- 01. Juli 2015
the Court of Justice of the European Union renders judgement about European Water Framework DirectiveThe obligations laid down by the Water Framework Directive concerning enhancement and prevention of deterioration apply to individual projects.
Bund für Umwelt und Naturschutz Deutschland eV (Federation for the Environment and the Conservation of Nature, Germany) is challenging before the Bundesverwaltungsgericht (Federal Administrative Court, Germany) the authorisation given by the competent federal authority for the deepening of various parts of the river Weser in the north of Germany so that larger container vessels can call at the ports of Bremerhaven, Brake and Bremen.1
According to the Bundesverwaltungsgericht, in addition to the direct effects of dredging and of discharging the dredged material into the Weser at certain locations, the projects at issue have other hydrological and morphological consequences for the sections of river concerned. Current speeds will increase on a rising tide and on an ebb tide, tidal high water levels will rise, tidal low water levels will fall, salinity will increase in parts of the lower Weser, the brackish water limit in the lower Weser will move upstream and, finally, silting-up of the river bed will increase outside the navigable channel.
Since the Bundesverwaltungsgericht has doubts as to whether the Water Framework Directive2 is applicable to the authorisation procedure for this individual scheme or whether it simply set outs mere management-planning objectives, it has made a reference to the Court of Justice. It has also asked the Court what the decisive criteria are for determining whether there is a deterioration of the status of a body of water within the meaning of the directive.
In today’s judgment, the Court finds that the ultimate objective of the Water Framework Directive is
to achieve, by coordinated action, ‘good status’ of all EU surface waters by 2015.
The environmental objectives that the Member States are required to achieve involve two obligations, namely to prevent deterioration of the status of all bodies of surface water (obligation to prevent deterioration) and to protect, enhance and restore all those bodies of water with the aim of achieving good status by the end of 2015 at the latest (obligation to enhance).
Having regard to the wording, the objectives and the structure of the directive, the Court concludes that those obligations do not amount solely to basic obligations, but also apply to individual projects.
The Court accordingly states in reply to the Bundesverwaltungsgericht that the Member States are required — unless a derogation provided for by the directive is granted — to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water
or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive.
As to the question from what moment there is ‘deterioration of the status’ of a body of surface water, the Court replies that such deterioration is established as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole.3 However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water.
Bengt van BeuningenEmail+49 40 37709 102
Phone: +352 4303 3355