CELEX: 62009CJ0105
Language: en
Date: 2010-06-17
Title: Judgment of the Court (Fourth Chamber) of 17 June 2010.#Terre wallonne ASBL (C-105/09) and Inter-Environnement Wallonie ASBL (C-110/09) v Région wallonne.#References for a preliminary ruling: Conseil d'État - Belgium.#Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Action programmes in respect of vulnerable zones.#Joined cases C-105/09 and C-110/09.

Joined Cases C-105/09 and C-110/09
      Terre wallonne ASBL 
      And
      Inter-Environnement Wallonie ASBL 
      v
      Région wallonne
      (Reference for a preliminary ruling from the Conseil d’État (Belgium))
      (Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – Action programmes in respect of vulnerable zones)
      Summary of the Judgment
      Environment – Assessment of the effects of certain plans and programmes on the environment – Directive 2001/42 – Plan and
            programme – Meaning
      (European Parliament and Council Directive 2001/42, Arts 2(a) and 3(2)(a); Council Directives 85/337, Annexes I and II, and
            91/676, Art. 5(1))
      An action programme adopted pursuant to Article 5(1) of Directive 91/676 concerning the protection of waters against pollution
         caused by nitrates from agricultural sources is in principle a plan or programme covered by Article 3(2)(a) of Directive 2001/42
         on the assessment of the effects of certain plans and programmes on the environment since it constitutes a ‘plan’ or ‘programme’
         within the meaning of Article 2(a) of the latter directive and contains measures compliance with which is a requirement for
         issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Directive 85/337 on the assessment
         of the effects of certain public and private projects on the environment, as amended by Directive 97/11.
      
      (see para. 55, operative part)
JUDGMENT OF THE COURT (Fourth Chamber)
      17 June 2010 (*)
      
      (Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – Action programmes in respect of vulnerable zones)
      In Joined Cases C‑105/09 and C‑110/09,
      REFERENCES for a preliminary ruling under Article 234 EC from the Conseil d’État (Belgium), made by decisions of 11 March
         2009, received at the Court on 20 and 23 March 2009, in the proceedings
      
      Terre wallonne ASBL (C-105/09),
      Inter-Environnement Wallonie ASBL (C-110/09)
      
      v
      Région wallonne,
      THE COURT (Fourth Chamber),
      composed of J.‑C. Bonichot, President of the Chamber, C. Toader (Rapporteur), K. Schiemann, P. Kūris, and L. Bay Larsen, Judges,
      Advocate General: J. Kokott,
      Registrar: R. Şereş, Administrator,
      having regard to the written procedure and further to the hearing on 21 January 2010,
      after considering the observations submitted on behalf of:
      –        Inter-Environnement Wallonie ASBL, by J. Sambon, avocat,
      –        Région wallonne, by A. Gillain, avocat,
      –        the Belgian Government, by T. Materne and C. Pochet, acting as Agents,
      –        the Czech Government, by M. Smolek, acting as Agent,
      –        the European Commission, by S. Pardo Quintillán and J.-B. Laignelot, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 4 March 2010,
      gives the following
      Judgment
      1        These references for a preliminary ruling concern the interpretation of Article 3 of Directive 2001/42/EC of the European
         Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment
         (OJ 2001 L 197, p. 30). 
      
      2        The references have been made in the course of proceedings brought by (i) Terre wallonne ASBL and (ii) Inter-Environnement
         Wallonie ASBL against Région wallonne (the Region of Wallonia) for annulment of the order of the Walloon Government of 15
         February 2007 amending Book II of the Environment Code, which forms the Water Code, as regards the sustainable management
         of nitrogen in agriculture (Moniteur belge of 7 March 2007, p. 11118) (‘the contested order’).
      
       Legal context
       European Union law
       Directive 91/676/EEC
      3        Article 1 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused
         by nitrates from agricultural sources (OJ 1991 L 375, p. 1) provides:
      
      ‘This Directive has the objective of:
      –        reducing water pollution caused or induced by nitrates from agricultural sources and
      –        preventing further such pollution.’
      4        Article 3(1) and (2) of that directive provides:
      
      ‘1.      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.
      
      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.’ 
      
      5        Article 4 of that directive reads:
      
      ‘1.      With the aim of providing for all waters a general level of protection against pollution, Member States shall, within a two-year
         period following the notification of this Directive:
      
      (a)      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;
      
      …’
      6        Article 5 of that directive reads:
      
      ‘1.      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.
      
      2.       An action programme may relate to all vulnerable zones in the territory of a Member State or, where the Member State considers
         it appropriate, different programmes may be established for different vulnerable zones or parts of zones.
      
      3.       Action programmes shall take into account:
      (a)      available scientific and technical data, mainly with reference to respective nitrogen contributions originating from agricultural
         and other sources;
      
      (b)      environmental conditions in the relevant regions of the Member State concerned.
      4.      Action programmes shall be implemented within four years of their establishment and shall consist of the following mandatory
         measures:
      
      (a)      the measures in Annex III;
      (b)      those measures which Member States have prescribed in the code(s) of good agricultural practice established in accordance
         with Article 4, except those which have been superseded by the measures in Annex III.
      
      5.       Member States shall moreover take, in the framework of the action programmes, such additional measures or reinforced actions
         as they consider necessary if, at the outset or in the light of experience gained in implementing the action programmes, it
         becomes apparent that the measures referred to in paragraph 4 will not be sufficient for achieving the objectives specified
         in Article 1. In selecting these measures or actions, Member States shall take into account their effectiveness and their
         cost relative to other possible preventive measures.
      
      …’
      7        Annex III to Directive 91/676, headed ‘Measures to be included in action programmes as referred to in Article 5(4)(a)’, reads:
      
      ‘1.       The measures shall include rules relating to:
      …
      2.      the capacity of storage vessels for livestock manure; this capacity must exceed that required for storage throughout the longest
         period during which land application in the vulnerable zone is prohibited, except where it can be demonstrated to the competent
         authority that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which will
         not cause harm to the environment;
      
      …’
       Directive 2001/42
      8        Article 2 of Directive 2001/42 provides:
      
      ‘For the purposes of this Directive:
      (a)      “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as
         any modifications to them:
      
      –        which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared
         by an authority for adoption, through a legislative procedure by Parliament or Government, and 
      
      –        which are required by legislative, regulatory or administrative provisions;
      (b)      “environmental assessment” shall mean the preparation of an environmental report, the carrying out of consultations, the taking
         into account of the environmental report and the results of the consultations in decision-making and the provision of information
         on the decision in accordance with Articles 4 to 9;
      
      …’
      9        Article 3 of that directive reads:
      
      ‘1.       An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to
         in paragraphs 2 to 4 which are likely to have significant environmental effects.
      
      2.       Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
      (a)      which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management,
         telecommunications, tourism, town and country planning or land use and which set the framework for future development consent
         of projects listed in Annexes I and II to Directive 85/337/EEC, or
      
      (b)      which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of
         Directive 92/43/EEC.
      
      3.       Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications
         to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States
         determine that they are likely to have significant environmental effects.
      
      4.       Member States shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework
         for future development consent of projects, are likely to have significant environmental effects.
      
      5.       Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant
         environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining
         both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II,
         in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive.
      
      ...’
       Directive 85/337/EEC
      10      Article 1(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private
         projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73,
         p. 5) (‘Directive 85/337’), provides:
      
      ‘For the purposes of this Directive:
      “project” means: 
      –        the execution of construction works or of other installations or schemes,
      –        other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;
      …’ 
      11      Article 4(1) of Directive 85/337 provides that projects listed in Annex I to that directive are to be made subject to an environmental
         impact assessment.
      
      12      Article 8 of that directive reads:
      
      ‘The results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration
         in the development consent procedure.’
      
      13      Annex I to Directive 85/337, headed ‘Projects subject to Article 4(1)’, provides:
      
      ‘…
      17.      Installations for the intensive rearing of poultry or pigs with more than:
      (a)      85 000 places for broilers, 60 000 places for hens;
      (b)      3 000 places for production pigs (over 30 kg); or
      (c)      900 places for sows.
      …’
      14      Annex II to that directive, headed ‘Projects subject to Article 4(2)’, lists:
      
      ‘1.      Agriculture, silviculture and aquaculture
      …
      (b)      Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes;
      …
      (e)      Intensive livestock installations (projects not included in Annex I);
      …’
       Directive 2003/35/EC
      15      Recital 10 in the preamble to Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing
         for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending
         with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17)
         states:
      
      ‘Provision should be made in respect of certain Directives in the environmental area which require Member States to produce
         plans and programmes relating to the environment but which do not contain sufficient provisions on public participation, so
         as to ensure public participation consistent with the provisions of the Aarhus Convention [on access to information, public
         participation in decision-making and access to justice in environmental matters, concluded on behalf of the Community by Council
         Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1; “the Aarhus Convention”)], in particular Article 7 thereof.
         Other relevant Community legislation already provides for public participation in the preparation of plans and programmes
         and, for the future, public participation requirements in line with the Aarhus Convention will be incorporated into the relevant
         legislation from the outset.’
      
      16      Article 2 of that directive, headed ‘Public participation concerning plans and programmes’, provides:
      
      ‘...
      2.       Member States shall ensure that the public is given early and effective opportunities to participate in the preparation and
         modification or review of the plans or programmes required to be drawn up under the provisions listed in Annex I.
      
      ...
      5.       This Article shall not apply to plans and programmes set out in Annex I for which a public participation procedure is carried
         out under [Directive 2001/42] or under Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000
         establishing a framework for Community action in the field of water policy.’
      
      17      Annex I to Directive 2003/35, headed ‘Provisions for plans and programmes referred to in Article 2’, lists:
      
      ‘…
      (c)      Article 5(1) of [Directive 91/676].
      …’
       National law
      18      Directive 2001/42 was transposed into the law of the Region of Wallonia by Article D. 52 et seq. of Book I of the Environment
         Code (Moniteur belge of 9 July 2004, p. 54654). 
      
      19      Article D. 53 of that code provides:
      
      ‘1.      An environmental impact assessment shall be carried out, in accordance with Articles 52 to 61, for plans and programmes, and
         any modifications thereto, appearing in List I drawn up by the Government:
      
      (1)      which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management,
         land, telecommunications or tourism and set the framework for future development consent of projects appearing in the list
         drawn up under Article 66(2);
      
      (2)      which are subject to an assessment under Article 29 of the Law of 12 July 1973 on nature conservation.
      …
      3.       The Government may require an environmental impact assessment to be carried out under this chapter of plans or programmes
         that are likely to have a not insignificant impact on the environment and are not provided for by decree, regulation or administrative
         provisions.
      
      …’ 
      20      Article R. 47 of that code provides:
      
      ‘The list of plans and programmes referred to in Article 53(1) of the decretal part is set out in Annex V.’ 
      21      Annex V, adopted by the order of the Walloon Government of 17 March 2005 relating to Book I of the Environment Code (Moniteur belge of 4 May 2005, p. 21184), contains in particular the action programmes concerning air quality and land quality and the action
         programme for nature protection. The annex does not, however, include the action programme for the management of nitrogen
         in agriculture in vulnerable zones, which was introduced into the law of the Region of Wallonia for the first time by an order
         of 10 October 2002.
      
      22      With regard to the latter action programme specifically, the relevant provisions of the law of the Region of Wallonia currently
         in force are contained in the contested order.
      
      23      That order lays down the conditions applying to the management of nitrogen in agriculture throughout the Region of Wallonia.
         It also covers the management of nitrogen in vulnerable zones, where it constitutes the action programme required under Article
         5 of Directive 91/676. Vulnerable zones represent 42% of the land in that region and 54% of its productive agricultural land.
      
      24      Chapter IV of the contested order includes Section 3, headed ‘Conditions applicable to the management of nitrogen in agriculture
         throughout the Region of Wallonia’. That section contains Subsections 1 to 5, which apply throughout the region, including
         the vulnerable zones, and Subsections 6 and 7, which apply only to the vulnerable zones. All those subsections together form
         the action programme required under Article 5(1) of Directive 91/676.
      
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      25      By judgment of 22 September 2005 in Case C‑221/03 Commission v Belgium [2005] ECR I‑8307, the Court held that, by failing to adopt within the relevant time-limit the measures needed for the full
         and correct implementation of Directive 91/676, the Kingdom of Belgium had failed to fulfil its obligations under that directive.
      
      26      In order to comply with that judgment, the Walloon Government adopted the contested order in pursuance of Article 5 of Directive
         91/676. That order amends Book II of the Environment Code, which forms the Water Code, as regards the sustainable management
         of nitrogen in agriculture.
      
      27      Terre wallonne ASBL and Inter-Environnement Wallonie ASBL applied to the Conseil d’État (Council of State) for annulment of
         that order, claiming in particular that the programme which it contains was not subjected to an environmental assessment in
         accordance with Directive 2001/42. 
      
      28      The Walloon Government maintained that the programme for the management of nitrogen in agriculture does not fall within the
         scope of Directive 2001/42.
      
      29      The referring court is of the view that the possibility cannot be ruled out that action programmes such as the one referred
         to by Directive 91/676 are plans or programmes within the meaning of Directive 2001/42. It also observes that no provision
         of the law of the Region of Wallonia applicable at the date of adoption of the contested order made nitrogen management plans
         subject to an environmental impact assessment, that it is not necessarily established that that situation contravenes Directive
         2001/42 and that the correct application of European Union law is not so obvious as to leave no room for reasonable doubt.
      
      30      The Conseil d’État therefore decided to stay the proceedings and refer the following questions to the Court of Justice for
         a preliminary ruling:
      
      ‘1.      Is a nitrogen management programme relating to designated vulnerable zones that is required to be established by Article 5(1)
         of [Directive 91/676] a plan or programme under Article 3(2)(a) of [Directive 2001/42], which is prepared for agriculture,
         forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and
         country planning or land use, and does it set the framework for future development consent of projects listed in Annexes I
         and II to [Directive 85/337]?
      
      2.      Is a nitrogen management programme relating to designated vulnerable zones that is required to be established by Article 5(1)
         of [Directive 91/676] a plan or programme under Article 3(2)(b) of [Directive 2001/42] which, in view of the likely effect
         on sites, requires an assessment pursuant to Article 6 or 7 of [Directive 92/43], in particular when the nitrogen management
         programme in question applies to all the vulnerable zones designated in the Region of Wallonia?
      
      3.      Is a nitrogen management programme relating to designated vulnerable zones that is required to be established by Article 5(1)
         of [Directive 91/676] a plan or programme, other than one of those referred to in Article 3(2) of [Directive 2001/42], which
         sets the framework for future development consent in regard to which the Member States must under Article 3(4) [of Directive
         2001/42] determine whether they are likely to have significant environmental effects in accordance with [Article 3(5) of that
         directive]?’
      
       Consideration of the questions referred 
       First question 
      31      By its first question, the referring court is, in essence, asking the Court whether a programme for the management of nitrogen
         in agriculture such as the one at issue in the main proceedings is liable to constitute a plan or programme covered by Article 3(2)(a)
         of Directive 2001/42.
      
      32      First of all, as is apparent from Article 1 of Directive 2001/42, the fundamental objective of that directive is, where plans
         and programmes are likely to have significant effects on the environment, to require an environmental assessment to be carried
         out at the time they are prepared and before they are adopted.
      
      33      Where such an environmental assessment is required by Directive 2001/42, the directive lays down minimum rules concerning
         the preparation of the environmental report, the carrying out of consultations, the taking into account of the results of
         the environmental assessment and the communication of information on the decision adopted at the end of the assessment.
      
      34      In order to establish whether action programmes drawn up under Article 5(1) of Directive 91/676 (‘action programmes’) fall
         within the scope of Article 3(2)(a) of Directive 2001/42, it is necessary to consider, first, whether they are ‘plans and
         programmes’ within the meaning of Article 2(a) of that directive and, second, whether they fulfil the conditions laid down
         in Article 3(2)(a).
      
       Application of Article 2 of Directive 2001/42
      35      The Court finds first of all that action programmes are (i) subject to preparation by an authority at national, regional or
         local level or prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and (ii)
         required by legislative, regulatory or administrative provisions.
      
      36      It is also to be noted that Directive 91/676 requires such action programmes to be established for all ‘vulnerable zones’
         designated by Member States in pursuance of its provisions and that those programmes must include measures and actions of
         the type listed in Article 5, which are designed to combat nitrate pollution and which Member States are required to implement
         and monitor. The competent authorities must also periodically review whether measures and actions are appropriate and, where
         necessary, revise action programmes. 
      
      37      Moreover, as the Advocate General has stated in points 25 to 28 of her Opinion, such a finding is supported by recital 2 in
         the preamble to Directive 2003/35, and by Article 2(5) of that directive and Annex I thereto.
      
      38      In that regard, Directive 2003/35 requires public participation in the drawing up of certain plans and programmes relating
         to the environment in order to align European Union legislation with the Aarhus Convention. 
      
      39      It is apparent from recital 10 in the preamble to Directive 2003/35 that some Community legislation already contained provisions
         relating to public participation in the preparation of plans and programmes in line with the Aarhus Convention. Therefore
         Article 2(5) of that directive excludes from the scope of Article 2 ‘plans and programmes’ referred to in Annex I to the directive
         in respect of which such provisions were introduced under Directive 2001/42. Among those plans and programmes are action programmes
         referred to in Article 5(1) of Directive 91/676.
      
      40      It is true that Article 2(5) of Directive 2003/35 was adopted in the context of provisions concerning public participation
         in the preparation of certain plans and programmes relating to the environment. It would be inconsistent, however, to accept
         that action programmes fall within the scope of Article 2 of Directive 2001/42 in relation to provisions concerning public
         participation in respect of the adoption of the plan or programme, but that the same action programmes no longer fall within
         the scope of that provision where they touch upon environmental impact assessment. 
      
      41      Lastly, whilst not every legislative measure concerning the protection of water from nitrate pollution from agricultural sources
         constitutes a plan or a programme within the meaning of Directive 2001/42, the mere fact that such a measure is adopted by
         legislative means does not exclude it from the scope of that directive if it has the characteristics mentioned in paragraph
         36 above.
      
      42      It is clear from all the foregoing that, as a result both of the characteristics they display and of the actual intention
         of the European Union legislature, action programmes are ‘plans and programmes’ within the meaning of Directive 2001/42. 
      
       Application of Article 3(2)(a) of Directive 2001/42
      43      Article 3(2)(a) of Directive 2001/42 provides that a systematic environmental assessment is to be carried out for all plans
         and programmes which (i) are prepared for certain sectors and (ii) set the framework for future development consent of projects
         listed in Annexes I and II to Directive 85/337. 
      
      44      With regard to the first condition contained in Article 3(2)(a) of Directive 2001/42, suffice it to say that it is apparent
         from the very title of Directive 91/676 that action programmes are prepared for the agricultural sector. 
      
      45      With regard to the second condition, in order to establish whether action programmes set the framework for future development
         consent of projects listed in Annexes I and II to Directive 85/337, it is necessary to examine the content and purpose of
         those programmes, taking into account the scope of the environmental assessment of projects as provided for by that directive.
      
      46      Thus, so far as the purpose of action programmes is concerned, it is apparent from Directive 91/676, in particular the 9th
         to 11th recitals in the preamble, Articles 1 and 3 to 5 and the annexes, that those programmes involve a global examination,
         at the level of vulnerable zones, of the environmental issues linked to nitrate pollution from agricultural sources, and that
         they put in place an organised system designed to provide a general level of protection against such pollution.
      
      47      The specific nature of those programmes lies in the fact that they embody a comprehensive and coherent approach, providing
         practical and coordinated arrangements covering vulnerable zones and, where appropriate, the entire territory, for the reduction
         and prevention of pollution caused by nitrates from agricultural sources.
      
      48      As regards the content of action programmes, it is apparent from Article 5 of Directive 91/676, in conjunction with Annex
         III thereto, that those programmes are to contain specific, mandatory measures that cover, in particular, periods during which
         the spreading of certain types of fertiliser is prohibited, the capacity of storage vessels for livestock manure, spreading
         methods and the maximum quantity of livestock manure containing nitrogen which can be spread (see, to that effect, Case C‑416/02
         Commission v Spain [2005] ECR I‑7487, paragraph 34). Those measures are to ensure in particular, as point 2 of Annex III to Directive 91/676
         provides, 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, which is the amount of manure containing 170 kilograms
         of nitrogen.
      
      49      So far as the scope of environmental assessment provided for by Directive 85/337 is concerned, it should be noted first of
         all that the measures set out in action programmes concern intensive rearing installations listed in point 17 of Annex I and
         point 1(e) of Annex II to Directive 85/337. 
      
      50      In the context of environmental assessment provided for by Directive 85/337, the national authorities must take into account
         not only the direct effects of the planned works, but also the environmental impact liable to result from the use and exploitation
         of the end product of those works (Case C‑2/07 Abraham and Others [2008] ECR I‑1197, paragraph 43, and Case C‑142/07 Ecologistas en Acción-CODA [2008] ECR I‑6097, paragraph 39). 
      
      51      In particular, in the case of installations for intensive rearing, such an environmental assessment must envisage the impact
         of the installations on water quality (see, to that effect, Case C‑121/03 Commission v Spain [2005] ECR I‑7569, paragraph 88).
      
      52      As the Advocate General has rightly stated in point 80 of her Opinion, Article 8 of Directive 85/337 requires the environmental
         aspects which action programmes are intended to regulate to be taken into account when consent is given for projects to operate
         such installations. 
      
      53      Also, it is clear from Article 5(4) of Directive 91/676 that action programmes adopted under Article 5(1) must provide for
         a set of measures compliance with which can be a requirement for issue of the consent that may be granted for projects listed
         in Annexes I and II to Directive 85/337, and in respect of the definition of which Directive 91/676 gives Member States a
         certain discretion. That is so in particular in the case of measures concerning the storage of livestock manure provided for
         in Annex III to Directive 91/676 as regards the intensive rearing installation projects listed in Annexes I and II to Directive
         85/337.
      
      54      In such a situation, the existence and scope of which it is nevertheless for the national court to assess in the light of
         the action programme concerned, it must be held that the action programme is to be regarded, in respect of those measures,
         as setting the framework for future development consent of projects listed in Annexes I and II to Directive 85/337 within
         the meaning of Article 3(2)(a) of Directive 2001/42.
      
      55      In the light of all of the above considerations, the answer to the first question is that an action programme adopted pursuant
         to Article 5(1) of Directive 91/676 is in principle a plan or programme covered by Article 3(2)(a) of Directive 2001/42 since
         it constitutes a ‘plan’ or ‘programme’ within the meaning of Article 2(a) of the latter directive and contains measures compliance
         with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and
         II to Directive 85/337.
      
       Second and third questions
      56      In the light of the answer given to the first question, it is not necessary, in order to resolve the dispute in the main proceedings,
         to give a ruling on whether Article 3(2)(b) of Directive 2001/42 also requires an environmental impact assessment of action
         programmes. 
      
      57      There is therefore no need to answer the second question.
      
      58      Since Article 3(4) of Directive 2001/42 applies only where Article 3(2) is not applicable, there is no need to answer the
         third question.
      
       Costs
      59      Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Fourth Chamber) hereby rules:
      An action programme adopted pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection
            of waters against pollution caused by nitrates from agricultural sources is in principle a plan or programme covered by Article
            3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects
            of certain plans and programmes on the environment since it constitutes a ‘plan’ or ‘programme’ within the meaning of Article
            2(a) of the latter directive and contains measures compliance with which is a requirement for issue of the consent that may
            be granted for carrying out projects listed in Annexes I and II to Council Directive 85/337/EEC of 27 June 1985 on the assessment
            of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March
            1997. 
      [Signatures]
      * Language of the case: French.