Commission of the European Communities v Kingdom of Belgium.
Date: 2005-09-22
34. As a preliminary point, it should be remembered that under Article 92(2) of the Rules of Procedure the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case (Case C-152/98 Commission v Netherlands  [2001] ECR I‑3463, paragraph 22).
36. In that connection, it must be borne in mind that it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity both to comply with its obligations under Community law and to avail itself of its right to defend itself against the objections formulated by the Commission ( Commission  v Netherlands , paragraph 23).
37. It is also settled case-law that the proper conduct of that pre-litigation procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. It is only on the basis of a properly conducted pre-litigation procedure that the contentious procedure before the Court will enable the latter to judge whether the Member State has in fact failed to fulfil the specific obligations which the Commission alleges it has breached (see, inter alia, Case C-365/97 Commission v Italy  [1999] ECR I-7773, paragraph 35, and Case C-392/99 Commission v Portugal [2003] ECR I-3373, paragraph 133).
38. The subject-matter of an action brought under Article 226 EC is, therefore, delimited by the pre-litigation procedure provided for by that article. Accordingly, the action cannot be founded on any objections other than those stated in the pre-litigation procedure (see, to that effect, Case 51/83 Commission v Italy [1984] ECR 2793, paragraph 4, and Commission v Netherlands , paragraph 23).
39. That requirement cannot, however, go so far as to make it necessary that the national provisions mentioned in the reasoned opinion and in the application should always be completely identical. Where a change in the legislation occurred between those two procedural stages, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application (see Case 45/64 Commission v Italy [1965] ECR 857, Case C-42/89 Commission v Belgium [1990] ECR I-2821, Case C-105/91 Commission v Greece  [1992] ECR I‑5871, paragraph 13, and Case C-11/95 Commission v Belgium [1996] ECR I‑4115, paragraph 74).
40. The Court has also held that an action was admissible when it was concerned with new national measures introducing some exceptions into the system forming the subject-matter of the reasoned opinion, thus redressing in part the ground for complaint. Not to accept that the action was admissible in such circumstances could enable a Member State to block treaty-infringement proceedings by making a slight amendment to its legislation every time a reasoned opinion was notified, while in fact maintaining the legislation at issue (see Case C-203/03 Commission  v Austria  [2005] ECR I-0000, paragraph 30).
64. In that connection, it must be borne in mind that the Court has already held that it is clear from Article 3(1) and (2) of the Directive, in conjunction with Annex I thereto, that 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 groundwaters which contain or could contain more than 50 mg/l of nitrates, and
– to designate as vulnerable zones 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 or to choose to establish and apply the action programmes referred to in Article 5 of the Directive throughout their national territory (see, to that effect, Case C‑322/00 Commission  v Netherlands  [2003] ECR I-11267, paragraph 34).
79. Thus, the Belgian Government’s argument that the studies concerning the regions in question had not yet been completed cannot justify the Kingdom of Belgium’s failure to fulfil its obligations under Article 3 of the Directive. Article 3(1) and (2) impose the obligation to identify waters which are or could be affected by pollution if action pursuant to Article 5 of the Directive is not taken, and to designate as vulnerable zones all zones fulfilling the conditions laid down in Article 3(2) of the Directive. That obligation implies that the data needed for those purposes should be collected.
84. In that connection, it must be observed that the Court has already held that it would be incompatible with the Directive to restrict the identification of waters affected by pollution to cases where agricultural sources alone give rise to a concentration of nitrates in excess of 50 mg/1 when the Directive expressly provides that, in establishing the action programmes under Article 5, the respective nitrogen contributions originating from agricultural and other sources are to be taken into account (Case C-293/97 Standley and Others  [1999] ECR I‑2603, paragraph 31). Consequently, the mere fact that domestic or industrial waste also contributes to the nitrates levels in Walloon waters is not in itself sufficient to exclude application of the Directive.
86. In that connection, it must be observed that, according to a document supplied by the Belgian Government, Walloon agriculture contributes 19% of the total nitrogen in the Meuse basin and 17% of the total nitrogen in the Escaut basin. Those two rivers cross the Walloon Region and drain into the North Sea. It must be pointed out that, although minor, those contributions are by no means insignificant.
87. It is clear from paragraph 35 of the judgment in Standley and Others  that the Directive applies to cases in which the discharge of nitrogen compounds of agricultural origin makes a significant contribution to pollution.
108. Accordingly, it is not necessary to consider whether, as the Belgian Government contends, those provisions of Article 17 of the fertiliser decree correctly give effect to the obligations deriving from Annex III to the Directive. As the Court has held on numerous occasions, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court (see, in particular, Case C‑384/97 Commission  v Greece  [2000] ECR I-3823, paragraph 35).
130. As regards paragraph 1(3) of Annex III to the Directive, the Court has already held that, 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 (Case C‑322/00 Commission  v Netherlands , paragraph 71).