Pollution caused by nitrates

April 1st, 2019

The European Union adopted rules to counter water pollution caused by nitrates as early as 1991, namely the Waste Water Directive, which regulates the construction and operation of waste-water treatment plants in particular, and the Nitrates Directive, which concerns nitrates from agriculture. The aim of those measures is first and foremost to protect ecosystems from excess nutrient supply. However, at the same time, health risks are also associated with nitrates, particularly in very young infants. The Drinking Water Directive therefore contains a limit value of 50 mg/l for nitrates, a value which also appears in the Nitrates Directive.

In Case C-197/18, WNB, Prandl and Municipality of Zillingdorf v Austrian Federal Ministry of Agriculture, a water supplier, an individual and a municipality, were requesting measures to ensure that groundwater contains less than 50 mg/l of nitrates. The competent authorities, on the other hand, contest that the applicants have the right to request such measures. It is also disputed whether further measures are necessary and whether the relevant rules have direct effect.

The case gave the CJEU another opportunity to deal with the question of who is able to rely on EU environmental legislation before national courts and it considered for the first time to what extent reliance on the Nitrates Directive is possible before those courts.

Advocate General Kokott, in her Opinion delivered on 28 March 2019, addressed the Aarhus Convention, the Nitrates Directive, the Drinking Water Directive, the Water Framework Directive, and the Groundwater Directive, said:-

“36. The request for a preliminary ruling is intended to clarify whether on the basis of the Nitrates Directive the three applicants in the main proceedings, a public drinking water supply undertaking, a municipality which operates a well and an individual owner of a well, may request that the competent authorities take measures going beyond the existing national action programme to implement the Nitrates Directive in order to attain a nitrate concentration of less than 50 mg/l in groundwater.

37. With this in mind, I will first discuss to what extent the applicants are able, in principle, to rely on the provisions of the Nitrates Directive and then examine under what conditions there could be a right to further measures to ensure a corresponding reduction in the nitrate concentration.”

“40. In the absence of EU rules concerning the requirements for judicial review, it is for the domestic legal system of each Member State to determine those requirements in accordance with the principle of procedural autonomy provided, however, that those requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness).

41. The principle of effectiveness in particular is significant in this case. It would be incompatible with the binding effect attributed to a directive by Article 288 TFEU to exclude, in principle, the possibility that the obligations which it imposes may be relied on by those concerned.  At least the natural or legal persons directly concerned by an infringement of provisions of a directive must therefore be in a position to require the competent authorities to observe such obligations, if necessary by bringing an action before the competent courts.”

“44. The Court has previously held in relation to natural persons that the considerations regarding direct concern apply particularly in respect of a directive which is intended to protect public health.  The Nitrates Directive shares this objective … However, the overriding concern of the applicants in this case is based only indirectly on health protection.

45. This is possible as the Court has merely found that the considerations regarding reliance on EU environmental legislation would apply particularly in respect of provisions to protect health. …

46. In the main action all three applicants are directly concerned as, according to the request for a preliminary ruling, they have the right to use their wells for producing drinking water but cannot exercise that right without further treatment of the water because the water, which contains more than 50 mg/l of nitrates, cannot be used as drinking water on the basis of the limit value fixed under Article 5 and Annex I, Part B to the Drinking Water Directive on grounds of health protection.

47. It is clear from Article 2(j) in particular that such concern is covered by the protective purpose of the Nitrates Directive, and must therefore be legally significant. Under that provision, the directive is intended to prevent interference with legitimate uses of water.”

“50.  It is … sufficient that use as drinking water is allowed in order to be concerned by a possible infringement of the Nitrates Directive which interferes with the use of groundwater as drinking water. In the case of such concern, the person concerned must have a right, in principle, to require compliance with the Nitrates Directive.

51. It is immaterial in this regard whether it is possible, … to pass on any additional costs to third parties, as this necessity also constitutes interference with permitted uses of groundwater.

52. Furthermore, a consequence of the need to demonstrate concern is that the applicants in the main proceedings cannot require compliance with the Nitrates Directive in Austria in general but only in so far as the groundwater used by them is affected. …”

“54. The Court has not made a specific, irrefutable risk to health a condition, … The question whether an infringement … poses a risk to health depends on the distribution of the pollutants. … The Court … held that there are individuals directly concerned who are able to enforce compliance with such ceilings.

55. The Court has not made a specific, irrefutable risk to health a condition, … The question whether an infringement … poses a risk to health depends on the distribution of the pollutants. … The Court … held that there are individuals directly concerned who are able to enforce compliance with such ceilings.

56. Consequently, natural persons at least, that is to say, Mr Prandl in the main proceedings, have the right to rely on the Nitrates Directive in respect of interferences with groundwater quality concerning them.

57. The Wasserleitungsverband and the Gemeinde, on the other hand, are legal persons and not therefore directly concerned by possible health risks. It must be presumed with regard to the Gemeinde in particular that it has a duty under national law to protect the health of its residents. The Wasserleitungsverband could have similar duties in respect of its customers. However, the request for a preliminary ruling does not contain any information in this regard and it does not therefore make any sense to examine these ideas in greater detail.

58.  This interpretation of the concept of concern follows directly from the fundamental principles of EU law. However, it also constitutes a correct implementation of the obligations stemming from Article 9(3) of the Aarhus Convention in conjunction with Article 47(1) of the Charter of Fundamental Rights. …”

“61. …   , the applicants in the main proceedings are all concerned by the pollution of groundwater, because of their wells, and thus satisfy the conditions laid down in Article 2(5) of the Aarhus Convention.

62. It should be noted, for the sake of completeness, that under no circumstances can the existence of Article 9(3) of the Aarhus Convention be construed as restricting the possibility to rely on EU environmental legislation, as under Article 3(6) the Convention does not require any derogation from existing rights of access to justice in environmental matters. The reference in Article 9(3) to criteria laid down in national law does not therefore justify a restriction of reliance on EU law.

63.   It must therefore be concluded that a public water supplier, an individual and a municipality as a public body may, in principle, rely on the Nitrates Directive in so far as they are concerned by nitrate pollution of groundwater, for example because they are subject to interference with the use of their own wells for legitimate abstraction of drinking water.”

“67. Article 5(4), Article 4 and Annexes II and III to the Nitrates Directive contain mandatory requirements which, at least in some cases, do not allow any discretion. … As those concerned by nitrate pollution may in principle rely on the directive, they should also be able to require enforcement of those specified amounts and similar requirements.”

“79. A nitrate level of more than 50 mg/l in groundwater must … be regarded as pollution specifically because it interferes with legitimate uses of wells for the abstraction of drinking water. …”

“81.  It is true that the Nitrates Directive does not establish a right to be able to use groundwater as drinking water without restriction. After all, the Nitrates Directive does not contain rules on other pollutants or on nitrate levels not attributable to agriculture.

82. As has already been explained, however, the Nitrates Directive is intended to ensure that the abstraction of drinking water is not prevented because of the nitrate level in the water in question, at least in so far as this is attributable to a significant degree to agriculture.

83. This interpretation of the Nitrates Directive is reinforced by the fact that Article 4(2) and point 1 of Annex I to the Groundwater Directive also set a limit value of 50 mg/l of nitrates for the good status of groundwater. It is true that Article 4(2) of the Groundwater Directive also mentions alternative benchmarks for good groundwater status. In addition, the time limits for achieving that status extended pursuant to Article 4(4) of the Water Framework Directive have not yet expired. Nevertheless, the criterion laid down in the Groundwater Directive also shows that the value contained in the Nitrates Directive for establishing pollution must be significant.

84. Consequently, the measures to implement the Nitrates Directive must seek to prevent or eliminate a nitrate level of more than 50 mg/l in groundwater if the discharge of nitrogen compounds from agricultural sources makes a significant contribution to the pollution.”

“93.  Member States must … effectively review every four years whether the existing action programmes to implement the Nitrates Directive are sufficient for preventing or eliminating a nitrate level of more than 50 mg/l in groundwater and take all necessary additional measures or reinforced actions if it is apparent that this is not the case.”

“108. In summary, it can be stated that the national courts must be able to review the assessment of the effectiveness of action programmes and the decision whether or not to take additional measures or reinforced actions at least in respect of manifest errors and whether the competent authorities have respected the limits of their discretion as well as procedural requirements, in particular the obligation to state reasons, and have examined all the relevant aspects.”

The Advocate General proposed that the Court answer the request for a preliminary ruling as follows:-

“1. A public water supplier, an individual and a municipality as a public body may, in principle, rely on Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources in so far as they are concerned by nitrate pollution of groundwater, for example because they are subject to interference with the use of their own wells for legitimate abstraction of drinking water.

2. The measures to implement Directive 91/676 must seek to prevent or eliminate a nitrate level of more than 50 mg/l in groundwater if the discharge of nitrogen compounds from agricultural sources makes a significant contribution to the pollution.

3. Member States must effectively review every four years whether the existing action programmes to implement Directive 91/676 are sufficient for preventing or eliminating a nitrate level of more than 50 mg/l in groundwater and take all necessary additional measures or reinforced actions if it is apparent that this is not the case.

4. The national courts must be able to review the assessment of the effectiveness of action programmes and the decision whether or not to take additional measures or reinforced actions at least in respect of manifest errors and whether the competent authorities have respected the limits of their discretion as well as procedural requirements, in particular the obligation to state reasons, and have examined all the relevant aspects.”

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