B - EU Water Legislation and national courts: an increasing and necessary jurisdictional cooperation
Litigation in the national courts involving water law may relate to EU water legislation either directly or indirectly. Where litigation in a national court directly relates to EU legislation proper, one or several provisions of a water directive are in themselves relied upon by the parties as the basis for the lawsuit or as a decisive legal argument. However, there are many cases where water legislation comes up within a legal dispute not because of a claim’s legal basis or as a main, self-standing legal argument, but in the context of the application of some other EU environmental law instrument, i.e. in an indirect way.
As water law involves a great deal of general interest and public policy considerations, it should not come as a surprise that it gives rise to administrative litigation in the majority of cases coming before courts of the Member States. Since 1981, only 10% of the cases brought before the Court of Justice have been preliminary references (19 cases). Over the last decade, 8/10 of the references for preliminary rulings concerned the interpretation of the provisions of WFD and 6/10 of them were brought by administrative Courts . Many cases deal with the authorisation or permit to conduct some activity in relation to water
. Often, the permit to operate a water treatment plant is refused by the competent authority, or the terms and conditions thereof are found to be too drastic by the operator who therefore brings a challenge against such an administrative decision in the court of competent jurisdiction. Conversely, such permits may be challenged by members of the public, either neighbours of the facility or NGOs, precisely because of the very fact that they were granted or that they are felt not to be demanding enough on the facilities’ operation. The price billed for water supply and/or the fees and taxes levied in relation to water use are also often challenged, either by users where they are assessed (as being too high) or by water companies which receive it.
Another illustration of the diversity of issues at stake and of the intensity of the litigation they may trigger was given by a national project of diverting the waters from one river to another one. Twenty years of litigation, five rulings by the national administrative Supreme Court, and the cancelling of multiple administrative decisions have led to a reference for preliminary ruling to the Court of Justice with respect to no less than fourteen questions involving four of the most notorious environmental directives . One of the diverse questions addressed by courts in this regard is that as soon as they are in the period allowed to Member States for the implementation of the directive (in this case, the WFD), they must refrain from taking any measures liable to seriously compromise the attainment of the results prescribed by that directive. A diversion of waters such as that contemplated in those cases, in as much as they may have an adverse impact on the status of the body of water, may be allowed, provided those modifications or alterations were made for reasons “of overriding public interest” or if the benefits to the environment and to society of achieving the directive’s objectives “are outweighed by the benefits of the new modifications or alteration to human health, to the maintenance of human safety or to sustainable development” e.g. if the river basin receiving the waters is incapable of meeting needs in terms of drinking water, electricity production or irrigation from its own water resources. Even the maintenance of biodiversity was questioned, and it may in certain cases require the maintenance, or indeed the encouragement, of human activities where the conversion of a natural fluvial ecosystem into a largely man-made fluvial ecosystem is being considered. On an entirely different level, the national law which approved the project did so on the basis of an environmental impact assessment which had served as the basis of a prior administrative decision even though that administrative decision was ultimately cancelled, which also raised some serious issues.
Moreover, without being able to refer to a preliminary ruling to the Court of Justice, some national judgements are inspired by, or even explicitly rely on, the case law of the CJEU. A process of convergence of case law appears, as has been illustrated by the dispute relating to the proliferation of green algae in Brittany (France). In 2013, the administrative Court of Nantes (France) cited among its recital the CJEU judgement of 8/3/2001 (case C-266/99) which condemned France for failure to comply with Directive 75/440/EEC and confirmed the state’s liability for fault and compensated 4 municipalities for the damage suffered as a result of the proliferation of green algae. Consequently, the liability of public authorities may be based on EU water law
. A state may also be held liable for the injuries caused by the proliferation of green algae caused by the breaches of rules on the application of livestock manure as a result of the late transposition of the Nitrates from the agricultural sources directive
. In 2001, the administrative tribunal of Rennes (France-Brittany) has ordered the state to indemnify a water company for the financial consequences of the state’s infringement of EU law
. Interestingly, the Court of Justice later declared that France had breached its obligations under the directive by failing to take the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones
.