Court of Justice of the European Union
Case C-461/13 Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland (01/07/2015)
The Bundesverfassungsgericht (Federal Constitutional Court of Germany) made a request for a preliminary ruling on the interpretation of Article 4(1) (a)(i) to (iii) of Directive 2000/60/EC establishing a framework for Community action in the field of water policy (Water Framework Directive). The request was made in conjunction with a case concerning a planning approval for three projects to develop the river Weser in the north of Germany. The projects would deepen parts of the river Weser in order to enable larger container vessels to call at the Bremerhaven, Brake and Bremen ports. Implementing the projects involved dredging the riverbed in the channels and it would lead to morphological consequences, such as changing the speed of tidal rises and ebbs, changing the tidal water levels, increasing salinity and silting-up the riverbed.
Before granting planning approval, the competent federal authority had examined whether the projects were compatible with the objective of the Water Framework Directive. It had concluded that although the projects would adversely modify the bodies of water, they would not result in a change in the status class of the bodies of water in accordance with Annex V and thus they would not cause a ‘deterioration of the status’ of the bodies of water within the meaning of Article 4(1)(a)(i). Alternatively, the federal authority argued that the conditions for a derogation under Article 4(7) had been met. Bund für Umwelt und Naturschutz Deutschland eV challenged the planning approval, pleading that the approved projects did not comply with the Water Framework Directive.
The CJEU held that the ultimate objective of the Water Framework Directive is to achieve, by coordinated action, ‘good status’ of all EU surface waters by 2015. In order to achieve that goal, Member States must ‘implement the necessary measures to prevent deterioration of the status of all bodies of surface water (art 4(1)(a)(i)) and protect, enhance and restore all bodies of surface water with the aim of achieving good status by the end of 2015 (art 4(1)(a)(ii) and (iii)). The obligation to prevent a deterioration of the status of bodies of surface water remains binding at all stages of implementation. Thus, unless a project is covered by a derogation under Article 4(7), Member States must refuse authorization for an individual project where it would cause a deterioration of the status of a body of water, or jeopardise the attainment of good surface water or of good ecological potential and good surface water chemical status.
The Court rejected the competent federal authority’s interpretation of ‘deterioration of the status’ of a body of surface water (art 4(1)(a)(i), concluding that there is a deterioration “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”. If the quality element concerned is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of the body of surface water (art 4(1)(a)(i)).
