Commission of the European Communities v Federal Republic of Germany

The Commission brought action against the respondent under Article 226 EC alleging failure by Germany to fulfill Council Directives. The Commission alleged that the respondent had failed to take measures necessary to comply with the obligations in Article 5 (4) (a) and point 2 of the Annex III to Council Directive 91/676/EEC of 12 December 1991 concerning the Protection of Waters against Pollution caused by Nitrates from Agricultural Sources. The German Government contended that, given the wording, the purpose and the scheme of the Directive, making allowance for inevitable losses through evaporation was in conformity with the rules on maximum concentrations and the German Government regulations respected the general scheme of the Directive. The German Government was supported by the Spanish and Netherlands Governments, which considered that the national legislation was allowed to take account of these losses when inherent in storage or in applications. The Netherlands maintained that point 2 of Annex III to the Directive allowed a derogation from the nitrogen amounts and Spain submitted that since atmospheric deposition of vaporized ammonia from livestock manure was not the only source of emission of the gas, this had to also be regulated ion a comprehensive framework in vulnerable areas. The Commission’s objected that the quantities of nitrogen evaporating into the air eventually fell back elsewhere onto the land and thus contributed to the pollution of watercourses. The court held that, as far as the ultimate purpose of the Directive was concerned, according to the sixth recital of its preamble, the Directive aimed to reduce direct or indirect pollution of waters by nitrates from agricultural sources and to prevent further such pollution in order to protect human health, living resources and aquatic ecosystems. The action programmes in respect of vulnerable zones referred to in Article 5(4) of Directive 91/676 had to contain measures which, as required by the first paragraph of point 2 of Annex III, limited the amount of livestock manure applied to the land each year per hectare. Given both the context and objectives of the directive, the decisive criterion which the directive lays down for limiting pollution by nitrates from agricultural sources was the amount of nitrogen applied to the land by spreading on its surface, by injection into the land, by placing below the surface of the land or by mixing with the surface layers of the land, and not the amount of nitrogen actually penetrating into the land. It followed that, in providing for the use of another criterion for calculating the maximum permissible amount of livestock manure to be applied each year per hectare, national rules were not in accordance with the directive. The Federal Republic of Germany had not fulfilled its obligations under the stated Directive by its failure to adopt all the laws, regulations and administrative provisions necessary to comply with the obligations in Article 5 (4) (a) and point 2 of Annex III to Council Directive 91/676/EEC of 12 December 1991. Germany was ordered to pay the costs and Spain and Netherlands to bear their own costs.