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Європейське право навколишнього середовища

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25 Second, the definition of the term ‘pollution’ set out in Article 2(j) of the Directive is expressly limited to the discharge of nitrogen compounds from agricultural sources, so that when the Member States identify waters affected by pollution under Article 3(1) of the Directive that term has an identical meaning, namely the discharge of nitrogen compounds which are exclusively agricultural in origin.

26 Third, the applicants in the main proceedings contend that when the Member States apply Article 3(1) of the Directive they are to assess whether the maximum concentration of nitrates in water could be exceeded if action pursuant to Article 5 is not taken. Since such action is concerned solely with agricultural practices, the 50 mg/l limit can apply only to nitrates from agricultural sources.

27 Fourth, while the Member States may, in accordance with Article 3(5) of the Direc­tive, establish and apply action programmes throughout their territory without designating specific vulnerable zones, a possibility which has not been taken up in this case, that does not exempt them from the obligation to determine the extent of water pollution caused by nitrates from agricultural sources.

28 Finally, as regards the ‘significance’ of the contribution made by agricultural sources to the level of nitrates in the waters concerned, the applicants in the main proceedings state that that concept is imprecise and does not appear anywhere in the Directive. An interpretation under which the Member States may decide the level beyond which such a contribution is significant would be contrary to the principle of legal certainty and would not be justified by the impossibility of measuring the various sources of nitrates with a sufficient degree of accuracy.

29 In that regard, it should be observed that, when the Member States identify waters affected by pollution in accordance with Article 3(1) of the Directive, they are to apply the criteria laid down in Annex I. Under paragraph A.1 of that annex, surface freshwaters, in particular those used or intended for the abstraction of drinking water, must be identified as waters affected by pollution when they contain, or could contain if action pursuant to Article 5 of the Directive is not taken, more than the concentration of nitrates laid down in Directive 75/440.

30 It does not follow from the wording of that provision that the Member States are required to determine precisely what proportion of the pollution in the waters is attributable to nitrates of agricultural origin or that the cause of such pollution must be exclusively agricultural.

31 As is clear from the scheme of the Directive, the identification of waters within the meaning of Article 3(1) forms part of a process which also encompasses the designation of vulnerable zones and the establishment of action programmes. It would thus be incompatible with the Directive to restrict the identification of waters affected by pollution to cases where agricultural sources alone give rise to a concentration of nitrates in excess of 50 mg/1 when, within the framework of that process, the Directive expressly provides that, in establishing the action programmes under Article 5, the respective nitrogen contributions originating from agricultural and other sources are to be taken into account.

32 Similarly, Article 3(5) of the Directive allows the Member States to designate the whole of their territory as a nitrate vulnerable zone instead of identifying waters affected by pollution, which means that they may establish action programmes even if the pollution caused by nitrates of exclusively agricultural origin does not exceed the threshold of 50 mg/l.

   

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33 Finally, the interpretation put forward by the applicants in the main proceedings would lead to exclusion from the scope of the Directive of numerous cases where agricultural sources make a significant contribution to the pollution, a result which would be contrary to the Directive’s spirit and purpose.

34 The fact that the level for the concentration of nitrates taken into account when identifying waters was set by reference to that laid down in Directive 75/440 shows that requirements of public health protection determined the maximum concentration of nitrates, of whatever origin, permissible in water intended for human consumption, nitrate pollution being harmful to human health irrespective of whether it has been caused by agricultural or by industrial sources.

35 The question whether the Directive applies only where the discharge of nitrogen compounds of agricultural origin makes a significant contribution to the pollution must be answered in the affirmative, given the objective of the Community legislature, namely to reduce and prevent water pollution caused or induced by nitrates from agricultural sources, and the scope of the measures envisaged for that purpose by Article 5.

36 However, the Directive does not preclude the Member States, if their national law so allows, from applying the provisions of the Directive in cases not covered by it.

37 When national courts review the legality of measures identifying waters affected by pollution in accordance with Article 3(1) of the Directive, as interpreted in this judgment, they must take account of the wide discretion enjoyed by the Member States which is inherent in the complexity of the assessments required of them in that context.

38 However, Community law cannot provide precise criteria for establishing in each case whether the discharge of nitrogen compounds of agricultural origin makes a significant contribution to the pollution.

39 The Directive may thus be applied by the Member States in different ways. Nevertheless, such a consequence is not incompatible with the nature of the Directive, since it does not seek to harmonise the relevant national laws but to create the instruments needed in order to ensure that waters in the Community are protected against pollution caused by nitrates from agricultural sources. The Community legislature necessarily accepted that consequence when, in Annex I to the Directive, it granted the Member States a wide discretion in the identification of waters covered by Article 3(1).

40 The answer to the first question must therefore be that 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.

Question 2

41 By its second question, the national court asks whether the fact that the concen­tration of nitrates of agricultural origin in waters identified under Article 3(1)

   

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of the Directive may, in itself, not exceed 50 mg/l infringes the principle of proportionality, the polluter pays principle and the fundamental right to property of the farmers concerned, thereby rendering the Directive invalid.

42 The applicants in the main proceedings argue, first, that the identification of waters which exceed that threshold because of the presence of nitrates of non-agricultural origin (Article 3(1) of the Directive), the designation as vulnerable zones of agricultural land which drains into those waters even though that land accounts for only part of the concentration of nitrates (Article 3(2)) and the establishment of an action programme which imposes on farmers alone responsibility for ensuring that the threshold is not exceeded (Article 5) give rise to disproportionate obligations on the part of the persons concerned, so that the Directive offends against the principle of proportionality.

43 Second, they submit that the Directive infringes the polluter pays principle laid down in Article 130r(2) of the EC Treaty, on the ground that farmers alone bear the cost of reducing the concentration of nitrates in waters to below the threshold of 50 mg/l even though agriculture is acknowledged to be only one of the sources of those nitrates, while the other sources escape all financial burden.

44 Third, they maintain that the Directive is contrary to the principle under which environmental damage should as a priority be rectified at source, a principle which is to be read in conjunction with the polluter pays principle, as is clear from Article 130r(2) of the EC Treaty. Contrary to the first of those principles, the consequence of the interpretation placed on the Directive by the respondents in the main proceedings is that, instead of the nitrate pollution of waters from atmospheric deposition, which originates principally from industry and transport, being prevented or reduced at source, farmers are required to bear the entire burden of preventing or reducing nitrate pollution of surface freshwaters.

45 Finally, they submit that the right to property is infringed by imposing on farmers the entire responsibility for, and economic burden of, reducing nitrate concentra­tions in the waters concerned when others are the major or substantial causes of those concentrations.

46 So far as concerns the principle of proportionality, it should be observed first that, under Article 5(3) of the Directive, the action programmes applicable to vulnerable zones are to take account of available scientific and technical data with reference to the respective nitrogen quantities originating from agricultural and other sources and of environmental conditions in the relevant regions.

47 Next, the mandatory measures adopted under those programmes must take into account the characteristics of the vulnerable zone concerned (paragraph 1(3) of Annex III) and the Member States may fix amounts of livestock manure which may be spread in the vulnerable zones that differ from those specified if they are justified on the basis of objective criteria and do not prejudice the attainment of the Directive’s objectives (paragraph 2(b) of Annex III).

48 Also, the Member States are required to draw up and implement suitable moni­toring programmes to assess the effectiveness of the action programmes (Article 5(6) of the Directive) and they are to review and, if necessary, revise their action programmes at least every four years (Article 5(7)). They can thus take account of changes of circumstance in relation to pollution from both agricultural and other sources.

   

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