Avis juridique important

62000J0258

European Court reports 2002 Page I-05959

Summary

Environment - Protection of waters against pollution caused by nitrates from agricultural sources - Directive 91/676 - Scope - Identification of waters affected by pollution - Criteria (Council Directive 91/676, Art. 3(1) and (2))

Restricting the scope of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources to exclude certain categories of water owing to the supposedly fundamental role of phosphorus in the pollution of those waters is incompatible with both the logic and the objective of the Directive. First, notwithstanding the role that phosphorus may play in eutrophication, plant species whose growth is accelerated by nitrogen may appear in such waters, giving rise to a disturbance of the balance between the different organisms which are present there. Secondly, taking account of the fact that the obligations arising from Article 3(1) and (2) of the Directive are intrinsically linked, a restrictive identification of waters affected by pollution or which could be so affected under Article 3(1) would result in an incomplete designation of vulnerable zones under Article 3(2). Finally, while it is true that the Member States have been granted a wide discretion in the identification of waters referred to in Article 3(1) of the Directive, because of the complexity of the assessments which they are called upon to carry out in that context, it nevertheless remains the case that when they carry out that identification, they are obliged to respect the objectives of the Directive, namely, the reduction of water pollution caused by nitrates from agricultural sources.

Parties

In Case C-258/00,

Commission of the European Communities, represented by M. Nolin, acting as Agent, with an address for service in Luxembourg,

applicant,

French Republic, represented initially by J.-F. Dobelle and D. Colas, and, subsequently, by G. de Bergues and D. Colas, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by

Kingdom of Spain, represented by S. Ortiz Vaamonde, acting as Agent, with an address for service in Luxembourg,

intervener,

APPLICATION for a declaration that, by failing to take the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones, in accordance with Article 3 of and Annex I to 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 French Republic has failed to fulfil its obligations under that directive,

THE COURT (Sixth Chamber),

composed of: F. Macken (Rapporteur), President of the Chamber, N. Colneric, C. Gulmann, R. Schintgen and J.N. Cunha Rodrigues, Judges,

Advocate General: L.A. Geelhoed,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 4 October 2001, at which the Commission was represented by M. Nolin and the French Republic by D. Colas and by C. Chevalier, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 29 November 2001,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a case-by-case examination;

or

thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

a description of the physical characteristics of the whole project and, where relevant, of demolition works;

a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

the expected residues and emissions and the production of waste, where relevant;

the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

all forms of deliberate capture or killing of specimens of these species in the wild;

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

deliberate destruction or taking of eggs from the wild;

deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

30 The French Government denies, first, the Commission's claim that nitrogen is always a factor to be controlled, even in cases where eutrophication is triggered by another factor. According to the Government, a factor such as nitrogen can be limiting without being controllable. In that case, the Directive does not require the designation of a body of water as eutrophic.

31 It argues that, when the French authorities, relying on up-to-date scientific knowledge and techniques, assert that nitrogen is not always the controlling factor, they are referring to the fact that nitrogen is not necessarily a factor which it is possible and effective to influence by changes in agricultural practices. Nitrogen may, in certain cases, originate in drainage basins, bottom sediments or the atmosphere, in which cases it is useless to attempt to control the quantity of nitrate. An effective policy for controlling an established case of eutrophication would have to resort to other methods in those cases.

32 Second, the French Government maintains that the method described in the circular of 5 November 1992 complies with Article 2(i) of the Directive, which sets out three cumulative conditions for determining whether a zone is eutrophic. Consequently, the mere enrichment in nitrate of a body of water cannot systematically lead to the conclusion that it is affected or likely to be affected by eutrophication.

33 Third, the French Government maintains that the Directive does not require all bodies of water which are eutrophic or may become eutrophic to be subject to its rules, but only those which are eutrophic or may become eutrophic if action pursuant to Article 5 is not taken. Member States must therefore select from among their eutrophic waters those whose quality can be improved by acting on the level of pollution by nitrates of agricultural origin.

34 Finally, it maintains that the Commission's position according to which nitrates must in all cases be considered, as a preventive measure, to be a sign of eutrophication within the meaning of the Directive negates the effectiveness of several provisions of that directive. The Directive requires identification as polluted waters only of eutrophic waters with respect to which the control of nitrates is possible by measures applying to agriculture and would make optional the designation of the whole of the territory as a vulnerable zone. Reasoning such as that of the Commission would necessarily lead to the identification as polluted of all waters containing nitrates, even at a reasonable level - that is to say, in practice, all Community waters.

35 In its statement in intervention, the Spanish Government states that a programme to reduce discharges of nitrates of agricultural origin, such as that laid down by the Directive, cannot have any effect on the eutrophication of waters and, accordingly, is of no interest unless two conditions are met. First, the primary production of the aquatic ecosystems concerned should be limited by the availability of nitrogen. Second, it must be possible to reduce the amount of nitrogen by applying that programme.

36 It therefore considers that only waters where the production of phytoplankton is limited by nitrogen and where it is possible to limit the amount of nitrogen by acting on agricultural practices should be regarded as waters affected by pollution within the meaning of the Directive.

37 The Spanish Government also maintains that it has been proved scientifically that, in the majority of epicontinental aquatic ecosystems, the primary production of phytoplankton and, ultimately, eutrophication are not limited by the availability of nitrogen, but rather that of phosphorus.

38 The Commission contends that that statement is not supported by any scientific study. It cites various studies which it mentioned in its application and its reply to demonstrate that eutrophication is due to a combination of inputs of nitrogen and phosphorus and that the input of nitrogen in the phenomenon of marine eutrophication cannot, therefore, be deliberately ignored.

Findings of the Court

39 First, as set out in the sixth recital in the preamble to and Article 1 of the Directive, its objective is, in order to protect human health and living resources and aquatic ecosystems and to safeguard other legitimate uses of water, to reduce water pollution caused or induced by nitrates from agricultural sources and to prevent further such pollution.

40 Second, the ninth recital in the preamble states that special protection is required for certain zones draining into waters vulnerable to pollution from nitrogen compounds.

41 In addition, Articles 3(1) and 3(2) and 5 of the Directive, in conjunction with its Annex I(A)(1) and I(A)(2), require Member States to comply with the following obligations:

- to identify as waters affected by pollution or which could be affected by pollution if action pursuant to Article 5 is not taken not only waters intended for human consumption but also the entirety of:

(i) surface freshwaters which contain or could contain more than the concentration of nitrates laid down in 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; and

(ii) groundwaters which contain or could contain a concentration of nitrates greater than 50 mg/l;

- to designate as vulnerable zones, by 20 December 1993 at the latest, all known areas of land in their territories which drain into the waters thus identified as affected by pollution in compliance with Article 3(1) of the Directive, and

- to establish, by 20 December 1995 at the latest, action programmes to reduce the pollution of waters by nitrates and to improve their quality in the vulnerable zones designated under Article 3(2) of the Directive.

42 Finally, the waters affected by pollution or which could be so affected referred to in Article 3(1) of the Directive are defined according to, inter alia, the criteria listed in Annex I(A) to the Directive. One of those criteria refers to eutrophication that has been observed or could occur in the near future if action pursuant to Article 5 is not taken.

43 In the present case, the French Government infers from the definition of eutrophication set out in Article 2(i) of the Directive that the enrichment of surface waters by nitrate is not sufficient to render those waters eutrophic within the meaning of the Directive.

44 Moreover, it maintains that the circular of 5 November 1992 demonstrates that, for certain categories of waters, inter alia flowing brackish waters and hard freshwaters, both stagnant and flowing, eutrophication can never be controlled by reducing the quantities of nitrogen, since phosphorus should be considered the controlling factor in the eutrophication.

45 Without having to take account of the many scientific reports and studies cited in the present action, it should be noted that restricting the scope of the Directive to exclude certain categories of waters owing to the supposedly fundamental role of phosphorus in the pollution of those waters is incompatible with both the logic and the objective of the Directive.

46 First, the methodology applied by the French Republic results in large sections of surface freshwaters, flowing brackish estuaries and coastal waters never being able to be designated as eutrophic, even if nitrate pollution from agricultural sources or the risk of such pollution is a fact.

47 The circular of 5 November 1992 requests the competent authorities to take account of the considerations set out in Annex 4, which explains, as seen in paragraph 12 of the present judgment, that nitrogen is not the controlling factor in the case of flowing brackish waters - that is, estuaries - and of hard freshwaters, both stagnant and flowing.

48 The possibility that major classes of waters would never be designated as eutrophic, even though there was in fact pollution by nitrates from agricultural sources or a real risk of such pollution, would clearly be incompatible with the Directive, which requires Member States to identify polluted waters or those which could be so affected in order to take certain measures to reduce water pollution caused or induced by nitrates from agricultural sources and to prevent further such pollution.

49 Admittedly, the circular of 5 November 1992 indicates that excessive growth of a plant species in an aquatic environment depends on multiple factors of a chemical, physical and environmental nature. According to that circular, at the stage where one can speak of eutrophication ..., that excessive growth of aquatic plant life thus appears to be the result of the complex and subtle interplay between a number of diverse and variable factors. To establish a relationship of cause and effect from its appearance, its nature, its intensity and its frequency is an extremely difficult task, precisely because of that complexity and subtlety of interactions.

50 None the less, taking account of that complexity and of the fact that, as is clear from the circular of 5 November 1992, understanding of the subject is still imprecise and incomplete, it is incompatible with the logic and objective of the Directive to exclude a priori from its scope major classes of waters, such as those mentioned in that circular. Notwithstanding the role that phosphorus may play in eutrophication, plant species whose growth is accelerated by nitrogen may appear in such waters, giving rise to a disturbance of the balance between the different organisms which are present there.

51 Also, taking account of the fact that the obligations arising from Article 3(1) and 3(2) of the Directive are intrinsically linked, a restrictive identification of waters affected by pollution or which could be so affected under Article 3(1) would result in an incomplete designation of vulnerable zones under Article 3(2).

52 The method adopted by the French authorities to define waters affected by pollution or which could be so affected makes it possible for certain waters with high nitrogen levels to fall outside the scope of the Directive, so that the basins which drain into them are not designated as vulnerable zones under Article 3(2) of the Directive and are consequently not required to be covered by an action programme in accordance with Article 5.

53 Finally, while it is true that the Member States have been granted a wide discretion in the identification of waters referred to in Article 3(1) of the Directive, because of the complexity of the assessments which they are called upon to carry out in that context (see Case C-293/97 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Standley and Others [1999] ECR I-2603, paragraphs 37 and 39), it nevertheless remains the case that when they carry out that identification, they are obliged to respect the objectives of the Directive, namely, the reduction of water pollution caused by nitrates from agricultural sources.

54 Thus, the exercise of that discretion may not result, as in the present case, in a large portion of nitrogen-bearing waters falling outside the scope of the Directive.

Failure to identify the waters of the Seine bay in the light of the Directive

Arguments of the parties

55 The Commission states that, by failing to identify the waters of the Seine bay as eutrophic within the meaning of the Directive, the French Republic has infringed Article 3(1) of and Annex I(A)(3) to the Directive.

56 The Commission cites, inter alia, the Schéma directeur d'aménagement et de gestion des eaux du bassin Seine-Normandie (Management Plan for the waters of the Seine-Normandy basin), according to which, first, the proliferation of toxic dinophysis phytoplankton appears to have accelerated over the past few years between Courseulles and Dieppe and, second, inputs of nutrients by the Seine and by watercourses appear to play a predominant role in the occurrence of the phenomenon.

57 In addition, a scientific paper of 1996 entitled Les apports en nitrate et phosphate en baie de Seine. Devenir de la pollution en mer (Nitrate and phosphate inputs in the Seine bay. The growth of marine pollution) indicates that the increase of agricultural inputs probably contributes to increased nitrogen inputs to the Seine bay, accelerates primary production there and gives rise to eutrophication.

58 According to the Commission, the Seine bay contributes to the eutrophication of the eastern part of the North Sea, northern France and Norway.

59 The French Government maintains for its part that the waters of the Seine bay are not eutrophic within the meaning of the Directive.

60 Thus, according to the French Government, which refers to the definition of eutrophication set out in Article 2(i) of the Directive, it can hardly be denied that there is an enrichment ... by nitrogen compounds of the Seine bay. That this is sufficiently serious to produce an accelerated growth of algae and higher forms of plant life is somewhat more doubtful, but that it leads to a disturbance to the balance of organisms present in the water and to the quality of the water has in no way been established by the Commission.

61 The French Government contends that neither the Seine bay nor the Lower Normandy coast experience the phenomena of macroalgae, brown tides or anoxia owing to an overabundance of phytoplankton. The Seine bay is characterised by strong tidal currents, which prevent the level of dissolved oxygen from dropping severely in the bottom waters of the bay, so that the natural balance of marine organisms is not disturbed. As to the temporary appearances of planktonic microalgae of the group dinophysis, these are not sufficiently serious to disturb the marine organisms and are due more to the vertical stratification of certain waters than to the growth of the amount of nitrogen in the water.

62 Hence, the French Government considers that the mere fact that nitrates are undeniably present in the Seine bay in sufficient quantity to nourish a hypothetical occurrence of eutrophication is not enough to contradict its conclusion that that zone is not eutrophic within the meaning of the Directive.

63 It also maintains that the failure to identify the Seine bay has not, in any event, had an impact on the following stage, that is, the designation of vulnerable zones, since almost all the zones feeding the Seine basin would have been designated as vulnerable on other grounds.

Findings of the Court

64 It should be noted at the outset that, in the written pleadings which it submitted to the Court, the French Government admits that there is, in the Seine bay, both enrichment by nitrogen compounds, which it does not deny are of agricultural origin, and accelerated growth of algae and of higher forms of plant life. In addition, it admits that it cannot be excluded that the persistence of certain phenomena which can be characterised as a disturbance to the balance of organisms present in the water or to the quality of the water makes it possible to consider that the Seine bay fulfils certain criteria for eutrophication.

65 It considers, none the less, in the light of the relevant objective and scientific criteria, that that zone need not be identified as eutrophic within the meaning of the Directive.

66 However, as is clear from paragraphs 45 to 54 of this judgment, the interpretation given to the concept of eutrophication by the French authorities and the method which they have adopted to identify the waters affected by pollution are too restrictive and, consequently, incompatible with the Directive.

67 In addition, even if the phenomenon of eutrophication is not evident in the Seine bay itself, it is none the less the case that that zone contributes to the eutrophication of the North Sea, which is, as the fourth recital to the Directive indicates, a zone requiring special protection.

68 As is evident from the reasoned opinion, the eutrophication of the eastern part of the North Sea, of northern France and of Norway has its origin in the discharge of nutrients, inter alia nitrogen, by all the basins draining into the North Sea and the eastern part of the English Channel. The Seine alone produces an annual flow of over 100 000 tonnes of nitrogen, two thirds of agricultural origin, in a total flow of 400 000 tonnes a year going from the Channel to the North Sea.

69 It is not in dispute in the present case that the nitrate levels of the water in the Seine bay are high and that, in the salt water of the North Sea, nitrogen is the most important limiting factor in the growth of algae and of higher forms of plant life.

70 In the light of the preceding considerations, it must be concluded that, by failing to take the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones, in accordance with Article 3 of and Annex I to the Directive, the French Republic has failed to fulfil its obligations under that directive.

Decision on costs

Costs

71 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the French Republic has been unsuccessful, the French Republic must be ordered to pay the costs. In application of the first subparagraph of Article 69(4) of those rules, the Kingdom of Spain, which intervened in the proceedings, must bear its own costs.

Operative part

On those grounds,

THE COURT (Sixth Chamber) hereby:

3. Orders the Kingdom of Spain to bear its own costs.