As one of its main environmental objectives, the EU Water Framework Directive (2000/60/EC) requires all surface water and groundwater in the European Union to achieve 'good status' by December 22 2015, subject to exemptions (eg, possible extensions). To achieve this goal, all surface water and groundwater must achieve both good chemical and ecological status. To that end, member states must – to the extent that this is not provided for directly by EU law (eg, Directive 2008/105/EC for certain pollutants in surface water bodies) – establish a classification system and means by which to determine the quality of surface water and groundwater. There are five levels of classification for ecological status: very good, good, moderate, poor and bad. There are only two levels of classification for chemical status: good and bad. Classifications are based on certain quality factors and substances, including:
- the composition and abundance of fish fauna;
- oxygenation conditions; and
- the concentration of specific pollutants.
Any body of water which has one of these factors drop below the level required for a particular class (based on data generated from monitoring programmes) must be downgraded to a lower class (the so-called 'one out, all out' principle).
Article 4 of the directive requires member states not only to achieve good status, but also to take measures against all new "deteriorations of the status" of bodies of water. Deteriorations can be caused by new infrastructure projects (eg, a hydropower plant) or the extension of existing projects (eg, the extension of an industrial facility with altered wastewater discharges). Exemptions from the 'no deterioration' clause are allowed only in exceptional cases – in particular, where there is both an overriding public interest for the new project and no alternative environmental option (Article 4(7) of the directive). Even stricter prerequisites are in place with regard to new or increased discharges of pollutants.
Class theory versus status quo theory
In 2013, the European Court of Justice (ECJ) was asked by the German Federal Administrative Court to rule on whether the phrase "deterioration of the status" in Article 4 of the directive must be interpreted as covering only detrimental changes which lead to a classification in a lower class (the so-called 'class theory') or as including other changes, possibly any detrimental changes (the so-called 'status quo theory').(1) The ECJ found that deterioration occurs as soon as the status of at least one of the quality factors drops, even if that fall does not result in the entire body of water being downgraded. However, if the element concerned is already in the lowest class, any deterioration constitutes a "deterioration of the status" for the entire body of water. The ECJ emphasised in its reasoning – and in this respect, it echoed ECJ Advocate General Niilo Jääskinen's view – that the concept of 'deterioration' must be interpreted by "reference to a quality element or a substance".
However, in a 2011 ruling, the Austrian Supreme Administrative Court found that only a drop to a lower class constitutes 'deterioration' within the meaning of Article 4 (and the relevant national implementation provisions in Austria's Water Act). Such drop requires the application of the abovementioned conditions for exemption in order for the project to be permitted. Nevertheless, the Water Act prohibits any significant detrimental changes to the ecological or chemical quality of bodies of water – even if there is no change in class – from contradicting public interest. In this respect, Austria's stance could be seen as more stringent than a mere class theory, depending on what is considered significantly detrimental in each individual case.
Despite Austria's more stringent Water Law, the ECJ's interpretation of the 'no deterioration' clause will likely further restrict the permissibility of projects that may affect the ecological or chemical status of bodies of surface water or groundwater. In any event, assessment efforts during the preparation of projects and approval procedures will significantly increase – in particular, with regard to the question of whether a better environmental option exists for the envisaged project.
It remains to be seen whether and how the Austrian Water Administration will address the issue in the second National Water Management Plan, which will be issued by the end of 2015.
For further information on this topic please contact Christian Schmelz or Günther Grassl at Schoenherr Rechtsanwälte by telephone (+43 1 5343 70) or email ([email protected] or [email protected]). The Schoenherr Rechtsanwälte website can be accessed at www.schoenherr.eu.
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