WATER FRAMEWORK DIRECTIVE

Two interesting cases brought by national jurisdictions to the Court of Justice offers the opportunity to clarify the interactions between WFD, Directive 2011/92/EU, Article 9 of Aarhus Convention and Article 47 of Charter of Fundamental Rights in the EU.
The first case (C-664/15 ) concerns the request of an environmental association “Protect Nature” before the Austrian Administrative Court, seeking to secure status as a party to the procedure related to the extension of a permit for a snow making facility granted pursuant to legislation governing water-related issues. Protect Nature claims that such a project would have significant impact on areas protected under Directive 92/43/EEC and alleges an infringement of article 9(3) of the Aarhus Convention and article 4 (1) of WFD. One of the questions referred for a preliminary ruling is whether the “Article 4 of WFD or that directive as a whole confer on an environmental organisation, in a procedure which is not subject to an environmental assessment under Directive 2011/92/EC … rights for the protection of which it has access to administrative or judicial procedures under Article 9 (3) of the Aarhus Convention?”.
The second one (C-535/18 ) concerns the request of individuals against a decision of the District Government of Detmold (Germany) approving a plan for the construction of a section of motorway (including the authorisation to discharge rainwater running off the road surface into bodies of water). One of the questions referred for a preliminary ruling by the administrative Court is whether article 4 of WFD may be interpreted “as meaning that all members of the public concerned by a project who assert that the approval of a project breaches their rights are also entitled to bring judicial proceedings asserting breaches of the ban on the deterioration of water and the requirement for improvement?”

The Court of Justice considers preliminarily that under Directive 2011/92 “the information made available to the public for consultation purposes before a project is approved must include the data that are necessary in order to assess the effects of that project on water, in the light of the criteria and requirements laid down in; inter alia, article 4 (1) of Directive 2000/60” . Therefore, “the documents made available to the relevant public must make it possible for that public to obtain an accurate impression of the impact that the project at issue will have on the status of the bodies of water”, in particular to “show whether (…) the project at issue is liable to result in a deterioration of a body of water”.
The Court recalls that “the natural or legal persons directly concerned by an infringement of provisions of an environmental directive must be in a position to require the competent authorities to observe such obligations, if necessary by pursuing their claims by judicial process” . The national Court indicates that the claimants consider that the project (section of motorway and its discharges) will deteriorate the status of the body of groundwater which feeds their domestic wells from which they obtain drinking water. In this regard, the Court of Justice considers that “a person who has the right to draw and use groundwater is using that groundwater legitimately”; therefore, “that person is (…) directly concerned by the infringement of the obligations to enhance and to prevent the deterioration of the status of bodies of groundwater that supply his or her source since the infringement is capable of interfering with its use” . It also underlines that “the exceedance of just one of the quality standards or threshold values (…) does not, as such, involve a danger to the health of the persons wishing to bring an action is not capable of calling that conclusion into question” . The Court concludes that “Article 1 of WFD together with Article 4 (1) b of WFD read in light of article 19 TEU and article 288 TFEU must be interpreted as meaning that, the members of the public concerned by a project must be able to assert, before the competent national courts, that there has been a breach of the requirements to prevent the deterioration of bodies of water and to improve the status of those bodies of water, if that breach concerns them directly” .

In case C-664/15, the Court emphasises that “the effectiveness of Directive 2000/60 and its aim of protecting the environment (…) require that individuals or, where appropriate, a duly constituted environmental organisation be able to rely on it in legal proceedings” . In addition, the Court recalls that Member States shall ensure “judicial protection of a person’s rights under EU Law” and shall provide “remedies sufficient to ensure effective judicial protection in the fields covered by EU Law” in accordance with Article 47 of the Charter of fundamental rights. The Court also points out that “it would be incompatible with the binding effect conferred by Article 288 TFEU on a directive to exclude, in principle, the possibility that the obligations which it imposes may be relied on by the persons concerned” . If the project is likely to have a significant adverse effect on the state of water, the Court considers that the question whether an environmental organisation “has a right to bring proceedings against a decision to grant a permit likely to be contrary to the obligation to prevent the deterioration of the status of water under Article 4 of Directive 2000/60 would have to be assessed in the light of Article 9 (3) of the Aarhus Convention” . In light of article 14 of the WFD, of article 9 (3) of the Aarhus Convention and Article 47 of the Charter of Fundamental Rights of the EU, the Court concludes that those combined provisions “must be interpreted as precluding national procedural rules that deprive, in situations such as that in question in the main action, environmental organisations of the right to participate, as a party to the procedure, in a permit procedure that is intended to implement Directive 2000/60 and limit the right to bring proceedings contesting decisions resulting from such procedure solely to persons who do have that status” .