European Commission v French Republic.
Date: 2014-09-04
25. First, it must be recalled that Directive 91/676 seeks to create the instruments needed to ensure that waters in the European Union are protected against pollution caused by nitrates from agricultural sources (the judgment in Commission  v Netherlands , C‑322/00, EU:C:2003:532, paragraph 41 and case-law cited).
29. Under Article 5(3)(a) and (b) of Directive 91/676, and Annex II.A, point 1, thereto, those action programmes are to take into account the best available scientific and technical data (see, by analogy, the judgment in Commission  v Ireland , C‑418/04, EU:C:2007:780, paragraph 63, and the physical, geological and climatic conditions of each region (see, to that effect, Commission  v Netherlands , EU:C:2003:532, paragraphs 136 and 155).
30. It must also be stated that although the directive allows the Member States a certain latitude as regards the precise methods of implementing the requirements of Directive 91/676 (see, to that effect, Commission  v Netherlands , EU:C:2003:532, paragraph 46), they are, in all circumstances, obliged, as stated by the Advocate General in point 30 of her Opinion, to ensure that the objectives of Directive 91/676, and consequently the objectives of European Union policy in the area of the environment, are achieved, in accordance with the requirements of Article 191(1) and (2) TFEU.
31. Further, in accordance with well-established case-law of the Court, in relation to a directive which, like Directive 91/676, contains technical rules in the area of the environment, the Member States are under a particular duty, in order to satisfy fully the requirement of legal certainty, to ensure that their legislation intended to transpose that directive is clear and precise (see, to that effect, the judgments in Commission  v United Kingdom , C‑6/04, EU:C:2005:626, paragraphs 21 and 26, and Commission  v Belgium , C‑120/09, EU:C:2009:802, paragraph 27).
32. Last, according to the Court’s settled case-law, in proceedings for a declaration of failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (the judgment in Commission  v Cyprus , C‑340/10, EU:C:2012:143, paragraph 53 and case-law cited).
48. It must be observed in that regard that, as follows from, in particular, Article 38(1)(c) of the Court’s Rules of Procedure, in the version in force when this action was brought, and the Court’s case-law relating to that provision, any application lodged under Article 258 TFEU must state the subject-matter of the dispute and a summary of the pleas in law on which the application is based and that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application (the judgment in Commission  v Italy , C‑68/11, EU:C:2012:815, paragraph 51 and case-law cited). In accordance with settled case-law, that requirement is not satisfied if the Commission’s complaints are not set out in the application initiating the proceedings and simply appear by way of reference to the reasons set out in the letter of formal notice and in the reasoned opinion (the judgment in Commission  v Greece , C‑375/95, EU:C:1997:505, paragraph 35 and case-law cited).
49. Further, even if Article 42(2) of those Rules of Procedure, in the version in force when the Commission’s statement in reply was lodged, permit, subject to certain conditions, the production of new pleas in law, a party may not alter the very subject-matter of the dispute in the course of proceedings (see, to that effect, the judgments in Commission  v France , C‑256/98, EU:C:2000:192, paragraph 31 and Commission  v Slovenia , C‑627/10, EU:C:2013:511, paragraph 44).
51. None the less, it must be stated that by directing, in the course of proceedings, its action against the provisions of the order of 19 December 2011 which do no more than reproduce the periods of prohibition imposed in the order of 6 March 2001 on the land application of type II and III fertilisers on grasslands planted for more than six months, the Commission did not alter the subject-matter of the dispute (see, to that effect, the judgments in Commission  v Belgium , C‑221/03, EU:C:2005:573, paragraph 39, and Commission  v France , C‑197/12, EU:C:2013:202, paragraph 26). The Commission’s request for a declaration of failure to fulfil obligations with reference to the provisions of the order of 19 December 2011 which do no more than reproduce the prohibition periods established by the order of 6 March 2001 is admissible.
– Substance
52. First, according to the Court’s settled case-law, 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 (the judgment in Commission  v Italy , C‑85/13, EU:C:2014:251, paragraph 31 and case-law cited).
56. It must, secondly, be recalled that, in accordance with well-established case-law of the Court, infringement proceedings are based on the objective finding that a Member State has failed to fulfil its obligations under EU law, and consequently the Member State concerned cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to comply with obligations and time-limits laid down by a directive (see, to that effect, the judgments in Commission  v Ireland , C‑55/12, EU:C:2013:274, paragraph 45, and Commission  v Czech Republic , C‑241/11, EU:C:2013:423, paragraph 48).
58. As regards the substance of the ground of complaint, it must be observed that Article 5(4) of Directive 91/676, read together with Annex II.A, point 1, and Annex III.1, point 1, thereto, lays down the obligation to include in the action programmes rules covering the periods when the land application of fertilisers is either inappropriate or prohibited. The Court has previously held that the prohibition on land application in certain periods of the year is an essential provision of Directive 91/676, and that the directive does not provide for any derogations (see, to that effect, the judgment in Commission  v Luxembourg , C‑526/08, EU:C:2010:379, paragraphs, 54, 55 and 57).
74. It must be recalled in that regard that, in accordance with the Court’s settled case-law, the subject-matter of an action brought under Article 258 TFEU is circumscribed by the pre-litigation procedure provided for in that provision and cannot, consequently, be extended in the course of the litigation. The Commission’s reasoned opinion and the action must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion, which for its part must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see the judgments in Commission  v Germany , C‑160/08, EU:C:2010:230, paragraph 43, and Commission  v Spain , C‑67/12, EU:C:2014:5, paragraph 52).
108. In this case, it is clear that, while it is apparent from the documents submitted to the Court that the reasoning which underlies the estimated balance method should, in principle, result in an optimal supply of nitrogen to each crop, it remains the case that the French Republic itself acknowledges that the provisions of the order of 6 March 2001 relating to the balanced nitrogen fertilisation do not make it possible to ensure the full application of Annex III.1, point 3, to Directive 91/676 in a sufficiently clear and precise manner.
109. It must be observed in that regard that, both in the course of these proceedings and in the pre-litigation procedure, the French Republic has done no more than refer to the changes made by the order of 19 December 2011 in order to render the application of the estimated balance method ‘simple and intelligible’ and to enable farmers and monitoring authorities to calculate correctly the quantity of nitrogen which can be applied to the land in order to guarantee the balanced fertilisation aimed at by the directive, which is sufficient evidence that that was not the case when the order of 6 March 2001 was in force.