Commission of the European Communities v Kingdom of the Netherlands.
Date: 2003-10-02
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
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).
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).
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).
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).
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.
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.
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.
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.