Proceedings brought by Wasserleitungsverband Nördliches Burgenland and Others.
Date: 2019-10-03
30


According to settled case-law of the Court, it would be incompatible with the binding effect conferred by Article 288 TFEU on a directive to exclude, in principle, the possibility that the obligations which it imposes may be relied on by the persons concerned (judgments of 19 January 1982, Becker, 8/81, EU:C:1982:7, paragraph 22; of 7 September 2004, Waddenvereniging and Vogelbeschermingsvereniging, C‑127/02, EU:C:2004:482, paragraph 66; and of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 34).
31


In particular, where the EU legislature has, by directive, imposed on Member States the obligation to pursue a particular course of action, the effectiveness of such action would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of EU law in deciding whether the national legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set out therein (judgments of 24 October 1996, Kraaijeveld and Others, C‑72/95, EU:C:1996:404, paragraph 56, and of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraph 34).
33


In addition, ‘where they meet the criteria, if any, laid down in [the] national law, members of the public’ have the rights provided for in Article 9(3) of the Aarhus Convention. That provision, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, imposes on Member States an obligation to ensure effective judicial protection of the rights conferred by EU law, in particular the provisions of environmental law (see, to that effect, judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 45).
34


The right to bring proceedings set out in Article 9(3) of the Aarhus Convention would be deprived of all useful effect, and even of its very substance, if it had to be conceded that, by imposing those conditions, certain categories of ‘members of the public’, a fortiori ‘the public concerned’, such as environmental organisations that satisfy the requirements laid down in Article 2(5) of the Aarhus Convention, were to be denied of any right to bring proceedings (judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 46).
48


In that regard, it must be recalled that, in accordance with the Court’s settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 54 and the case-law cited).
51


As the Advocate General observed in points 72 and 73 of her Opinion, Directive 91/676 provides for specific instruments to combat water pollution by nitrates from agricultural sources. It applies where the discharge of nitrogen compounds of agricultural origin makes a significant contribution to the pollution (judgment of 29 April 1999, Standley and Others, C‑293/97, EU:C:1999:215, paragraph 35). In that connection, it must be noted that the Court has previously held that such a contribution is significant where agriculture contributes, for instance, 17% of the total nitrogen in a specific basin (see, to that effect, judgment of 22 September 2005, Commission v Belgium, C‑221/03, EU:C:2005:573, paragraph 86). If that condition for the application of Directive 91/676 is satisfied, it is for the Member States to determine, in accordance with Article 3(1) of that directive, the status of the waters within their territory.
52


Where, pursuant to that latter provision, read in conjunction with Annex I A to Directive 91/676, water must be considered as being affected or capable of being affected, Member States are required to adopt the measures provided for in Article 5 of that directive, namely action programmes and, if necessary, additional measures and reinforced actions (see, to that effect, judgment of 21 June 2018, Commission v Germany, C‑543/16, not published, EU:C:2018:481, paragraph 60).
54


It is true that Member States have a certain latitude as regards the precise methods of implementing the requirements of Directive 91/676. However, they are, in all circumstances, obliged to ensure that the objectives of that directive, 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 (judgment of 4 September 2014, Commission v France, C‑237/12, EU:C:2014:2152, paragraph 30).
56


According to the case-law of the Court, it follows that the Member States must take such additional measures or reinforced actions at the point at which it first becomes clear they are necessary (see, to that effect, judgment of 21 June 2018, Commission v Germany, C‑543/16, not published, EU:C:2018:481, paragraph 53 and the case-law cited).
58


Under Article 5(3)(a) and (b) of Directive 91/676, action programmes are to take into account the best available scientific and technical data and the physical, geological and climatic conditions of each region (judgment of 4 September 2014, Commission v France, C‑237/12, EU:C:2014:2152, paragraph 29). The same requirement also applies to monitoring programmes, as they must be adequate to assess the effectiveness of the action programmes. The 12th recital of that directive supports that assessment.
61


In addition, the Court has previously held that, in order to establish a need to adopt additional measures or to implement reinforced actions pursuant to Article 5(5) of Directive 91/676, there is no need to prove that the measures already adopted are ineffective (judgment of 21 June 2018, Commission v Germany, C‑543/16, not published, EU:C:2018:481, paragraphs 63 and 64).
63


Such a surplus is contrary to Article 5(4)(a) of Directive 91/676, read in conjunction with Annex III, point 1(3) to that directive. Those provisions establish the principle of balanced fertilisation and require the foreseeable nitrogen needs of crops and the amount of nitrogen supplied to those crops from the soil and fertilisers to be brought into balance with one another. Therefore, they impose an obligation on the Member States to determine the amounts of nitrogen that can be applied by farmers in a precise manner (see, to that effect, judgment of 21 June 2018, Commission v Germany, C‑543/16, not published, EU:C:2018:481, paragraphs 87, 88 and 92).
70


The obligations provided for in Article 5(4) and (5) of Directive 91/676 are clear, precise and unconditional, which means that they can be invoked by individuals against the State (see, by analogy, judgment of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraph 42).
72


Therefore, although the Member States have discretion in that regard, the fact remains that the decisions taken by the competent authorities must be subject to judicial review, in particular in order to verify they have not exceeded the limits set for the exercise of those powers (see, to that effect, judgments of 24 October 1996, Kraaijeveld and Others, C‑72/95, EU:C:1996:404, paragraph 59; of 25 July 2008, Janecek, C‑237/07, EU:C:2008:447, paragraph 46; and of 26 June 2019, Craeynest and Others, C‑723/17, EU:C:2019:533, paragraph 45).