European Commission v Grand Duchy of Luxemburg.
Date: 2010-06-29
22. The Commission submits that, although the present proceedings are informed by the content of Commission  v Luxembourg , they cover new national legislation and different complaints. With respect to the principle of non bis in idem , the Commission claims that this is not applicable to the present case, because it does not constitute a charge of an administrative or penal nature. According to the Commission, even if that principle could apply to the action for failure to fulfil obligations, the conditions for its application are not fulfilled in this case, as it is subject to the threefold requirement of identical facts, unity of offender and unity of the legal interest protected.
23. First of all, it should be noted that the Commission initiated the present proceedings pursuant to Article 226 EC. The question whether Article 228 EC is applicable arises only if it transpires that the complaints raised in these proceedings are identical in fact and in law to those put forward in the case which gave rise to the judgment in Commission  v Luxembourg .
26. The Court has in various settings referred to the importance, in both the legal order of the European Union and the national legal systems, of the principle of res judicata  (Case C‑224/01 Köbler  [2003] ECR I‑10239, paragraph 38; C‑234/04 Kapferer  [2006] ECR I‑2585, paragraph 20; and C‑2/08 Fallimento Olimpiclub  [2009] ECR I‑0000, paragraph 22).
27. It follows from the case-law that that principle is also applicable to infringement proceedings and that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question (Case C‑462/05 Commission  v Portugal  [2008] ECR I‑4183, paragraph 23 and the case-law cited).
28. As both the proceedings in the case which gave rise to the judgment in Commission  v Luxembourg  and the present proceedings were initiated by the Commission on the basis of Article 226 EC, it is necessary to examine the factual and legal background of those two sets of proceedings in order to determine whether they are essentially identical in fact and in law.
29. Examination of the complaints raised by the Commission in a case which gave rise to a judgment requires an analysis of the operative part of that judgment in the light of the findings and grounds underlying it.
30. Therefore, concerning the first complaint in the case which gave rise to the judgment in Commission  v Luxembourg , the operative part of that judgment must be analysed in the light of paragraphs 22 and 29 to 31 thereof. It is apparent from those paragraphs that, in that case, the obligations resulting from Annexes II A(4) and III(1)(3) to Directive 91/676 were at issue. Those obligations concerned, first, the conditions for the land application of chemical fertiliser near water courses and, secondly, the establishment of a balance between the foreseeable nitrogen requirements of crops and the nitrogen supply to the crops, in particular by the addition of nitrogen compounds from chemical fertilisers.
32. Concerning the second complaint in the case which gave rise to the judgment in Commission  v Luxembourg , it follows from the operative part and paragraphs 23 and 33 of that judgment that the Commission alleged, in that complaint, that the Grand Duchy of Luxembourg had laid down rules relating to the conditions for land application of fertiliser to steeply sloping ground only where the ground was water-saturated, flooded, snow-covered for more than 24 hours or frozen, although it was necessary to adopt rules applicable irrespective of climatic conditions.
33. However, by the third complaint raised in the present case, the Commission criticises the fact that the provisions of the Grand Ducal Regulation relating to sloping ground concern solely organic liquid fertiliser and that there are no rules on the application of chemical fertiliser to such ground.
48. As regards the pleas in defence in respect of the substance of the case relied on by the Grand Duchy of Luxembourg, it must be pointed out that, under Article 42(2) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
49. It is not in dispute that, in the present case, the pleas in defence in respect of the substance of the case which were put forward for the first time in the rejoinder had been submitted in essence in the Grand Duchy of Luxembourg’s reply to the reasoned opinion. Following that reply, the Commission brought its action omitting four of the complaints set out in the reasoned opinion and maintaining the other four. In its defence, the Grand Duchy of Luxembourg did not express a view on whether the Commission’s action was well-founded or contend that the action should be dismissed as unfounded, limiting its defence to inadmissibility of the action.
50. In those circumstances, the contention that the action should be dismissed on the merits, as well as the supporting pleas submitted for the first time in the rejoinder, must be considered to have been put forward out of time and therefore to be inadmissible (see, to that effect, Case C‑471/98 Commission  v Belgium  [2002] ECR I‑9681, paragraphs 41 to 43).
54. In those circumstances, since Directive 91/676 requires the Member States, without providing for any derogation, to establish periods of prohibition on the land application of all types of fertiliser, it must be held that the Grand Duchy of Luxembourg has not complied with that obligation with respect to chemical fertiliser.
55. Concerning the second limb of the first complaint, it should be noted, first of all, that the Luxembourg rules relating to periods during which the land application of certain types of fertiliser is prohibited do not apply to grassland, whereas no derogation is provided for expressly in Directive 91/676 for that type of land.
57. With regard to the third limb of the first complaint, the Commission correctly states that the prohibition on land application during certain periods of the year is an essential provision of Directive 91/676 and that that directive does not make provision for any derogations.