  being  concentrated  on  small  areas  of  land.  In  some  regions  of  the  EU 
intensive  livestock  production  has  led to structural  exceedances  of  the  quantities  of 
manure produced.  In other words there is more manure than can  be disposed  of on 
land without causing nitrate pollution. 

It can take many years for nitrate pollution  to reach a water body once it has left  the 
soil rooting zone.  Indeed much of the high concentrations  of nitrate in waters  today 
It  also  follows  that 
has  been  caused  by  agricultural  practices  of  past  decades. 
today's  agricultural  practices will determine future  nitrate pollution  levels6.  There is 
no  doubt  that  agricultural  practices  have  improved  from  an  environmental  point  of 
view  during  the  last  decade,  but  it  is  still  the  case  that  agricultural  practices  and 
It  remains  necessary, 
structural  exceedances  contribute  to  nitrate  pollution. 
therefore,  for  there  to  be  changes  to  current  agricultural  practices.  The  European 
Community  is  committed  to  the  application  of  the  polluter  pays  principle.  In  the 
context  of the Nitrates  Directive this means  that  the cost of  the  measures  necessary 
to  change  current  practices  to  reduce  pollution  should  be  borne  by  the  agricultural 
operators  themselves.  Changes  in  the  Common.  Agricultural  Policy,  such  as  the 
MacSharry  reforms  of  1992  that  led  to  reductions  in  support  prices  and  the  Agri-
Environment  Regulation7  will  assist  this  policy,  as  could  any  further  reforms  that 
shift the emphasis away from  support for  production. 

2.3  History  of  Directive 

In  1988 the Frankfurt  ministerial  seminar on water reviewed  the existing  legislation 
and  identified  a number of improvements that could be made and gaps  that could  be 
filled.  So  far  this  has  resulted  in the  adoption  by  the  Council  of  the  Urban  Waste 
Water Treatment Directive8 and the Nitrates  Directive. 

6  This  is of  particular  pertinence  to  tlie Associated  Countries  of  Central  and  Eastern  Europe  as  it  is  likely 
that  any  intensification  of  agriculture  similar  to  that  which  occurred  in  Western  Europe  during  the 
post-war period will lead to an increase in tlie pollution  of walcrs by nitrates  from  agricultural  sources. 

7  OJ  No  L  215  30.7.1992. p85  Council Regulation  No  2078/92  of  30 June  1992 on agricultural  production 
methods  compatible with tlie requirements  of tlie protection  of the environment  and  the  maintenance of 
the countryside. 

8  OJ No L  135 30.5.1991. p40. Council Directive 91/271/EEC of 21 May  1991 concerning urban waste water 

treatment 

The Nitrates  Directive.began  life  as a  "Proposal  for  a Council  Directive  concerning 
the  protection  of  fresh,  coastal  and  marine  waters  against  pollution  caused  by 
nitrates  from  diffuse  sources"9.  An  amended  proposal  was  published  in  199010 
following  the  opinion  of  the  European  Parliament11.  Overall  the  Directive  took 
nearly  three  years  to  negotiate  and  was  finally  concluded  under  the  Dutch 
to  Member  States  on 
Presidency,  being  signed  on  12.12.1991  and  notified 
19.12.1991. 

2.4  Outline of Directive 

The  objectives  of  the  Directive  are  two-fold:  to  reduce  water  pollution  caused  or 
induced  by  nitrates  from  agricultural  sources  and;  to  prevent  further  such  pollution. 
These  the  Directive  seeks  to  ensure  by  requiring  Member  States  to  identify  waters 
affected  by  pollution  and  waters  which  could  be  affected  by  pollution  and" 
designating  these  areas  as  Vulnerable  Zones12  on  the  basis  of  the  results  of 
monitoring  requirements  in  the Directive.  In  these  zones  the  Member  States  must 
draw  up  Action  Programmes  which  contain  mandatory  measures  concerning 
agricultural  practices, including the stipulation  of maximum  amounts  of manure that 
can be applied to land every year.  Member States are also bound  to establish  at least 
one  Code of  Good  Agricultural  Practice which  is  implemented  on  a voluntary  basis 
outside  the  Vulnerable  Zones,  and  is  mandatory  within  them.  Member  States  are 
obliged  to  monitor  the  nitrate  concentrations  of  waters  to  assess  the  impacts  of  the 
measures put  in place. 

The  timetable  for  the  implementation  of  the  Directive  can  be  found  in  Figure  1. 
below. 

9  OJ No C 54 3.3.1989. p4 

1 0O.TNoC51  2.3.1990. p 12 

1 l  OJ No C  158 26.6.1989. p487 

-> Technically  where  a  Member  States  designates  the  whole  of  their  territory  under  Article  3(5)  of  the 
Directive it is not  labelled a Vulnerable Zone.  However the rcquiremeiUs  for  these areas, are exactly tlie 
same and  so  where  a vulnerable  /.one is  refened  to  this  will  include those  Member  States  using  Article 
?i(5)^ except where monitoring requirements arc being discussed. 

Figure  1:  Tlie  Timetable  for  the  Implementation 

of  the  Directive 

— ~ — • — — • — • — — — — — — — — » — ^ — — ^ — — ^ — . — — — ^ ^ — _ _ —. 

i. 

m. 

— —— 

_ - ^ _ »r

i m_l^ _ ^n i T n T-r

i

r M I_r

r

i__ 

Requirement 

Relevant 
Directive 
Article 

Stipulated 
Completion Date13 

Transposition into National Law 

12 

20.12.1993 

Monitoring 

5(6) or 6 

20.12.1993 

Designation of Vulnerable Zones 

Establishment of Code of Good Agricultural Practice 

Establishment of first four year Action Programme 

Submission of Summary Report to Commission 

Completion of tlie Review of Designations 

3 

4 

5 

10 

3 

Start  of  tlie year  during  which  maximum of  210  kg  N ha  5 
may be applied 

Completion of first Action Programme 

5 

Start  of  tlie year  during  which  maximum  of  170 kg  N ha  5 
may be applied 

20.12.1993 

• 

20.12.1993 

20.12.1995 

20.6.1996 

21.12.1997 

20.12.1998 

20.12.1999 

20.12.2002 

Completion of second Action Programme 

5 

21.12.2003 

13 These follow  Council  Regulation (EEC. Euratom)  I 182/71. of 3.6.71 determining  the rules applicable to 

periods, dates and  time limits. OJ  L  124, 8.6.1971. pi 

3. 

IMPLEMENTATION OF THE  DIRECTIVE 

The  implementation  of  the  Directive  should  proceed  at  the  same  speed  in  all 
Member  States.  Austria,  Finland  and  Sweden,  who  joined  the  EU  on  1.1.1995 
receive no special  dispensations. 

3.1  Transposition  into National  Law 

Article  12 of the Directive states that Member States must "bring into force the laws, 
regulations  and  administrative  provisions  necessary  to  comply  with  the  Directive 
within two years of its notification"  i.e. by 20.12.1993.  Four years after  the deadline 
only four  Member  States  have been  judged  to have complied  with their  obligations. 
Figure  2  indicates  the  date  on  which  the  Member  State  communicated  transposing 
measures and whether the Commission  considers that these fulfil  their obligations. 

Figure 2: Tlie Transposition of the Directive into National Law (as of 30.7.1997) 

Country 

Austria 

Belgium 

Denmark 

Finland 

France 

Germany 

Greece 

Ireland 

Italy 

Luxembourg 

Netherlands 

Portugal 

Spain 

Sweden 

United Kingdom 

Date of Communication 
(Date due 20.12.1993] 4) 

26.1.1996 

17.12.1993 

24 3 199515 

27.8.1993 

1.4.1996 

17.7.1995 

26.10.1994 

11.3.1996 

25.1.1996 

28A1996 

Conformity  of 
Measures 

Ch eck o ngoing 

Yes 

No 

Yes 

No 

No 

Yes 

Yes 

Check ongoing 

No 

14 For Austria,  Finland  and  Sweden  !. 1.1995 

15 Finland submitted  further  transposing measures on 23.10.1995 and  14.8.1996 

3.2  Codes of Good Agricultural  Practice 

Article 4 of the Directive states that  "Member  States  shall,  within  a two-year  period 
following  the  notification  of this  Directive  [i.e. by  20.12.1993],  establish  a code  or 
codes  of  good  agricultural  practice  to  be  implemented  by  farmers  on  a  voluntary 
basis  which  should  contain  provisions  covering  at  least  the  items  mentioned  in 
Annex  II A".  The  majority  of Member  States  have  now completed  this  exercise  as 
can  be  seen  from  Figure  3  below.  However,  when  the  Commission  undertook  a 
preliminary study of the Codes  in late  1994 this was not the case.  Although some of 
the  requirements  of  the  Codes  can  be  considered  quite  unspecific  the  Codes 
represent  important  tools  both  in  the  context  of  the  Directive  and  also  in  the 
integration  of  environmental  considerations  into  agriculture.  Therefore  it  is  the 
Commission's  intention  to  undertake  a further  study  on  them.  This  will  look  not 
just  at  the  compliance  of  the  Codes  with  the  requirements  of  Annex  II,  but  also  at 
the  consistency  of  the  Codes  between  areas  of  similar  cultivation  patterns  in  the 
Community  as well as the wider issue of agricultural  good practice. 

Figure 3: Codes of Good Agricultural Practice (as of 30. ~.J99 ~) 

Country 

Austria 

Belgium 

Denmark 

Finland  • 

France 

Germany 

Greece 

Ireland 

Italy 

Luxembourg 

Netherlands 

Portugal 

Spam 

Sweden 

United Kingdom 

Date of Communication 

(Dateduc20.l2.199316) 

26.1.1996 

17.12.1993 

24.3.1995 

10.2.1994 

1.4.1996 

5.5.1994-

20.8.1996 

22.12.1993 

• 

25.3.199f> 

5.1.1994 

25.1.1996 

10.11.1994 

— —— 

. — — — » » ~ — — — — — ———  n 

II 

.m 

i 

i  • — — J— 

I. 

I

II 

1 . — —» 

i 

16 For Austria.  Finland  and  Sweden.  1.1.1995 

3.3  Designation  of Vulnerable Zones 

Article  3(1)  of  the  Directive  states  that  "waters  affected  by  pollution  and  waters 
which could be affected  by pollution  if action  pursuant to Article  5 is not taken  shall 
be  identified  by the Member  States  in accordance  with  the criteria  set  out  in  Annex 
I".  Article  3(2)  then  goes  on  to  state  that  "Member  States  shall,  within  a two-year 
period  following  the  notification  of  this  Directive  [20.12.1993 n],  designate  as 
vulnerable  zone's  all'-known  areas- of  land -in  their- territories  -which  drain  into  the 
waters  identified  in paragraph  1" 

Waters  have  to  be  designated  if they  meet  one  or  more  of  the  criteria  laid  down  in 
Annex  I.  This  means  that  for  surface  waters  and  groundwaters  areas  must  be 
designated  which  contain  or could  contain  more than  50 mg/1 of nitrate.  In  addition 
all  waters  which  are  found  to  be  eutrophic  or  in  the  near  future  may  become" 
eutrophic have  to be designated.  It is important  to note that the definitions  in all  the 
points  above apply to all  waters  and  not just  those currently  used  for  the  abstraction 
of  drinking  water.  Therefore  Member  States  are  required  to  assess  all  waters, 
irrespective of whether they are used for drinking  water. 

It  is  also  necessary  to  stress  that  the  50  mg/1 level  may  not  be  sufficient  to  reduce 
eutrophication.  Therefore  this  is  not  considered  to  be  the  defined  limit  in  the 
Directive,  indeed  it  is  likely  that  it  would  be  significantly  too  high  to  reduce 
eutrophication. 

Under  Article  }(5)  Member  States  are  exempted  from  the  requirement  to  identify 
specific  vulnerable  zones  if they  establish  and  apply  action  programmes  throughout 
their  national  territory.  Thus  far  five  Member  States  have  used  this  possibility. 
Figure 4 indicates  when  Member  States  have desi&mated  accordiim  to  Article  3, and 
if  this  has  been  completed,  whether  the  zones  have  been  designated,  or  the  whole 
territory.  As  can  be  seen  from  this  Figure  most  of  the  countries  who  have  chosen 
not  to  use  Article  3(5)  have failed  to fulfil  this  obligation,  meaning  that  those  areas 
requiring  protection  have  not  been  identified,  six  years  after  the  passing  of  the 
Directive. 

17 For Austria.  Finland  and  Sweden.  1.1.1995 

10 

Figure  4:  The Designation  of  Vulnerable  Zones  (as of 30. ~. 199.) 

Country 

Austria 

Belgium 

Denmark 

Finland 

France 

Germany 

Greece 

Ireland 
Italy 

Luxembourg 

Netherlands 

Portugal 

Spain 

Sweden 

United Kingdom 

Date Designations Completed 
P a te due 20.12.199318) 

Area Covered 

26.1.1996 

Whole Territory 

12.7.1993 

Whole Territory 

- 

46% of agricultural 

land* 

7.11.1994 

Whole Territory 

17.7.1995 

No Zones* 

19.10.1994 

5.1.1994 

25.1.1996 

10.2.1997 

Whole Territory 

Whole Territory 

5 Vulnerable Zones* 

69 Vulnerable Zones* 

* These decisions  are currently being examined by the Commission. 

The Commission  is cognisant of the necessity  of checking that  all  areas  that  should 
have been  designated  as vulnerable zones by Member  States have been.  To this end 
it intends to commission  a study, once sufficient  information  has been received  from 
Member  States, to advise on such verifications.  At the present time, such  a study  is 
not  possible  since only  three of  the Member  States  who  have opted  for  designating 
vulnerable zones have completed  their designations. 

Article  3(4)  contains  an  obligation  for  Member  States  to  "review  and  if  necessary 
revise or add to the designation  of vulnerable zones as appropriate and  at least every 
four  years,  to  take  into  account  changes  and  factors  unforeseen  at  the  time  of  the 
previous  designation".  This  will  have  to  be  completed  by  21.12.1997  and 
communicated  to the Commission  by 21.6.1998.  It is therefore  too  early to  suggest 
whether  the  amount  of territory  in  the Community  covered  by  Article  3 is  likely  to 
change. 

18 For Austria. Finland  and  Sweden,  1.1.1995 

11 

3.4  Monitoring 

Monitoring is covered  in both Articles  5 and 6 of the Directive.  Member States who 
have  chosen  to  apply  Article  3(5)  are  exempt  from  the  requirements  of  Article  6, 
except  if they  decide to change and  designate zones  under  Article  3(2).  In this  case 
they  would  need  to  conduct  the  stated  monitoring  for  a  period  of  one  year  before 
making the change.  Article 5(6) applies to Member  States  who  make use of Article 
3(5).  They are required  to "monitor the nitrate content of waters (surface waters and 
groundwater)  at  selected  measuring  points  which  make  it  possible  to  establish  the 
extent of nitrate pollution  in the waters from  agricultural  sources". 

Member  States who designate vulnerable zones have to comply with Article 6.  This 
provides guidance as to the monitoring methods for  all waters.  Member  States  must 
review the eutrophic state of fresh  surface  waters, estuarial  and  coastal  waters  every" 
four  years.  The  nitrate  concentrations  of  fresh waters  should  have  been  measured 
over  a  period  of  one  year  between  19.12.1991  and  20.12.1993  and  in  every 
subsequent  four  year  period  (i.e.  by  21.12.1997).  The  only  exception  to  this  and 
subsequent  revisions  is  for  sampling  stations  where  during  the  last  monitoring 
period  all previous samples were below 25 mg/1 and no new factor  likely to  increase 
the  nitrate  content  has  appeared.  In  this  case  the  monitoring  programme  need  be 
repeated only every eight years. 

It  is  difficult  for  the  Commission  to  judge  the  compliance  or  otherwise  of  the 
monitoring  undertaken  by  Member  States  as  the  only  obligation  on  the  Member 
States  to  submit  monitoring  data  to  the  Commission  is  contained  in  the  Article  10 
Summary  Report.  Even  information  submitted  in  this  manner  need  only  be  a 
summary.  Nevertheless  several  Member States have noted  in their  Reports that their 
monitoring  is, at present,  insufficient  to comply  with  that  required  by  the Directive. 
Indeed  a  recent  study19  concluded  that  many  Member  States  have  even  yet  to 
establish  the  monitoring  and  administrative  infrastructures  necessary  to- deal  with 
monitoring  requirements from  a range of Directives. 

3.5  Action  Programmes 

Article  5 of  the  Directive  states  that  "within  a two-year  period  following  the  initial 
designation  referred  to  in  Article  3(2)  or  within  one  year  of  each  additional 
designation  referred  to  in  Article  3(4),  Member  States  shall,  for  the  purpose  of 
realising the objectives  specified  in Article  1, establish  action  programmes  in respect 
of  designated  vulnerable  zones".  Action  programmes  last  for  four  years;  the  first 
should  have  commenced  on 20.12.1995  and  is scheduled  to  end  on  20.12.1999.  A 
second  action  programme  will  then  begin  and  last for  a further  four  years,  finishing 
on 21.12.2003. 

19  Evaluation  of  the  Costs  of  Groundwater  Inspection  in  Ihc  Member  Slates,  study  conducted  for  the 

European  Commission.  DG  XI in the framework  of contract  B4-3()4(i/95/()()()345/MAR/Dl 

12 

The  action  programmes  are  the  key  requirements  of  the  Directive  as  they  require 
mandatory  restrictions  on  the  activities  of  farmers  to  achieve  the  objectives  of  the 
Directive.  These  are  listed  in Annex  III.  Of  these  two  requirements  are  the  most 
significant.  Paragraph  1  of Annex  III requires the land  application  of fertilisers  to be 
based  on a balance between  the nitrogen  requirements  of the crops  and  the  nitrogen 
supply to the crops from  the soil and from  fertilisation. 

Paragraph  2  sets  down  a  maximum  of  170  kg  N  per  hectare  per  year  that  can  be 
applied to land  in the form  of animal  manure.  However,  the Directive allows  for  up 
to  210  kg  N  per  hectare  per  year  during  the  first  action  programme  Both  of  these 
maximum  quantities  apply  in the fourth  year of their respective  action  programmes, 
i.e.  210  kg  N  per  hectare  per  year  from  20.12.1998  and  170'kg  N  per  hectare  per 
year  from  20.12.2002.  This  paragraph  of  the  Directive  also  allows  for  Member 
States to have derogations from  these quantities, but only where they are justified  on' 
the basis of objective criteria and do not prejudice  the achievement  of the  objectives 
of the directive. 

Member  States  should  have  started  their  action  programmes  on  20.12.1995. 
However,  as  can  be  seen  from  Figure  5,  which  also  considers  whether  the  action 
programmes  are in compliance with  the Directive, few Member  States  have done so. 
Given  that  these  measures  represent  the  key  to  the  Directive  this  failure  is  difficult 
to justify. 

Figure 5: Action Programmes (as of 30. ~. 199") 

• — ^ _ — — — — — ^ — F — — _ — — — — — — T ^ - g e M ° ",

l"B» ™ ™ ^ ' ~ - *,~ * - ' * - ~ - * ~ - - ~- 

— — — —r 

Date of Notification 
(Dale due 20.12.199.5) 

In Compliance'.' 

11.11.1996 

U nder examination 

8.1.1996 

Under examination 

1.4.1996 

No 

Country 

Austria 

Belgium 

Denmark 

Finland 

France 

Germany' 

Greece 

Ireland 

Italy 

Luxembourg 

19.10.1994 

No 

Netherlands (see below) 

Portugal 

Spain 

Sweden 

United  Kingdom 

25.1.1996 

Under examination 

13 

,  In  addition  it  is  important  to  consider  the  case of  the  Netherlands.  On  22.12.1995 
the  Dutch  authorities  submitted  their  action  programme  to  the  Commission  and 
informed  them that they would be using the derogation possibility  in Annex III.  The 
Commission,  after  examining  the  justifications  for  the  derogation  and  discussing 
these  with  the  Dutch  authorities  decided  that  they  were  not  in  a  position  to 
recommend  to  the Nitrates  Committee that the derogation  be accepted.  During  the 
7th  meeting  of  the  Nitrates  Committee  in  November  1996  the  Dutch  authorities 
withdrew  their  action  programme  and  informed  the  Commission  that  they  were  no 
longer seeking a derogation. 

If,  at  any  stage  of  implementation  of  the  Directive  it  becomes  apparent  that  the 
measures  laid  down  in the Directive  are not  sufficient  to  achieve  its  objectives,  the' 
Member  States  are  required  by  Article  5(5)  to  take  such  additional  measures  or 
reinforced  actions  as  they  consider  necessary.  To  aid  in  the  attainment  of  this 
objective  all Member  States are required,  under the first  paragraph  of Article  5(6) to 
draw up and  implement  monitoring programmes  to assess the effectiveness  of  action 
programmes 

3.6  Summary  Reports 

Article  10 of  the  Directive  states  that  "Member  States  shall,  in  respect  of  the  four-
year  period  following  the  notification  of  this  Directive  and  in  respect  of  each 
subsequent  four-year  period,  submit  a  report  to  the  Commission  containing  the 
information  outlined  in Annex  V".  Annex  V requires  basic information  on the items 
discussed  in the above sections. 

Member  States  should  have  submitted  this  information  to  the  Commission  by 
20.6.1996.  Under  Article  11  of  the  Directive  the  Commission  should  have  sent 
summary  reports  to  the  European  Parliament  and  to  the  Council  by  20.12.1996. 
From  Figure  6,  below  it  can  be  seen  that  most  Member  States  were  late  in 
submitting  their  reports.  It  is for  this  reason  that  the  Commission  has  had  to  delay 
the publishing of its report. 

14 

Figure  6: Summary  Reports  (as of 30. 

.P)9r) 

' 

, 

Country 

Austria 

Belgium 

Denmark 

Finland 

France 

Germany 

Greece 

Ireland 

Italy 

Luxembourg 

Netherlands 

Portugal 

Spain 
Sweden 

United Kingdom 

Date of Communication 

(Due date 20.6.1996) 

11.11.1996 

2()'l2.1996 

"  "' 

19.9.1996* 

23.12.1996 

12.11.1996 

19.11.1996 

17.7.1995 

4.2.1997 

9.7.1996 

8.10.1996 

4.9.1996 

9.1.1997 

The  reports  received  have  been  of  differing  formats  and  content,  with  considerable 
variations  in  length.  Although  the Commission  will  present  a consolidated  report  on 
this  information,  the  varying  standards  of  response  will  not  facilitate  the  production 
of  the  most  useful  document  possible.  During  the  6th  meeting  of  the  Nitrate 
Committee  on  1.6.1995,  the  Commission  presented  a  draft  for  a  common  reporting 
format  which  was  commented  upon  by  Member  States.  However  as  a  finalised 
version  was  not  presented  early  enough  this  was  not  used  by  any  Member  State.  In 
future  the  Commission  intends  to  present  to  the  Committee  a  framework  in  which 
results  should  be  submitted, 
in  order  to  increase  the  usefulness  of  the  final 
document. 

15 

4. 

INFRINGEMENT  PROCEEDINGS 

The  Commission  can  begin  infringement  proceedings  according  to  Article  169  of 
the Treaty  establishing the European  Communities  against  a Member  State where  it 
fails  to comply with the requirements of the Directive.  As is evident from  the  above 
Figures the majority  of Member States are behind  schedule  in implementation,  some 
of  them  very  significantly. 
Indeed,,  as  .was  .recognised  in  the  Commission's 
Communication  on Implementing  Community  Environmental  Law20  there  is  a need 
to  take  action  against  most  Member  States  for  the  same  infringements  of  this 
Directive.  Naturally  these  proceedings  develop  at  different  paces  depending  on  the 
nature  of  the  infringement  and  the  degree  of  dialogue  that  has  occurred  between 
Member  States  and  the  Commission.  Some Member  States  also  have  two  separate 
actions against them. 

At  present  the  majority  of  infringement  cases  are  based  on  either  the  non-
transposition  of  measures  or  the  basic  non-conformity  of  the  measures  taken  with 
those  of  the  Directive.  At  this  stage  therefore,  there  is no  evidence  to  suggest  that 
the measures  laid  down  in  the Directive  will  not  have  a significant  effect  on  nitrate 
pollution  when  they  have  had  the  opportunity  to  take  effect.  This  represents 
therefore  the  primary  argument  for  the  Commission  not  coming  forward  with 
proposals  to  modify  the  Directive.  The  status  of  infringement  proceedings  against 
Member  States  is  shown  in  Figure  7.  The  information.in  this  table  is  presented 
according  to  Commission  rules  on  information  that  can  be  disclosed,  therefore  it 
should  not be assumed  that there are not proceedings  against Member  States that  are 
not listed, or. for  any parts of the Directive not  indicated  for a particular  Country. 

Figure  7:  Tlie Status  of  Infringement Proceedings against  Member  States  (as  of 
30.7J  99') 

Country 

Belgium 

Finland 

France 

Greece 

Ireland 

Italy 

Netherlands 

Portugal 

Spain 

UK 

Transposition 

Designation 

Code 

Action  Programme 

Report 

FN 

FN 

Court 

RO* 

Court 

FN 

Court 

FN 

RO* 

Court 

RO* 

Court 

Court 

Court 

Court 

Court 

Court 

RO* 

RO* 

FN = Letter of Formal Notice. RO = Reasoned Opinion. Court = Proceedings before the Court of 
Justice 
* = Decision taken by the Commission  and publicised  in a press release, but yet to be executed 

20  COM(96)  500 final. 22.10.1996 

16 

5. 

A  REVISION  OF THE  DIRECTIVE? 

As  stated  in section  4 the principle  reason  for  the Commission  not  coming  forward 
with  proposals  for  the  revision  of  the  Directive  is  the  late  implementation  of  the 
Directive,  which  makes  it impossible to assess  the effectiveness  or otherwise  of  the 
Directive.  The  Commission  is  however  aware  that  it  could  be  argued  that  the  fact 
that so many  Member  States  have failed  to  respect  their obligations  with  respect  to 
this  Directive  means'that-it  is  the  Directive  that-is  at  fault.  The  Commission 
believes  that  this  argumentation  is  not  sustainable  as  the" majority  of  the  measures 
that have to be taken by Member  States (i.e. transposition,  monitoring,  designations, 
codes of good  agricultural  practice and  reporting)  are straightforward.  Whilst  there 
may  be  problems  in  co-ordinating  the  efforts  of  different  ministries  (in  particular 
Environment  and  Agriculture)  these  are simply  procedural  problems  which  can  be 
surmounted. 

*  ' 

, 

As  there  is  no  obligation  in the  Directive  to  report  on  the  problems  experienced  in 
the  implementation  of  the  Directive  it  is  not  possible  to  provide  accurate 
information  on  the grounds  for  the  delays  in  implementation.  The  Commission  is 
aware,  however,  that  the  lack  of  baseline  information  on  the  extent  of  nitrate 
pollution  has  been  a  problem,  as  has  been  the  co-ordination  between  different 
ministries  as mentioned  above. 

6. 

CONCLUSION 

Six  years  on  from  the adoption  of  this  Directive  the  status  of  its  implementation  in 
most Member  States  is unsatisfactory,  so  much  so that  any  revision  of the  Directive 
would  be  inappropriate.  The failure  to  implement  the  Directive fully,  in  addition  to 
its  legal  aspects,  constitutes  a failure  to deal  with  serious  environmental  and  human 
health  problems.  Whilst  the  Commission  will  do  all  in  its  powers  to  ensure 
implementation  of  the  Directive,  in  particular  through  the  use  of  infringement 
proceedings, these may  not,  in themselves,  attain  the objectives  of  the Directive.  It 
is  therefore  essential  to  seek  all  means  to  generate  the  necessary  pressure  for 
implementation  immediately. 

17 

ISSN 0254-1475 

COM(97) 473 final 

DOCUMENTS 

EN 

14  03 

Catalogue  number  :  CB-C0-97-488-EN-C 

ISBN  92-78-25029-5 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg 

u