EU WATER LEGISLATION & JUGDES

“The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by articles 169 and 170 to the diligence of the Commission and of the Member States” . Very early, the Court emphasised this “vigilance” of individuals and enshrined the main cardinal principles of Community law such as primacy and direct effect. Despite the very restrictive conditions of public access to the CJEU, or even the impossibility of public access to it, the Court of Justice insisted on the strategic role of national courts. Notwithstanding the respect of the principle of procedural and institutional autonomy, the Court progressively framed the national courts in their functions as common judges of EU law, particularly in light of the principle of sincere cooperation. Several references for preliminary ruling concerning requests on the interpretation of EU Water Directives show this dynamic to guarantee the right to jurisdictional protection, the respect of the rights conferred by EU law and the implementation of EU law.
Many water treatment and distribution projects aiming at the implementation of water legislation give rise to issues pertaining to public information and participation or other “transversal” environmental law provisions (see above, Part 2). As a general rule, members of the public - such as neighbours of a water treatment plant or NGOs – may seek to enforce in national courts their right to be informed about a projected plant, they may participate in the decision-making process or, should this be the case, contribute to the environmental impact assessment process, etc. More generally, national courts as well as competent administrative authorities have to apply general environmental laws in relation to projects concerning water services.

In case C-664/15 , the Court underlines that the effectiveness of Directive 2000/60 (…) requires “that individuals or, where appropriate, a duly constituted environmental organisation be able to rely on it in legal proceedings and that the national courts be able to take that directive into consideration as an element of EU law order, inter alia, to review whether a national authority that has granted a permit for a project that may have an effect on water status has complied with its obligations under article 4 of the directive (…) and thus kept within the limits of the discretion granted to the competent national authorities by that provision”.
In the present case, the Court of Justice rules that “by denying environmental organisations any right to bring an action against such a decision to grant a permit, the relevant national procedural law is contrary to the requirements following a combined reading of Article 9 (3) of the Aarhus Convention and Article 47 of Charter” of fundamental rights of the EU. Consequently, “it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring proceedings, in accordance with both the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental organisation, such as Protect, to challenge before a court a decision taken following an administrative procedure that may be contrary to EU environmental law” .
Following the established case-law, the Court recalls that if “such a compliant interpretation were to be found to be impossible, it would then be for the referring court to disapply, in the proceedings before it, the rule of national procedural law requiring the environmental organisation at issue to have the status of a party in order to be able to bring an action against a decision granting a permit for a project that may be contrary to the obligation to prevent the deterioration of the status of bodies of water”. The Court also concludes that “any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU Law by withholding from the national court with jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU Law” .