EU WATER LAW and POLICY

1 - Shared competences under the principle of subsidiarity

The initial choice of shared competences in the field of environmental protection will never be called into question. The Lisbon Treaty thus confirms the place of environmental policy among the areas of shared competences between the Union and the Member States (article 4 TFEU). In accordance with article 2 TFEU, the EU and the Member States “may legislate and adopt legally binding acts”. It is also stated that the Member States “shall exercise their competence to the extent that the Union has not exercised its competences” and “shall again exercise their competence to the extent that the Union has decided to cease exercising its competence”. The exercise of shared competences is governed by the principles of subsidiarity and proportionality. As stated by article 5 TFEU, the EU “shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union Level”.
The substantial “legal corpus” of the EU water policy demonstrates that the geographical criteria have played in favour of the internal and external EU action:

• Due to the international dimension of water legislation, beyond EU boundaries it is all the more important that the provisions of so-called “mixed” international agreements, to which both the Union and the Member States are parties, “form an integral part” of European law . The Court of Justice therefore asserts jurisdiction to determine if Member States do comply with certain provisions of international environmental protection agreements which may have a direct effect. This was done, for example, in a case of eutrophication of the Etang de Berre, in southern France, when the Athens Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources to the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution was applied, given the lack of relevant EU legislation.
   
• For several years, actions against marine pollution were not dealt with by “native” EU legislation but rather by international conventions,. This is no longer the case, as Directive 2008/56 of 17 June 2008 established a framework for community action in the field of marine environmental policy. Designed on the model of the Water Framework Directive, the “Marine Strategy Framework Directive” is also based on former Article 175(1) TEC, now Article 192(1) TFEU.

One of the objectives of EU environmental policy aims to ensure a prudent and rational utilisation of natural resources. However, measures affecting “quantitative management of water resources or affecting, directly or indirectly, the availability of those resources” could only be adopted by the Council unanimously with a simple consultation of the European Parliament (EP), the Economic and Social Committee and the Committee of the Regions. The choice of this special legislative procedure shows the high sensitivity of Member States to these crucial quantitative management issues, while qualitative aspects are subject to the ordinary legislative procedure under Article 192(1), i.e. with a majority vote of the European Parliament and a qualified majority vote of the Council. In 2001, the Court of Justice of the EC underlined that the measures adopted under this special legislative procedure “concern the regulation of the use of water and its management in its quantitative aspects” . The Court considered that the Convention on cooperation for the protection and sustainable use of the river Danube “is primarily concerned with the protection and improvement of the quality of water” in view of the objectives pursued. The Court noted that “it is only incidentally that its provisions regulate the use of the waters of the catchment area of the river of Danube and their management in its quantitative aspects”. In conclusion, the Court dismissed the action for annulment of Council Decision 97/825/EC concerning the conclusion of this Convention correctly based on the article related to the normal decision-making procedure under the environmental provisions of the Treaty.

Since the first Action Programme on the environment, the Member States “may lay down stricter requirements in environmental quality standards without prejudice to the application of the treaties” . Thus, all legislation based on Article 192 TFEU (or its predecessor articles in the TEC), leave open the possibility for the Member States to, individually, maintain or establish “more stringent protective measures” as provided by Article 193 TFEU. In other words, the Member States may go further than a measure adopted on the basis of Article 192 TFEU and act with a greater intensity, albeit their actions must in all events remain “compatible with the Treaties.”