Chapter 10 - The Case for Smart Governance in European Water Law

Summary

INTRODUCTION

The European Water Framework Directive prohibits deteriorating bodies of surface water and states that it is the common responsibility of all EU Member States to improve the water quality.

Since the Water Framework Directive (WFD) became EU law in 2000, national policy makers and government agencies have struggled to comprehend and properly implement its regulatory reach. Article 4(1)(a)(i) WFD provides that member states need to prohibit deteriorating the status of all bodies of surface water. I will elaborate on this further in section 2.4.

On top of that, Article 4(1)(a)(ii) and (iii) WFD demand the Member States to not just passively prohibit deteriorations, but to take pro-active measures to protect, enhance and restore bodies of surface water in order to gradually reach a good status. I will expand on this provision in section 2.5.

The timeframe of fifteen years granted to accomplish the aforementioned ‘good status’ is approaching its end. Hardly surprisingly, Member States are nonetheless far from achieving the WFD's ambitious objectives. National authorities increasingly require higher standards before permitting new pollution sources such as coal-fired power plants. Furthermore, national courts are facing the WFD's legal requirements when hearing lawsuits brought before them by citizens and NGOs seeking to repeal the permit of certain activities that might deteriorate the status of water bodies.

In May and July of 2013, respectively, the District Court (Tingsrätt) of Östersund (Sweden) and the German Federal Administrative Court (Bundesverwaltungsgericht) filed motions with the European Court of Justice (ECJ) requesting a preliminary ruling. The filing courts point out that the WFD's provisions might not only prohibit deteriorations which lead to the assignment of a new – worse – status class in accordance with Article 2 No. 21–23, Annex V (e.g. from ‘good’ to ‘moderate’ ecological status), as it is prominently vindicated by operators of polluting enterprises, government agencies and certain EU executives (‘status class approach’). Instead, the Östersunds Tingsrätt and the Bundesverwaltungsgericht suggest that deteriorations which remain below the threshold of assigning a new status class shall also be covered by the prohibition. The submitting courts proposed a stricter approach which would essentially prohibit any activity that might have a negative impact on the status of bodies of surface water. This so-called ‘status quo theory’ has gotten quite a bit of traction within the German legal discourse.