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Главная->Право->Содержание->ПИТАННЯ ДЛЯ ДИСКУСІЇ

Європейське право навколишнього середовища

ПИТАННЯ ДЛЯ ДИСКУСІЇ

1.   Де закріплені принципи європейського права навколишнього середовища? Яка їх правова природа?

2.   Яким чином загальні принципи європейського права викори­стовують при розробці нормативно-правових актів у сфері єв­ропейського права навколишнього середовища?

3.   Яка різниця між принципом пропорційності та принципом суб-сидіарності?

4.   Як використання принципу інтеграції екологічних питань впливає на інші сфери діяльності Європейського Союзу? Які, на вашу думку, можуть виникати труднощі із застосуванням цього принципу?

5.   Які особливості застосування принципу сталого розвитку на рівні Європейського Союзу?

7.   Дайте порівняльний аналіз застосування принципу “забруднювач платить” на рівні міжнародному, Європейського Союзу та держав-членів.

8.   Які головні інструменти використання принципу “забруднювач платить”? Які, на вашу думку, переваги та недоліки їх застосу­вання?

9.   Як ви розумієте “принцип перестороги”? Наведіть приклади його застосування.

РЕКОМЕНДОВАНА ЛІТЕРАТУРА

1.   Опришко В.Ф., Омельченко А.В., Фастовець А.С. Право Євро­пейського Союзу. — Київ, 2002.

2.   Европейское право. Учебник для вузов / Под общ. ред. д.ю.н., проф. Л.М.Энтина. М., 2000..

3.   Топорнин Б.Н. Европейское право: Учебник. — М., 1999.

4.   Право Европейского Союза: Учебник для вузов / Под ред. С.Ю.Кашкина. — М., 2003.

5.   Kiss A., Shelton D. Manual of European Environmental Law. Camb­ridge, 1995.

6.   EU Environmental Policy: Adapting to the Principle of Subsidiarity? Andrew Jordan and Tim Jeppesen. // European Environment 10, 64 — 74 (2000).

   

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СПРАВА ДЛЯ ОБГОВОРЕННЯ:

The Queen v. Secretary of State for the Environment, Minister of Agriculture, Fisheries and Food, Ex parte: H.A. Standley and others, D.G.D. Metson and others, Intervener: National Farmers’ Union

JUDGMENT OF THE COURT (Fifth Chamber)

29 April 1999 (1)

(Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Identification of waters affected by pollution — Designation of vulnerable zones — Criteria — Validity in the light of the polluter pays principle, the principle that environmental damage should as a priority be rectified at source, the principle of proportionality and the right to property)

In Case C-293/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the High Court of Justice of England and Wales, Queen’s Bench Division, for a preliminary ruling in the proceedings pending before that court between

The Queen and Secretary of State for the Environment, Minister of Agriculture, Fisheries and Food,

ex parte: H.A. Standley and Others and D.G.D. Metson and Others,

Intervener: National Farmers’ Union,

on the interpretation and validity of Council Directive 91/676/EEC of 12 De­cember 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1),

THE COURT (Fifth Chamber),

composed of: P. Jann, President of the First Chamber, acting for the President of the Fifth Chamber, J.C. Moitinho de Almeida (Rapporteur), C. Gulmann, D.A.O. Edward and L. Sevуn, Judges,

Advocate General: P. Leger,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

– Messrs Standley and Others and Metson and Others, by David Vaughan QC and Peter Cranfield and Maurice Sheridan, Barristers, instructed by Richard Baber, Solicitor,

– the National Farmers’ Union, by Stuart Isaacs QC and Clive Lewis, Barrister, instructed by Sally Stanyer, Solicitor,

– the United Kingdom Government, by Stephanie Ridley, of the Treasury Solicitor’s Department, acting as Agent, Stephen Richards QC and Jon Turner, Barrister,

– the French Government, by Kareen Rispal-Bellanger, Head of the Subdirec-torate for International Economic Law and Community Law in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Romain Nadal, Assistant Secretary for Foreign Affairs in the same directorate, acting as Agents,

– the Swedish Government, by Lotty Nordling, Rдttschef in the Legal Secretariat (EU) of the Ministry of Foreign Affairs, acting as Agent,

   

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– the Council of the European Union, by Guus Houttuin, of its Legal Service, acting as Agent,

– the Commission of the European Communities, by Richard B. Wainwright, Principal Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Messrs Standley and Others and Metson and Others, represented by David Vaughan, Peter Cranfield and Maurice Sheridan; the National Farmers’ Union, represented by Stuart Isaacs and Clive Lewis; the United Kingdom Government, represented by Stephanie Ridley, Kenneth Parker QC and Jon Turner; the Council, represented by Guus Houttuin; and the Commission, represented by Richard B. Wainwright, at the hearing on 18 June 1998,

after hearing the Opinion of the Advocate General at the sitting on 8 October 1998,

gives the following

Judgment

1   By order of 17 June 1997, received at the Court on 11 August 1997, the High Court of Justice of England and Wales, Queen’s Bench Division, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation and validity of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1; ‘the Direc­tive’).

2   Those questions were raised in two actions brought by Messrs Standley and Others and Metson and Others for the annulment of decisions by which the Secretary of State for the Environment and the Minister of Agriculture, Fisheries and Food identified the Rivers Waveney, Blackwater and Chelmer and their tributaries as waters which could be affected by pollution within the meaning of Article 3(1) of the Directive and designated the areas of land draining into those waters as vulnerable zones within the meaning of Article 3(2) thereof.

The Directive

3   Article 1 of the Directive states:

‘This Directive has the objective of:

– reducing water pollution caused or induced by nitrates from agricultural sources and

– preventing further such pollution.’

4   Article 2(j) states:

‘For the purpose of this Directive: ...

(j) “pollution”: means the discharge, directly or indirectly, of nitrogen compounds from agricultural sources into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water’.

5   Article 3 provides:

   

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‘1. Waters affected by pollution and waters which could be affected by pollution if action pursuant [to] Article 5 is not taken shall be identified by the Member States in accordance with the criteria set out in Annex I.

2. Member States shall, within a two-year period following the notification of this Directive, designate as vulnerable zones all known areas of land in their territories which drain into the waters identified according to paragraph 1 and which contribute to pollution. They shall notify the Commission of this initial designation within six months. ...

4.  Member States shall review [and] if necessary revise or add to the designation of vulnerable zones as appropriate, and at [least] every four years, to take into account changes and factors unforeseen at the time of the previous designation. They shall notify the Commission of any revision or addition to the designations within six months.

5.  Member States shall be exempt from the obligation to identify specific vulner­able zones, if they establish and apply action programmes referred to in Article 5 in accordance with this Directive throughout their national territory.’

6   Article 4 provides for the establishment of one or more codes of good agricultural practice, which are to be implemented by farmers on a voluntary basis and should contain provisions covering at least the items mentioned in paragraph A of Annex II.

7   Article 5 states:

‘1. Within a two-year period following the initial designation referred to in Article 3(2) or within one year of each additional designation referred to in Article 3(4), Member States shall, for the purpose of realising the objectives specified in Article 1, establish action programmes in respect of designated vulnerable zones.

2.  An action programme may relate to all vulnerable zones in the territory of a Member State or, where the Member State considers it appropriate, different programmes may be established for different vulnerable zones or parts of zones.

3.  Action programmes shall take into account:

(a) available scientific and technical data, mainly with reference to respective nitrogen contributions originating from agricultural and other sources;

(b) environmental conditions in the relevant regions of the Member State concerned.

4.  Action programmes shall be implemented within four years of their establish­ment and shall consist of the following mandatory measures:

(a) the measures in Annex III; ...

6.  Member States shall draw up and implement suitable monitoring programmes to assess the effectiveness of action programmes established pursuant to this Article.

Member States which apply Article 5 throughout their national territory shall monitor the nitrate content of waters (surface waters and groundwater) at selected measuring points which make it possible to establish the extent of

   

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nitrate pollution in the waters from agricultural sources.

7. Member States shall review and if necessary revise their action programmes, including any additional measures taken pursuant to paragraph 5, at least every four years. They shall inform the Commission of any changes to the action programmes.’

8   For the purpose of designating and revising the designation of vulnerable zones, Article 6 of the Directive lays down a procedure for the monitoring of water quality under which the reference methods set out in Annex IV to the Directive are used to measure the concentrations of nitrates and nitrogen compounds.

9   In Annex I, which relates to the criteria for identifying the waters referred to in Article 3(1), paragraph A.1 provides:

‘A. Waters referred to in Article 3(1) shall be identified making use, inter alia, of the following criteria:

1. whether surface freshwaters, in particular those used or intended for the ab­straction of drinking water, contain or could contain, if action pursuant to Article 5 is not taken, more than the concentration of nitrates laid down in accordance with Directive 75/440/EEC.’

10 The concentration of nitrates laid down in accordance with Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (OJ 1975 L 194, p. 26) is 50 mg/l.

National law

11 It appears from the order for reference that the Protection of Water against Agricultural Pollution (England and Wales) Regulations of 21 March 1996 (S.I. 1996 No 888; ‘the Regulations’) were adopted under the European Communities Act 1972 in order to give effect to the obligations arising under the Directive.

12 The designation by ministerial decision of the area of the River Waveney and of the area of the Rivers Blackwater and Chelmer as nitrate vulnerable zones was implemented by Annex 1 to the Regulations. The national court makes it clear that there are no intermediate provisions of national law for it to construe.

13 It is also apparent from the order for reference that, as stated in the affidavit sworn on 16 September 1996 by Paul Bristow, Head of the Water Quality Division at the Department of the Environment, ‘the Government’s approach to the designation of vulnerable zones was to identify tightly defined catchments of polluted waters, rather than always to designate catchments of entire surface water systems which had been found to be polluted at the surface water abstraction point. As a first step bodies of water were identified on this basis which were either heavily polluted or showed the clear potential to be heavily polluted by nitrates. Secondly, the known areas of land draining into those waters (and not any areas of land draining into the rivers upstream of those waters) were identified. Thirdly, having regard in particular to the land use and other characteristics of the areas of land and the bodies of water in question, an assessment was made as to whether agricultural sources were making a significant contribution to the levels of pollution detected.’

The main proceedings

14 The applicants in the main proceedings, supported by the National Farmers’

   

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Union (‘the NFU’), have sought annulment of the decisions by which the re­spondents identified surface waters comprising the Rivers Waveney, Blackwater and Chelmer and their tributaries as waters which could be affected by nitrate pollution and designated the areas of land draining into those rivers as nitrate vulnerable zones.

15 According to the applicants in the main proceedings, the establishment, in those areas where they own or farm land, of action programmes restricting agricultural use, as required by the Regulations under which the nitrate vulnerable zones have been designated, would cause them immediate and long-term economic harm in terms of land values and of income from their farming businesses.

16 In their view, Article 3(1) of the Directive requires the Member States to identify surface freshwaters as waters which are or could be affected by pollution only if they exceed, or could exceed if relevant action were not taken, the threshold for nitrates of 50 mg/l by reason of the direct or indirect discharge of nitrogen compounds from agricultural sources. The Member States must therefore establish the source of the nitrates which cause that threshold to be exceeded.

17 They plead in the alternative that, if the interpretation contended for by the respondents in the main proceedings were correct, the Directive would infringe the polluter pays principle, the principle that environmental damage should as a priority be rectified at source, the principle of proportionality and the fundamental right to property.

18 According to the respondents, it follows from Article 2(j) of the Directive and paragraph A.1 of Annex I that the term ‘waters affected by pollution’ in Article 3(1) refers to surface freshwaters used for drinking water supplies that have a nitrate content in excess of 50 mg/l to which nitrates from agricultural sources make a significant contribution. They state that no provision of the Directive or its annexes contains even an implied obligation on the Member States to assess the concentration of nitrates attributable solely to agricultural sources of pollution when establishing whether the threshold of 50 mg/l is exceeded. The limit of 50 mg/l represents the overall concentration of nitrates, of whatever origin, in drinking water supplies above which hazards to human health arise. Moreover, it is impossible to determine accurately whether the nitrates of agricultural origin present in surface waters exceed 50 mg/l.

19 In reply to the applicants’ alternative plea, the respondents point out that the measures provided for by the action programme are to take account of the quanti­ties of nitrogen originating from agricultural and from other sources.

20 The High Court of Justice of England and Wales, Queen’s Bench Division, having regard to those submissions, considered that the actions brought by the applicants in the main proceedings raised matters of general interest relevant to all farmers affected by the interpretation of the Directive and its implementation by national authorities. It therefore decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

‘1. Does Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (“the Nitrates Directive”) require Member States, in accordance, in particular, with Articles 2(j) and 3(1) and Annex I thereof, to identify surface freshwaters as “waters affected by pollution”, and then to designate as vulnerable zones in

   

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accordance with Article 3(2) thereof all known areas of land which drain into such waters and which contribute to pollution:

(i) where those waters contain a concentration of nitrates in excess of 50 mg/l (being the concentration of nitrates laid down by Annex I to the Nitrates Directive, by reference to Directive 75/440/EEC) and the Member State is satisfied that the discharge of nitrogen compounds from agricultural sources makes a “significant contribution” to this overall concentration of nitrates and, if so, is a Member State entitled to be so satisfied if it has reason to believe that the contribution to this overall concentration of nitrates, of nitrogen compounds discharged from agricultural sources, is greater than de minimis or some other amount or degree of contribution, and if the latter, what amount or degree of contribution amounts to a “significant contribution” for these purposes; or

(ii) only where the discharge of nitrogen compounds from agricultural sources itself accounts for a concentration of nitrates in those waters in excess of 50 mg/l (i.e. leaving out of account any contribution from other sources); or

(iii) on some other basis and, if so, what basis?

2. If Question 1 is answered otherwise than in sense (ii) above, is the Nitrates Directive invalid (to the extent of its application to surface freshwaters) on the grounds that it infringes:

(i) the principle that the polluter should pay; and/or

(ii) the principle of proportionality; and/or

(iii) the fundamental property rights of those owning and/or farming land draining into surface freshwaters required to be identified under Article 3(1), being areas of land which are then designated by Member States as vulnerable zones under Article 3(2)?’

Question 1

21 By its first question, the national court is essentially asking whether Articles 2(j) and 3(1) of the Directive and Annex I thereto must be interpreted as requiring the identification of surface freshwaters as ‘waters affected by pollution’, and therefore the designation as ‘vulnerable zones’ in accordance with Article 3(2) of the Directive of all known areas of land which drain into those waters and contribute to their pollution, where those waters contain a concentration of nitrates in excess of 50 mg/l and the Member State concerned considers that the discharge of nitrogen compounds from agricultural sources makes a ‘significant contribution’ to that overall concentration of nitrates.

22 Should that question be answered in the affirmative, the national court asks what quantity of nitrates or degree of contribution to the pollution constitutes a ‘significant contribution’.

23 The applicants in the main proceedings, supported by the NFU, maintain that surface freshwaters are to be identified as affected by pollution only where agri­cultural sources alone account for a concentration of nitrates in those waters in excess of 50 mg/l, the limit laid down in Directive 75/440.

24 That assertion, they submit, is reinforced, first, by the fact that the objective of the Directive is to protect waters from pollution due to nitrates from agricultural sources (second, third, fifth, sixth, ninth and tenth recitals in the preamble to the Directive and Article 1 thereof).

   

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