EU SPECIFIC WATER LEGISLATIONS

In addition, “additional measures or reinforced actions” that the Member States “consider necessary” must be implemented if, at the outset or in the light of experience gained in implementing the action programmes, it becomes apparent that the above-mentioned measures will not be sufficient for achieving the Directive’s objectives (Article 5(5)) . As the Court points out, “Member States must take such additional measures or reinforced at the point at which it first becomes clear they are necessary” and “there is no need to prove the measures already adopted are ineffective” in order “to establish a need to adopt additional measures or to implement reinforced actions pursuant article 5 (5)” .
At the core of the directive are those rules relating to periods when the use of certain types of fertilisers on agricultural land is prohibited and the capacity of storage vessels for livestock manure must exceed that required for storage throughout the longest period during which land application in the vulnerable zone is prohibited. This has practical consequences that have been illustrated in case-law. For example, while a Member State is free to limit the use of livestock manure by means of use or input standards for phosphates, it must always demonstrate that the conversion method which it uses for that purpose is such as to ensure that the amount of livestock manure which is allowed to be applied to land in accordance with the phosphate standards does not exceed the limits on nitrogen fixed by the directive . And if the local climate has rainy periods during which if fertilisers are applied to land there is a high risk that rainwater flowing across the ground will result in the pollution of waters by nitrates, this makes it necessary for the Member State to specify periods during which such use of fertilisers, including inorganic fertilisers, is inappropriate .
Only in as much as it is demonstrated that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which does not cause harm to the environment may certain farms or livestock units benefit from exceptions to that rule, and the Member State involved must justify this to the Commission.
First, the capacity of storage vessels for livestock manure may on a case by case basis be authorised not to match that required for storage throughout the longest period during which land application in the vulnerable zone is prohibited, where it can be demonstrated to the competent authority that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which will not cause harm to the environment (Annex III (1)(2)). This was illustrated by the finding by the Court of Justice according to which a tax imposed on farmers in case of excessive application of manure, while it may indirectly limit the quantities so applied, does not ensure compliance with the treaty’s requirement that pollution should as a priority be combated at source which, in the context of the directive, means that nitrogen inputs must be limited to the fullest possible extent “a fact which also justifies setting use standards”. As a result, even if a tax must be paid when they are exceeded, loss standards are not sufficient in that regard.
Second, a Member State may allow a different amount of nitrogen provided it informs the Commission, which shall examine the justification (Annex III (2)(b)) . For instance, such a derogation was obtained by Belgium with regard to the region of Flanders, under drastic conditions: the amount of grazing livestock manure and treated manure was authorised up to 250 kg of nitrogen per hectare per year on parcels cultivated with grassland and maize undersown with grassland and 200 kg of nitrogen per hectare per year on parcels cultivated with winter wheat followed by a catch crop and with beets, and “the total nitrogen input shall comply with the nutrient demand of the considered crop and take into account the supply from the soil and the increased manure nitrogen availability due to treatment” not to exceed certain ceilings in any case .
However, the Court underlined that Directive 96/676 did not provide “any derogation to establish periods of prohibition on the land application of all types of fertiliser” , including “livestock manure, fish farm residues and sewage sludge” .
While this is not specified by Directive 91/676 itself, it should be stressed that manure/slurry is generally to be characterised as waste under waste legislation, with all the resulting consequences, except when they fall within the scope of the rules applicable to by-products, themselves subject to very strict conditions. The so-called Waste Framework Directive 2008/98 revised by Directive (UE) 2018/98/EC defines the legal category of waste, including by providing for the exclusion of by-products and products obtained out of recovered waste from that legal category. The Waste Framework Directive also lays down the main rules applicable to waste management. Under Directive 2008/98/EC, the Court of Justice ruled that only where it can be shown to be a by-product is slurry produced in a piggery and used as fertiliser not to be characterised as waste . Currently, pursuant to the Waste Framework Directive, a substance or an object obtained from a production process, the primary aim of which is not the production of that item, may be regarded as a by-product rather than as waste provided four conditions are fulfilled. These conditions are as follows: the further use of the object or substance in question must be certain; it must be capable of being used “directly without any further processing other than normal industrial practices”, after having been produced “as an integral part of a production process”; and its further reuse must be lawful in that such substance or object fulfils all relevant products, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts” (Article 5(1)).

It is not possible to take account, in the calculation of the requirements, of the various losses through ammonia evaporation and the extra nitrogen due to deposition. The decisive criterion which the directive lays down for limiting pollution by nitrates from agricultural sources is 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. As a result, the various losses through ammonia evaporation and the extra nitrogen due to deposition should not be deducted from the quantity of nitrogen supplied to the soil .
Suitable monitoring programmes must be developed and implemented to assess the effectiveness of action programmes (Article 5(6)). One or several codes of good agricultural practice should be implemented by farmers on a voluntary basis. If needed, a programme provides for training and information for farmers in view of promoting the application of the codes of good agricultural practice (Article 4). When any waters in vulnerable zones are affected by pollution from waters from another Member State draining directly or indirectly into them, both Member States shall consult to identify the sources in question and the measures to be taken to protect the affected waters (Article 3(3)).

In 2019, for the first time, a request for a preliminary ruling from the Administrative Court of Vienna offered the opportunity for the Court to deal with the question of who is able to rely on Directive 91/676/EEC before national Courts. The applicants were a water supplier, an individual, and a municipality requesting that the competent authorities take measures going beyond the existing national action programme in order to attain a nitrate concentration of less than 50 mg/l in groundwater as imposed by Directive 91/676/EEC. They based their request on the rights conferred directly by this directive. According to settled case-law, the Court recalls that “it would be incompatible with the binding effect conferred by article 288 TFEU on a directive to exclude, in principle that the obligations which it imposes may be relied on by the persons concerned” . In the present case, The Court considers that a “natural or legal person having the option of drawing and using groundwater is directly concerned by that threshold being exceeded or the risk of it being exceeded, which is capable of limiting that person’s option by interfering with the legitimate use of that water”. It also underlines that “the fact that values over that threshold do not, as such, involve a danger to the health of the person wishing to bring an action is not capable of calling into question that conclusion”. The Court concluded “that the applicants in the main proceeding must be in a position to require national authorities to observe those obligations if necessary by bringing an action before the competent courts”. Finally, it considers that the obligations provided for in article 5 (4) and (5) “are clear, precise and unconditional, which means that they can be invoked by individuals against the State”.

According to the 2021 report on the implementation of Directive 91/676/EEC, most Member States adopted new or revised action programmes during the period 2016-2019, except Belgium (Wallonia), Cyprus, Finland and Romania. The litigation before the Court of Justice illustrated the main difficulties of the implementation in Member States (designation of vulnerable zones, action programmes, monitoring) in recent years . In 2021, the Commission’s finding were very clear: “the level of implementation and enforcement are still not sufficient to reach the objectives of the Directive, 30 years after its adoption and in spite of some progress” . The Zero Pollution Action Plan (2021) and the future Integrated Nutrient Management Action Plan promote the ambitious objective of reducing nutrient losses by 50% by 2030. An effective implementation of Directive 91/676 is clearly an emergency, but it is not sufficient without a rapid ecological transition of the agricultural model of the Common Agricultural Policy.