CELEX: 62000CJ0322
Language: en
Date: 2003-10-02
Title: Judgment of the Court (Sixth Chamber) of 2 October 2003. # Commission of the European Communities v Kingdom of the Netherlands. # Failure of a Member State to fulfil its obligations - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Article 5(4) and (5), paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III - Capacity of storage vessels for livestock manure - Limitation of the land application of fertilisers based on a balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to crops from the soil and from fertilisation - Ensuring that the amount of livestock manure applied to land each year does not exceed a specified amount per hectare - Provisions contained in a code of good agricultural practice and covering periods, conditions and procedures for the land application of fertilisers - Obligation to adopt any additional measures or reinforced actions necessary. # Case C-322/00.

Case C-322/00 Commission of the European CommunitiesvKingdom of the Netherlands
            «(Failure of a Member State to fulfil obligations – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – Article 5(4) and (5), paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III – Capacity of storage vessels for livestock manure – Limitation of the land application of fertilisers based on a balance between the foreseeable nitrogen requirements of crops
               and the nitrogen supply to crops from the soil and from fertilisation – Ensuring that the amount of livestock manure applied to land each year does not exceed a specified amount per hectare – Provisions contained in a code of good agricultural practice and covering periods, conditions and procedures for the land
               application of fertilisers – Obligation to adopt any additional measures or reinforced actions necessary)»
            
            
               
                  Opinion of Advocate General Léger delivered on 7 November 2002 
                     
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                  Judgment of the Court (Sixth Chamber), 2 October 2003  
                     
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            Summary of the Judgment
         
         
                  1..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Obligation of Member States to limit the amount of livestock manure applied to land each year – Obligation of Member States to adopt binding provisions concerning livestock manure storage capacity – Possibility of derogation – None – Member States allowed to authorise certain farms to depart from the minimum standard set by those provisions – Condition – Disposal, in a manner which will not cause harm to the environment, of manure which cannot be stocked – Burden of proof  (Council Directive 91/676, Art. 5(4)(a) and Annex III, point 1(2)) 
         
                  2..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Mandatory measures for limiting the land application of fertilisers – Requirement as to maximum amounts of fertiliser which may not be exceeded – Need to adopt use standards – Inadequacy of loss standards introduced by a national system  (Council Directive 91/676, Arts 2 and 5(4)(a), and Annex III, points 1(3) and (2)) 
         
                  3..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Mandatory measures for limiting the land application of fertilisers – Taking into account of the balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to crops
                     from the soil and from fertilisation – Obligation of Member States to take into account both the supply of nitrogen from net mineralisation of reserves of organic
                     nitrogen in the soil and all nitrogen inputs and outputs  
                  (Council Directive 91/676, Art. 5(4)(a), and Annex III, point 1(3)(ii), second indent) 
         
                  4..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Mandatory measures for limiting the land application of fertilisers – Requirement as to maximum amounts of fertiliser which may not be exceeded – Need to adopt use standards – Farms subject to making a declaration – Inadequacy of a system imposing loss standards – Farms exempt from making a declaration – Obligation of Member States to demonstrate the use of a permissible conversion method  (Council Directive 91/676, Art. 5(4) and Annex III, points 1(3) and 2, first subpara.) 
         
                  5..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Mandatory measures for limiting the land application of fertilisers – Requirement as to maximum amounts of fertiliser which may not be exceeded – Application by a Member State seeking to obtain a derogation – Justification – Objective criteria – Commission's discretion  (Council Directive 91/676, Art. 9 and Annex III, point 2 subpara. 2(b)) 
         
                  6..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Obligation of Member States to establish codes of good agricultural practice and to adopt provisions relating thereto which
                     are subject to the condition that they be relevant – Objective criteria  
                  (Council Directive 91/676, Arts 2(e) and (f), 4(1)(a) and 5 and Annex II A(1)) 
         
                  7..
                  Environment – Protection of waters against pollution caused by nitrates from agricultural sources  – Directive 91/676 – Implementation of action programmes applying to vulnerable zones – Obligation of Member States to take all additional measures necessary for the purpose of achieving the objective laid down
                     by the Directive – Obligation to implement them at the outset of the first action programme or at the time when they are first found to be necessary
                       
                  (Council Directive 91/676, Arts 1 and 5(4) and (5)) 
         
         1.
          Under Article 5(4)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural
         sources, action programmes to reduce the pollution of waters by nitrogen compounds in vulnerable zones, which Member States
         are to implement, must contain certain mandatory measures referred to in Annex III to the Directive. Those mandatory measures
         must include rules relating to the capacity of storage vessels for livestock manure, in accordance with paragraph 1(2) of
         Annex III. It is apparent from that provision that their capacity must exceed that required for 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 livestock manure in excess of the actual storage capacity will be disposed of in a manner which
         will not cause harm to the environment. Although the Directive allows the Member States a certain latitude as regards the precise method of implementing that provision,
         the fact remains that the objectives of Directive 91/676, in particular that of ensuring that for each farm or livestock unit
         the amount of livestock manure applied to the land each year, including by the animals themselves, does not exceed a specified
         amount per hectare, must be complied with by the Member States. Therefore, the final part of paragraph 1(2) of Annex III to
         the Directive must be interpreted as not enabling Member States to depart from their obligation under the Directive to adopt
         binding laws or regulations as regards storage capacity for livestock manure on farms, but as merely allowing them to authorise
         certain farms to depart from the minimum standard set by those provisions, on a case-by-case basis, to the extent that it
         is demonstrated that the livestock manure which cannot be stored on the farm will be disposed of in a manner which will not
         cause harm to the environment. Fragmentary legislation cannot discharge the obligation of a Member State to establish an action
         programme which contains mandatory measures with a view to attaining the relevant specific objectives of the Directive. see paras 44-48
         
         2.
          Under Article 5(4)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural
         sources, in conjunction with paragraph 1(3) of Annex III, the measures to be included in action programmes applying to vulnerable
         zones include rules relating to limits on the land application of fertilisers based on a balance between the foreseeable nitrogen
         requirements of crops and the nitrogen supply to crops from the soil and from fertilisation. In accordance with paragraph
         2 of Annex III to the Directive, those measures must ensure that the amount of livestock manure applied to the land each year
         does not exceed a specified amount per hectare. To the extent that, as provided in Article 2(e) of the Directive, the fertiliser
         applied to land may be livestock manure, that requirement can be satisfied only by means of use standards for fertilisers,
         that is to say, standards fixing the maximum amount of fertiliser which may be applied to soil. Loss standards such as those
         provided for under a system to regulate the use of fertilisers which has the aim of reducing farming losses of nitrogen and
         phosphates through seepage into the environment and under which farmers are required to declare input and output amounts for
         substances in relation to production on their farm and the difference between those two values (the  
         loss), must not exceed certain limits, unless the farmer is prepared to pay a tax, can only indirectly limit the land application
         of fertilisers and cannot limit the use of a specific kind of fertiliser.  Use standards such as those required by Directive 91/676 are applied beforehand and appear to be necessary for the purpose
         of reducing and preventing pollution, while the loss standards under that system, based on the idea of a balanced use of nitrogen
         and phosphates by farmers, are applied at a subsequent stage of the nitrogen cycle, and any exceeding of those loss standards
         will necessarily contribute to pollution. see paras 71-72, 74
         
         3.
          Under Article 5(4)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural
         sources, in conjunction with paragraph 1(3) of Annex III, the measures to be included in action programmes applying to vulnerable
         zones include rules relating to limits on the land application of fertilisers based on a balance between the foreseeable nitrogen
         requirements of crops and the nitrogen supply to crops from the soil and from fertilisation, those rules having to take the
         form of use standards, that is to say standards fixing the maximum amount of fertiliser which may be  applied to soil. In order to determine that balance, which appears to be essential for the purposes of setting the use standards, Member States
         must, inter alia, take into account, in accordance with the second indent of paragraph 1(3)(ii) of Annex III to the  Directive,
         the supply of nitrogen from net mineralisation of reserves of organic nitrogen in the soil. Furthermore, when establishing the balance required under paragraph 1(3) of Annex III, it is necessary to take into account
         all nitrogen inputs and outputs, in particular nitrogen input from nitrogen-fixing organisms living in the soil. Since papilionaceous
         plants are able to fix nitrogen, Directive 91/676 requires that they be taken into account. see paras 84-85, 94
         
         4.
          The action programmes applying to vulnerable zones required by Article 5(4) of Directive 91/676 concerning the protection
         of waters against pollution caused by nitrates from agricultural sources must contain the measures referred to in Annex III.
         Among those measures are rules relating to  
         limitation of the land application of fertilisers, which, in the words of the first subparagraph of paragraph 2 of the Annex, must ensure that  
         for each farm or livestock unit, the amount of livestock manure applied to the land each year, including by the animals themselves,
         shall not exceed a specified amount per hectare. First, as regards farms subject to making a declaration and thus within the scope of a system which regulates the use of fertilisers
         with the aim of reducing farming losses of nitrogen and phosphates through seepage into the environment and under which farmers
         are required to declare input and output amounts for substances in relation to production on their farm, and the difference
         between those two values (the  
         loss) must not exceed certain limits, unless the farmer is prepared to pay a tax, the loss standards established under such a
         system, inasmuch as they do not meet the obligation to include in the action programme the mandatory measures referred to
         in paragraph 1(3) of Annex III to Directive 91/676, do not correctly implement the Directive in that regard and therefore
         that system also cannot ensure compliance with the limits on the land application of livestock manure resulting from paragraph
         2 of Annex III. The wording of that provision makes it clear that it requires use standards, that is to say standards fixing
         the maximum amount of fertiliser which may be applied to soil, to be fixed so that Member States may lay down in advance that
         the amount of livestock manure applied to land is not to exceed the amount per hectare allowed. Secondly, as regards farms which are exempt from making a declaration and therefore not covered by that system, the measures
         adopted by Member States for the purpose of complying with the obligation flowing from paragraph 2 of Annex III to Directive
         91/676 must have the effect of limiting the land application of livestock manure in accordance with the limits fixed by that
         directive.  Even if a Member State is free to limit the application of livestock manure by means of use or input standards
         for phosphates, it must always demonstrate that the conversion method which it uses for that purpose is such as to ensure
         that the amount of livestock manure which is allowed to be applied to land in accordance with the phosphate standards does
         not exceed the limits on nitrogen fixed by the Directive. see paras 113-118
         
         5.
          Paragraph 2(b) of Annex III to Directive 91/676 concerning the protection of waters against pollution caused by nitrates from
         agricultural sources provides that, if a Member State authorises the annual application to land of amounts of livestock manure
         per hectare which differ from those expressly set out in that provision, it must inform the Commission, which will examine
         the justification in accordance with the procedure laid down in Article 9 of that directive. Those amounts must be fixed so
         as not to prejudice the achievement of the Directive's objectives and must be justified on the basis of objective criteria,
         such as long growing seasons or high net precipitation in the vulnerable zone. It is clear from that provision that it does not involve merely a procedure aimed at informing the Commission that derogating
         amounts are being adopted, but an obligation to justify the application for a derogation to the Commission, by reference to
         objective criteria. The Commission, for its part, may either accept the application for a derogation subject, where appropriate,
         to certain conditions or reject it. see paras 122 to 123
         
         6.
          Article 4(1)(a) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural
         sources requires Member States to establish a code or codes of good agricultural practice with the aim of ensuring a general
         level of protection against pollution for all waters. The action programmes applying to vulnerable zones which the Member
         States are required to establish pursuant to Article 5 of that directive must contain certain mandatory measures, including
         those which Member States have prescribed in the codes of good agricultural practice established in accordance with Article
         4. Paragraph A(1) of Annex II to that directive provides that codes of good agricultural practice, which seek to reduce pollution
         by nitrates and take account of conditions in the different regions of the Community, must contain provisions covering various
         items  
         in so far as they are relevant, including periods when the land application of fertiliser is inappropriate. In that regard, Article 2(e) of the Directive
         defines  
         fertiliser as any substance containing a nitrogen compound or compounds utilised on land to enhance growth of vegetation, including
         livestock manure. Article 2(f) defines  
         chemical fertiliser as any fertiliser which is manufactured by an industrial process. It follows that Annex II A to that directive refers to
         all fertilisers, not merely those which, like livestock manure, are of organic origin. Similarly, while Annex II A to the Directive requires that Member States' codes of good agricultural practice contain provisions
         covering the land application of fertiliser to steeply sloping ground, that obligation on the Member States is also subject
         to the condition that it be relevant. The relevance of the provisions referred to in Annex II A to Directive 91/676 must be evaluated only on the basis of objective
         criteria relating to the physical, geological and climatic conditions of each region. It follows that economic arguments are
         not sufficient to establish that the adoption of provisions concerning procedures for the land application of chemical fertilisers
         and livestock manure is not relevant. see paras 130-134, 136, 143, 155-156
         
         7.
          Pursuant to Article 5(5) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from
         agricultural sources, Member States are to take, in the framework of the action programmes applying to vulnerable zones, such
         additional measures or reinforced actions as they consider necessary if it becomes apparent,  
         at the outset or in the light of experience gained in implementing the action programmes, that the measures referred to in Article 5(4) will not be sufficient for achieving the objectives specified in Article 1.
         That provision does not allow Member States a choice as to which action programme will include additional measures or reinforced
         actions. They must take such measures or actions at the outset of the first action programme or in the light of experience
         gained in implementing the action programmes and therefore when they first observe a need for them. see paras 165-166
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)2 October 2003  (1)
         
         
            
         
               ((Failure of a Member State to fulfil its obligations – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – Article 5(4) and (5), paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III – Capacity of storage vessels for livestock manure – Limitation of the land application of fertilisers based on a balance between the foreseeable nitrogen requirements of crops
                  and the nitrogen supply to crops from the soil and from fertilisation – Ensuring that the amount of livestock manure applied to land each year does not exceed a specified amount per hectare – Provisions contained in a code of good agricultural practice and covering periods, conditions and procedures for the land
                  application of fertilisers – Obligation to adopt any additional measures or reinforced actions necessary))
               
               
            In Case C-322/00, 
            
            
             Commission of the European Communities,  represented by G. Valero Jordana  and C. van der Hauwaert, acting as Agents, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
             Kingdom of the Netherlands,   represented by J.G.M. van Bakel, acting as Agent,
            
            defendant, 
            
            APPLICATION for a declaration that, by failing to adopt the necessary legislative and administrative provisions laid down
            in Article 4 and Article 5(4) and (5) 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) and in paragraphs A(1), (2), (4) and
            (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III thereto, the Kingdom of the Netherlands has failed
            to fulfil its obligations under that directive,
            
            
            THE COURT (Sixth Chamber),,
            
            composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, V. Skouris, F. Macken (Rapporteur) and N. Colneric, Judges, 
            
            Advocate General: P. Léger, Registrar: H.A. Rühl, Principal Administrator, 
            
            
            having regard to the Report for the Hearing,after hearing oral argument from the parties at the hearing on 20 June 2002, at which the Commission was represented by G.
            Valero Jordana and H. van Vliet, acting as Agent, and the Kingdom of the Netherlands by J.G.M. van Bakel and H.G. Sevenster,
            acting as Agent,
            
            after hearing the Opinion of the Advocate General at the sitting on 7 November 2002,
         gives the following
         
         
         Judgment
         1
            
         By application lodged at the Court Registry on 30 August 2000, the Commission of the European Communities brought an action
         under Article 226 EC for a declaration that, by failing to adopt the necessary legislative and administrative provisions laid
         down in Article 4 and Article 5(4) and (5) 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, hereinafter  
         the Directive) and in paragraphs A(1), (2), (4) and (6) of Annex II and paragraph 1(2) and (3) and paragraph 2 of Annex III thereto, the
         Kingdom of the Netherlands has failed to fulfil its obligations under the Directive. 
         
            
               Legal framework
            Community legislation
         
         
         2
            
         Article 3(1), (2) and (5) of the Directive reads as follows: 
         
         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.
          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.
         
         
         
         3
            
         In accordance with Article 4(1)(a) of the Directive, with the aim of providing for all waters a general level of protection
         against pollution, Member States are to establish, within a two-year period following the notification of the Directive, 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 to the Directive. 
         
         
         4
            
         Under Article 5 of the Directive: 
         
         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.
         
         
         6.
          ...
         
         
         7.
          Member States shall review and if necessary revise their action programmes, including any additional measures taken pursuant
         to paragraph 5, at least every four years. They shall inform the Commission of any changes to the action programmes.
         
         
         
         5
            
         Annex II to the Directive, entitled  
         Code(s) of Good Agricultural Practice, provides in Part A: A code or codes of good agricultural practice with the objective of reducing pollution by nitrates and taking account of conditions
         in the different regions of the Community should [contain] provisions covering the following items, in so far as they are
         relevant:
         
         1.
          periods when the land application of fertiliser is inappropriate; 
         
         
         2.
          the land application of fertiliser to steeply sloping ground; 
         ...
         
         4.
          the conditions for land application of fertiliser near water courses; 
         ...
         
         6.
          procedures for the land application, including rate and uniformity of spreading, of both chemical fertiliser and livestock
         manure, that will maintain nutrient losses to water at an acceptable level.
         
         
         
         6
            
         Annex III to the Directive, entitled  
         Measures to be included in action programmes as referred to in Article 5(4)(a), reads as follows: 
         
         1.
          The measures shall include rules relating to:
         
         (1)
         periods when the land application of certain types of fertiliser is prohibited; 
         
         
         (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; 
         
         
         (3)
         limitation of the land application of fertilisers, consistent with good agricultural practice and taking into account the
         characteristics of the vulnerable zone concerned, in particular: 
         
         (a)
         soil conditions, soil type and slope; 
         
         
         (b)
         climatic conditions, rainfall and irrigation; 
         
         
         (c)
         land use and agricultural practices, including crop rotation systems; and to be based on a balance between:
         
         
         (i)
         the foreseeable nitrogen requirements of the crops and 
         
         
         (ii)
         the nitrogen supply to the crops from the soil and from fertilisation corresponding to: 
         
         
         
               ─
                  the amount of nitrogen present in the soil at the moment when the crop starts to use it to a significant degree (outstanding
                  amounts at the end of winter), 
               
         
         
         
         
               ─
                  the supply of nitrogen through the net mineralisation of the reserves of organic nitrogen in the soil, 
               
         
         
         
         
               ─
                  additions of nitrogen compounds from livestock manure, 
               
         
         
         
         
               ─
                  additions of nitrogen compounds from chemical and other fertilisers. 
               
         
         
         
         
         
         2.
          These measures will ensure that, for each farm or livestock unit, the amount of livestock manure applied to the land each
         year, including by the animals themselves, shall not exceed a specified amount per hectare. The specified amount per hectare [shall] be the amount of manure containing 170 kg N. However: 
         
         (a)
         for the first four-year action programme, Member States may allow an amount of manure containing up to 210 kg N; 
         
         
         (b)
         during and after the first four-year action programme, Member States may fix different amounts from those referred to above.
         These amounts must be fixed so as not to prejudice the achievement of the objective specified in Article 1 and must be justified
         on the basis of objective criteria, for example: 
         
         
         
               ─
                  long growing seasons, 
               
         
         
         
         
               ─
                  crops with high nitrogen uptake, 
               
         
         
         
         
               ─
                  high net precipitation in the vulnerable zone, 
               
         
         
         
         
               ─
                  soils with exceptionally high denitrification capacity. If a Member State allows a different amount under subparagraph (b), it shall inform the Commission which will examine the
                  justification in accordance with the procedure laid down in Article 9. 
               
         
         
         ...
         
         
         7
            
         Under Article 12 of the Directive, Member States were to bring into force the laws, regulations and administrative provisions
         necessary to comply with the Directive within two years from its notification. Since the Directive was notified to the Member
         States on 19 December 1991, they were to have implemented it in their national legal system by 10 December 1993 at the latest.
         
         National legislation
         
         
         8
            
         The Netherlands legislation on fertilisers and minerals which is intended to control the production of livestock manure combines
         two regimes. The first is meant to ensure the environmentally sound use of fertilisers. The second regulates the maximum production
         of livestock manure. 
         
         
         9
            
         The first of those two regimes, which is the only one at issue in this case, is based on a minerals taxation system called
         the  
         Mineralenaanfgiftesysteem (minerals accounting system, hereinafter  
         the MINAS system). 
         
         
         10
            
         The rights and obligations under the MINAS system are governed by Articles 14 to 54 of the Wet van 27 november 1986 houdende
         regelen inzake het verhandelen van meststoffen en de afvoer van mestoverschotten (Law of 27 November 1986 regulating trade
         in fertilisers and the disposal of surplus fertiliser) (Stbl. 1986, p. 590), as amended by the Law of 16 September 1999 (Stbl.
         1999, p. 406, hereinafter the  
         Meststoffenwet). 
         
         
         11
            
         The MINAS system regulates the use of fertilisers through the application of  
         loss standards. Its aim is to reduce farming losses of nitrogen and phosphates through seepage into the environment. In order to attain
         that objective, it requires farmers to prevent losses of nitrogen and phosphates which harm the environment. 
         
         
         12
            
         The MINAS system is based on the idea of a balanced use of nitrogen and phosphates by farmers. The input of nitrogen and phosphates
         prior to production must not exceed their output following production, plus a permitted loss. The  
         permitted loss is determined on the basis of the loss standards for nitrogen and phosphates laid down in the Meststoffenwet, which have
         been established with a view to protecting the environment.  
         
         
         13
            
         All farmers are required to pay a tax when the input of nitrogen and phosphates on a farm is greater than their output to
         an extent that exceeds the loss standards laid down in the law. The MINAS system covers the use of both livestock manure and
         other organic and chemical fertilisers. 
         
         
         14
            
         Articles 14 to 21 of Chapter IV of the Meststoffenwet provide for flat-rate taxes on mineral content. Articles 14, 15, 16
         and 18 are worded as follows: Article 14
         
         1.
          
         
         A
            
         flat-rate tax on mineral content means a regulatory charge imposed on any person or legal person or any association of persons or legal persons managing a
         farm that uses fertilisers or produces livestock manure.
         
         ...Article 15
         
         1.
          A tax shall be levied on the basis of the quantity of taxable fertiliser during one calendar year expressed in kilograms of
         phosphates.
         
         
         2.
          A tax shall be levied on the basis of the quantity of taxable fertiliser during one calendar year expressed in kilogrammes
         of nitrogen.
         Article 16The quantity of taxable fertiliser is defined as the sum of the quantity of  
         input fertiliser and the quantity of livestock manure produced, diminished in turn by:
         
         a.
          the quantity of  
         output livestock manure, 
         
         
         b.
          the absorption of fertiliser by crops, 
         
         
         c.
          permissible fertiliser loss ... . 
         Article 18The absorption of fertiliser by crops, as referred to in Article 16(b), is as follows for each hectare of the average agricultural
         area belonging to a farm in the calendar year in question:
         
         
         ─
            65 kilogrammes of phosphates and 300 kilogrammes of nitrogen for grassland; 
         
         
         
         ─
            50 kilogrammes of phosphates and 125 kilogrammes of nitrogen for arable land.
         
         
         
         15
            
         Article 19 of the Meststoffenwet defines the applicable loss standards. The standards become progressively more stringent
         according to a programme laid down by that law. 
         
         
         16
            
         Under the version of Article 20(1) of the Meststoffenwet applicable on the date relevant to this case, the tax was NLG 1.50
         per kg of nitrogen. 
         
         
         17
            
         Articles 22 to 28 of the Meststoffenwet lay down similar provisions for taxes on refined mineral content. 
         
         
         18
            
         Annex D to the Meststoffenwet contains an exhaustive list of the production inputs and outputs used to determine the taxable
         amount of nitrogen and phosphates. The amounts of nitrogen and phosphates in fertilisers prior to and following production
         are established on the basis of their weight and their actual nitrogen and phosphate content. Input and output of livestock
         manure in the production process is subject to stringent administrative constraints. 
         
         
         19
            
         Until 1 January 2001, some farms were exempt from the abovementioned taxes and therefore from the requirement to make a declaration
         in accordance with Articles 38 to 40 of the Meststoffenwet (hereinafter  
         exempt farms). These were certain arable and horticultural farms and extensive livestock farms with a livestock density of less than 2.5
         units of heavy livestock per hectare and with limited fertiliser input (for 1998 and 1999, 120 kg of phosphates per hectare
         for grassland and 100 kg of phosphates per hectare for arable land). If those inputs were exceeded, farms were automatically
         required to make a declaration. 
         Pre-litigation procedure
         
         20
            
         By letter of 5 January 1994, the Netherlands authorities notified the Commission of their intention to have recourse to Article
         3(5) of the Directive and thus to establish and apply the action programmes referred to in Article 5 throughout Netherlands
         territory. 
         
         
         21
            
         By letter of 16 December 1997, the Netherlands authorities presented such an action programme. According to that letter and
         the text of the Netherlands action programme appended to it, the latter comprised a whole series of rules intended to implement
         the Directive.  
         
         
         22
            
         Nevertheless, by letter of 11 June 1998, the Netherlands authorities informed the Commission that the action programme relating
         to dry sandy soils would not be ready until the autumn of 1998. 
         
         
         23
            
         By letter of 9 July 1998, the Commission replied that it was in the process of assessing the Netherlands action programme
         and that a new assessment would take place when the measures relating to dry sandy soils were ready. 
         
         
         24
            
         By a letter sent to the Commission on 17 July 1998, the Netherlands authorities explained the approach which had been adopted
         to tackle the different parts of the Directive and announced that measures would be taken in order to make Netherlands legislation
         consistent with the Directive. 
         
         
         25
            
         After it had examined the Netherlands implementing measures, the Commission took the view that the Kingdom of the Netherlands
         had not fulfilled its obligations under: 
         
         
         ─
            Article 5(4)(a) of the Directive, in conjunction with paragraph 1(2) and (3) and paragraph 2 of Annex III; 
         
         
         
         ─
            Article 5(4)(b) of the Directive, in conjunction with paragraphs A(1), (2), (4) and (6) of Annex II, and 
         
         
         
         ─
            Article 5(5) of the Directive. 
         
         
         
         
         26
            
         Therefore, by letter of 29 September 1998, the Commission gave the Kingdom of the Netherlands notice to submit its observation
         on the matter within two months.  
         
         
         27
            
         By letter of 8 October 1998, the Netherlands authorities communicated to the Commission a list and the texts of the provisions
         of domestic law adopted in the field governed by the Directive, in accordance with Article 12(1) and (3) thereof. They also
         replied to the letter of formal notice by letter of 7 December 1998, which was subsequently supplemented by proposed amendments
         to the Meststoffenwet which were notified to the Commission on 4 April 1999. 
         
         
         28
            
         Since it was not satisfied with the reply by the Netherlands authorities, the Commission, by letter of 3 August 1999, delivered
         a reasoned opinion requesting the Kingdom of the Netherlands to take the necessary measures to comply with the obligations
         flowing from the Directive within two months of its notification. 
         
         
         29
            
         By letter of 28 September 1999, the Netherlands authorities requested an additional two months in which to reply to the reasoned
         opinion. They replied to that opinion by letter of 6 December 1999. 
         
         
         30
            
         The Commission has stated in its reply that it accepts, for the purposes of these proceedings, that the question whether the
         Kingdom of the Netherlands has failed to fulfil its obligations as alleged should be assessed as at the date when the latter
         replied to the reasoned opinion, that is 6 December 1999. That date must therefore, for the purposes of these proceedings,
         be considered the end of the period laid down in the reasoned opinion. 
         
         
         31
            
         Since it was not satisfied with the reply by the Netherlands authorities to the reasoned opinion, the Commission decided to
         bring the present action. 
         The action
         
         32
            
         The Commission put forward six pleas in law in support of its action. However, at the hearing it withdrew its second plea,
         which therefore need not be examined. 
         
         
         33
            
         Before considering the other pleas, it is first appropriate to recall the mandatory legislative path laid down by the Directive.
         
         
         
         34
            
         As is clear from Article 3(1) and (2) and Article 5 of the Directive, in conjunction with Annex III thereto, Member States
         are required to meet the following obligations, among others: 
         
         
         ─
            to identify as waters affected by pollution or which could be affected by pollution if action pursuant to Article 5 is not
            taken not only water intended for human consumption, but all surface freshwaters and groundwater which contain or could contain
            more than 50 mg/l of nitrates (Article 3(1), in conjunction with Annex I); 
         
         
         
         ─
            to designate as vulnerable zones, by 20 December 1993 at the latest, all known areas of land in their territories which drain
            into the waters identified as affected or potentially affected by pollution in accordance with Article 3(1) of the Directive
            (Article 3(2)) or choose to establish and apply the action programmes referred to in Article 5 of the Directive throughout
            their national territory (Article 3(5)); 
         
         
         
         ─
            to establish, by 20 December 1993 at the latest, a code or codes of good agricultural practice (Article 4(1)); 
         
         
         
         ─
            to establish, by 20 December 1995 at the latest, the first four-year action programme intended to reduce the pollution of
            waters by nitrates and to prevent further such pollution (Article 5). By 20 December 1995, all the measures mentioned in Annex
            III must in principle have been adopted; and 
         
         
         
         ─
            to establish, by 20 December 1999 at the latest, the second four-year action programme. 
         
         
         The first plea, alleging infringement of Article 5(4)(a) of the Directive, in conjunction with paragraph 1(2) of Annex III
         Arguments of the parties
         
         
         35
            
         In its first plea, the Commission complains that the Kingdom of the Netherlands failed to include in its action programme
         any binding rules requiring that, on each farm or livestock unit, the capacity of storage vessels for livestock manure must
         exceed that required for storage throughout the longest period during which land application in the Netherlands is prohibited.
         It is irrelevant that the storage capacity at national, regional or sectoral level appears to be sufficient in the aggregate,
         since only the storage capacity on each farm matters. 
         
         
         36
            
         The Commission adds that the Netherlands authorities must first set the minimum storage capacity for farms through legally
         binding rules before they can, on a case-by-case basis, authorise farms which have proved that they will dispose of excess
         manure in a harmless manner to have a smaller storage capacity, in accordance with the final part of paragraph 1(2) of Annex
         III to the Directive. 
         
         
         37
            
         In any event, the Netherlands authorities acknowledged, in their reply to the reasoned opinion, that their legislation did
         not comply with Article 5(4)(a) of the Directive in conjunction with paragraph 1(2) of Annex III, by announcing that a new
         article would be inserted in the Meststoffenwet in order to serve as the legal basis for the adoption of a regulation requiring
         farms to have a minimum storage capacity of six months. That amendment to the Meststoffenwet and the adoption of the regulation
         had not yet taken place on 6 December 1999.  
         
         
         38
            
         The Netherlands Government refers to the Netherlands system for managing excess manure and contends that the storage capacity
         for livestock manure at national level is well above what is required in order to store manure throughout the longest period
         during which land application is prohibited, which, in the Netherlands, is from 1 September to 1 February, namely five months.
         In addition, total production of livestock manure has diminished as a result of measures to reduce the livestock population
         and the production of livestock manure. Moreover, the greater the amount of livestock manure disposed of by farms, the lower
         the risk of taxation under the MINAS system. Finally, application of all the relevant national rules directly results in livestock
         manure which is not used on farms or cannot be stored there being disposed of by farms in a manner which will not cause harm
         to the environment. 
         
         
         39
            
         The Netherlands Government disputes the Commission's argument that the capacity of storage vessels, in fulfilment of Article
         5(4)(a) of the Directive in conjunction with paragraph 1(2) of Annex III, must be laid down exclusively by an explicit, distinct
         and autonomous statutory measure. It maintains that the Netherlands has legally binding rules which implement the Directive
         correctly as regards the capacity of storage vessels for livestock manure. 
         
         
         40
            
         The Netherlands Government therefore concludes that, on 6 December 1999, the Netherlands already possessed the required storage
         capacity for livestock manure and that the Netherlands legislation in force produced the effect intended by the Directive.
         As regards the planned legislative amendment notified to the Commission during the pre-litigation procedure, the Government
         explains that it made a choice to apply in future a different policy, designed to make farmers aware of their responsibility
         as regards storage capacity for livestock manure produced on their farm. The amendment of the Meststoffenwet was adopted and
         published in December 2000 and notified to the Commission by letter of 22 March 2001. A regulation based on that law and requiring
         farmers to have storage capacity for livestock manure corresponding to six months of operation, except for those who demonstrate
         that the manure which they cannot store will be disposed of in a manner which will not cause harm to the environment, will
         enter into force during the second half of 2001. 
         Findings of the Court
         
         
         41
            
         The Directive seeks to create the instruments needed to ensure that waters in the Community are protected against pollution
         caused by nitrates from agricultural sources (Case C-293/97  
          Standley and Others  [1999] ECR I-2603, paragraph 39, and Case C-161/00  
          Commission   v  
          Germany  [2002] ECR I-2753, paragraph 42). 
         
         
         42
            
         Member States are therefore required, in accordance with the Directive, to define vulnerable zones (Article 3), encourage
         good agricultural practices (Article 4) and, in particular, draw up and implement action programmes to reduce the pollution
         of waters by nitrogen compounds in those zones (Article 5). 
         
         
         43
            
         According to the 11th recital in the preamble to the Directive, the action programmes should include measures to limit the
         land application of all nitrogen-containing fertilisers and, in particular, to set specific limits for the application of
         livestock manure. 
         
         
         44
            
         Under Article 5(4)(a) of the Directive, action programmes, which the Member States are to implement, must contain certain
         mandatory measures referred to in Annex III to the Directive. 
         
         
         45
            
         Those mandatory measures must include rules relating to the capacity of storage vessels for livestock manure, in accordance
         with paragraph 1(2) of Annex III. It is apparent from that provision that their capacity must exceed that required for 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 livestock manure in excess of the actual storage capacity will be disposed
         of in a manner which will not cause harm to the environment. 
         
         
         46
            
         Although the Directive allows the Member States a certain latitude as regards the precise method of implementing that provision,
         the fact remains that the Directive's objectives, in particular that of ensuring that for each farm or livestock unit the
         amount of livestock manure applied to the land each year, including by the animals themselves, does not exceed a specified
         amount per hectare, must be complied with by the Member States. 
         
         
         47
            
         Therefore, as the Commission has pointed out, the final part of paragraph 1(2) of Annex III to the Directive must be interpreted
         as not enabling Member States to depart from their obligation under the Directive to adopt binding laws or regulations as
         regards storage capacity for livestock manure on farms, but as merely allowing them to authorise certain farms to depart from
         the minimum standard set by those provisions, on a case-by-case basis, to the extent that it is demonstrated that the livestock
         manure which cannot be stored on the farm will be disposed of in a manner which will not cause harm to the environment. 
         
         
         48
            
         It follows that the Netherlands Government's argument that the Directive does not require Member States to adopt binding rules
         in order to comply with the obligations flowing from paragraph 1(2) of Annex III to the Directive cannot be accepted. Fragmentary
         legislation cannot discharge the obligation of a Member State to establish an action programme which contains mandatory measures
         with a view to attaining the relevant specific objectives of the Directive (see, to that effect, Case C-266/99  
          Commission  v  
          France  [2001] ECR I-1981, paragraph 30). 
         
         
         49
            
         Similarly, it is not sufficient, for the purpose of demonstrating that excess livestock manure is disposed of in a manner
         which will not cause harm to the environment, within the meaning of the provision, to state that under the MINAS system a
         tax can be levied on a farmer who does not comply with that requirement. Levying such a tax does not remedy the failure to
         comply with the obligation laid down by the Directive and, on the contrary, bears out the fact that the pollution of waters
         which the Directive seeks to prevent has already taken place. 
         
         
         50
            
         As regards the proposal to amend the Meststoffenwet and adopt a regulation governing storage capacity for livestock manure,
         the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation
         prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account
         of any subsequent changes (see Case C-127/99  
          Commission  v  
          Italy  [2001] ECR I-8305, paragraph 38, and Case C-122/02  
          Commission  v  
          Belgium  [2003] ECR I-833, paragraph 11). 
         
         
         51
            
         Since the regulation announced by the Netherlands Government was not adopted before the end of the period laid down in the
         reasoned opinion, it is not necessary to consider whether it constitutes proper implementation of the obligations flowing
         from paragraph 1(2) of Annex III to the Directive. 
         
         
         52
            
         In those circumstances, the Commission's first plea is well founded. 
         The third plea, alleging infringement of Article 5(4)(a) of the Directive, in conjunction with paragraph 1(3) of Annex III
         
         
         53
            
         By its third plea, the Commission claims that the Netherlands action programme does not include rules limiting the land application
         of fertilisers on the basis of a balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to
         crops from the soil and from fertilisation. This plea is divided into five parts, namely: 
         
         
         ─
            the incompatibility with the Directive of a system based on loss standards; 
         
         
         
         ─
            the overly high level at which the loss standards have been fixed; 
         
         
         
         ─
            the incompatibility with the Directive of the rate of the regulatory tax on fertilisers; 
         
         
         
         ─
            the failure to take into account the net mineralisation of reserves of organic nitrogen in the soil, and 
         
         
         
         ─
            the failure to take into account nitrogen input from nitrogen-fixing organisms living in the soil. 
         
         
         Incompatibility with the Directive of the loss standards, the level at which they are fixed and the amount of tax due when
         they are exceeded
         ─ Arguments of the parties
         
         
         54
            
         In the first part of the third plea, the Commission points out that the Directive requires action programmes to include rules
         limiting the land application of fertilisers. The Commission states that those rules must contain  
         input standards or  
         use standards, that is to say, standards fixing the maximum amount of fertiliser which may be applied to soil. Those maximum amounts must
         be fixed at levels which ensure a balance between nitrogen inputs and outputs.    
         
         
         55
            
         According to the Commission, the Netherlands legislation is incompatible with the Directive in that it does not include such
         use standards, but rather loss standards. Under the MINAS system, farmers are required to declare input and output amounts
         for substances in relation to production on their farm, and the difference between those two values (the  
         loss) must not exceed certain limits, unless the farmer is prepared to pay a tax. 
         
         
         56
            
         The Commission claims that the MINAS system is essentially an accounting system applied at the level of the farm unit, while
         the Directive is based on use norms which must be designed according to the situation of individual plots of land within a
         farm unit, taking into account, for example, their crops and soil.  
         
         
         57
            
         By the second part of the third plea, relating to the level at which the loss standards are set, the Commission takes the
         view that, even if those standards are allowed under the Directive, they are fixed at too high a level. They permit a significant
         divergence between production inputs and outputs, without any penalty in the form of a tax being imposed. The intended amendment
         of the Meststoffenwet should serve to lower the level of losses allowed, but not sufficiently. 
         
         
         58
            
         Finally, by the third part of the third plea, the Commission claims that the amount of tax due when loss standards are exceeded
         does not ensure that the balance sought by the Directive between the foreseeable nitrogen requirements of crops and the nitrogen
         supply from the soil and from fertilisation is achieved, since a farmer may decide to pay the tax rather than comply with
         the standards laid down. The taxes during the first four-year action programme were not high enough to ensure compliance with
         the requirements of the Directive and, on 6 December 1999, they were not exerting any prohibitive effect. The Commission points
         out that it obtained information from the Netherlands agricultural sectors concerned which shows that at least 10% of the
         farmers questioned prefer to pay the tax rather than comply with the standards laid down, since the cost of the tax is scarcely
         higher than that for transport. The Commission notes that the tax is not due to be increased until 1 January 2002.  
         
         
         59
            
         The Netherlands Government contends that the first part of the third plea is not admissible on the ground that it was first
         raised in the application, since the Commission limited itself during the pre-litigation procedure to criticising the level
         of the loss standards. 
         
         
         60
            
         On the merits, the Netherlands Government maintains that the limitation on the land application of fertilisers required under
         paragraph 1(3) of Annex III to the Directive can be achieved in various ways. It considers that the use of loss standards
         constitutes a valid means of limiting the application of fertilisers.  
         
         
         61
            
         The Netherlands Government argues that paragraph 1(3) of Annex III to the Directive provides two reference points which can
         form the basis for rules limiting land application, namely nitrogen supply and the balance between nitrogen supply and nitrogen
         requirements. The Netherlands legislation is based on the second reference point. Loss standards provide a good yardstick
         for measuring the impact of nitrogen compounds on the environment and are also able to ensure compliance with the objectives
         of the Directive. 
         
         
         62
            
         As regards the second part of the third plea, relating to the level at which loss standards are fixed, the Netherlands Government
         points out that nitrogen loss cannot be entirely avoided in agriculture and that the Directive permits such losses. That is
         apparent, inter alia, from paragraph A(6) of Annex II to the Directive, which requires procedures for the land application
         of chemical fertiliser and livestock manure which maintain nutrient losses to waters at an acceptable level. 
         
         
         63
            
         In any event, it states that, in response to the reasoned opinion, the Netherlands authorities decided to expedite the legislative
         programme intended to strengthen the standards applicable to losses, with the result that the tighter standards which were
         to be adopted in 2008 will come into force in 2003.  
         
         
         64
            
         As regards the third part of the third plea, relating to the system of taxes, the Netherlands Government explains the different
         applicable tax rates and maintains that such taxes, imposed where loss standards are exceeded, are more efficient for the
         purpose of achieving the objective of the Directive than criminal or administrative penalties. In addition, an increase in
         the tax on nitrogen and phosphates is planned and this increase, which comes into force on 1 January 2002, will ensure that
         excess fertilisers are effectively disposed of by farms and that the loss standards are not exceeded. 
         ─ Findings of the Court
         
         
         65
            
         As regards the plea put forward by the Netherlands Government that the first part of the third plea is inadmissible, it is
         settled case-law that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation
         procedure provided for by that provision and that, consequently, the reasoned opinion and the application must be based on
         the same complaints (see Case C-287/00  
          Commission  v  
          Germany  [2002] ECR I-5811, paragraph 18, and Case C-139/00  
          Commission  v  
          Spain   [2002] ECR I-6407, paragraph 18). 
         
         
         66
            
         However, that requirement cannot be stretched so far as to mean that in every case the statement of the subject-matter of
         the dispute in the reasoned opinion must be exactly the same as the form of order sought in the application, as long as the
         subject-matter of the dispute has not been extended or altered (see, to this effect, Case C-279/94  
          Commission  v  
          Italy  [1997] ECR I-4743, paragraph 25, and  
          Commission  v  
          Spain , cited above, paragraph 19). 
         
         
         67
            
         In the present case, it is apparent from the documents before the Court that the Commission neither altered nor extended the
         subject-matter of the dispute as defined in the reasoned opinion. 
         
         
         68
            
         It is clear from the latter that the Commission was complaining that the Kingdom of the Netherlands had, among other things,
         failed to impose measures in its action programme to ensure that the limitation of the land application of fertilisers would
         be based on a balance, and that it considered that the fact that the Meststoffenwet ─ and, accordingly, the MINAS system ─
         permitted losses infringed the requirement for balance laid down in the Directive. 
         
         
         69
            
         Although the arguments concerning this part of the third plea are presented in a slightly different manner in the application
         as compared to the reasoned opinion, it is nevertheless the case that the Commission continues to allege that the system laid
         down in the Meststoffenwet is not based on a balance between nitrogen requirements and nitrogen supply and that it authorises
         nitrogen losses to the environment.  
         
         
         70
            
         The plea of inadmissibility raised by the Netherlands Government must therefore be rejected. 
         
         
         71
            
         As to the merits, under Article 5(4)(a) of the Directive, in conjunction with paragraph 1(3) of Annex III, the measures to
         be included in action programmes include rules relating to limits on the land application of fertilisers based on a balance
         between the foreseeable nitrogen requirements of crops and the nitrogen supply to crops from the soil and from fertilisation.
          
         
         
         72
            
         In accordance with paragraph 2 of Annex III to the Directive, those measures must ensure that the amount of livestock manure
         applied to the land each year does not exceed a specified amount per hectare. To the extent that, as provided in Article 2(e)
         of the Directive, the fertiliser applied to land may be livestock manure, that requirement can be satisfied only by means
         of use standards for fertilisers. Loss standards such as those provided for under the MINAS system can only indirectly limit
         the land application of fertilisers and cannot limit the use of a specific kind of fertiliser.  
         
         
         73
            
         That interpretation of paragraph 1(3) of Annex III to the Directive is, moreover, confirmed by the objective of the Directive,
         referred to in paragraph 41 of this judgment, namely to create the instruments needed to ensure that waters in the Community
         are protected against pollution caused by nitrates from agricultural sources. 
         
         
         74
            
         Use standards such as those required by the Directive are applied beforehand and appear to be necessary for the purpose of
         reducing and preventing pollution, while the loss standards under the MINAS system are applied at a subsequent stage of the
         nitrogen cycle, and any exceeding of those loss standards will necessarily contribute to pollution. 
         
         
         75
            
         Furthermore, under Article 174(2) EC, pollution should as a priority be combated at source. In the context of the Directive,
         that means that nitrogen inputs must be limited to the fullest possible extent, a fact which also justifies setting use standards.
         Loss standards such as those provided for under the MINAS system are not sufficient in that regard, even if a tax must be
         paid when they are exceeded.  
         
         
         76
            
         The first part of the third plea is therefore well founded. 
         
         
         77
            
         The fact that, according to the Netherlands Government, input standards are to enter into force in the Netherlands on 1 January
         2002 cannot invalidate that finding, for the reasons already stated in paragraph 50 of this judgment. 
         
         
         78
            
         Since the first part of the third plea has been upheld, the second and third parts of that plea are devoid of purpose. As
         the establishment of loss standards, which forms the basis of the MINAS system, appears incompatible with the Directive, it
         does not matter whether the standards under that system are too high or whether the tax payable when they are exceeded is
         too low. 
         Failure to take into account the net mineralisation of reserves of organic nitrogen in the soil 
         ─ Arguments of the parties
         
         
         79
            
         By the fourth part of the third plea, the Commission claims that the Meststoffenwet does not lay down a binding obligation
         for farmers to take account of nitrogen inputs resulting from the net mineralisation of reserves of organic nitrogen in the
         soil, an omission which is incompatible with the Directive since that input is expressly referred to in the second indent
         of paragraph 1(3)(ii) of Annex III to the Directive. 
         
         
         80
            
         According to the Commission, net mineralisation is defined as the freeing of nitrogen through the degradation of reserves
         of organic nitrogen present in the soil, including the degradation of fertilisers introduced into the soil during the two
         or three preceding years. Net mineralisation relates not only to the deferred effects of fertiliser input but also to nitrogen
         input due to net mineralisation of the soil itself, which is potentially a very important factor. 
         
         
         81
            
         The MINAS system is based on losses at the level of the farm unit and takes into account only the total net mineralisation
         per farm. By contrast, the Directive, and in particular the assessment which is to serve as the basis for fixing use norms
         pursuant to paragraph 1(3) of Annex III, is based on a plot by plot approach, including as regards net mineralisation. The
         assessment should include consideration of nitrogen inputs and outputs by plot. For that purpose, the type of fertiliser used
         and crops grown obviously play an important role, including in net mineralisation. 
         
         
         82
            
         In short, the Commission considers that net mineralisation must be taken into account at the level of the plot when drawing
         up the assessment which must serve as the basis for fixing the use standards required under paragraph 1(3) of Annex III to
         the Directive. Since that has not been done in the Netherlands up until now, its legislation is incompatible with the Directive
         on this point. 
         
         
         83
            
         The Netherlands Government considers that net mineralisation results from the difference between the reduction of organic
         nitrogen reserves and the input of new reserves of organic nitrogen. It states that, on most farms in the Netherlands, the
         input and the reduction balance out, with the result that net mineralisation is zero. That being the case, there is no reason
         to make net mineralisation a specific entry in farm assessments registering inputs and outputs. According to the Netherlands
         Government, mineralisation, which results from fertilisation carried out in preceding years, is taken into account fully under
         the MINAS system. 
         ─ Findings of the Court
         
         
         84
            
         As has already been noted in paragraph 71 of this judgment, under Article 5(4)(a) of the Directive in conjunction with paragraph
         1(3) of Annex III, the measures to be included in action programmes include rules relating to limits on the land application
         of fertilisers based on a balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to crops
         from the soil and from fertilisation, those rules having to take the form of use standards.  
         
         
         85
            
         In order to determine that balance, which appears to be essential for the purposes of setting the use standards, Member States
         must, inter alia, take into account, in accordance with the second indent of paragraph 1(3)(ii) of Annex III to the Directive,
         the supply of nitrogen from net mineralisation of reserves of organic nitrogen in the soil.  
         
         
         86
            
         In the present case, the Commission has stated, without contradiction by the Netherlands Government, that the relevant provisions
         of Netherlands legislation, in particular the Meststoffenwet, do not lay down a binding obligation on farmers to take net
         mineralisation into account when determining the balance upon which use standards for the limitation of the land application
         of fertilisers must be based in accordance with paragraph 1(3) of Annex III to the Directive. 
         
         
         87
            
         The Netherlands Government, adopting a restrictive definition of potential sources of mineralisation, has merely asserted
         in that regard that net mineralisation is zero on most farms in the Netherlands and that the result of fertilisation carried
         out during the preceding years is fully taken into account under the MINAS system.  
         
         
         88
            
         In the light of the essential role of the balance referred to in paragraph 1(3) of Annex III to the Directive when laying
         down rules concerning the limitation of land application, it is clear that such an argument is not sufficient to justify the
         undisputed absence of binding rules requiring net mineralisation to be taken into account. 
         
         
         89
            
         As for the MINAS system, it is apparent from paragraphs 71 to 75 of this judgment that the loss standards which it envisaged
         are not capable of complying with the requirements flowing from paragraph 1(3) of Annex III to the Directive. 
         
         
         90
            
         In those circumstances, it must be held that the fourth part of the third plea is well founded. 
         Failure to take into account nitrogen input from nitrogen-fixing organisms living in the soil
         ─ Arguments of the parties
         
         
         91
            
         With regard to the balance between the foreseeable nitrogen requirements of crops and the nitrogen supplied to crops from
         the soil and from fertilisation, the Commission claims, in the fifth part of the third plea, that the national measures envisaged
         in paragraph 1(3) of Annex III to the Directive must take into account nitrogen input from nitrogen-fixing organisms living
         in the soil ─ which are important sources of nitrogen input for a considerable number of plots of land in the Netherlands
         ─ when drawing up the assessment referred to in that provision. According to the Commission, those organisms can be defined
         as bacteria present in the roots of certain plants such as papilionaceous plants, which can absorb nitrogen from the air and
         thereby ensure nitrogen input to the plant. As a result of their ability to fix nitrogen, papilionaceous plants have a limited
         nitrogen requirement and paragraph 1(3)(i) of Annex III to the Directive therefore requires this to be taken into account.
         
         
         
         92
            
         The Netherlands Government disputes the Commission's interpretation of paragraph 1(3) of Annex III to the Directive as regards
         the need to take into account the nitrogen input from nitrogen-fixing organisms living in the soil. 
         
         
         93
            
         In any event, it contends that as at 6 December 1999 the fixing of nitrogen by papilionaceous plants was not yet of any interest
         from the perspective of the MINAS system. Those plants are primarily grown on farms which in 1999 were in general exempt from
         the requirement to make a declaration. It also states that an amendment of the Meststoffenwet being considered at present
         seeks to take into account, as a nitrogen input, the fixing of nitrogen by papilionaceous crops. 
         ─ Findings of the Court
         
         
         94
            
         When establishing the balance required under paragraph 1(3) of Annex III to the Directive, it is necessary to take into account
         all nitrogen inputs and outputs. Since papilionaceous plants are able to fix nitrogen, the Directive requires that they be
         taken into account. 
         
         
         95
            
         The argument of the Netherlands Government that the fixing of nitrogen by papilionaceous plants generally plays only a negligible
         role in cattle farms in the Netherlands and that those plants are primarily grown on farms not covered by the MINAS system
         is insufficient to establish that it is not necessary to take account of nitrogen inputs from nitrogen-fixing organisms living
         in the soil when establishing that balance. 
         
         
         96
            
         It is clear both from the reply of the Netherlands authorities to the reasoned opinion and from the observations which the
         Netherlands Government submitted to the Court that the Netherlands legislation applicable at the expiry of the period laid
         down in the reasoned opinion did not take into account, for the purpose of establishing the balance between the foreseeable
         nitrogen requirements of crops and the nitrogen supply to crops from the soil and from fertilisation, the nitrogen input from
         nitrogen-fixing organisms living in the soil, such as the bacteria present in the roots of papilionaceous plants, and that
         the Meststoffenwet should have been amended in that regard. Since that amendment had not yet come into force on 6 December
         1999, the fifth part of the third plea is also well founded. 
         
         
         97
            
         In the light of the foregoing, it must be held that the third plea as a whole is well founded.  
         The fourth plea, alleging infringement of Article 5(4)(a) of the Directive, in conjunction with paragraph 2 of Annex III
         Arguments of the parties
         
         
         98
            
         By its fourth plea, the Commission complains that the Kingdom of the Netherlands failed to include in its action programme
         measures ensuring that the amount of livestock manure applied to land each year does not exceed the amount per hectare permitted
         under the Directive. In that regard, both the Commission and the Netherlands Government examine separately the system applying
         to farms subject to the requirement to make a declaration, namely those which come under the MINAS system, and the system
         applying to farms exempt from that requirement, namely those not covered by the MINAS system. 
         ─ Farms subject to the requirement for a declaration
         
         
         99
            
         According to the Commission, the measures to be included in action programmes must ensure that, for each farm or livestock
         unit, the amount of livestock manure applied to the land each year does not exceed a specified amount per hectare. It points
         out that while Member States could lay down a use standard for the land application of livestock manure of 210 kg of nitrogen
         per hectare during the first four-year action programme, established by 20 December 1995 at the latest, by contrast, in the
         second four-year action programme, established by 20 December 1999 at the latest, they were to lower that standard to 170
         kg of nitrogen per hectare. 
         
         
         100
            
         As regards farms subject to the requirement for a declaration, the measures which implement paragraph 2 of Annex III to the
         Directive in Netherlands law are the standards laid down by the MINAS system. According to the Commission, that system is
         incompatible with the Directive, which requires use standards based on a balance between inputs and outputs. The loss standards
         of the MINAS system are not based on such a balance, since significant structural losses are permitted. Moreover, that system
         uses standards expressed in amounts of phosphates, rather than amounts of nitrogen as required by the Directive. If the Kingdom
         of the Netherlands applied the loss standards contained in the MINAS system, the permitted amount of nitrogen from livestock
         manure would be exceeded by far. 
         
         
         101
            
         As for the more stringent loss standards announced by the Netherlands authorities in response to the letter of formal notice
         and the use standards which they plan to establish, the Commission points out that these were not yet part of national legislation
         and were not in force at the end of the period laid down in the reasoned opinion, so that they must not be taken into account
         in assessing whether the alleged failure to fulfil obligations has in fact occurred. 
         
         
         102
            
         The Netherlands Government reaffirms, first of all, that several systems are conceivable for the purpose of complying with
         the requirements of paragraph 2 of Annex III to the Directive, including the MINAS system. It considers that paragraph 2 of
         Annex III is simply intended to indicate the required effect of the measures laid down in action programmes and does not require
         Member States to adopt use standards, in contrast to what the Commission maintains. 
         
         
         103
            
         The Netherlands Government states that the use of livestock manure is governed in the Netherlands by standards applying to
         phosphates which limit the use of livestock manure and, accordingly, the amount of nitrogen spread on or ploughed into the
         soil with fertilisers. The standards applying to phosphates can easily be converted into amounts of nitrogen by the use of
         a nitrogen/phosphates ratio. 
         
         
         104
            
         The Netherlands Government explains the method which it uses to calculate the amount of nitrogen applied to land in the Netherlands
         on the basis of phosphate loss standards and considers that the calculations show that the amount of nitrogen which can be
         applied to arable land is the same as that laid down by the Directive for the first action programme, namely 210 kg of nitrogen
         per hectare. 
         
         
         105
            
         On the other hand, it admits that, for grassland, the quantity of nitrogen which can be applied in the Netherlands, namely
         300 kg per hectare, exceeds the limit of 210 kg per hectare permitted by the Directive. It confirms that it did not inform
         the Commission of its intention to authorise that different amount, as required under paragraph 2(b) of Annex III to the Directive,
         and explains that it considered at the time that an alternative method of implementing the Directive was acceptable, provided
         that the latter's objectives were observed. 
         
         
         106
            
         In any event, it considers that under paragraph 2(b) of Annex III to the Directive a Member State may depart from the amounts
         indicated in paragraph 2, provided that those objectives are complied with. The Member State merely has the obligation to
         inform the Commission of this. 
         ─ Exempt farms
         
         
         107
            
         The Commission takes the view that the measures in the Netherlands action programme which apply to farms not covered by the
         MINAS system do not meet the requirements of Article 5(4)(a) of the Directive, in conjunction with paragraph 2 of Annex III.
         The use standards in question fix the maximum amount of phosphates which livestock manure applied to land may contain and
         not the maximum amount of nitrogen, as required by the Directive, and in any event exceed the maximum amount permitted under
         the Directive.  
         
         
         108
            
         In reply to the statement by the Netherlands Government that it is possible, in the case of arable land, to convert the phosphate
         use standards applicable to exempt farms into use standards complying with the Directive, expressed as amounts of nitrogen,
         the Commission maintains that, even if such a conversion is possible, it uses all sorts of variables which cannot ensure,
         contrary to paragraph 2 of Annex III to the Directive, that the applicable national standards for each plot correspond to
         those laid down in the Directive. 
         
         
         109
            
         As for grassland, the Commission points out that the Netherlands authorities admit that the applicable national standard as
         regards the use of phosphates was fixed at a higher level than that authorised for 1998 and 1999 by the Directive. The Commission
         disputes the argument of the Netherlands Government that a derogation in that regard was authorised pursuant to paragraph
         2(b) of Annex III to the Directive. 
         
         
         110
            
         The Netherlands Government states, first, that phosphate use standards are such as to limit nitrogen input. It explains that
         the effect of the conversion of the phosphate use standards into nitrogen use standards is that the amount of nitrogen which
         could be applied to arable land in the Netherlands in 1998 and 1999 was not incompatible with the amount authorised by the
         Directive for the period from 20 December 1998 to 20 December 2002. 
         
         
         111
            
         Second, the Netherlands Government contends that the amount authorised for grassland, which is greater than the limit of 210
         kg per hectare set by the Directive, was warranted by the high rate of nitrogen absorption by grassland in the Netherlands
         and by the transition from the system of use standards to that of loss standards. Moreover, it claims that that difference
         was notified to the Commission and is covered by the ability to derogate set out in paragraph 2(b) of Annex III to the Directive.
         
         
         
         112
            
         Finally, the Netherlands Government contends that all farms will be covered by the MINAS system as from 2001. 
         Findings of the Court
         ─ Farms subject to the requirement for a declaration
         
         
         113
            
         The action programmes required by Article 5(4) of the Directive must contain the measures referred to in Annex III. Among
         those measures are rules relating to  
         limitation of the land application of fertilisers, which, in the words of the first subparagraph of paragraph 2 of the Annex, must ensure that  
         for each farm or livestock unit, the amount of livestock manure applied to the land each year, including by the animals themselves,
         shall not exceed a specified amount per hectare. The specified amount corresponds to an amount of manure containing up to 170 kg of nitrogen, although Member States may
         authorise an amount of manure containing up to 210 kg of nitrogen under the first four-year action programme. 
         
         
         114
            
         In the light of the fact that, as is apparent from paragraphs 71 to 78 of this judgment, the Kingdom of the Netherlands has
         not met its obligation to include in the action programme the mandatory measures referred to in paragraph 1(3) of Annex III
         to the Directive, since the loss standards established under the MINAS system do not correctly implement the Directive in
         that regard, it follows that that system also cannot ensure compliance with the limits on the land application of livestock
         manure resulting from paragraph 2 of Annex III. 
         
         
         115
            
         The wording of paragraph 2 of Annex III to the Directive makes it clear that this provision requires use standards to be fixed
         so that Member States may lay down in advance that the amount of livestock manure applied to land is not to exceed the amount
         per hectare allowed. 
         
         
         116
            
         Therefore, the fourth plea must be held to be well founded as regards farms subject to the requirement for a declaration and
         therefore covered by the MINAS system. 
         ─ Exempt farms
         
         
         117
            
         As regards farms which do not come under the MINAS system and are therefore exempt from the Netherlands requirement to make
         a declaration, the measures adopted by Member States for the purpose of complying with the obligation flowing from paragraph
         2 of Annex III to the Directive must have the effect of limiting the land application of livestock manure in accordance with
         the limits fixed by the Directive. 
         
         
         118
            
         Even if a Member State is free to limit the application of livestock manure by means of use or input standards for phosphates,
         it must always demonstrate that the conversion method which it uses for that purpose is such as to ensure that the amount
         of livestock manure which is allowed to be applied to land in accordance with the phosphate standards does not exceed the
         limits on nitrogen fixed by the Directive. 
         
         
         119
            
         Even if the conversion method put forward by the Netherlands Government were permissible, it appears from the observations
         submitted to the Court that the figures used in those conversions are only averages and that disparities between farms may
         arise because of different outputs, the fact that the fertilisers used contain a different nitrogen/phosphates ratio or crop
         differences. It is clear that such a conversion method, which is, moreover, approximative, is not sufficient to ensure that
         the amount of livestock manure which is allowed to be applied to land does not exceed the limits on nitrogen fixed by the
         Directive.  
         
         
         120
            
         Moreover, as regards grassland, the Netherlands Government admits that the amounts allowed under its legislation exceed the
         limit of 210 kg of nitrogen per hectare allowed under the Directive for the first action programme.  
         
         
         121
            
         Finally, the argument put forward by the Netherlands Government that this difference is covered by the derogation set out
         in paragraph 2(b) of Annex III to the Directive cannot be upheld. 
         
         
         122
            
         Paragraph 2(b) of Annex III to the Directive provides that, if a Member State authorises the annual application to land of
         amounts of livestock manure per hectare which differ from those expressly set out in that provision, it must inform the Commission,
         which will examine the justification in accordance with the procedure laid down in Article 9 of the Directive. Those amounts
         must be fixed so as not to prejudice the achievement of the Directive's objectives and must be justified on the basis of objective
         criteria, such as long growing seasons or high net precipitation in the vulnerable zone. 
         
         
         123
            
         It is clear from that provision that it does not involve merely a procedure aimed at informing the Commission that derogating
         amounts are being adopted, but an obligation to justify the application for a derogation to the Commission, by reference to
         objective criteria. The Commission, for its part, may either accept the application for a derogation subject, where appropriate,
         to certain conditions or reject it.  
         
         
         124
            
         In any event, it is apparent from the documents before the Court that the Netherlands authorities applied for a derogation
         pursuant to paragraph 2(b) of Annex III to the Directive only in April 2000, that is to say, well after the period for applying
         the first action programme.   It follows that the argument of the Netherlands Government that the exceeding of the amounts
         of livestock manure authorised for application to land was covered by the derogation laid down in that provision cannot be
         accepted. 
         
         
         125
            
         In the light of the foregoing, the fourth plea as a whole must be held to be well founded. 
         The fifth plea, alleging infringement of Article 5(4)(b) of the Directive, in conjunction with Article 4(1)(a) and with  paragraphs
         A(1), (2), (4) and (6) of Annex II
         
         
         126
            
         The Commission complains that the Kingdom of the Netherlands failed to include in its action programme the following measures
         which, in its submission, must be contained in the code or codes of good agricultural practice adopted in accordance with
         Article 4(1)(a) of the Directive: 
         
         
         ─
            provisions covering periods when the land application of fertiliser other than livestock manure is inappropriate; 
         
         
         
         ─
            provisions covering the land application of fertiliser to steeply sloping ground; 
         
         
         
         ─
            provisions covering the conditions for land application of fertiliser near water courses, and 
         
         
         
         ─
            provisions covering the procedures for land application of chemical fertiliser and livestock manure in order to limit nutrient
            losses to waters. 
         
         
         The absence of provisions covering periods when the land application of fertiliser other than livestock manure is inappropriate
         ─ Arguments of the parties
         
         
         127
            
         The Commission notes that, in the Netherlands, the application to land of livestock manure is prohibited by a decree between
         1 September and 1 February. By contrast, the Netherlands action programme does not contain an analogous provision relating
         to the land application of fertilisers other than livestock manure, namely inorganic fertilisers such as chemical fertiliser.
         The Commission takes the view that such a provision is relevant within the meaning of Annex II A to the Directive because,
         in the Netherlands, there are periods during which the land application of fertiliser is harmful and must therefore be considered
         inappropriate. The Netherlands authorities stated that they were going to communicate implementing measures with respect to
         this point to the Commission, but they had not done so by the end of the period laid down in the reasoned opinion. 
         
         
         128
            
         The Netherlands Government states that Netherlands legislation contains, in so far as it is relevant and taking into account
         the conditions prevailing in different regions, detailed provisions concerning the periods during which the application to
         land or ploughing in of livestock manure and other organic fertilisers is inappropriate. 
         
         
         129
            
         As regards the need to adopt provisions relating to the periods during which land application of inorganic fertilisers is
         inappropriate, the Netherlands Government contends that the application of the MINAS system dissuades farmers, from both an
         economic and agronomic perspective, from using fertilisers during a period when land application is not appropriate, since
         they would then be required to bear the cost not only of the chemical fertilisers but also of the tax levied. However, although
         the Netherlands Government considers that it is not relevant to the Netherlands to lay down provisions concerning periods
         during which the land application of inorganic fertilisers is inappropriate, it states that a draft law in that regard is
         in preparation. 
         ─ Findings of the Court
         
         
         130
            
         Article 4(1)(a) of the Directive requires Member States to establish a code or codes of good agricultural practice with the
         aim of ensuring a general level of protection against pollution for all waters. 
         
         
         131
            
         The action programmes which the Member States are required to establish pursuant to Article 5 of the Directive must contain
         certain mandatory measures, including those which Member States have prescribed in the codes of good agricultural practice
         established in accordance with Article 4. 
         
         
         132
            
         Paragraph A(1) of Annex II to the Directive provides that codes of good agricultural practice, which seek to reduce pollution
         by nitrates and take account of conditions in the different regions of the Community, must contain provisions covering various
         items  
         in so far as they are relevant, including periods when the land application of fertiliser is inappropriate. 
         
         
         133
            
         Article 2(e) of the Directive defines  
         fertiliser as any substance containing a nitrogen compound or compounds utilised on land to enhance growth of vegetation, including
         livestock manure. Article 2(f) defines  
         chemical fertiliser as any fertiliser which is manufactured by an industrial process.  
         
         
         134
            
         It follows that Annex II A to the Directive refers to all fertilisers, not merely those which, like livestock manure, are
         of organic origin. 
         
         
         135
            
         To the extent that the Netherlands Government relies on the existence of the MINAS system in order to deny the relevance to
         the Netherlands of provisions relating to periods during which land application of inorganic fertilisers is inappropriate,
         it is clear that the Kingdom of the Netherlands, by failing to adopt provisions covering all fertilisers, has failed to fulfil
         its obligation under Annex II A to the Directive. 
         
         
         136
            
         For the reasons which the Advocate General set out in points 101 to 104 of his Opinion, the relevance of the provisions referred
         to in Annex II A to the Directive must be evaluated on the basis of objective criteria such as the geological and climatic
         characteristics of each region. 
         
         
         137
            
         In the present case the Commission has stated, without contradiction, that a feature of the Netherlands climate is a rainy
         period running from September to January. If fertilisers are applied to land during that period, there is a high risk that
         rainwater flowing across the ground will result in the pollution of waters by nitrates. Such a circumstance makes it necessary
         for the State to specify periods during which the land application of fertilisers, including inorganic fertilisers, is inappropriate.
         
         
         
         138
            
         The Netherlands Government has not proved or even contended that statutory provisions for the periods during which the land
         application of chemical fertiliser is inappropriate already existed, either at the end of the period laid down in the Directive
         for the adoption of codes of good agricultural practice or at the end of the period laid down in the reasoned opinion. 
         
         
         139
            
         Since the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation
         prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account
         of any subsequent changes, a law intended to introduce provisions relating to chemical fertilisers after the end of that period
         is not sufficient to remedy the alleged failure to fulfil obligations. 
         
         
         140
            
         In the light of the foregoing, the first part of the fifth plea must be held to be well founded. 
         The absence of provisions covering the land application of fertiliser to steeply sloping ground
         ─ Arguments of the parties
         
         
         141
            
         The Commission claims that provisions relating to the land application of fertiliser on steeply sloping ground were not adopted
         within the period laid down in the Directive, namely before 20 December 1995. 
         
         
         142
            
         The Netherlands Government contends that the adoption of such provision is not relevant to the Netherlands within the meaning
         of Annex II A to the Directive. First, the Netherlands is a very flat country and, secondly, the MINAS system is such as to
         encourage farmers to use fertilisers sensibly on steeply sloping ground. 
         ─ Findings of the Court
         
         
         143
            
         While Annex II A to the Directive requires that Member States' codes of good agricultural practice contain provisions covering
         the land application of fertiliser to steeply sloping ground, that obligation on the Member States is also subject to the
         condition that it be relevant. 
         
         
         144
            
         It is therefore necessary to consider whether the adoption by the Kingdom of the Netherlands of the provisions envisaged in
         paragraph A(2) of Annex II to the Directive was relevant within the meaning of the first sentence in Annex II A. 
         
         
         145
            
         While it is true that the Netherlands is in general a very flat country, it is none the less the case that the Netherlands
         Government has merely contended that, under the MINAS system, the input of fertilisers, unaccompanied by provisions for avoiding
         their flow along slopes, would lead to the loss standards prescribed by that system being exceeded and, as a result, to the
         levying of a tax. It considers that farmers would therefore take appropriate measures to avoid such consequences.  
         
         
         146
            
         As may be seen from paragraphs 71 to 78 of this judgment, loss standards and the amount of tax payable when those standards
         are exceeded, as provided for by the MINAS system, are not sufficient either to reduce or to prevent pollution as required
         by the Directive. 
         
         
         147
            
         In those circumstances, the second part of the fifth plea is well founded. 
         The absence of provisions covering the conditions for land application of fertiliser near water courses
         ─ Arguments of the parties
         
         
         148
            
         The Commission states that it did not receive the provisions which the Kingdom of the Netherlands was required to adopt for
         the purpose of implementing paragraph A(4) of Annex II to the Directive, which provides that codes of good agricultural practice
         must contain provisions covering the conditions for land application of fertiliser near water courses. In any event, even
         if such provisions have been adopted, the Commission maintains that they should have been adopted by 20 December 1995 at the
         latest and implemented during the first action programme. 
         
         
         149
            
         The Netherlands Government contends that the period laid down by the Directive for the adoption of the provisions referred
         to in this part of the fifth plea expired on 20 December 1999, not 20 December 1995 as the Commission claims. The provisions
         required by the Commission have already been adopted and, moreover, notified to it. They are a national provision prohibiting
         discharges of fertiliser into surface waters, which came into force well before 20 December 1999, and the Lozingenbesluit
         open teelt en veehouderij, which was adopted on 27 January 2000. 
         ─ Findings of the Court
         
         
         150
            
         Even if the Netherlands provision prohibiting discharges of fertilisers into surface waters can be regarded as correctly implementing
         paragraph A(4) of Annex II to the Directive at least partially, it is clear from the fact that the other legislation upon
         which the Netherlands Government relies in order to deny failure to implement that provision of the Directive was adopted
         only on 27 January 2000 that the Kingdom of the Netherlands did not, in any event, adopt provisions covering the land application
         of fertiliser near water courses before the end of the period laid down in the reasoned opinion.  
         
         
         151
            
         The third part of the fifth plea is therefore well founded. 
         The absence of provisions covering the procedures for land application of chemical fertiliser and livestock manure in order
         to limit nutrient losses to waters
         ─ Arguments of the parties
         
         
         152
            
         In accordance with paragraph A(6) of Annex II to the Directive, the code of good agricultural practice must contain provisions
         covering procedures for land application of chemical fertiliser and livestock manure in order to limit nutrient losses to
         water. The Commission states that the Netherlands provisions in respect of chemical nitrogenous fertilisers had not been notified
         to it as at the date upon which it lodged its application. 
         
         
         153
            
         The Netherlands Government contends that such provisions are not relevant to the Netherlands for the purpose of Annex II A
         to the Directive, because of the existence of the MINAS system. Under that system, a farmer who applies livestock manure or
         chemical fertiliser to land in a non-uniform manner or in proportions exceeding the loss standards will be required to pay
         a tax. 
         
         
         154
            
         None the less, the Netherlands Government adds that an amendment of the law on livestock manure is in preparation and that
         rules specifically relating to the use of chemical fertilisers are also to be adopted. 
         ─ Findings of the Court
         
         
         155
            
         As is apparent from paragraph 136 of this judgment, only objective criteria relating to the physical, geological and climatic
         conditions of a region may be taken into account for the purpose of determining whether the items laid down in Annex II A
         to the Directive are relevant. 
         
         
         156
            
         It follows that economic arguments such as those derived by the Netherlands Government from the operation of the MINAS system
         are not sufficient to establish that the adoption of provisions concerning procedures for the land application of chemical
         fertilisers and livestock manure is not relevant. 
         
         
         157
            
         With regard to the legislative amendments which the Netherlands Government mentioned in its observations submitted to the
         Court, it need only be pointed out that, as is apparent from paragraph 50 of this judgment, the question whether a Member
         State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State
         at the end of the period laid down in the reasoned opinion. On 6 December 1999, legislative measures in respect of procedures
         for the land application of chemical fertiliser had not yet been adopted. 
         
         
         158
            
         In those circumstances, the fourth part of the fifth plea must also be held to be well founded and, accordingly, the plea
         as a whole is well founded. 
         The sixth plea, alleging infringement of Article 5(5) of the Directive
         Arguments of the parties
         
         
         159
            
         The Commission points out that, pursuant to Article 5(5) of the Directive, Member States are required, in the framework of
         the action programmes, to take 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 Article 5(4) of the Directive will not be sufficient for achieving the objectives specified in Article 1. 
         
         
         160
            
         According to the Commission, the Netherlands authorities acknowledged, in their response to the reasoned opinion, that their
         current general policy was insufficient for dry sandy soils and that additional measures were needed. They planned to implement
         more stringent standards concerning permitted excess amounts as from 2008/2010, a date brought forward to 2003 as a result
         of the Commission's reasoned opinion. 
         
         
         161
            
         Nevertheless, the Commission maintains that the measures proposed for dry sandy soils do not enable the objectives sought
         to be attained within the time-limit set. Those measures should have been taken, in accordance with Article 5(5) of the Directive,
         under the first action programme. 
         
         
         162
            
         The Netherlands Government considers that Article 5(5) of the Directive does not set a time-limit for the adoption of additional
         measures or reinforced actions. Those measures or actions must simply be taken in the context of the action programmes. 
         
         
         163
            
         In any event, it maintains that additional measures and reinforced action for sandy soils and silty soils will be implemented
         from 2003. It considers that, at the end of the time-limit laid down in the reasoned opinion, the Kingdom of the Netherlands
         was already complying with the obligations imposed on it by Article 5(5) of the Directive at that date. It adds that the Netherlands
         provisions should also satisfy that provision in the coming years, and at least by 20 December 2002.  
         Findings of the Court
         
         
         164
            
         Under Article 1, the Directive seeks to reduce water pollution caused or induced by nitrates from agricultural sources and
         to prevent further such pollution. 
         
         
         165
            
         Pursuant to Article 5(5), Member States are to take, in the framework of the action programmes, such additional measures or
         reinforced actions as they consider necessary if it becomes apparent,  
         at the outset or in the light of experience gained in implementing the action programmes, that the measures referred to in Article 5(4) will not be sufficient for achieving the objectives specified in Article 1.
         
         
         
         166
            
         Contrary to the Netherlands Government's submissions, that provision does not allow Member States a choice as to which action
         programme will include additional measures or reinforced actions. They must take such measures or actions at the outset of
         the first action programme or in the light of experience gained in implementing the action programmes and therefore when they
         first observe a need for them. 
         
         
         167
            
         In the present case, it is apparent from the documents before the Court that the Netherlands authorities were aware, during
         the implementation of the first action programme required by Article 5(1) of the Directive, of the need to take additional
         measures or reinforced actions, at least as regards dry sandy soils. During the pre-litigation stage, the Netherlands authorities
         acknowledged that their current policy in respect of those soils was insufficient and stated that they planned to take additional
         measures in that regard. 
         
         
         168
            
         In addition, while the Netherlands Government has stated in these proceedings that additional measures and reinforced actions
         for dry sandy soils and silty soils will come into force in 2003, it is apparent from the case-law cited in paragraph 50 of
         this judgment that in any event, as those measures and actions were not yet in force at the end of the period laid down in
         the reasoned opinion, they cannot be taken into account by the Court since the question whether a Member State has failed
         to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of that
         period. 
         
         
         169
            
         In those circumstances, without it being necessary to consider whether the adoption of those measures and actions could be
         regarded as constituting proper implementation of Article 5(5) of the Directive, the sixth plea must be held to be well founded.
         
         
         
         170
            
         In the light of the foregoing considerations, it must be held that, by failing to adopt the necessary laws, regulations and
         administrative provisions laid down in: 
         
         
         ─
            Article 5(4)(a) of the Directive, in conjunction with paragraph 1(2) and (3) and paragraph 2 of Annex III thereto; 
         
         
         
         ─
            Article 5(4)(b) of the Directive, in conjunction with Article 4(1)(a) thereof and paragraphs A(1), (2), (4) and (6) of Annex
            II thereto; and 
         
         
         
         ─
            Article 5(5) of the Directive, 
         
         the Kingdom of the Netherlands has failed to fulfil its obligations under the Directive.
         
         Costs
         171
            
         Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings. As the Commission has asked for costs to be awarded against the Kingdom of
         the Netherlands and the latter has failed in its submissions, it must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber)
         
         
         hereby: 
         
            
            1.
              Declares that by failing to adopt the necessary laws, regulations and administrative provisions laid down in:  
            
            
            ─
            Article 5(4)(a) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution
            caused by nitrates from agricultural sources, in conjunction with paragraph 1(2) and (3) and paragraph 2 of Annex III thereto;
            
            
            
            
            ─
            Article 5(4)(b) of the Directive, in conjunction with Article 4(1)(a) thereof and paragraphs A(1), (2), (4) and (6) of Annex
            II thereto; and 
            
            
            
            ─
            Article 5(5) of the Directive, 
            
             the Kingdom of the Netherlands has failed to fulfil its obligations under the Directive;  
            
            
            2.
              Orders the Kingdom of the Netherlands to pay the costs.  
            
            
                  Puissochet
               
               
                  Gulmann 
               
               
                  Skouris 
               
            
                  Macken
               
               
                  Colneric 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 2 October 2003. 
         
         
         
         
                  R. Grass 
               
               
                  J.-P. Puissochet  
               
            
         
         
         
                  Registrar
               
               
                  President of the Sixth Chamber
               
            
      
      
          1 –
            
             Language of the case: Dutch.