EU WATER LEGISLATION & JUGDES

Since 1981, almost all litigation in the field of EU Water Legislation has resulted from the European Commission bringing infringement proceedings against Member states before the Court of Justice . Three major EU Water Directives are now the most concerned by the proceedings before the CJEU . Since the expiry of its transposition deadline (December 2003), the voluminous and complex Water Framework Directive has already been the subject of 24 judgments of the Court of justice. Directive 91/676/EEC and Directive 91/271/EEC are also subjected to an important litigation before the Court which shows the main difficulties (including financial) of implementation in the Member States. A large majority of Member States are concerned by these procedures although significant disparities .
These delays in the effective implementation of environmental obligations seriously jeopardise the chances of achieving the ambitious objectives of the WFD in the time available. This is probably also one of the reasons why the Court has, one 8 occasions, imposed financial penalties on Member States (Greece , Italy , Spain , Belgium and Luxemburg ) for failing to comply with a first infringement judgment. Unsurprisingly, the legislation concerned are Urban Waste Water Directive (6 judgements), Nitrates from agricultural sources Directive (1) but also Bathing water Directive (1). The threat of financial penalties can have a dissuasive effect on certain States, which was the case of France which has been threatened with a new action before the CJEU by the Commission concerning the execution of a judgement of the CJUE related to the non-compliance with Directive 75/440/EEC (quality of surface water intended for drinking water) in Brittany .

In 2021, a case brought by the Czech Republic against the Republic of Poland before the Court is, in many ways very emblematic. An action brought by a Member State against another Member State before the Court is extremely rare ; and in this case C-121/21 R , by way of interim measures the Czech Republic requests that the Court order the Republic of Poland to immediately stop lignite mining activities at the Turow mine which is close to the borders of its territory. The Czech Republic considered that the Republic of Poland had failed to fulfil its obligations in particular under Directive 2011/92/EU (environmental impacts assessment EIA) and under article 4 (1 a) & b) of WFD “by failing to include in the EIA decision a potential procedure to be followed in the event that exemptions are not granted for the bodies of water under article 4 (5) of that directive”. The Czech Republic argues that the continuation of mining activities will have “the effect of significantly lowering the groundwater level” in its territory close to the border and “will consequently threaten the drinking water of approximately 10 000 people (…) and result in land subsidence likely to cause damage to buildings”. The Czech Republic also points out that “the continuation of mining activities will also worsen the hydrological situation of Uhekna spring”.
In this regard, the Court recognised that the “damage linked to the lowering of the groundwater level and the damage relating to the threat to the drinking water supply of the populations dependent on the bodies of water in question may constitute serious and irreparable damage to the environment and human health”. The Court also considered that “it is clear from those documents that those activities entail an uninterrupted flow of considerable volume of water from Czech territory from Polish territory, causing undoubted deterioration in the level of groundwater in Czech territory that could threaten the drinking water supply of the populations dependent on the affected bodies of water”. In addition, the Court underlined that “damage to environment and human health is generally irreversible since, more often than not, damage to such interest cannot by reason of its nature, be eliminated retroactively (…) and account must be taken of the precautionary principle”. Therefore, the Court concludes that the condition relating to urgency is satisfied. Finally, concerning the weighing up of interests, the Court considers that the socio-economic damage alleged by the Republic of Poland linked to job losses for workers constitute damage “which are essentially pecuniary in nature and cannot, save in exceptional circumstances, be regarded as irreparable”. As result, the Court concludes that the Republic of Poland “shall cease, immediately and pending delivery of the judgment closing the proceedings” .
However, the Republic of Poland decided not to comply with this order of the vice-president of the CJEU of 21/5/2021. The Czech Republic then referred the matter to the Court requesting that a periodic penalty payment of EUR 5 000 000 to the EU budget for failure to fulfil its obligations under this order of the Vice-President of the Court. In September 2021, the Court granted the request of the Czech Republic and ordered the Republic of Poland “to pay a penalty payment of EUR 500 000 per day, from the date of the notification of the present order to the Republic of Poland until that Member State complies with the order of the Vice-President of the Court” of 21/5/2021.
In the end the Czech Republic waived all claims following an amicable agreement with the Republic of Poland on the solution of this dispute and case C-121/21 was removed from the Court’s register on 4/2/2022 , one day after the publication of the conclusions of the advocate general .