WATER FRAMEWORK DIRECTIVE

Article 14 of the WFD is specifically dedicated to public information and consultation. Its wording does not seem as ambitious as one might have expected when the Aarhus Convention had just been adopted in 1998.
Indeed, Member States “shall encourage the active involvement of all interested parties in the implementation” of the WFD. As stated by the Court, the word “encourage” is “somewhat aspirational in nature , so that the binding nature of that provision is limited” . However, The Court highlights that Member States are “required to respect the substance of Article 14 (1) (…) which consists of an obligation to encourage“ active participation of all relevant parties such as the public and NGOs. Furthermore, Member States “shall ensure that, for each river basin district, they publish and make available for comments to the public, included users” different documents:

1. a timetable and work programme for the production of the plan, including a statement of the consultation measures to be taken, at least three years before the beginning of the period to which the plan refers,
2. an interim overview of the significant water management issues identified in the river basin, at least two years before the beginning of the period to which the plan refers,
3. draft copies of the river basin management plan, at least one year before the beginning of the period to which the plan refers” (article 14(1)).

Members States shall also allow “at least six months to comment in writing on those documents in order to allow active involvement and participation” (article 14 (2)). These binding obligations relate not only to the procedure for the production of each river basin management plan but also for the review and the updating of such document (article 14 (3)).
In 2019, the Court recognised the failure of the Kingdom of Spain to fulfil its obligations under article 14 of the WFD. The Member State did not, within the prescribed time limit, inform and consult the public concerning the revision and updating of the river basin management plans for Lanzarote, Fuerteventura, Gran Canaria, Tenerife, La Gomera, La Palma and El Hierro .
Under article 14 (1) any person shall have access on request “to background documents and information used for the development of the draft river management plan”. Finally, Member States may encourage the active involvement of the public beyond the production, review and updating of the river basin management plans .
The WFD does not contain any specific provisions on access to justice unlike the current EU environmental legislation since the approval of the Aarhus Convention by EU.

Among the measures included in their programmes of measures (Annex VI of WFD), Member States shall include measures required under different EU environmental legislations, such as those provided by the environmental impact assessment directive concerning certain public and private projects . Under Directive 85/337/CEE (now abrogated by Directive 2011/92/EU amending by Directive 2014/85/EU ), the environmental impact assessment must identify, describe and assess the “direct and indirect significant effects” of a project on different factors, in particular on water (article 3), on the use of water resource with regard to environmental sensitivity of geographical areas (relative abundance, availability and regenerative capacity of natural resources, the absorption capacity of the natural environment (wetlands, riparian areas, river mouths, coastal zones…”(Annex III). Several provisions of this directive are dedicated to the participation of the public concerned in the decision-making procedures and to the information of the public “early in the environmental decision-making procedures” (article 6). In addition, the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters also requires public participation in decisions on specific activities listed in Annex I. In “accordance with its national law”, each Party shall apply this article 6 on public participation “to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment”.
Directive 2011/92/EU amending by Directive 2014/85/EU distinguishes the notion of “public” form the notion of “public concerned”. The notion of “public” is defined as “one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups” and the notion of “public concerned” is defined as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in article 2 (2)”. For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest. Under article 6, Member States shall ensure that the “public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures (…) and shall be, for this purpose, entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken”.