Language of document : ECLI:EU:C:1999:215

JUDGMENT OF THE COURT (Fifth Chamber)

29 April 1999 (1)

(Directive 91/676/EEC — Protection of waters against pollution caused bynitrates from agricultural sources — Identification of waters affected bypollution — Designation of vulnerable zones — Criteria — Validity in the light ofthe polluter pays principle, the principle that environmental damage should as apriority be rectified at source, the principle of proportionality and the right toproperty)

In Case C-293/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the High Courtof Justice of England and Wales, Queen's Bench Division, for a preliminary rulingin the proceedings pending before that court between

The Queen

and

Secretary of State for the Environment,

Minister of Agriculture, Fisheries and Food,

ex parte: H.A. Standley and Others and D.G.D. Metson and Others,

Intervener: National Farmers' Union,

on the interpretation and validity of Council Directive 91/676/EEC of12 December 1991 concerning the protection of waters against pollution caused bynitrates from agricultural sources (OJ 1991 L 375, p. 1),

THE COURT (Fifth Chamber),

composed of: P. Jann, President of the First Chamber, acting for the President ofthe Fifth Chamber, J.C. Moitinho de Almeida (Rapporteur), C. Gulmann,D.A.O. Edward and L. Sevón, Judges,

Advocate General: P. Léger,


Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    Messrs Standley and Others and Metson and Others, by David Vaughan QCand Peter Cranfield and Maurice Sheridan, Barristers, instructed by RichardBaber, Solicitor,

—    the National Farmers' Union, by Stuart Isaacs QC and Clive Lewis,Barrister, instructed by Sally Stanyer, Solicitor,

—    the United Kingdom Government, by Stephanie Ridley, of the TreasurySolicitor's Department, acting as Agent, Stephen Richards QC and JonTurner, Barrister,

—    the French Government, by Kareen Rispal-Bellanger, Head of theSubdirectorate for International Economic Law and Community Law in theLegal Affairs Directorate of the Ministry of Foreign Affairs, and RomainNadal, Assistant Secretary for Foreign Affairs in the same directorate, actingas Agents,

—    the Swedish Government, by Lotty Nordling, Rättschef in the LegalSecretariat (EU) of the Ministry of Foreign Affairs, acting as Agent,

—    the Council of the European Union, by Guus Houttuin, of its Legal Service,acting as Agent,

—    the Commission of the European Communities, by Richard B. Wainwright,Principal Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Messrs Standley and Others and Metson andOthers, represented by David Vaughan, Peter Cranfield and Maurice Sheridan; theNational Farmers' Union, represented by Stuart Isaacs and Clive Lewis; the UnitedKingdom Government, represented by Stephanie Ridley, Kenneth Parker QC andJon Turner; the Council, represented by Guus Houttuin; and the Commission,represented by Richard B. Wainwright, at the hearing on 18 June 1998,

after hearing the Opinion of the Advocate General at the sitting on8 October 1998,

gives the following

Judgment

1.
    By order of 17 June 1997, received at the Court on 11 August 1997, the High Courtof Justice of England and Wales, Queen's Bench Division, referred to the Court fora preliminary ruling under Article 177 of the EC Treaty two questions on theinterpretation and validity of Council Directive 91/676/EEC of 12 December 1991concerning the protection of waters against pollution caused by nitrates fromagricultural sources (OJ 1991 L 375, p. 1; 'the Directive‘).

2.
    Those questions were raised in two actions brought by Messrs Standley and Othersand Metson and Others for the annulment of decisions by which the Secretary ofState for the Environment and the Minister of Agriculture, Fisheries and Foodidentified the Rivers Waveney, Blackwater and Chelmer and their tributaries aswaters which could be affected by pollution within the meaning of Article 3(1) ofthe Directive and designated the areas of land draining into those waters asvulnerable zones within the meaning of Article 3(2) thereof.

The Directive

3.
    Article 1 of the Directive states:

'This Directive has the objective of:

—    reducing water pollution caused or induced by nitrates from agriculturalsources and

—    preventing further such pollution.‘

4.
    Article 2(j) states:

'For the purpose of this Directive:

...

(j)    ”pollution”: means the discharge, directly or indirectly, of nitrogencompounds from agricultural sources into the aquatic environment, theresults of which are such as to cause hazards to human health, harm toliving resources and to aquatic ecosystems, damage to amenities orinterference with other legitimate uses of water‘.

5.
    Article 3 provides:

'1.    Waters affected by pollution and waters which could be affected by pollutionif action pursuant [to] Article 5 is not taken shall be identified by the MemberStates in accordance with the criteria set out in Annex I.

2.    Member States shall, within a two-year period following the notification ofthis Directive, designate as vulnerable zones all known areas of land in theirterritories which drain into the waters identified according to paragraph 1 andwhich contribute to pollution. They shall notify the Commission of this initialdesignation within six months.

...

4.    Member States shall review [and] if necessary revise or add to thedesignation of vulnerable zones as appropriate, and at [least] every four years, totake into account changes and factors unforeseen at the time of the previousdesignation. They shall notify the Commission of any revision or addition to thedesignations within six months.

5.    Member States shall be exempt from the obligation to identify specificvulnerable zones, if they establish and apply action programmes referred to inArticle 5 in accordance with this Directive throughout their national territory.‘

6.
    Article 4 provides for the establishment of one or more codes of good agriculturalpractice, which are to be implemented by farmers on a voluntary basis and shouldcontain provisions covering at least the items mentioned in paragraph A ofAnnex II.

7.
    Article 5 states:

'1.    Within a two-year period following the initial designation referred to inArticle 3(2) or within one year of each additional designation referred to inArticle 3(4), Member States shall, for the purpose of realising the objectivesspecified in Article 1, establish action programmes in respect of designatedvulnerable zones.

2.    An action programme may relate to all vulnerable zones in the territory ofa Member State or, where the Member State considers it appropriate, differentprogrammes may be established for different vulnerable zones or parts of zones.

3.    Action programmes shall take into account:

(a)    available scientific and technical data, mainly with reference to respectivenitrogen contributions originating from agricultural and other sources;

(b)    environmental conditions in the relevant regions of the Member Stateconcerned.

4.    Action programmes shall be implemented within four years of theirestablishment and shall consist of the following mandatory measures:

(a)    the measures in Annex III;

...

6.    Member States shall draw up and implement suitable monitoringprogrammes to assess the effectiveness of action programmes established pursuantto this Article.

Member States which apply Article 5 throughout their national territory shallmonitor the nitrate content of waters (surface waters and groundwater) at selectedmeasuring points which make it possible to establish the extent of nitrate pollutionin the waters from agricultural sources.

7.    Member States shall review and if necessary revise their action programmes,including any additional measures taken pursuant to paragraph 5, at least everyfour years. They shall inform the Commission of any changes to the actionprogrammes.‘

8.
    For the purpose of designating and revising the designation of vulnerable zones,Article 6 of the Directive lays down a procedure for the monitoring of water qualityunder which the reference methods set out in Annex IV to the Directive are usedto measure the concentrations of nitrates and nitrogen compounds.

9.
    In Annex I, which relates to the criteria for identifying the waters referred to inArticle 3(1), paragraph A.1 provides:

'A.    Waters referred to in Article 3(1) shall be identified making use, inter alia,of the following criteria:

1.    whether surface freshwaters, in particular those used or intended for theabstraction of drinking water, contain or could contain, if action pursuantto Article 5 is not taken, more than the concentration of nitrates laid downin accordance with Directive 75/440/EEC.‘

10.
    The concentration of nitrates laid down in accordance with CouncilDirective 75/440/EEC of 16 June 1975 concerning the quality required of surfacewater intended for the abstraction of drinking water in the Member States(OJ 1975 L 194, p. 26) is 50 mg/l.

National law

11.
    It appears from the order for reference that the Protection of Water againstAgricultural Pollution (England and Wales) Regulations of 21 March 1996(S.I. 1996 No 888; 'the Regulations‘) were adopted under the EuropeanCommunities Act 1972 in order to give effect to the obligations arising under theDirective.

12.
    The designation by ministerial decision of the area of the River Waveney and ofthe area of the Rivers Blackwater and Chelmer as nitrate vulnerable zones wasimplemented by Annex 1 to the Regulations. The national court makes it clearthat there are no intermediate provisions of national law for it to construe.

13.
    It is also apparent from the order for reference that, as stated in the affidavit swornon 16 September 1996 by Paul Bristow, Head of the Water Quality Division at theDepartment of the Environment, 'the Government's approach to the designationof vulnerable zones was to identify tightly defined catchments of polluted waters,rather than always to designate catchments of entire surface water systems whichhad been found to be polluted at the surface water abstraction point. As a firststep bodies of water were identified on this basis which were either heavily pollutedor showed the clear potential to be heavily polluted by nitrates. Secondly, theknown areas of land draining into those waters (and not any areas of land draininginto the rivers upstream of those waters) were identified. Thirdly, having regardin particular to the land use and other characteristics of the areas of land and thebodies of water in question, an assessment was made as to whether agriculturalsources were making a significant contribution to the levels of pollution detected.‘

The main proceedings

14.
    The applicants in the main proceedings, supported by the National Farmers' Union('the NFU‘), have sought annulment of the decisions by which the respondentsidentified surface waters comprising the Rivers Waveney, Blackwater and Chelmerand their tributaries as waters which could be affected by nitrate pollution anddesignated the areas of land draining into those rivers as nitrate vulnerable zones.

15.
    According to the applicants in the main proceedings, the establishment, in thoseareas where they own or farm land, of action programmes restricting agriculturaluse, as required by the Regulations under which the nitrate vulnerable zones havebeen designated, would cause them immediate and long-term economic harm interms of land values and of income from their farming businesses.

16.
    In their view, Article 3(1) of the Directive requires the Member States to identifysurface freshwaters as waters which are or could be affected by pollution only ifthey exceed, or could exceed if relevant action were not taken, the threshold fornitrates of 50 mg/l by reason of the direct or indirect discharge of nitrogencompounds from agricultural sources. The Member States must therefore establishthe source of the nitrates which cause that threshold to be exceeded.

17.
    They plead in the alternative that, if the interpretation contended for by therespondents in the main proceedings were correct, the Directive would infringe thepolluter pays principle, the principle that environmental damage should as apriority be rectified at source, the principle of proportionality and the fundamentalright to property.

18.
    According to the respondents, it follows from Article 2(j) of the Directive andparagraph A.1 of Annex I that the term 'waters affected by pollution‘ inArticle 3(1) refers to surface freshwaters used for drinking water supplies that havea nitrate content in excess of 50 mg/l to which nitrates from agricultural sourcesmake a significant contribution. They state that no provision of the Directive orits annexes contains even an implied obligation on the Member States to assess theconcentration of nitrates attributable solely to agricultural sources of pollution whenestablishing whether the threshold of 50 mg/l is exceeded. The limit of 50 mg/lrepresents the overall concentration of nitrates, of whatever origin, in drinkingwater supplies above which hazards to human health arise. Moreover, it isimpossible to determine accurately whether the nitrates of agricultural originpresent in surface waters exceed 50 mg/l.

19.
    In reply to the applicants' alternative plea, the respondents point out that themeasures provided for by the action programme are to take account of thequantities of nitrogen originating from agricultural and from other sources.

20.
    The High Court of Justice of England and Wales, Queen's Bench Division, havingregard to those submissions, considered that the actions brought by the applicantsin the main proceedings raised matters of general interest relevant to all farmersaffected by the interpretation of the Directive and its implementation by nationalauthorities. It therefore decided to stay proceedings and refer the followingquestions to the Court for a preliminary ruling:

'1.    Does Council Directive 91/676/EEC of 12 December 1991 concerning theprotection of waters against pollution caused by nitrates from agricultural

sources (”the Nitrates Directive”) require Member States, in accordance, inparticular, with Articles 2(j) and 3(1) and Annex I thereof, to identifysurface freshwaters as ”waters affected by pollution”, and then to designateas vulnerable zones in accordance with Article 3(2) thereof all known areasof land which drain into such waters and which contribute to pollution:

    (i)    where those waters contain a concentration of nitrates in excess of50 mg/l (being the concentration of nitrates laid down by Annex I tothe Nitrates Directive, by reference to Directive 75/440/EEC) and theMember State is satisfied that the discharge of nitrogen compoundsfrom agricultural sources makes a ”significant contribution” to thisoverall concentration of nitrates and, if so, is a Member State entitledto be so satisfied if it has reason to believe that the contribution tothis overall concentration of nitrates, of nitrogen compoundsdischarged from agricultural sources, is greater than de minimis orsome other amount or degree of contribution, and if the latter, whatamount or degree of contribution amounts to a ”significantcontribution” for these purposes; or

    (ii)    only where the discharge of nitrogen compounds from agriculturalsources itself accounts for a concentration of nitrates in those watersin excess of 50 mg/l (i.e. leaving out of account any contribution fromother sources); or

    (iii)    on some other basis and, if so, what basis?

2.    If Question 1 is answered otherwise than in sense (ii) above, is the NitratesDirective invalid (to the extent of its application to surface freshwaters) onthe grounds that it infringes:

    (i)    the principle that the polluter should pay; and/or

    (ii)    the principle of proportionality; and/or

    (iii)    the fundamental property rights of those owning and/or farming landdraining into surface freshwaters required to be identified underArticle 3(1), being areas of land which are then designated byMember States as vulnerable zones under Article 3(2)?‘

Question 1

21.
    By its first question, the national court is essentially asking whether Articles 2(j)and 3(1) of the Directive and Annex I thereto must be interpreted as requiring theidentification of surface freshwaters as 'waters affected by pollution‘, and thereforethe 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 contributeto their pollution, where those waters contain a concentration of nitrates in excessof 50 mg/l and the Member State concerned considers that the discharge ofnitrogen compounds from agricultural sources makes a 'significant contribution‘to that overall concentration of nitrates.

22.
    Should that question be answered in the affirmative, the national court asks whatquantity of nitrates or degree of contribution to the pollution constitutes a'significant contribution‘.

23.
    The applicants in the main proceedings, supported by the NFU, maintain thatsurface freshwaters are to be identified as affected by pollution only whereagricultural sources alone account for a concentration of nitrates in those watersin excess of 50 mg/l, the limit laid down in Directive 75/440.

24.
    That assertion, they submit, is reinforced, first, by the fact that the objective of theDirective is to protect waters from pollution due to nitrates from agriculturalsources (second, third, fifth, sixth, ninth and tenth recitals in the preamble to theDirective and Article 1 thereof).

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

26.
    Third, the applicants in the main proceedings contend that when the MemberStates apply Article 3(1) of the Directive they are to assess whether the maximumconcentration of nitrates in water could be exceeded if action pursuant to Article 5is not taken. Since such action is concerned solely with agricultural practices, the50 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 theDirective, establish and apply action programmes throughout their territory withoutdesignating specific vulnerable zones, a possibility which has not been taken up inthis case, that does not exempt them from the obligation to determine the extentof water pollution caused by nitrates from agricultural sources.

28.
    Finally, as regards the 'significance‘ of the contribution made by agriculturalsources to the level of nitrates in the waters concerned, the applicants in the mainproceedings state that that concept is imprecise and does not appear anywhere inthe Directive. An interpretation under which the Member States may decide thelevel beyond which such a contribution is significant would be contrary to theprinciple of legal certainty and would not be justified by the impossibility ofmeasuring 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 watersaffected by pollution in accordance with Article 3(1) of the Directive, they are toapply 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 ofdrinking water, must be identified as waters affected by pollution when theycontain, or could contain if action pursuant to Article 5 of the Directive is nottaken, 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 arerequired to determine precisely what proportion of the pollution in the waters isattributable to nitrates of agricultural origin or that the cause of such pollutionmust be exclusively agricultural.

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

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

33.
    Finally, the interpretation put forward by the applicants in the main proceedingswould lead to exclusion from the scope of the Directive of numerous cases whereagricultural sources make a significant contribution to the pollution, a result whichwould be contrary to the Directive's spirit and purpose.

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

35.
    The question whether the Directive applies only where the discharge of nitrogencompounds of agricultural origin makes a significant contribution to the pollutionmust be answered in the affirmative, given the objective of the Communitylegislature, namely to reduce and prevent water pollution caused or induced by

nitrates from agricultural sources, and the scope of the measures envisaged for thatpurpose by Article 5.

36.
    However, the Directive does not preclude the Member States, if their national lawso 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 bypollution in accordance with Article 3(1) of the Directive, as interpreted in thisjudgment, they must take account of the wide discretion enjoyed by the MemberStates which is inherent in the complexity of the assessments required of them inthat context.

38.
    However, Community law cannot provide precise criteria for establishing in eachcase whether the discharge of nitrogen compounds of agricultural origin makes asignificant 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 theDirective, since it does not seek to harmonise the relevant national laws but tocreate the instruments needed in order to ensure that waters in the Community areprotected against pollution caused by nitrates from agricultural sources. TheCommunity legislature necessarily accepted that consequence when, in Annex I tothe Directive, it granted the Member States a wide discretion in the identificationof waters covered by Article 3(1).

40.
    The answer to the first question must therefore be that Articles 2(j) and 3(1) of theDirective and Annex I thereto must be interpreted as requiring the identificationof surface freshwaters as 'waters affected by pollution‘, and therefore thedesignation as 'vulnerable zones‘ in accordance with Article 3(2) of the Directiveof all known areas of land which drain into those waters and contribute to theirpollution, where those waters contain a concentration of nitrates in excess of50 mg/l and the Member State concerned considers that the discharge of nitrogencompounds from agricultural sources makes a 'significant contribution‘ to thatoverall concentration of nitrates.

Question 2

41.
    By its second question, the national court asks whether the fact that theconcentration of nitrates of agricultural origin in waters identified underArticle 3(1) of the Directive may, in itself, not exceed 50 mg/l infringes theprinciple of proportionality, the polluter pays principle and the fundamental rightto property of the farmers concerned, thereby rendering the Directive invalid.

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

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

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

45.
    Finally, they submit that the right to property is infringed by imposing on farmersthe entire responsibility for, and economic burden of, reducing nitrateconcentrations in the waters concerned when others are the major or substantialcauses 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 vulnerablezones are to take account of available scientific and technical data with referenceto the respective nitrogen quantities originating from agricultural and other sourcesand of environmental conditions in the relevant regions.

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

48.
    Also, the Member States are required to draw up and implement suitablemonitoring programmes to assess the effectiveness of the action programmes

(Article 5(6) of the Directive) and they are to review and, if necessary, revise theiraction programmes at least every four years (Article 5(7)). They can thus takeaccount of changes of circumstance in relation to pollution from both agriculturaland other sources.

49.
    Finally, the codes of good agricultural practice adopted by the Member Statesunder Article 4(1)(a) of the Directive are to take account of conditions in thedifferent regions of the Community (paragraph A of Annex II).

50.
    It follows that the Directive contains flexible provisions enabling the Member Statesto observe the principle of proportionality in the application of the measures whichthey adopt. It is for the national courts to ensure that that principle is observed.

51.
    As regards the polluter pays principle, suffice it to state that the Directive does notmean that farmers must take on burdens for the elimination of pollution to whichthey have not contributed.

52.
    As has been pointed out in paragraphs 46 and 48 of this judgment, the MemberStates are to take account of the other sources of pollution when implementing theDirective and, having regard to the circumstances, are not to impose on farmerscosts of eliminating pollution that are unnecessary. Viewed in that light, thepolluter pays principle reflects the principle of proportionality on which the Courthas already expressed its view (paragraphs 46 to 50 of this judgment).

53.
    The same applies to breach of the principle that environmental damage should asa priority be rectified at source, since the arguments of the applicants in the mainproceedings are indissociable from their arguments relating to breach of theprinciple of proportionality.

54.
    As regards infringement of the right to property, the Court has consistently heldthat, while the right to property forms part of the general principles of Communitylaw, it is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in factcorrespond to objectives of general interest pursued by the Community and do notconstitute a disproportionate and intolerable interference, impairing the verysubstance of the rights guaranteed (Case 44/79 Hauer v Land Rheinland-Pfalz[1979] ECR 3727, paragraph 23, Case 265/87 Schräder v Hauptzollamt Gronau[1989] ECR 2237, paragraph 15, and Case C-280/93 Germany v Council [1994]ECR I-4973, paragraph 78).

55.
    It is true that the action programmes which are provided for in Article 5 of theDirective and are to contain the mandatory measures referred to in Annex IIIimpose certain conditions on the spreading of fertiliser and livestock manure, sothat those programmes are liable to restrict the exercise by the farmers concernedof the right to property.

56.
    However, the system laid down in Article 5 reflects requirements relating to theprotection of public health, and thus pursues an objective of general interestwithout the substance of the right to property being impaired.

57.
    While the institutions and the Member States are bound by the principle ofproportionality when pursuing such an objective, the Directive does not, as hasbeen found in paragraphs 46 to 50 of this judgment, offend against that principle.

58.
    Accordingly, it must be concluded that consideration of the questions raised hasdisclosed no factor of such a kind as to affect the validity of the Directive.

Costs

59.
    The costs incurred by the United Kingdom, French and Swedish Governments andby the Council and the Commission, which have submitted observations to theCourt, are not recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the actions pending before the national court, the decisionon costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the High Court of Justice of Englandand Wales, Queen's Bench Division, by order of 17 June 1997, hereby rules:

1.    Articles 2(j) and 3(1) of Council Directive 91/676/EEC of 12 December 1991concerning the protection of waters against pollution caused by nitratesfrom agricultural sources and Annex I thereto must be interpreted asrequiring the identification of surface freshwaters as 'waters affected bypollution‘, and therefore the designation as 'vulnerable zones‘ inaccordance with Article 3(2) of that directive of all known areas of landwhich drain into those waters and contribute to their pollution, where thosewaters contain a concentration of nitrates in excess of 50 mg/l and theMember State concerned considers that the discharge of nitrogencompounds from agricultural sources makes a 'significant contribution‘to that overall concentration of nitrates.

2.    Consideration of the questions raised has disclosed no factor of such a kindas to affect the validity of Directive 91/676.

Jann                    Moitinho de Almeida            Gulmann

        Edward                            Sevón

Delivered in open court in Luxembourg on 29 April 1999.

R. Grass

J.-P. Puissochet

Registrar

President of the Fifth Chamber


1: Language of the case: English.