Commission of the European Communities v Kingdom of Spain.
Date: 2005-09-08
34. Under Article 5 of Directive 91/676, the Member States are to establish action programmes in respect of designated vulnerable zones. Those programmes are to contain mandatory measures, including the measures prescribed in the code or codes of good agricultural practice and the measures referred to in Annex III to Directive 91/676. The measures referred to in that annex cover, in particular, periods during which the spreading of certain types of fertiliser is prohibited, the capacity of storage vessels for livestock manure, spreading methods and the maximum quantity of livestock manure containing nitrogen which can be spread.
National legislation
58. Secondly, it is clear from the statistics produced by the Commission in its reply that, contrary to the Spanish Government’s contention, that agglomeration, taking into account the permanent population of the Commune of Vera estimated at around 8 000 inhabitants and the large summer influx of tourists experienced by the region concerned, has a PE greater than 10 000. Since the urban waste water from that agglomeration is discharged into an area which, as has been said, should have been identified as a sensitive area, the Spanish authorities should have ensured that that water, before being discharged into that area, was subjected to more stringent treatment than that described in Article 4 of Directive 91/271, that is to say treatment more stringent than secondary treatment, prior to 31 December 1998.
61. Therefore, the second part of the complaint is well founded. The claims in the action based on failure to apply Directive 91/271 must therefore be upheld.
As regards Directive 91/676
63. On the first point, the Spanish Government’s argument must be rejected. It is clear from the contents of the entire case file, in particular from the letter of formal notice and the reasoned opinion sent to the Kingdom of Spain, that failure to apply Directive 91/676 is one of the complaints upon which the Commission relied in the pre‑litigation procedure. The subject‑matter of the action was thus clearly delimited and the Spanish Government was put in a position to present its observations and prepare its defence (see, to that effect, Case 211/81 Commission  v Denmark  [1982] ECR 4547, paragraphs 8 and 9). This complaint was therefore indeed set out in the reasoned opinion, even if it was not expressly mentioned in the final part of that opinion, and was presented in similar and sufficiently precise terms in the application (see, to that effect, Commission  v Denmark , cited above, paragraphs 14 and 15).
69. That argument cannot however be accepted. As the Court has already held, for waters to be regarded as ‘affected by pollution’, within the meaning particularly of Article 3(1) of Directive 91/676, and for their designation as a vulnerable zone to be required, under Article 3(2) of that directive, it is not necessary that nitrogen compounds of agricultural origin be the exclusive cause of the pollution. It is sufficient if they contribute to it significantly (see, to that effect, Case C-293/97 Standley and Others  [1999] ECR I‑2603, paragraphs 30 and 35).
77. It must be observed, first, that it is not disputed by the Commission that that pig farm was set up in 1976. At that time, no provision of Community law obliged the Spanish authorities to assess the effects of that farm on the environment. The period for transposing Directive 85/337, in its original version, expired on 3 July 1988 and the Court has held that that directive could not require the Member States to carry out environmental assessments for projects, even those requiring consent, implemented prior to that date (see, to that effect, Case C-431/92 Commission  v Germany  [1995] ECR I-2189, paragraph 32, in respect of projects for which the application for consent was submitted after 3 July 1988).
80. The Spanish authorities have in fact complied with the rule requiring an environmental assessment, even in respect of projects which were implemented prior to the date of expiry of the period for transposing Directive 85/337, if those projects were granted consent without having been preceded by such an assessment and are subject to a new consent procedure commenced after that date (see, to that effect, as regards Directive 85/337 in its original version, Case C‑81/96 Gedeputeerde Staten van Noord-Holland  [1998] ECR I‑3923, paragraphs 23 and 25, in respect of projects granted consent prior to 3 July 1988 but without a prior environmental assessment which are the subject of a new application for consent submitted after that date).
86. In that regard, it must be recalled that the scope of the term ‘waste’, for the purposes of Directive 75/442, turns on the meaning of the term ‘discard’ in the first subparagraph of Article 1(a) of that directive (see Case C-129/96 Inter‑Environnement Walloni e [1997] ECR I‑7411, paragraph 26).
87. In certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not seek to ‘discard’, within the meaning of the first subparagraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse. There is, in such a case, no reason to hold that the provisions of that directive, which are intended to regulate the disposal or recovery of waste, apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products, provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse and as part of the continuing process of production (see Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, paragraphs 34 to 36).
88. The Court has thus held that leftover rock and sand residue from ore‑dressing operations in the working of a mine are not classified as waste for the purposes of Directive 75/442 where their holder uses them lawfully for the necessary filling‑in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of those substances (see, to that effect, Case C‑114/01 AvestaPolarit Chrome  [2003] ECR I-8725, paragraph 43). The Court has also held that petroleum coke which is produced intentionally or in the course of producing other petroleum fuels in an oil refinery and is certain to be used as fuel to meet the energy needs of the refinery and those of other industries does not constitute waste within the meaning of that directive (order in Case C-235/02 Saetti and Frediani  [2004] ECR I‑1005, paragraph 47).
90. Contrary to the Commission’s submission, it is not appropriate to limit that analysis to livestock effluent used as fertiliser on land forming part of the same agricultural holding as that which generated the effluent. As the Court has already held, it is possible for a substance not to be regarded as waste within the meaning of Directive 75/442 if it is certain to be used to meet the needs of economic operators other than that which produced it (see, to that effect, Saetti and Frediani , cited above, paragraph 47).
96. The Commission’s argument that neither the rules of the code of good agricultural practice adopted by the Junta de Andalucía nor the maximum quantities for spreading fixed in Annex III to Directive 91/676 were observed in this case is irrelevant to the classification of the slurry under Directive 75/442. The fact, were it established, that the spreading practices of the pig farm in question may not comply in every respect with that code of good agricultural practice or with Directive 91/676 could characterise a failure to fulfil obligations arising from the latter directive, but does not establish uncont rolled discharge of the slurry into the environment, in conditions which would enable it to be regarded as waste.
99. The Court has already held that the term ‘other legislation’ can refer to both Community legislation and national legislation covering a category of waste mentioned in Article 2(1)(b) of Directive 75/442 provided that such legislation, Community or national, relates to the management of that waste as such and that it results in a level of protection of the environment at least equivalent to that aimed at by that directive (see AvestaPolarit Chrome , cited above, paragraph 61).