Introduction
EU Water Legislation constitutes an important area of environmental litigation. The large number of cases brought before the Court of Justice is not a surprise; EU Environmental Law is one area where infringements and the number of complaints is higher. The many failures of Member States to meet the obligations imposed by Water Directives and others legislations linked are thus to be deplored. In addition, EU Water legislation as well as other EU environmental law takes the form of Directives, which Directives have to be transposed into national law. Several disputes brought before the Court of Justice concern the non-transposition or incomplete or incorrect transposition of directives within the time allowed. As result, disputes brought before a national court are often based and argued on the national law transposing EU Directives. There are of course situations where it is indeed EU law as such which is relied upon in a national court, such as where a Directive has not been transposed, where a national provision transposing EU law must be interpreted or where its legality is challenged under EU law. The increasing environmental disputes before the courts varies between the legal system concerned but reflects a widespread trend as show by the climate disputes.
The uniqueness of the EU’s jurisdictional system is widely known as the system of monitoring the implementation of EU Law with the key role of the European Commission “under the control of the Court of Justice” (Article 17 TEU). Thus, if the Court of Justice “shall ensure that in the interpretation and application of the Treaties the law is observed”, Member States also “shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” (Article 19 TEU). This complex system of legal remedies is based on a decentralised model of justice where national courts are the main guarantors (common judges of EU Law) of the effectiveness of jurisdictional protection and EU Law.
More than 85% of the cases brought to the CJEU in the field on water legislation result from the European Commission bringing infringement proceedings against Member States for failure to fulfil their EU obligations. The national courts are progressively referring questions to the Court for preliminary rulings on the interpretation of EU Water legislations but also on the articulation between water legislation and other environmental legislation. Knowledge of the various judgement of the Court of Justice can therefore very useful for national courts in resolving their disputes (A). Several judgements of national judges thus refer to CJUE’s judgements. An analysis of cases in the context of references for preliminary rulings offers an insight into problems faces by national judges and it shows the importance of jurisdictional cooperation (B). Eurobarometer’s surveys regularly show the high level of European citizens’ environmental concerns. In the field of Water issues, this high level of citizen awareness was expressed in particular during the Right2Water European citizen’s initiative (the first successful European citizen initiative in 2013) or during the public consultation linked to the Fitness Check of the Water Framework Directive and the Flood Directive in 2019. Such citizens’ mobilization and the active involvement of NGOs are also reflected in the courts. Citizens and several environmental associations develop a litigation strategy to enforce EU Water legislation and demand that their rights under EU Law and the Aarhus Convention be respected. However, given the current restrictive conditions of public access to the CJEU and the impossibility of bringing an action against Member States for failure to fulfil EU obligations before the CJUE, citizens and NGOS inevitably turn to their national courts (C).