CELEX: 62001CC0396
Language: en
Date: 2003-06-26 00:00:00
Title: Opinion of Mr Advocate General Geelhoed delivered on 26 June 2003. # Commission of the European Communities v Ireland. # Failure of a Member State to fulfil its obligations - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Identification of waters affected by pollution and waters which could be affected by pollution - Designation of vulnerable zones which contribute to pollution - Establishment of action programmes in respect of designated vulnerable zones - Monitoring and review. # Case C-396/01.

OPINION OF ADVOCATE GENERAL
      GEELHOED 
      delivered on 26 June 2003 (1)
      
      Case C-396/01 
      Commission of the European Communities
      v
      Ireland
      (Non-compliance with Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution
         caused by nitrates from agricultural sources – Identification of waters which are or could be affected by pollution – Establishment of action programmes)
      I –  Introduction
      1.        The Commission has brought this action for failure to fulfil obligations owing to the fact that Ireland has not in due time
         adopted measures in order fully to comply with its obligations under Articles 3, 4, 5 and 6 of Council Directive 91/676/EEC
         of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (2) (hereinafter ‘the directive’). More specifically, Ireland has not fully identified the waters which have been or might be
         affected by nitrates from agricultural sources and notified the Commission thereof, has not proceeded to identify vulnerable
         zones, has established no action programmes and has not monitored the state of the waters.
      
      2.        The Irish Government is challenging only in part the infringement alleged by the Commission. The principal point at issue
         concerns the question whether the measures adopted by it may or may not be regarded as action programmes within the meaning
         of Article 5 of the directive. If those measures may be regarded as such Ireland would be exempt under Article 3(5) of the
         directive from the obligation to identify vulnerable zones. The Commission disputes that Ireland has established action programmes
         as mentioned in the directive.
      
      3.        That is the nub of the legal dispute between the Commission and Ireland. Since the Commission’s other allegations are of a
         more factual nature and are not contested by the Irish Government, I shall confine myself in this opinion to that disputed
         legal issue.
      
      II –  Legislation
      4.        According to Article 1 thereof, the directive has the objective of reducing water pollution caused or induced by nitrates
         from agricultural sources and of preventing further such pollution.
      
      5.        Article 3(1) of the directive reads as follows:
      ‘Waters affected by pollution and waters which could be affected by pollution if action pursuant Article 5 is not taken shall
         be identified by the Member States in accordance with the criteria set out in Annex I.’
      
      6.        Article 3 imposes the following obligations on Member States:
      ‘2.      Member States shall, within a two-year period following the notification of this Directive, designate as vulnerable zones
         all known areas of land in their territories which drain into the waters identified according to paragraph 1 and which contribute
         to pollution. They shall notify the Commission of this initial designation within six months. 
      
      ...
      4.      Member States shall review and if necessary revise or add to the designation of vulnerable zones as appropriate at least every
         four years, to take into account changes and factors unforeseen at the time of the previous designation. They shall notify
         the Commission of any revision or addition to the designations within six months.’
      
      7.        Article 3(5) contains the following exception to that obligation:
      ‘Member States shall be exempt from the obligation to identify specific vulnerable zones, if they establish and apply action
         programmes referred to in Article 5 in accordance with this Directive throughout their national territory.’
      
      8.        In that regard Article 5 of the directive obliges the Member States within specified periods to establish action programmes
         in respect of designated vulnerable zones, for the purpose of realising the objectives specified in Article 1. Those action
         programmes are to take into account available scientific and environmental conditions in the relevant regions. That provision
         further lays down requirements as to the content of the action programmes. On the one hand they are to consist of the mandatory
         measures laid down in Annex III to the directive (Article 5(4)). On the other hand, Article 5(5) provides that Member States
         are to take additional measures or reinforced actions if the measures provided for in the directive do not appear to be sufficient
         for achieving the objectives specified in Article 1.
      
      9.        Finally, under Article 12 the Member States were to bring into force the laws, regulations and administrative provisions necessary
         to comply with the directive within two years of its notification. That period expired on 19 December 1993.
      
      III –  Procedure
      10.      These infringement proceedings were preceded by a protracted prelitigation stage. That stage was initiated on 29 May 1995
         by service by the Commission of a formal letter of notice concerning the fact that Ireland had not within the period laid
         down informed the Commission of the laws, regulations and administrative provisions adopted by it in order to give effect
         to the directive, that it had omitted to designate vulnerable zones and also had failed to establish a code or codes of good
         agricultural practices. Following a series of supplementary formal letters of notice from the Commission and reactions to
         them by the Irish Government, on 9 February 2001 the Commission finally addressed a reasoned opinion to Ireland in connection
         with its failure to comply with the abovementioned obligations. The Commission also alleged that Ireland had infringed Article
         10 EC by not obtaining in due time the information requested. Since it was of the opinion that the measures notified and information
         furnished in that connection by Ireland were still unsatisfactory, on 2 October 2001 the Commission brought the present proceedings
         before the Court.
      
      11.      The Commission claims that the Court should:
      –        declare that Ireland has failed to fulfil its obligations under Directive 91/676/EEC concerning the protection of waters against
         pollution caused by nitrates from agricultural sources by failing, within the time-limits provided for in the directive, to
         completely identify waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I and to notify these
         to the Commission, to designate vulnerable zones pursuant to Article 3(2) and/or 3(4), to establish action programmes in accordance
         with Article 5, and to correctly and completely carry out monitoring and review of waters in accordance with Article 6(1)(a),
         (b) and (c); 
      
      –        order Ireland to pay the costs. 
      12.      There was no oral procedure in this case.
      IV –  Assessment
      13.      As I stated in my introduction Ireland contests only in part the infringement alleged by the Commission of the obligations
         under the directive. The point at issue concerns the question whether, viewed together, the measures adopted by Ireland in
         order to reduce or prevent pollution of water by nitrates from agricultural sources may be regarded as action programmes within
         the meaning of Article 5 of the Directive. If that is the case Ireland may rely on the exception in Article 3(5) pursuant
         to which the Member States are exempt from the obligation specifically to designate vulnerable zones if they establish the
         action programmes mentioned in Article 5 and apply them to the whole of their territory.
      
      14.      In that connection I would point out that reliance by the Irish Government on the exception in Article 3(5) is weakened by
         the fact that, in regard to the action concerning infringement of Article 5, it has conceded that the measures adopted do
         not wholly satisfy the requirements of that provision. None the less, it must be examined what requirements the directive
         lays down in connection with the action programmes to be established by the Member States and whether the Irish measures comply
         with them.
      
      15.      In that connection I would point out that although the issue of compliance with Article 5 of the directive by several Member
         States has been before the Court in a number of infringement proceedings, in its judgments the Court has not hitherto further
         examined the requirements to be satisfied by an action programme within the meaning of that provision. (3) For the purposes of a review of compliance with the obligations under that provision it is none the less useful to provide
         clarification on that point.
      
      16.      Neither in Article 2 (definitions) nor in Article 5 (action programmes) does the directive provide a definition of ‘action
         programme’. Nor does it lay down any express requirements concerning the form of the action programmes to be established by
         the Member States. That may be accounted for by the fact that it is to a certain extent obvious what is meant thereby. In
         general terms it will be a document which serves as an overarching framework for a series of projected measures aimed at the
         attainment of a specific objective within a specific time span. The notion of an action programme further presupposes that
         those measures are appropriate to that objective and that they are sufficiently coherent.
      
      17.      In other words an action programme is a self-standing policy instrument that is generally drawn up prior to the measures adopted
         for attainment of the policy objective concerned. Naturally that chronology does not preclude existing measures from also
         being incorporated into such a programme. The material factor is that an action programme constitutes an autonomous and recognisable
         framework for a set of measures by which it is sought to achieve a policy objective. That means that an action programme cannot
         merely by implication comprise a series of measures established for a specific objective.
      
      18.      It is in that sense that the notion of action programme in Article 5 of the directive must be construed. That an action programme
         constitutes a more comprehensive whole than a series of measures is also apparent from the wording and structure of that provision.
         Indeed, although in certain language versions of Article 5(4) an action programme may be regarded as equivalent to the measures
         to be adopted (‘bestaan uit ... maatregelen’, ‘consist of ... measures’, ‘consisterán en ... medidas’), other language versions
         suggest that the action programme must in fact be more comprehensive (‘contiennent les mesures ...’, ‘enthalten ... Maßnahmen’,
         ‘comprendono le misure ...’). That the latter construction is the correct one is confirmed by Article 5(5) in which all language
         versions provide that, ‘in the framework of the action programmes’, the Member States, are to adopt additional measures or
         reinforced actions in the situation referred to.
      
      19.      Article 5 goes on to set out, in conjunction with Annex III to the directive, a series of requirements which the national
         action programmes must satisfy. They must be aimed at attaining the twofold objective of the directive, namely the reduction
         and prevention of the pollution of waters by nitrates from agricultural sources (Article 5(1)). As regards their territorial
         scope action programmes may relate to all vulnerable zones in the territory of the Member State or to different vulnerable
         zones or parts of zones (Article 5(2)). By way of quality requirement they must be established in light of the available scientific
         and technical data and local environmental conditions (Article 5(3)). As to their content they must contain a number of specific
         mandatory measures (Article 5(4), in conjunction with Annex III), whilst Member States must take additional measures or reinforced
         actions if the measures provided for in the directive appear not to be sufficient for achieving the objectives specified in
         Article 1 (Article 5(5)). Finally, they must also be established for a period of four years (Article 5(7) in conjunction with
         Annex III, point 2(a) and (b)). (4)
      
      20.      It is in light of the foregoing that an assessment must be made as to whether the Irish Government can rely on Article 3(5).
      21.      In support of its reliance on Article 3(5) the Irish Government pointed to a series of measures adopted by both it and individual
         local authorities in order to implement the directive. Principally those are bye-laws enacted by four counties and referred
         to in Ireland’s defence as ‘Local Action Programmes’. Those bye-laws differ from county to county depending on the relevant
         local circumstances and environmental conditions. In regard to those bye-laws the Irish Government observes that the Commission
         has acknowledged that as to their content those bye-laws accord with the provisions of Annex III to the directive. For its
         part, it acknowledges none the less that those bye-laws are not applicable to certain intensive agricultural units which come
         under a special licensing scheme.
      
      22.      Further, under the heading of National Action Programmes it has mentioned an information booklet on good farming practice,
         nutrient management plans, proposals by local authorities for the conduct of farm surveys in order to determine environmental
         risks (which may result in warning letters) and on the Rural Environmental Protection Scheme (hereinafter ‘REPS’).
      
      23.      The Irish Government is of the view that those measures viewed together may substantively be regarded as action programmes
         within the meaning of Article 5 of the directive. None the less it acknowledges that it had not enacted all measures necessary
         in order to give effect to Article 5 at the time when the reasoned opinion was issued. It also acknowledges that it may be
         necessary to transpose certain of the measures adopted into binding rules in order fully to satisfy the requirements of Annex
         III to the directive. It also points out that where certain measures were coupled with the grant of a subsidy the Commission
         has incorrectly stated that those measures are voluntary.
      
      24.      The Commission is of the view that the measures mentioned by the Irish Government can neither individually nor collectively
         be regarded as an action programme within the meaning of Article 5 of the directive. Nor were those measures communicated
         to the Commission as measures giving effect to that provision. The measures adopted by the counties viewed together have only
         limited territorial scope. Substantively the measures adopted are on a number of points at variance with the requirements
         of Article 5 and Annex III. Thus Article 5 of the directive does not provide for the possibility of an exception for participation
         in a scheme such as REPS or for intensive agriculture. As regards the latter sector there is no guarantee that the requirements
         of the directive will be satisfied by virtue of the licensing scheme to which it is subject. Moreover, participation in REPS
         is voluntary and thus does not satisfy the requirements of Article 5 of the directive. The same holds true of the encouragement
         of good agricultural practices. In regard to the power of local authorities to compel intensive agricultural units to establish
         nutrient management plans the Commission points out that this power has not hitherto been availed of. The possibility of surveys
         in order to determine risks, which may result in a warning letter, cannot provide a substitute for the specific measures provided
         for in Annex III.
      
      25.      The point of law central to this case is, as I have already stated, whether the Irish Government has established an action
         programme within the meaning of Article 5 of the directive. In light of the foregoing observations in connection with the
         instrument known as the action programme the reply to this question will be brief.
      
      26.      First and foremost it is plain that the measures mentioned by the Irish Government do not form part of a general policy framework
         aimed at the attainment of a closely defined objective, as required by Article 5(1) of the directive. Moreover, those measures
         do not demonstrate a sufficient degree of coherence in order themselves to be deemed to constitute by implication an action
         programme. In addition there is no clear timetable for the attainment of a predetermined result. Nor, finally, do the Irish
         measures, in view of the fact that they are non-mandatory, comply substantively with the requirements laid down in Article
         5(4) in conjunction with Annex III.
      
      27.      The Irish Government has also indicated that it has not sought to contend that it has fully complied with the requirements
         of Article 5 of the directive. None the less, it is of the view that the measures outlined by it should be deemed to constitute
         the elements of an action programme.
      
      28.      Yet, as has already been adverted to above, a clear distinction must be drawn between, on the one hand, an action programme
         and, on the other, the measures adopted within that framework. Measures which may be adopted outside that framework cannot,
         even when viewed together, provide a substitute for the action programmes required by Article 5 of the directive.
      
      29.      In those circumstances and on the basis that the Irish Government does not contest the Commission’s allegations I am of the
         view that the Irish Government has failed to fulfil its obligations under Article 3(1), (2) and (4), Article 5 and Article
         6(1)(a), (b) and (c) of the directive.
      
      V –  Conclusion
      30.      Accordingly I propose that the Court should:
      –        declare that Ireland has failed to fulfil its obligations under Directive 91/676/EEC concerning the protection of waters against
         pollution caused by nitrates from agricultural sources by failing, within the time-limits provided for in the Directive, to
         completely identify waters pursuant to Article 3(1) in accordance with the criteria set out in Annex I and to notify these
         to the Commission, to designate vulnerable zones pursuant to Article 3(2) and/or 3(4), to establish action programmes in accordance
         with Article 5, and to correctly and completely carry out monitoring and review of waters in accordance with Article 6(1)(a),
         (b) and (c); 
      
      –        order Ireland to pay the costs. 
      1 –	 Original language: Dutch.
      
      2  –	OJ 1991 L 375, p. 1.
      
      3  –	Judgments in Case C-274/98 Commission v Spain [2000] ECR I-2823, Case C-69/99 Commission v United Kingdom [2000] ECR I-10979, Case C-266/00 Commission v Luxembourg [2001] ECR I-2073, Case C-127/99 Commission v Italy [2001] ECR I-8035 and Case C-161/00 Commission v Germany [2002] ECR I-2753.
      
      4  –	For the sake of completeness I would also point out that Article 5 further lays down two obligations which are not mandatory
         in regard to the action programmes as such.  Those are obligations concerning programmes for monitoring the effectiveness
         of action programmes (Article 5(6)) and the periodic review of the action programmes (Article 5(7)).