CELEX: 62013CJ0648
Failure of a Member State to fulfil obligations
Environment
European Union water policy
Directive 2000/60/EC
Monitoring of the ecological status and the chemical status of surface waters
River basin management plans

By its application, the European Commission asks the Court to declare that, by failing to apply correctly Articles 2(19), (20), (26) and (27) and 8(1), 9(2), 10(3) and 11(5) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (
OJ 2000 L 327, p. 1
), as amended by Directive 2008/32/EC of the European Parliament and of the Council of 11 March 2008 (
OJ 2008 L 81, p. 60
) (‘Directive 2000/60’), and also points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to that directive and points 7.2 to 7.10 of Part A of Annex VII to that directive, the Republic of Poland has failed to fulfil its obligations under those provisions and Article 24 of that directive.
Legal framework
EU law
Article 2 of Directive 2000/60, entitled ‘Definitions’, provides in points 19, 20, 26 and 27:
‘...
19.
“Groundwater status” is the general expression of the status of a body of groundwater, determined by the poorer of its quantitative status and its chemical status.
20.
“Good groundwater status” means the status achieved by a groundwater body when both its quantitative status and its chemical status are at least “good”.
...
26.
“Quantitative status” is an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions.
27.
“Available groundwater resource” means the long-term annual average rate of overall recharge of the body of groundwater less the long-term annual rate of flow required to achieve the ecological quality objectives for associated surface waters specified under Article 4, to avoid any significant diminution in the ecological status of such waters and to avoid any significant damage to associated terrestrial ecosystems.
...’
Article 4 of Directive 2000/60, entitled ‘Environmental objectives’, provides:
‘1.   In making operational the programmes of measures specified in the river basin management plans:
(a)
for surface waters
(i)
Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;
(ii)
Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;
(iii)
Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;
(iv)
Member States shall implement the necessary measures in accordance with Article 16(1) and (8), with the aim of progressively reducing pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances
without prejudice to the relevant international agreements referred to in Article 1 for the parties concerned;
(b)
for groundwater
(i)
Member States shall implement the measures necessary to prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8 of this Article and subject to the application of Article 11(3)(j);
(ii)
Member States shall protect, enhance and restore all bodies of groundwater, ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8 of this Article and subject to the application of Article 11(3)(j);
(iii)
Member States shall implement the measures necessary to reverse any significant and sustained upward trend in the concentration of any pollutant resulting from the impact of human activity in order progressively to reduce pollution of groundwater.
Measures to achieve trend reversal shall be implemented in accordance with paragraphs 2, 4 and 5 of Article 17, taking into account the applicable standards set out in relevant Community legislation, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;
(c)
for protected areas
Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established.
2.   Where more than one of the objectives under paragraph 1 relates to a given body of water, the most stringent shall apply.
3.   Member States may designate a body of surface water as artificial or heavily modified, when:
(a)
the changes to the hydromorphological characteristics of that body which would be necessary for achieving good ecological status would have significant adverse effects on:
(i)
the wider environment;
(ii)
navigation, including port facilities, or recreation;
(iii)
activities for the purposes of which water is stored, such as drinking-water supply, power generation or irrigation;
(iv)
water regulation, flood protection, land drainage, or
(v)
other equally important sustainable human development activities;
(b)
the beneficial objectives served by the artificial or modified characteristics of the water body cannot, for reasons of technical feasibility or disproportionate costs, reasonably be achieved by other means, which are a significantly better environmental option.
Such designation and the reasons for it shall be specifically mentioned in the river basin management plans required under Article 13 and reviewed every six years.
4.   The deadlines established under paragraph 1 may be extended for the purposes of phased achievement of the objectives for bodies of water, provided that no further deterioration occurs in the status of the affected body of water when all of the following conditions are met:
(a)
Member States determine that all necessary improvements in the status of bodies of water cannot reasonably be achieved within the timescales set out in that paragraph for at least one of the following reasons:
(i)
the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility;
(ii)
completing the improvements within the timescale would be disproportionately expensive;
(iii)
natural conditions do not allow timely improvement in the status of the body of water.
(b)
Extension of the deadline, and the reasons for it, are specifically set out and explained in the river basin management plan required under Article 13.
(c)
Extensions shall be limited to a maximum of two further updates of the river basin management plan except in cases where the natural conditions are such that the objectives cannot be achieved within this period.
(d)
A summary of the measures required under Article 11 which are envisaged as necessary to bring the bodies of water progressively to the required status by the extended deadline, the reasons for any significant delay in making these measures operational, and the expected timetable for their implementation are set out in the river basin management plan. A review of the implementation of these measures and a summary of any additional measures shall be included in updates of the river basin management plan.
5.   Member States may aim to achieve less stringent environmental objectives than those required under paragraph 1 for specific bodies of water when they are so affected by human activity, as determined in accordance with Article 5(1), or their natural condition is such that the achievement of these objectives would be infeasible or disproportionately expensive, and all the following conditions are met:
(a)
the environmental and socioeconomic needs served by such human activity cannot be achieved by other means, which are a significantly better environmental option not entailing disproportionate costs;
(b)
Member States ensure:
—
for surface water, the highest ecological and chemical status possible is achieved, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution,
—
for groundwater, the least possible changes to good groundwater status, given impacts that could not reasonably have been avoided due to the nature of the human activity or pollution;
(c)
no further deterioration occurs in the status of the affected body of water;
(d)
the establishment of less stringent environmental objectives, and the reasons for it, are specifically mentioned in the river basin management plan required under Article 13 and those objectives are reviewed every six years.
6.   Temporary deterioration in the status of bodies of water shall not be in breach of the requirements of this Directive if this is the result of circumstances of natural cause or
force majeure
which are exceptional or could not reasonably have been foreseen, in particular extreme floods and prolonged droughts, or the result of circumstances due to accidents which could not reasonably have been foreseen, when all of the following conditions have been met:
(a)
all practicable steps are taken to prevent further deterioration in status and in order not to compromise the achievement of the objectives of this Directive in other bodies of water not affected by those circumstances;
(b)
the conditions under which circumstances that are exceptional or that could not reasonably have been foreseen may be declared, including the adoption of the appropriate indicators, are stated in the river basin management plan;
(c)
the measures to be taken under such exceptional circumstances are included in the programme of measures and will not compromise the recovery of the quality of the body of water once the circumstances are over;
(d)
the effects of the circumstances that are exceptional or that could not reasonably have been foreseen are reviewed annually and, subject to the reasons set out in paragraph 4(a), all practicable measures are taken with the aim of restoring the body of water to its status prior to the effects of those circumstances as soon as reasonably practicable, and
(e)
a summary of the effects of the circumstances and of such measures taken or to be taken in accordance with paragraphs (a) and (d) are included in the next update of the river basin management plan.
7.   Member States will not be in breach of this Directive when:
—
failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or
—
failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities
and all the following conditions are met:
(a)
all practicable steps are taken to mitigate the adverse impact on the status of the body of water;
(b)
the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years;
(c)
the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and
(d)
the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.
8.   When applying paragraphs 3, 4, 5, 6 and 7, a Member State shall ensure that the application does not permanently exclude or compromise the achievement of the objectives of this Directive in other bodies of water within the same river basin district and is consistent with the implementation of other Community environmental legislation.
9.   Steps must be taken to ensure that the application of the new provisions, including the application of paragraphs 3, 4, 5, 6 and 7, guarantees at least the same level of protection as the existing Community legislation.’
Article 8 of Directive 2000/60, entitled ‘Monitoring of surface water status, groundwater status and protected areas’, provides in point 1:
‘Member States shall ensure the establishment of programmes for the monitoring of water status in order to establish a coherent and comprehensive overview of water status within each river basin district:
—
for surface waters such programmes shall cover:
(i)
the volume and level or rate of flow to the extent relevant for ecological and chemical status and ecological potential, and
(ii)
the ecological and chemical status and ecological potential;
—
for groundwaters such programmes shall cover monitoring of the chemical and quantitative status,
—
for protected areas the above programmes shall be supplemented by those specifications contained in Community legislation under which the individual protected areas have been established.’
Article 9(1) and (2) of Directive 2000/60 states:
‘1.   Member States shall take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis conducted according to Annex III, and in accordance in particular with the polluter pays principle.
Member States shall ensure by 2010:
—
that water-pricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental objectives of this Directive,
—
an adequate contribution of the different water uses, disaggregated into at least industry, households and agriculture, to the recovery of the costs of water services, based on the economic analysis conducted according to Annex III and taking account of the polluter pays principle.
Member States may in so doing have regard to the social, environmental and economic effects of the recovery as well as the geographic and climatic conditions of the region or regions affected.
2.   Member States shall report in the river basin management plans on the planned steps towards implementing paragraph 1 which will contribute to achieving the environmental objectives of this Directive and on the contribution made by the various water uses to the recovery of the costs of water services.’
Article 10 of Directive 2000/60, entitled ‘The combined approach for point and diffuse sources’, provides:
‘1.   Member States shall ensure that all discharges referred to in paragraph 2 into surface waters are controlled according to the combined approach set out in this Article.
2.   Member States shall ensure the establishment and/or implementation of:
(a)
the emission controls based on best available techniques, or
(b)
the relevant emission limit values, or
(c)
in the case of diffuse impacts the controls including, as appropriate, best environmental practices
set out in:
—
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [
OJ 1996 L 257, p. 26
],
—
Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [
OJ 1991 L 135, p. 40
],
—
Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources [
OJ 1991 L 375, p. 1
],
—
the Directives adopted pursuant to Article 16 of this Directive,
—
the Directives listed in Annex IX,
—
any other relevant Community legislation
at the latest 12 years after the date of entry into force of this Directive, unless otherwise specified in the legislation concerned.
3.   Where a quality objective or quality standard, whether established pursuant to this Directive, in the Directives listed in Annex IX, or pursuant to any other Community legislation, requires stricter conditions than those which would result from the application of paragraph 2, more stringent emission controls shall be set accordingly.’
Article 11 of Directive 2000/60, entitled ‘Programme of measures’, provides in point 5:
‘Where monitoring or other data indicate that the objectives set under Article 4 for the body of water are unlikely to be achieved, the Member State shall ensure that:
—
the causes of the possible failure are investigated,
—
relevant permits and authorisations are examined and reviewed as appropriate,
—
the monitoring programmes are reviewed and adjusted as appropriate, and
—
additional measures as may be necessary in order to achieve those objectives are established, including, as appropriate, the establishment of stricter environmental quality standards following the procedures laid down in Annex V.
Where those causes are the result of circumstances of natural cause or
force majeure
which are exceptional and could not reasonably have been foreseen, in particular extreme floods and prolonged droughts, the Member State may determine that additional measures are not practicable, subject to Article 4(6).’
Points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to Directive 2000/60 provide:
1.3. ‘Monitoring of ecological status and chemical status for surface waters
The surface water monitoring network shall be established in accordance with the requirements of Article 8. The monitoring network shall be designed so as to provide a coherent and comprehensive overview of ecological and chemical status within each river basin and shall permit classification of water bodies into five classes consistent with the normative definitions in Section 1.2. Member States shall provide a map or maps showing the surface water monitoring network in the river basin management plan.
On the basis of the characterisation and impact assessment carried out in accordance with Article 5 and Annex II, Member States shall for each period to which a river basin management plan applies, establish a monitoring programme and an operational monitoring programme. Member States may also need in some cases to establish programmes of investigative monitoring.
Member States shall monitor parameters which are indicative of the status of each relevant quality element. In selecting parameters for biological quality elements Member States shall identify the appropriate taxonomic level required to achieve adequate confidence and precision in the classification of the quality elements. Estimates of the level of confidence and precision of the results provided by the monitoring programmes shall be given in the plan.
...
1.3.4. Frequency of monitoring
For the surveillance monitoring period, the frequencies for monitoring parameters indicative of physico-chemical quality elements given below should be applied unless greater intervals would be justified on the basis of technical knowledge and expert judgement. For biological or hydromorphological quality elements monitoring shall be carried out at least once during the surveillance monitoring period.
For operational monitoring, the frequency of monitoring required for any parameter shall be determined by Member States so as to provide sufficient data for a reliable assessment of the status of the relevant quality element. As a guideline, monitoring should take place at intervals not exceeding those shown in the table below unless greater intervals would be justified on the basis of technical knowledge and expert judgement.
Frequencies shall be chosen so as to achieve an acceptable level of confidence and precision. Estimates of the confidence and precision attained by the monitoring system used shall be stated in the river basin management plan.
Monitoring frequencies shall be selected which take account of the variability in parameters resulting from both natural and anthropogenic conditions. The times at which monitoring is undertaken shall be selected so as to minimise the impact of seasonal variation on the results, and thus ensure that the results reflect changes in the water body as a result of changes due to anthropogenic pressure. Additional monitoring during different seasons of the same year shall be carried out, where necessary, to achieve this objective.
Quality elementRiversLakesTransitionalCoastal
Biological
Phytoplankton6 months6 months6 months6 monthsOther aquatic flora3 years3 years3 years3 yearsMacro invertebrates3 years3 years3 years3 yearsFish3 years3 years3 years
Hydromorphological
Continuity6 yearsHydrologyContinuous1 monthMorphology6 years6 years6 years6 years
Physico-chemical
Thermal conditions3 months3 months3 months3 monthsOxygenation3 months3 months3 months3 monthsSalinity3 months3 months3 monthsNutrient status3 months3 months3 months3 monthsAcidification status3 months3 monthsOther pollutants3 months3 months3 months3 monthsPriority substances1 month1 month1 month1 month
1.3.5. Additional monitoring requirements for protected areas
The monitoring programmes required above shall be supplemented in order to fulfil the following requirements:
Drinking water abstraction points
Bodies of surface water designated in Article 7 which provide more than 100 m
a day as an average shall be designated as monitoring sites and shall be subject to such additional monitoring as may be necessary to meet the requirements of that Article. Such bodies shall be monitored for all priority substances discharged and all other substances discharged in significant quantities which could affect the status of the body of water and which are controlled under the provisions of the Drinking Water Directive. Monitoring shall be carried out in accordance with the frequencies set out below:
Community servedFrequency< 100004 per year10000 to 300008 per year> 3000012 per year
Habitat and species protection areas
Bodies of water forming these areas shall be included within the operational monitoring programme referred to above where, on the basis of the impact assessment and the surveillance monitoring, they are identified as being at risk of failing to meet their environmental objectives under Article 4. Monitoring shall be carried out to assess the magnitude and impact of all relevant significant pressures on these bodies and, where necessary, to assess changes in the status of such bodies resulting from the programmes of measures. Monitoring shall continue until the areas satisfy the water-related requirements of the legislation under which they are designated and meet their objectives under Article 4.
...
1.4. Classification and presentation of ecological status
1.4.1. Comparability of biological monitoring results
(i)
Member States shall establish monitoring systems for the purpose of estimating the values of the biological quality elements specified for each surface water category or for heavily modified and artificial bodies of surface water. In applying the procedure set out below to heavily modified or artificial water bodies, references to ecological status should be construed as references to ecological potential. Such systems may utilise particular species or groups of species which are representative of the quality element as a whole.
(ii)
In order to ensure comparability of such monitoring systems, the results of the systems operated by each Member State shall be expressed as ecological quality ratios for the purposes of classification of ecological status. These ratios shall represent the relationship between the values of the biological parameters observed for a given body of surface water and the values for these parameters in the reference conditions applicable to that body. The ratio shall be expressed as a numerical value between zero and one, with high ecological status represented by values close to one and bad ecological status by values close to zero.
(iii)
Each Member State shall divide the ecological quality ratio scale for their monitoring system for each surface water category into five classes ranging from high to bad ecological status, as defined in Section 1.2, by assigning a numerical value to each of the boundaries between the classes. The value for the boundary between the classes of high and good status, and the value for the boundary between good and moderate status shall be established through the intercalibration exercise described below.
(iv)
The Commission shall facilitate this intercalibration exercise in order to ensure that these class boundaries are established consistent with the normative definitions in Section 1.2 and are comparable between Member States.
(v)
As part of this exercise the Commission shall facilitate an exchange of information between Members States leading to the identification of a range of sites in each ecoregion in the Community; these sites will form an intercalibration network. The network shall consist of sites selected from a range of surface water body types present within each ecoregion. For each surface water body type selected, the network shall consist of at least two sites corresponding to the boundary between the normative definitions of high and good status, and at least two sites corresponding to the boundary between the normative definitions of good and moderate status. The sites shall be selected by expert judgement based on joint inspections and all other available information.
(vi)
Each Member State monitoring system shall be applied to those sites in the intercalibration network which are both in the ecoregion and of a surface water body type to which the system will be applied pursuant to the requirements of this Directive. The results of this application shall be used to set the numerical values for the relevant class boundaries in each Member State monitoring system.
(vii)
The Commission shall prepare a draft register of sites to form the intercalibration network. The final register of sites shall be established in accordance with the regulatory procedure referred to in Article 21(2).
(viii)
The Commission and Member States shall complete the intercalibration exercise within 18 months of the date on which the finalised register is published.
(ix)
The results of the intercalibration exercise and the values established for the Member State monitoring system classifications in accordance with points (i) to (viii) and designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 21(3) and published within six months of the completion of the intercalibration exercise.
1.4.2. Presentation of monitoring results and classification of ecological status and ecological potential
(i)
For surface water categories, the ecological status classification for the body of water shall be represented by the lower of the values for the biological and physico-chemical monitoring results for the relevant quality elements classified in accordance with the first column of the table set out below. Member States shall provide a map for each river basin district illustrating the classification of the ecological status for each body of water, colour-coded in accordance with the second column of the table set out below to reflect the ecological status classification of the body of water:
Ecological status classificationColour codeHighBlueGoodGreenModerateYellowPoorOrangeBadRed
(ii)
For heavily modified and artificial water bodies, the ecological potential classification for the body of water shall be represented by the lower of the values for the biological and physico-chemical monitoring results for the relevant quality elements classified in accordance with the first column of the table set out below. Member States shall provide a map for each river basin district illustrating the classification of the ecological potential for each body of water, colour-coded, in respect of artificial water bodies in accordance with the second column of the table set out below, and in respect of heavily modified water bodies in accordance with the third column of that table:
Ecological potential classification
Colour code
Artificial Water Bodies
Heavily Modified
Good and above
Equal green and light grey stripes
Equal green and dark grey stripes
Moderate
Equal yellow and light grey stripes
Equal yellow and dark grey stripes
Poor
Equal orange and light grey stripes
Equal orange and dark grey stripes
Bad
Equal red and light grey stripes
Equal red and dark grey stripes
(iii)
Member States shall also indicate, by a black dot on the map, those bodies of water where failure to achieve good status or good ecological potential is due to non-compliance with one or more environmental quality standards which have been established for that body of water in respect of specific synthetic and non-synthetic pollutants (in accordance with the compliance regime established by the Member State).
1.4.3. Presentation of monitoring results and classification of chemical status
Where a body of water achieves compliance with all the environmental quality standards established in Annex IX, Article 16 and under other relevant Community legislation setting environmental quality standards it shall be recorded as achieving good chemical status. If not, the body shall be recorded as failing to achieve good chemical status.
...
2.4. Monitoring of groundwater chemical status
2.4.1 Groundwater monitoring network
The groundwater monitoring network shall be established in accordance with the requirements of Articles 7 and 8. The monitoring network shall be designed so as to provide a coherent and comprehensive overview of groundwater chemical status within each river basin and to detect the presence of long-term anthropogenically induced upward trends in pollutants.
On the basis of the characterisation and impact assessment carried out in accordance with Article 5 and Annex II, Member States shall for each period to which a river basin management plan applies, establish a surveillance monitoring programme. The results of this programme shall be used to establish an operational monitoring programme to be applied for the remaining period of the plan.
Estimates of the level of confidence and precision of the results provided by the monitoring programmes shall be given in the plan.
...’
Annex VII to Directive 2000/60, entitled ‘River basin management plans’, provides, in points 7.2 to 7.10 of Part A:
‘A.
River basin management plans shall cover the following elements:
...
7.2.
a report on the practical steps and measures taken to apply the principle of recovery of the costs of water use in accordance with Article 9;
7.3.
a summary of the measures taken to meet the requirements of Article 7;
7.4.
a summary of the controls on abstraction and impoundment of water, including reference to the registers and identifications of the cases where exemptions have been made under Article 11(3)(e);
7.5.
a summary of the controls adopted for point source discharges and other activities with an impact on the status of water in accordance with the provisions of Article 11(3)(g) and 11(3)(i);
7.6.
an identification of the cases where direct discharges to groundwater have been authorised in accordance with the provisions of Article 11(3)(j);
7.7.
a summary of the measures taken in accordance with Article 16 on priority substances;
7.8.
a summary of the measures taken to prevent or reduce the impact of accidental pollution incidents;
7.9.
a summary of the measures taken under Article 11(5) for bodies of water which are unlikely to achieve the objectives set out under Article 4;
7.10.
details of the supplementary measures identified as necessary in order to meet the environmental objectives established;
...’
Polish law
Water Law
Article 113 of the Law on Water of 18 July 2001 (Dz. U., 2001, No 115, item 1229), in the version thereof applicable on 28 August 2010 (‘the Water Law’), provides:
‘...
4.   The register of protected areas comprises lists of:
(1)
areas designated for the abstraction of water for supplying the population with drinking water,
(2)
areas designated for the protection of economically significant aquatic species,
(3)
bodies of water designated as recreational waters, including bathing water,
(4)
areas sensitive to eutrophication caused by pollution originating from urban sources,
(5)
zones vulnerable to pollution by nitrates originating from agricultural sources,
(6)
areas designated for the protection of habitats or species under the Law on the protection of nature, and where the maintenance or improvement of the status of water is an important factor in their protection.
...’
Article 113a of the Water Law provides:
‘...
2.   The basic measures referred to in paragraph 1 are aimed at fulfilling the minimal conditions and comprise:
...
(2)
actions aimed at implementing the principle of recovery of the costs of water services,
...
4.   During the preparation of the national hydro-environmental programme, economic analyses of water use must be conducted, taking account of the principle of recovery of the costs of water services and long-term forecasts of satisfaction of water resource needs in the river basin districts.
...’
Article 114 of the Water Law provides:
‘1.   The river basin management plan shall comprise the following aspects:
(1)
a general description of the features of the river basin, comprising inter alia:
(a)
a list of the bodies of surface water specifying their type and the established reference conditions,
(b)
a list of the bodies of groundwater,
(2)
a summary of the identification of the significant anthropogenic pressures and of the assessment of their impact on the status of surface waters and groundwater,
(3)
lists of the protected areas referred to in Article 113(2)(5), with cartographic representation,
(4)
a map of the monitoring networks with a presentation of the monitoring programmes,
(5)
a list of the environmental objectives fixed for the bodies of water and protected areas,
(6)
a summary of the results of the economic analysis of water use,
(7)
a summary of the actions provided for by the national hydro-environmental programme, with emphasis on the means of attaining the environmental objectives fixed,
(8)
a list of the other, more detailed programmes and management plans adopted for the river basin district, focusing on sub-basins, sectors, specific problems or water types, and a summary of their content,
(9)
a summary of the measures taken in the area of public information and consultation, the results of those measures and amendments to the plan resulting therefrom,
(10)
a list of the competent water management authorities for the river basin district,
(11)
information on the rules and procedures for obtaining data and reference documents used to draw up the plan and information about the results expected from implementation.
...
4.   The river basin management plan update must include, in addition to the information referred to in paragraph 1:
(1)
a succinct presentation of any amendments or updates occurring since the publication of the preceding river basin management plan,
(2)
an assessment of the progress achieved in the attainment of the environmental objectives, including a presentation of the monitoring results for the period covered by the preceding plan, together with explanations for any unachieved environmental objective,
(3)
a reasoned description of any measures set out in a previous version of the plan which was ultimately not implemented,
(4)
a description of any supplementary measures needed to implement the plan.
...’
Article 155a of the Water Law provides:
‘1.   The purpose of monitoring waters is to obtain information on the status of surface waters and groundwater for water management planning and assessment of attainment of environmental objectives.
2.   Analysis and assessment of the status of surface waters and groundwater are to be carried out as part of national environmental monitoring.
3.   The regional environmental protection inspector shall conduct analyses of surface waters in respect of the physico-chemical, chemical and biological parameters.
4.   The national hydrological-meteorological service shall carry out analyses of surface waters in respect of the hydrological and morphological parameters.
5.   The national hydrogeological service shall analyse and assess the status of the groundwater in respect of the physico-chemical and quantitative parameters.
6.   Where warranted, the regional environmental protection inspector shall, in collaboration with the national hydrogeological service, carry out supplementary analyses of the physico-chemical parameters of the groundwater and provide the results of those analyses, through the principal environmental protection inspector, to the national hydrogeological service.
7.   Where warranted, the principal environmental protection inspector shall, in collaboration with the Chairperson of the National Water Board and on the basis of the results of the analyses referred to in paragraphs 3 to 6, carry out a complete assessment of the status of the waters in the river basin districts, taking account of the distribution of water zones and, where justified by the particularities of the analyses, carry out the analyses referred to in paragraph 2.’
The Law on protection of the environment
Article 25(2) of the Law on protection of the environment of 27 April 2001 (Dz. U. No 62, item 627) (‘the Law on protection of the environment’) provides that State monitoring of the environment is to consist in a system of measuring, assessment and diagnosis of the ecological status and in gathering, processing and disseminating information on the environment.
Under Article 25(3) of that law, State monitoring of the environment contributes to environmental protection measures by systematically providing information to the government authorities and the public on:
‘...
(1)
the quality of the natural elements, observance of qualitative environmental standards, defined by provisions, and of the levels referred to in Article 3(28)(b) and (c), and on ranges for exceeding those standards and levels;
(2)
changes to the quality of the natural elements and the reasons for those changes, including the cause-and-effect links between emissions and the status of the natural elements.’
The Law on nature protection
Under Article 112 of the Law on nature protection of 14 May 2013 (consolidated version of the Law of 16 April 2004, Dz. U., 2013, item 627) (‘the Law on nature protection’), State monitoring of the environment is to include environmental monitoring of biological and landscape diversity.
Article 112(2) provides that environmental monitoring is to consist in observing and examining the status of and changes to the components of biological and landscape diversity, including the types of natural habitats and species of interest for the European Union, particularly the types of natural habitats and priority species, and in examining the effectiveness of nature protection methods.
The Regulation of 3 October 2005
The Regulation of the Minister for the Environment of 3 October 2005 on the specific conditions to be met by hydrological and geologico-engineering documents (Dz. U. No 201) (‘the Regulation of 3 October 2005’), provides in Article 2(1), point 13 and (2):
‘1.   For the purposes of the law the following definitions shall apply:
...
(13)
available resources: the quantity of groundwater it is possible to abstract in an area in balance in determined environmental and hydrological conditions, without indication of specific location or technical or economic conditions in water abstraction;
...
2.   The available groundwater resources of the measuring area as set out in the hydrogeological documentation make it possible to:
(1)
assess the extent of utilisation of the groundwater resources and the quantity of available reserves or the water resource deficit in the measuring area, including in the water area or the sub-basin;
(2)
identify the potential sites for the construction of weirs for groundwater;
(3)
draw up an inventory of the resources in areas of intensive and concentrated operation of groundwater and verify those resources;
(4)
draw up a hydro-economic appraisal with a view to defining the conditions of use of the waters of the water area or sub-basin.
...’
The Regulation of 23 July 2008
Article 2(1) of the Regulation of the Minister for the Environment of 23 July 2008 on the criteria and detailed rules for assessing groundwater status (Dz. U. No 143, item 896) (‘the Regulation of 23 July 2008’) provides:
‘The classification of the groundwater status according to physico-chemical parameters shall be based on the five following qualitative classes:
...
(2)
Class II - good-quality water in which:
(a)
the values of certain physico-chemical parameters are high due to natural processes occurring in the groundwater,
(b)
the values of the physico-chemical parameters do not indicate impact of human activity or indicate a very low impact
...’
Article 8(2) to (4) of that regulation provides:
‘2.   The assessments of the quantitative groundwater status shall be carried out on uniform bodies of given groundwater.
...
3.   The assessment of the quantitative groundwater status shall take place determining the significance of the reserves of uniform bodies of groundwater resources and interpreting the results of monitoring of the corresponding situation for groundwater.
...
4.   The amount of groundwater resource reserves shall be determined by comparison of the average actual abstraction over a number of years with abstractions of groundwater, expressed in m
/day, with the volume of reserves of groundwater available for use, expressed in m
/day, fixed on the basis of the available resources established for an area in balance, including a given uniform body of groundwater; where a given body of groundwater is not entirely covered by the measuring area for which the available resources have been determined, it shall be possible to make the comparison on the basis of the calculation of the forecasted use of groundwater resources until the available resources are determined for that body of water.’
The Regulation of 20 August 2008
The Regulation of the Minister for the Environment of 20 August 2008 on the detailed rules for the classification of the status of uniform bodies of surface water (Dz. U. No 162, item 1008) (‘the Regulation of 20 August 2008’) provides, in point XIV of Part B of Annex 6 thereto:
‘Classification of the ecological status of bodies of surface water and interpretation of the results of the analysis of water quality indicators according to physico-chemical, biological and hydromorphological parameters
...
B.
Interpretation of the results of the analysis of water quality indicators according to physico-chemical, biological and hydromorphological parameters
...
XIV.
Until such time as methods for assessing the ecological status on the basis of hydromorphological parameters have been drawn up, the classification of the water ecological status may be carried out independently of those parameters. In that case, action 4 shall be omitted and the body of surface water meeting the criterion referred to for action 3, point 1, shall belong to ecological status class 1.’
Point XV of Part B of Annex 7 to the Regulation of 20 August 2008 provides:
‘Classification of the ecological potential of artificial and heavily modified bodies of surface water and interpretation of the results of the analysis of water quality indicators according to physico-chemical, biological and hydromorphological parameters
...
B.
Interpretation of the results of the analysis of water quality indicators according to physico-chemical, biological and hydromorphological parameters
...
XV.
Until such time as methods for assessing the ecological potential on the basis of hydromorphological parameters have been drawn up, the classification of the ecological potential of the waters may be carried out independently of those parameters. In that case, action 2 shall be omitted.’
The Regulation of 13 May 2009
Article 5(2)(3) of the Regulation of the Minister for the Environment of 13 May 2009 on the detailed rules for managing the monitoring of uniform bodies of surface water and of groundwater (Dz. U. No 81, item 685) (‘the Regulation of 13 May 2009’) provides:
‘Operational monitoring of bodies of surface water shall be carried out with a view to the following:
...
(3)
determining the status of surface waters in the areas included in the lists referred to in Article 113(4) of the Water Law ...
...’
Annex 1 to the Regulation of 13 May 2009 provides:
‘...
2.
Criteria for selecting bodies of surface water to subject to operational monitoring:
...
(6)
the ranking of the body of surface water among waters constituting a habitat for fish, crustaceans and molluscs, or relationship of mutual dependence between the body of water and the protected areas referred to in Article 113(4) of the Water Law ...
...’
The ‘Comments under Table 2’ contained in the Regulation of 13 May 2009 state:
‘...
(2)
The scope and frequency of analyses pertaining to the different classification parameters conducted on measuring points of the targeted checks that are not situated in bodies of surface water designated as recreational waters, including as bathing waters, shall use only those indicators and frequencies defined in the international agreements binding the Republic of Poland and in the specific provisions in force, in particular those adopted pursuant to Article 50(1) and (2) of the Water Law ...; where none are so defined, they shall be the elements defined for the measuring points of the operational monitoring.
...
(4)
Where, in a body of surface water, a pollution source that is liable to emit substances that are particularly harmful for the aquatic environment, in particular priority substances referred to in Table 1 in the group of chemical indicators which are characteristic of the presence of substances that are particularly harmful for the aquatic environment, is or has been established, or where the results of the diagnostic monitoring indicate that one of those substances is present in quantities exceeding the concentration limits, the analysis at the measuring point of the operational monitoring situated in that body of water must be conducted in a manner which includes the substances whose presence in the water has been established or is probable. In such a case, the operational monitoring of the body of water concerned shall be conducted annually for those substances at each measuring point. The frequency of verification of the biological parameters shall remain unchanged. The frequency of determination, in a specific body of water, of each of the substances listed in Table 1, in the group of priority substances under the water policy and the group of indicators of other pollutants ..., may be reduced when the results obtained at the time of the first complete annual cycle of the six-year planning cycle show that the concentration of such a substance does not exceed the acceptable limit values. The analysis of the presence of a particular hazardous substance at a single measuring point of the operational monitoring may not be carried out when all the results obtained at that point during the previous year of the operational monitoring show that that substance is not present in the water or that the actions aimed at improving the status of the water were not implemented.’
The Regulation of 18 June 2009
Article 3(1) of the Regulation of the Council of Ministers of 18 June 2009 on the precise scope of the drafting of river basin management plans (Dz. U. No l06, item 882) (‘the Regulation of 18 June 2009’) provides:
‘The detailed framework for the information required for the establishment of the river basin management plans must include:
…
(2)
the lists of the bodies of water drawn up pursuant to Article 113(2)(1) of the Water Law.
...
(7)
information on the inland surface water and groundwater reservoirs with a preliminary assessment carried out with a view to their use for supplying the population with drinking water;
...
(9)
the results of the impact study on the changes in levels of the bodies of groundwater;
...’
Article 3(1)(11) of the Regulation of 18 June 2009 provides that the specific information required for drawing up a river basin management plan includes a summary of the measures in the national programme for the water and environment, currently referred to in Article 113b of the Water Law.
Article 5 of that regulation provides:
‘In defining the environmental objectives for the bodies of water and the protected areas, the following requirements must be met:
…
(3)
reasons given for the postponement of the time limit for achieving the environmental objectives with respect to the bodies of surface water and groundwater for the following planning cycles, taking into account economic, social and natural aspects;
…’
The Regulation of 15 November 2011
Under Article 4(1) of the Regulation of the Minister for the Environment of 15 November 2011 on the detailed management rules for monitoring uniform bodies of surface water and groundwater (Dz. U. No 258, item 1550) (‘the Regulation of 15 November 2011’), one of the ways of monitoring uniform bodies of surface water is to monitor protected areas.
Article 5(4) of the Regulation of 15 November 2011 provides:
‘Monitoring of protected areas shall be instituted in order to:
(1)
determine the status of uniform bodies of surface water present in protected areas;
(2)
determine degrees of compliance with additional requirements established for those areas in separate provisions;
...
(4)
assess changes in the status of uniform bodies of surface water in protected areas …;
...’
Under Section 1, point 7, of Annex 1 to that regulation, one of the selection criteria of uniform bodies of surface water to be monitored under the checks on diagnostic monitoring is contingent on there being uniform bodies of water in protected areas intended for the protection of habitats or species for which the maintenance or improvement of the status of the water is an important factor in their protection, as referred to in Article 113(4)(6) of the Water Law.
Under Section 2, point 9, of Annex 1 to the Regulation of 15 November 2011, one of the selection criteria for surveillance within the framework of the operational monitoring is contingent on the identification, on the basis of an assessment of the significant impact of anthropogenic pressures on the status of the surface water and diagnostic monitoring, of uniform bodies of surface water present in protected areas referred to in Article 113(4)(6) of the Water Law that risk not meeting their environmental objectives.
Under Part V, point 25, of Annex 2 to that regulation, monitoring of protected areas is to continue until the areas comply with the requirements laid down in specific provisions establishing them and they meet the environmental objectives as referred to in Articles 38d(1) and (2) and 38f of the Water Law.
Annex 3 to that same regulation defines the scope and frequency of the studies carried out for the different classification parameters of the ecological and chemical status of uniform bodies of surface water, as well as the scope of the studies of the different classification parameters of the ecological potential and chemical status of uniform artificial and heavily modified bodies of surface water, including uniform bodies of water in protection areas. Table No 1 of Annex 3 provides a list of the indicators and parameters of studies of checks on diagnostic monitoring, comprising:
‘(a)
22 indicators of studies of biological factors: phytoplankton (abundance or quantity, taxonomic composition, frequency of efflorescence and intensity, biomass, chlorophyll ‘a’), phytobenthos (abundance or quantity, taxonomic composition), benthic macro-invertebrate fauna (abundance, taxonomic composition, presence of sensitive taxa, diversity), macroscopic algae and angiosperms (quantity, taxonomic composition, diversity, presence of sensitive taxa), macrophytes (abundance or quantity, taxonomic composition), ichtyofauna (abundance or quantity, taxonomic composition, life-cycle or age structure, presence of sensitive taxa),
(b)
three of studies of hydromorphological factors, such as hydrological regime (tides), continuity of streams, rivers, torrents, rivers or canals and morphological conditions,
(c)
52 study indicators of physico-chemical factors: indicators characteristic of the physical status, including thermic conditions (water temperature, transparency, colour, total matter in suspension), oxygen balance [dissolved oxygen, biochemical oxygen demand in five days (BOD5), chemical oxygen demand (COD) — Mn (permanganate index), total organic carbon, % of water saturation in oxygen, chemical oxygen demand (COD-Cr)], salinity (salinity, conductivity at 20 °C, dissolved substances, sulphates, chlorides, calcium, magnesium, total hardness), state of acidification (pH), total alkalinity, concentration in nutrients [ammonium, nitrogen (Kjeldahl), nitrate nitrogen, nitrogen nitrite, total nitrogen, phosphates PO
, total phosphorus, silica] and specific synthetic and non-synthetic pollutants [formaldehyde, arsenic, barium, boron, hexavalent chromium, total chromium (sum of Cr3 and Cr6), zinc, copper, volatile phenols — phenolic index, hydrocarbons of petroleum origin — mineral oil index, aluminium, releasable cyanide, bonded cyanide, molybdenum, selenium, silver, thallium, titanium, vanadium, antimony, fluorides, beryllium, cobalt and tin],
(d)
33 priority substances in water policy, such as alachlor, anthracene, atrazine, benzene, brominated diphenyl oxide (diphenyl ether, penta brominated derivative; congeners numbered 28, 47, 99, 100, 153 and 154), cadmium and compounds thereof, alkanes in C10-13, chloro, chlorfenvinphos, chlorpyrifos (ethylchlorpyrifos), 1,2-dichloroethane (EDC), dichloromethane, di(2-ethylhexyl) phthalate (DEHP), diuron, endosulfan, fluoranthene, hexachlorobenzene (HCB), hexachlorobutadiene (HCBD), hexachlorocyclohexane (HCH), isoproturon, lead and compounds thereof, mercury and compounds thereof, naphtalene, nickel and compounds thereof, nonylphenol (p-nonylphenol), octylphenol 4-(1,1,3,3-tetramethylbuthyl)-phenol, pentachlorobenzene, pentachlorophenol (PCP), polycyclic aromatic hydrocarbons (PAH), benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, benzo(g,h,i)perylene, indeno(1,2,3-cd)pyrene, simazine, compounds of tributyltin (tributyltin-cation), trichlorobenzene (TCB), trichloromethane (chloroform), trifluralin, and
(e)
eight other polluting substances (tetrachloromethane, aldrin, dieldrin, endrin, isodrin, DDT — para-para isomer, DDT total, trichlorethylene (TRI), tetrachlorethylene (PER).’
Pre-litigation procedure
On 27 June 2008, the Commission addressed to the Republic of Poland a letter of formal notice in which it criticised shortcomings in the national transposition measures of Directive 2000/60 notified to it and stated that that Member State had failed to fulfil its obligations under Articles 2 to 11, 13, 14 and 24 and Annexes II to V, VII and VIII to that directive.
The Republic of Poland replied to that letter of formal notice by letter of 22 August 2008.
On 7 May 2009, the Republic of Poland notified the Commission, by way of transposition of Directive 2000/60, of the Regulation of 23 July 2008.
On 10 July 2009, the Republic of Poland notified the Commission of the Regulation of 18 June 2009.
On 6 October 2009, the Republic of Poland notified the Commission of three other regulations, being the Regulations of 20 August 2008, 13 May 2009 and 22 July 2009.
On 28 June 2010, the Commission sent a reasoned opinion to the Republic of Poland, requesting it to take the measures needed to comply with that opinion within two months of the date of receipt thereof. That time limit expired on 28 August 2010.
In that reasoned opinion, the Commission stated that Polish law did not ensure complete and suitable transposition of the provisions of Directive 2000/60 set out in the letter of formal notice.
By letter of 24 August 2010, the Republic of Poland replied to that reasoned opinion.
Commission officials and representatives of the Polish authorities met to discuss the transposition of Directive 2000/60 on 28 September 2010, with working meetings held on 12 October 2010 and 22 March 2011.
On 23 February 2011, that is to say, after expiry of the time limit set out in the reasoned opinion, the Republic of Poland notified the Commission of the Law of 5 January 2011 amending the Water Law and certain other laws (Dz. U. No 32, item 159) (‘the Law of 5 January 2011’), which entered into force on 18 March 2011.
On 30 November and 7 December 2011, the Republic of Poland notified the Commission of the following regulations by way of transposition of Directive 2000/60:
—
the Regulation of the Minister for the Environment of 9 November 2011 on the classification of the ecological status, of the ecological potential and of the chemical status of uniform bodies of surface water and of groundwater (Dz. U. No 258, item 1549);
—
the Regulation of the Minister for the Environment of 9 November 2011 on the detailed rules for classification of the status of uniform bodies of surface water and for environmental quality rules for priority substances (Dz. U. No 257, item 1545) (‘the Regulation of 9 November 2011 on the detailed rules for classification of the status of uniform bodies of surface water’), and
—
the Regulation of 15 November 2011.
Although those regulations and the Law of 5 January 2011 were adopted after expiry of the time limit laid down in the reasoned opinion, being 28 August 2010, the Commission took them into consideration on the condition that the new provisions would eliminate the infringements observed previously.
On 29 March 2013, the Republic of Poland notified the Commission of the Regulation of the Council of Ministers of 29 March 2013 on the precise scope of the preparation of river basin district management plans (Dz. U. item 578) (‘the Regulation of 29 March 2013’), which entered into force on 20 May 2013. The Commission took account of that regulation in so far as it eliminated the infringements observed previously.
In the light of the replies and pieces of legislation notified, the Commission, having withdrawn some of its complaints, considered that the situation concerning the transposition of Directive 2000/60 remained unsatisfactory, and therefore, decided to institute the present proceedings.
On 20 November 2014, the Court Registry summoned the parties to the hearing on 15 January 2015, at which the Commission was, inter alia, requested to produce by 8 December at the latest, in the language of the case and in French, the full text of the relevant national provisions demonstrating the incorrect or incomplete transposition of the provisions of Directive 2000/60 in force on the date of expiry of the time limit set out in the reasoned opinion.
By letter of 3 December 2014, the Commission sent the requested documents and also informed the Court that the application initiating proceedings in the present case did not refer to the existence of the supplementary reasoned opinion it had sent the Republic of Poland on 28 February 2012 (‘the supplementary reasoned opinion’). In the supplementary reasoned opinion, the Republic of Poland was requested to take the measures necessary to comply with its obligations within one month of receipt thereof, which was also on 28 February 2012.
In the supplementary reasoned opinion, the Commission, after assessing the Regulation of 15 November 2011, found, in addition to the complaints set out in its reasoned opinion of 28 June 2010, incorrect transposition of Article 8(1), first indent (i) and (2) of Directive 2000/60, and of points 1.1 and 1.3 of Annex V to that directive.
Further to the explanations provided by the Republic of Poland on 28 March 2012 in the reply to the supplementary reasoned opinion, the Commission decided not to pursue the complaint set out in that opinion.
The action
The time limit set out in the supplementary reasoned opinion
It should be noted that, at the hearing, the Republic of Poland stated that the Court is required, in the present case, to ascertain the existence of the alleged infringement on the date of expiry of the time limit set out in the supplementary reasoned opinion, namely 28 March 2012, and not on the expiry of the time limit set out in the original reasoned opinion; this applies in respect of all the complaints, not only the complaint set out in the supplementary reasoned opinion.
The Commission submits that, further to the explanations provided by the Republic of Poland in the reply to the supplementary reasoned opinion, it decided not to pursue the separate complaint set out in that opinion and that this was why it was not included in the application initiating proceedings.
It should be observed in that regard that the Commission did send the Republic of Poland the supplementary reasoned opinion, in which it set a different date than the one set out in the reasoned opinion of 28 June 2010 in order for that Member State to comply with its obligations under Directive 2000/60.
However, it is apparent from the wording of the supplementary reasoned opinion that the latter opinion concerned a single, precisely defined complaint, separate from the complaints set out in the reasoned opinion of 28 June 2010, and that the time limit set out by the Commission in the supplementary reasoned opinion was indissociably and exclusively linked to that complaint, without that having any bearing on the time limit set out in the reasoned opinion of 28 June 2010.
It follows that, in the present case, as the complaint set out in the supplementary reasoned opinion was not covered by the action in the present case, the issue of whether or not there has been an infringement falls to be assessed according to the Member State’s situation as it stood at the time of expiry of the time limit set out in the original reasoned opinion, namely 28 August 2010.
The first complaint: incomplete and incorrect transposition of the definitions in Article 2(19), (20), (26) and (27) of Directive 2000/60
Arguments of the parties
By its first complaint, the Commission submits that some of the definitions in Article 2 of Directive 2000/60 have not been implemented in national law. Its view is that the definitions in Article 2(19), (20), (26) and (27) thereof should be reproduced literally in the national legislation transposing that directive, in order to ensure correct application thereof in the Member State concerned.
As regards the definitions of the terms ‘groundwater status’, ‘good groundwater status’ and ‘quantitative status’ in Article 2(19), (20) and (26) of Directive 2000/60, the Commission observes that during the pre-litigation procedure, the Republic of Poland did not dispute the complaint about the lack of separate transposition of those definitions, stating that it ‘was doing everything in its power to remedy those infringements by inserting suitable definitions in legislative texts or their implementing provisions’.
Regarding more specifically the definition of the term ‘groundwater status’, the Commission submits that, although it is true that the Regulation of 23 July 2008 introduced the definition of the terms ‘good groundwater chemical status’ and ‘good quantitative status’, there is still no definition of the term ‘groundwater status’, which is indispensable for the correct transposition and application of the combined provisions of Article 8 of Directive 2000/60 and point 2.5 of Annex V thereto. The transposition of that definition is particularly important in relation to the requirement that the status of groundwater is determined by the poorer value of its quantitative status and chemical status.
Regarding the definition of the term ‘good groundwater status’, the Commission takes the view that Article 2(1) of the Regulation of 23 July 2008 has not transposed that definition correctly, as it provides that Class II includes waters in which: (i) the values of certain physicochemical parameters are high due to natural processes occurring in the groundwater and, (ii) the values of the physicochemical parameters do not indicate impact of human activity or indicate a very low impact.
Yet, according to the Commission, Article 2(20) of Directive 2000/60 provides quite clearly that ‘good groundwater status’ means the status achieved by a groundwater body when both its quantitative status and its chemical status are at least ‘good’. Consequently, the definition in the Regulation of 23 July 2008, inasmuch as it addresses only the water’s physicochemical parameters and not its quantitative status, fails to equate to the broader scope of the definition laid down in that directive.
The definition of ‘good groundwater status’ is, however, essential for ensuring the correct transposition and application of the obligation imposed under Article 4(1)(b)(ii) of Directive 2000/60, which provides that Member States are required to achieve good groundwater status. In the Commission’s submission, the transposition of that definition is also essential for the application of the derogations from that obligation, that is to say, the derogation enabling achievement of the less stringent environmental objectives, provided for in Article 4(5) of Directive 2000/60, or the one enabling the introduction of new modifications or alterations to the level of bodies of groundwater, as provided for in Article 4(7) of that directive. As there is no definition of the term ‘good groundwater status’, it is not possible to introduce derogations from that obligation without running the risk of falling short of attaining the environmental objectives.
Regarding the definition of the term ‘quantitative status’, which is, according to Article 2(26) of Directive 2000/60 ‘an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions’, the Commission submits that it has been transposed incorrectly by Article 8 of the Regulation of 23 July 2008. Article 8(2) provides that ‘the assessments of the quantitative groundwater status shall be carried out on uniform bodies of given groundwater’, whilst Article 8(3) provides that ‘the assessment of the quantitative groundwater status shall take place determining the significance of the reserves of uniform bodies of groundwater resources and interpreting the results of monitoring of the corresponding situation for groundwater’.
In the Commission’s submission, those provisions of Polish law do not refer to direct and indirect abstractions, or to their impact on bodies of groundwater. Yet the definition of ‘quantitative status’ is essential for ensuring the correct transposition and application of the requirements laid down in the combined provisions of Article 8 of and Annex V to Directive 2000/60, both in the area of classification of quantitative water status and that of status monitoring, in accordance with points 2.1 and 2.2 of Annex V.
As regards the definition of the term ‘available groundwater resource’ in Article 2(27) of Directive 2000/60, the Commission observes that, in its reply to the reasoned opinion, the Republic of Poland confirmed that those exact words do not appear in the Polish legislation. Article 2(1)(13) of the Regulation of 3 October 2005 contains the term ‘available water resource’, defined as the ‘quantity of groundwater it is possible to abstract in an area in balance in determined environmental and hydrological conditions, without indication of specific location or technical or economic conditions in water abstraction’.
In the Commission’s submission, it is clear from the analysis of the Polish legal order that none of the components of the definition in Article 2(27) of Directive 2000/60 exist in Polish law.
Nor is there any relationship between the term ‘available groundwater resource’ in Directive 2000/60 and the term ‘abstraction of water’ in the Regulation of 3 October 2005. The former refers to natural processes occurring without human involvement. That involvement, which characterises the abstraction of water, comes under Article 2(28) of that directive. The Commission adds that the definition of the term ‘available groundwater resource’ in Article 2(27) of that directive refers to the monitoring obligation referred to in point 2.2.1 of Annex V thereto, which relates to both natural processes and man-triggered processes. Although the two categories remain undifferentiated, there is a risk that the effects of human intervention are not covered. Consequently, it is difficult to determine adequately which measures should be taken to ensure good water status in accordance with Article 4 of Directive 2000/60.
In the Commission’s submission, however, that term in Directive 2000/60 is essential for the correct transposition and application of the combined provisions of Article 8 of and Annex V to that directive, inter alia for making a correct classification of water status, as defined in point 1.4 of Annex V to that directive, and correct monitoring of quantitative groundwater status, as provided for by point 2.2 of Annex V thereto.
Regarding the first complaint, the Republic of Poland recalls, first of all, the Court’s settled case-law, according to which transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner.
In the Republic of Poland’s submission, the Commission did not provide any reasons establishing that the Member States have an obligation to transpose textually the concepts defined in Article 2(19), (20), (26) and (27) of Directive 2000/60 and has not specified how the lack of transposition of those definitions might compromise the achievement of the objectives of that directive. Moreover, although the Commission refers to the link existing between those definitions and the material provisions of Directive 2000/60, the Commission does not in any way call into question the relevance of the transposition of those material provisions.
The Republic of Poland further observes that the definitions the non-transposition of which the Commission criticises are included in the draft reform of the Water Law and certain other laws.
Findings of the Court
With regards to the Republic of Poland’s argument that a Member State is not required to transpose literally the definitions laid down in Directive 2000/60, it should be borne in mind that, according to settled case-law, transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner (see judgment of 19 December 2013 in Commission v Poland,
C‑281/11
,
EU:C:2013:855
, paragraph
and the case-law cited).
In the present case, however, the Republic of Poland has not been able to state specifically which national provisions demonstrate that the substantive provisions of Directive 2000/60, which are based on the definitions at issue, have been correctly transposed. Therefore, it is not apparent from the Polish legislation that the full application of Directive 2000/60 is ensured in a sufficiently clear and precise manner.
Since those definitions serve to guarantee a correct transposition of the Member States’ obligations in accordance with the substantive provisions of Directive 2000/60, it is imperative that they be properly taken into consideration in the transposition of the substantive provisions employing the defined terms when the Member State does not effect a separate transposition for them.
As regards the term ‘groundwater status’ in Article 2(19) of Directive 2000/60, it should be noted that the Regulation of 23 July 2008 introduced the definition of the terms ‘good groundwater chemical status’ set out in Article 2(25) of that directive, and ‘good quantitative status’, found in Article 2(28) and in point 2.1.2 of Annex V to that directive, but not the definition of the term ‘groundwater status’, even though it is essential for the correct transposition and application of the combined provisions of Article 8 of Directive 2000/60 and point 2.5 of Annex V thereto, since the status of a body of groundwater is determined by the poorer value of its quantitative status and chemical status.
Nor is there any other piece of Polish legislation showing that that definition has been transposed in Polish law, a finding not disputed by the Republic of Poland in its written pleadings or at the hearing, during which it merely stated that, in practice, there was no doubt as to the scope of application of the definitions in question and that all material provisions had been implemented correctly.
It is sufficient to note in that regard that it is settled case-law that the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, inter alia, judgment of 19 December 2013 in Commission v Poland,
C‑281/11
,
EU:C:2013:855
, paragraph
and the case-law cited).
Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations to transpose a directive. In the same way, an interpretation, by national courts, of the provisions of national law in accordance with those of a directive cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, inter alia, judgment of 19 December 2013 in Commission v Poland,
C‑281/11
,
EU:C:2013:855
, paragraph
and the case-law cited).
As to the definition of the term ‘good groundwater status’ given in Article 2(20) of Directive 2000/60, Article 2(1) of the Regulation of 23 July 2008 provides that, under Class II, good-quality water is water in which: (i) the values of certain physicochemical parameters are high due to natural processes occurring in the groundwater and, (ii) the values of the physicochemical parameters do not indicate impact of human activity or indicate a very low impact.
Article 2(20) of Directive 2000/60 provides explicitly that good groundwater status is the status achieved by a groundwater body when both its quantitative status and its chemical status are at least ‘good’. The definition given in the Regulation of 23 July 2008, by contrast, covers only physicochemical parameters and therefore fails to equate to the much broader scope of the definition laid down in that directive.
The definition of ‘good groundwater status’ is, moreover, essential in order to ensure the correct transposition and application of the fundamental obligation imposed in Article 4(1)(b)(ii) of Directive 2000/60, which requires the Member States to achieve good groundwater status. Therefore, the transposition of the definition laid down in Article 2(20) of that directive is also essential for the application of the derogations from the obligation to achieve good groundwater status, that is to say, the derogation allowing for the attainment of less stringent environmental objectives, as provided for in Article 4(5) of Directive 2000/60, or the derogation allowing for the introduction of new modifications or alterations to the level of bodies of groundwater, set out in Article 4(7) of that same directive. Without a determination of good groundwater status, it is not possible to introduce derogations without running the risk of failing to attain the environmental objectives.
In relation to the concept of ‘quantitative status’, laid down in Article 2(26) of Directive 2000/60, it should be observed that Article 8(2) of the Regulation of 23 July 2008 provides that ‘the assessments of the quantitative groundwater status shall be carried out on uniform bodies of given groundwater’, whilst Article 8(3) provides that ‘the assessment of the quantitative groundwater status shall take place determining the significance of the reserves of uniform bodies of groundwater resources and interpreting the results of monitoring of the corresponding situation for groundwater’.
Yet those national provisions fail to transpose correctly the definition of ‘quantitative status’ laid down in Directive 2000/60, as Article 2(26) thereof provides that quantitative status is an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions. The Polish legislative provisions, however, do not refer to direct and indirect abstractions or to their effect on bodies of groundwater. As the definition of ‘quantitative status’ is essential in ensuring the correct transposition and application of the requirements laid down in the combined provisions of Article 8 of and Annex V to Directive 2000/60, both in the classification of quantitative water status, provided for in point 2.1 of that annex and in the monitoring of that status in accordance with point 2.2 of that annex, it follows that that definition has not been transposed correctly in Polish law.
In relation to the term ‘available groundwater resource’ found in Article 2(27) of Directive 2000/60, the definition of which is somewhat complex, the Republic of Poland submits that, in accordance with established practice and terminology specific to Polish law, Article 2(1)(13) of the Regulation of 3 October 2005 employs the equivalent expression ‘available water resource’ (‘zasoby dyspozycyjne wód’). That expression refers to the quantity of groundwater it is possible to abstract in an area in balance in determined environmental and hydrological conditions, without indication of specific location or technical or economic conditions in water abstraction.
The Republic of Poland adds that the definition in Article 8(4) of the Regulation of 23 July 2008, providing that ‘the amount of groundwater resource reserves shall be determined by comparison of the average actual abstraction over a number of years with abstractions of groundwater, expressed in m
/day, with the volume of reserves of groundwater available for use, expressed in m
/day, fixed on the basis of the available resources established for an area in balance, including a given uniform body of groundwater’, must be interpreted in accordance with Article 2(1)(13) of the Regulation of 3 October 2005. Lastly, Article 38(3) of the Water Law and Article 97(1) and (2) of the Law on protection of the environment ought to be taken into consideration.
In that regard, as observed above in paragraph 78, it is settled case-law that the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, inter alia, judgment of 19 December 2013 in Commission v Poland,
C‑281/11
,
EU:C:2013:855
, paragraph
and the case-law cited).
However, the interpretation of a national provision on water protection in accordance with a number of other provisions dispersed throughout several different pieces of legislation which do not prima facie address water protection does not meet those requirements.
It is also apparent from the analysis of the relevant Polish legislative provisions that none of the elements of the definition given in Article 2(27) of Directive 2000/60 exists in Polish law, as there is no reference either to the long-term annual average rate of overall recharge of the body of groundwater less the long-term annual rate of flow required, or to the requirement to achieve the ecological quality objectives for associated surface waters specified under Article 4 of that directive, or to the requirement that any significant diminution in the ecological status of such waters and any significant damage to associated terrestrial ecosystems must be avoided.
Lastly, as observed by the Commission, there is no connection between the terms ‘available groundwater resource’ and ‘abstraction of water’. The former refers to natural processes, the definition of which is found in Directive 2000/60, referring to a state of natural balance, namely, the overall recharge of the body of groundwater less the rate of flow, without human intervention. That intervention, which distinguishes the abstraction of water, comes within Article 2(28) of that directive. Furthermore, the definition given in Article 2(27) makes implicit reference to the monitoring obligation referred to point 2.2.1 of Annex V thereto, which concerns both natural and human-triggered processes. If those two categories remained undifferentiated, there would be a risk that the effects of the human intervention would not be covered, which would make it difficult to determine adequately which measures needed to be taken in order to guarantee good water status in accordance with Article 4 of Directive 2000/60.
It follows from the foregoing that the definitions set out in Article 2(19), (20), (26) and (27) of Directive 2000/60 were not in the relevant legislation in force on the date of expiry of the period laid down in the reasoned opinion and that that lack of transposition may compromise the attainment of the objectives pursued by that directive.
In its written pleadings, the Commission set out the consequences of the failure to transpose or transpose correctly the definitions given in Article 2(19), (20), (26) and (27) of Directive 2000/60 for the proper transposition of the substantive provisions of the Directive, including the impact on the attainment of its objectives.
Therefore, and contrary to the Republic of Poland’s assertions, it is not necessary for the Commission to put forward complaints about the incorrect transposition of each of the substantive provisions of Directive 2000/60 containing or referring to the definitions in dispute, in addition to the complaint about the incorrect transposition of those definitions, laid down in Article 2 thereof.
Lastly, it must be borne in mind that in relation to the definitions of the terms ‘groundwater status’, ‘good groundwater status’ and ‘quantitative status’, laid down in Article 2(19), (20) and (26) of Directive 2000/60, during the pre-litigation procedure the Republic of Poland did not challenge the non-transposition of those definitions and stated that it was doing everything in its power to remedy those infringements by inserting suitable definitions in legislative texts or their subsequent implementing provisions.
In the light of the foregoing, the first complaint, alleging a failure to implement completely or correctly the definitions set out in Article 2(19), (20), (26) and (27) of Directive 2000/60 must be held to be well founded.
The second complaint: incorrect transposition of Article 8(1) of Directive 2000/60 in relation to the monitoring of protected areas
Arguments of the parties
The Commission observes that Article 8(1) of Directive 2000/60 requires Member States to monitor the status of surface waters, groundwater and protected areas by establishing and applying monitoring programmes.
For protected areas, the third indent of that provision provides that monitoring programmes are to be supplemented by the specifications contained in EU legislation under which the individual protected areas have been established. The Commission submits that, although there are elements of the foregoing to be found in the relevant Polish provisions in respect of water used for bathing or the abstraction of water intended for consumption, it finds a lack of adequate requirements corresponding to the specifications for the areas established pursuant to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (
OJ 1992 L 206, p. 7
) and Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (
OJ 2010 L 20, p. 7
), that is to say, areas designated as ‘Natura 2000’ sites. Nor has the additional monitoring for protected areas provided for in point 1.3.5 of Annex V to Directive 2000/60 been properly transposed in Polish law.
The Commission submits that, in its reply to the reasoned opinion, the Republic of Poland acknowledged that Article 8(1) of Directive 2000/60 had not been correctly transposed and stated that the amendment to the Regulation of 13 May 2009 will ensure proper transposition of that provision.
The analysis of the Polish legislative provisions establishing monitoring programmes for protected Natura 2000 areas shows that, although operational monitoring provides for the monitoring of certain chemical substances such as iron or copper, the monitoring of those substances does not enable the impact on water monitoring in those protected areas to be ascertained. The Polish legislation has not fixed factors for determining the conservation status of species and habitats in relation to water. It cannot be said that the Polish provisions transpose correctly the need to supplement monitoring programmes with the specifications contained in the EU legislation on the basis of which those areas were established, with regards to the areas designated pursuant to Directives 92/43 and 2009/147.
The Commission observes that those water status monitoring programmes, provided for in Article 8 of Directive 2000/60, must enable data to be gathered with a view to achieving good water status in the protected areas whilst taking account of the requirements under the legislation on the basis of which those areas were established. The monitoring programme referred to in the third indent of Article 8(1) of Directive 2000/60 should therefore ensure monitoring of the parameters of water status which are structural and functional indicators or which have an impact on the assessment of the prospects for protection of species and natural environments for the protection of which those areas were established.
The Republic of Poland submits in essence that the third indent of Article 8(1) of Directive 2000/60 was transposed through national monitoring of the environment as provided for, inter alia, in Article 25(2) of the Law on protection of the environment and Article 112 of the Law on nature protection, monitoring in the Natura 2000 areas under protection mission plans, and Article 5(4)(2) of the Regulation of 15 November 2011.
The scope of the monitoring as defined in protection action plans and protection mission plans concerns the habitats and species found in those areas and protected under the Natura 2000 network and, above all, those habitats or species for which a Natura 2000 area was created. That monitoring, however, is based on broader provisions than Directives 92/43 and 2009/147. Account has also been taken of all of the Republic of Poland’s other obligations resulting from ratified conventions on nature protection, in addition to those resulting from Directive 2000/60.
Under Article 5(4)(2) of the Regulation of 15 November 2011, monitoring of protected areas is to be instituted in order to determine degrees of compliance with additional requirements established for those areas in separate provisions. Those separate provisions include provisions of the Law on nature protection, under which protected areas have been designated. Water monitoring should therefore take account of the results of monitoring carried out pursuant to Article 112 of the Law on nature protection and protection action plans or protection mission plans.
In the monitoring of uniform bodies of surface water and groundwater, account is therefore taken of other requirements laid down for water-dependent Natura 2000 areas. On the other hand, the degree of compliance with the requirements for Natura 2000 areas is determined in the course of monitoring carried out pursuant to Article 112 of the Law on nature protection and under protection action plans. Consequently, in the Republic of Poland’s submission, Polish law does satisfy the requirements for monitoring programmes referred to in Article 8(1) of Directive 2000/60.
Findings of the Court
The transposition of the third indent of Article 8(1) of Directive 2000/60 in national law consists in taking account of the requirement that programmes for monitoring water status in protected areas must be supplemented by the specifications contained in EU legislation on the basis of which the protected areas were established.
However, Article 25(2) of the Law on protection of the environment, considered as a transposition provision by the Republic of Poland, does not define the term ‘environmental monitoring’. Article 112 of the Law on nature protection, on the other hand, provides that monitoring of nature is based on observation and findings on the current status of biological and landscape diversity components, taking particular account of natural habitats and species of particular importance. This latter type of monitoring thus concerns rather the observation of changes in natural elements, unlike general monitoring of the environment carried out on the basis of Article 25 of the Law on protection of the environment. Accordingly those two provisions do not demonstrate that the competent national authorities are obliged to make use of the results obtained from that monitoring in order to monitor and record the status of the waters concerned, in accordance with the combined provisions of Article 8 of and Annex V to Directive 2000/60.
Nor do the other provisions relied on by the Republic of Poland satisfy the requirement resulting from the transposition of the third indent of Article 8(1) of Directive 2000/60, consisting in making use of the results of the monitoring carried out in the different Natura 2000 areas as part of the monitoring provided for on the basis of that directive and in the classification of water status, as they merely provide for such monitoring without imposing an obligation to make use of the resulting data.
It should also be noted that the first time limit fixed for establishing special protection areas for which the preparation of protection plans is required under Directive 92/43 expired in 2013. Consequently, if the monitoring to be carried out as part of the protection mission plans and protection action plans is to be considered as a kind of transposition of the third indent of Article 8(1) of Directive 2000/60, that transposition will be contingent on those plans’ being drawn up.
The mere fact of possibly holding data about habitats and species or even water status, as the Republic of Poland has stated it does, does not guarantee that the monitoring programmes established under the provisions transposing Directive 2000/60 will be supplemented by the specifications contained in the EU legislation.
Lastly, it is common ground that even if account must be taken of Article 5(4)(2) of the Regulation of 15 November 2011, adopted on the basis of Article 155b of the Water Law after expiry of the time limit set out in the reasoned opinion, which requires that monitoring be introduced for protected areas in order to determine degrees of compliance with additional requirements provided for in separate provisions about those areas, the third indent of Article 8(1) of Directive 2000/60 has not been correctly transposed in Polish law because that provision of national law does not require monitoring of protected areas to be instituted in such a way as to supplement the scope of the monitoring parameters, by adding those laid down in the EU legislation on the basis of which the Natura 2000 areas have been designated, but merely establishes the objective of that monitoring, namely the assessment of the degree of compliance with the requirements set out in separate provisions.
Therefore, the second complaint, alleging incorrect transposition of Article 8(1) of Directive 2000/60 with regard to the monitoring of protected areas, is well founded.
The third complaint: incorrect transposition of Article 9(2) of Directive 2000/60
Arguments of the parties
The Commission submits that Article 9(2) of Directive 2000/60, which requires the Member States to report in the river basin management plans on the planned steps towards implementing the principle of recovery of the costs of water services which will contribute to achieving the environmental objectives of that directive and on the contribution made by the various water uses to the recovery of the costs of water services, has not been transposed in Polish law.
The Commission submits in that regard that there are no relevant, adequate national provisions and that Article 113a(2) of the Water Law provides merely that the basic measures are aimed at fulfilling the minimum conditions and comprise actions the purpose of which is to implement the principle of recovery of the costs of water services. In that context, the Commission submits, account must also be taken of the economic analysis carried out under Annex III to Directive 2000/60.
In its reply to the reasoned opinion, the Republic of Poland stated that the transposition of Article 9(2) of Directive 2000/60 had been achieved by Articles 113a(2)(2) and 114(1)(6) of the Water Law and that those provisions had been supplemented by Article 113b(2)(2) of that same law, as amended by the Law of 5 January 2011 (‘the amended Water Law’), thus replacing Article 113a(2)(2) of the Water Law.
On 5 January 2011, thus after the expiry of the time limit laid down in the reasoned opinion, that amendment came about and was taken into consideration by the Commission. It considers, however, that that amendment did not put an end to the infringement which is the subject matter of the complaint.
Similarly, in the Commission’s submission, Article 114(1)(6) of the Water Law, in providing only that the river basin management plans must include a summary of the results of the economic analysis of water use, may be regarded as transposing point 6 of Part A of Annex VII to Directive 2000/60, which constitutes one of the elements which should be included in the river basin management plan (summary of the economic analysis), but not as a transposition of Article 9(2) thereof.
The Republic of Poland submits, in regards to the third complaint, that although the obligation to take into consideration information referred to in that provision was not provided for directly in the relevant national provisions, it nevertheless indisputably results from the provisions of Polish law as a whole, given its overall scheme and objectives.
The Republic of Poland further states that it has transposed Article 9(2) of Directive 2000/60, inter alia through the Regulation of 29 March 2013, since Polish law transposes Articles 9 and 11 of that directive in a combined manner, given that the measures taken pursuant to Article 9 thereof, relating to the recovery of the costs of water services, are among the elements making up the programme of measures referred to in Article 11.
Findings of the Court
Regarding the third complaint, reference must again be made to the settled case-law, according to which the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, inter alia, judgment of 19 December 2013 in Commission v Poland,
C‑281/11
,
EU:C:2013:855
, paragraph
and the case-law cited).
The mere statement that an obligation provided for by a directive results from the overall set of provisions in the legal order of the Member State concerned does not fulfil that requirement.
Furthermore, the Court has held repeatedly that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, judgment of 18 July 2013 in Commission v Poland,
C‑313/11
,
EU:C:2013:481
, paragraph
and the case-law cited).
In its statement in defence the Republic of Poland submits that it has transposed Article 9(2) of Directive 2000/60 through the Regulation of 29 March 2013; suffice it to note that it was adopted after expiry of the time limit laid down in the reasoned opinion, with the result that the changes introduced in the national rules cannot be taken into account by the Court.
The third complaint, alleging incorrect transposition of Article 9(2) of Directive 2000/60, must accordingly be held to be well founded.
The fourth and fifth complaints: non-transposition of Articles 10(3) and 11(5) of Directive 2000/60
Arguments of the parties
Regarding the fourth complaint, alleging non-transposition of Article 10(3) of Directive 2000/60, the Commission observes that that provision requires Member States to set stricter emission controls where a quality objective or standard established pursuant to that directive requires stricter conditions than those which would result from the application of EU directives referred to in Article 10(2).
The Commission considers that the transposition of the disputed provision is essential in order for the objectives of Directive 2000/60 to be attained. Where, in the light of high levels of green algae of agricultural origin in water, the emission controls or the setting of limit values for emissions on the basis of EU directives, such as Directive 91/676, turn out to be insufficient for attaining the environmental objectives of Directive 2000/60, the Member State then has the obligation to adopt stricter emission controls and criteria than those imposed under Directive 91/676.
Regarding the fifth complaint, alleging incorrect transposition of Article 11(5) of Directive 2000/60, the Commission submits that although Article 113b(8) of the amended Water Law contains the measures listed in that provision of that directive, its scope is narrower.
The wording ‘in drawing up the draft national programme for water and the environment’, in Article 113b(8) in fact has the effect of limiting the scope of the Polish legislative provision to when the national programme for water and the environment is being drawn up. As a result, the measures referred to in Article 113b(8) of the amended Water Law can be taken, apart from when the draft programme is being drawn up, only as part of the review of the programmes of measures referred to in Article 11(8) of Directive 2000/60, that is to say, as part of the regular reviews required under that directive.
The obligation arising under Article 113b(8) must not be confused with the obligation referred to in Article 11(5) of Directive 2000/60, the purpose of which is to supplement the mandatory cyclical reviews referred to in Article 11(8) of that directive with the obligation to take the measures which have been recalled when the designated environmental objectives have little chance of being attained.
The Republic of Poland submits with regard to the fourth and fifth complaints that Articles 10(3) and 11(5) of Directive 2000/60 should be transposed in the draft reform legislation for the Water Law and certain other laws the legislative preparation of which is at an advanced stage.
Findings of the Court
With regards to the fourth and fifth complaints, reference must again be made to the Court’s settled case-law, referred to in paragraph 121 of this judgment and according to which the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, judgment of 18 July 2013 in Commission v Poland,
C‑313/11
,
EU:C:2013:481
, paragraph
and the case-law cited).
It is thus apparent from the Republic of Poland’s arguments that Articles 10(3) and 11(5) of Directive 2000/60, which should be transposed in the draft amending legislation for the Water Law and certain other laws that those transposition measures had not been adopted by the end of the period laid down in the reasoned opinion.
Therefore, the fourth and fifth complaints must be held to be well founded.
The sixth complaint: incorrect transposition of points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to Directive 2000/60
Arguments of the parties
Regarding the sixth complaint, alleging incorrect transposition of points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to Directive 2000/60, the Commission submits that points 1.3, 1.4 and 2.4.1 thereof concern fundamental requirements under that directive, as they establish a method for monitoring the ecological status and chemical status of surface waters, a classification and presentation of water ecological status and a monitoring network for groundwater. These are thus essential elements for implementing the monitoring required by the combined provisions of Articles 7(1) and 8 of Directive 2000/60.
As regards points 1.3, 1.3.4 and 2.4.1 of Annex V to Directive 2000/60, the Commission observes that the problem of transposition in Polish law of those provisions concerns the obligation to attach to the river basin management plan assessments relating to the level of confidence and accuracy of monitoring results.
Although Article 114(1) of the Water Law does lay down a certain number of elements which are to be included in the river basin management plan, that plan does not include a map of monitoring networks or a presentation of monitoring programmes. Contrary to what is required by points 1.3 and 2.4.1 of Annex V to Directive 2000/60, the provisions in the national rules do not require that the plan comprise assessments of the level of confidence and accuracy of the results of monitoring programmes. Nor do the other provisions of Polish law provide for such a requirement.
Regarding point 1.3.5 of Annex V to Directive 2000/60, the Commission states that it requires that bodies of water designated as habitat and species protection areas be included in the operational monitoring programme where, on the basis of the impact assessment and the surveillance monitoring, they are identified as being at risk of failing to meet their environmental objectives under Article 4 of that directive. It thus explicitly links the obligation to carry out operational monitoring to the risk of failing to meet the environmental objectives referred to in Article 4(1)(c) of that directive.
It is apparent from the transposition effected by Article 5(2)(3) of the Regulation of 13 May 2009 that operational monitoring for surface waters is instituted in order to ascertain the status of surface waters in the areas listed in Article 113(4) of the Water Law, that is to say, inter alia, habitat and species protection areas. Next, in Section 2, point 6, of Annex l to that regulation, the criteria establishing the operational monitoring are listed. In the Commission’s view, however, that provision does not guarantee that the assessment of the magnitude and impact of the pressure placed on those bodies of water in protected areas will be carried out.
Nor is there any provision in Polish legislation referring to the objective of guaranteeing a suitable protection status and the obligation to continue monitoring until the protected areas comply with the requirements for water provided for by the legislation designating them as such and meet the set environmental objectives.
The Commission takes the view that the Regulation of 15 November 2011 has not eliminated the abovementioned infringement because it does not make specific reference to the monitoring of habitats and species in protected areas.
Nor does the Polish legislation refer to the need to continue monitoring until the protection areas fulfil the requirements for water laid down in the provisions designating them as such and meet the environmental objectives referred to in Article 4 of Directive 2000/60.
Regarding point 1.4 of Annex V to Directive 2000/60, the Commission takes the view that the classification and presentation of the ecological status and ecological potential of waters require that account be taken of the hydromorphological parameters, as they are indispensable parameters for ecological status. Point 1.4.2(i) and (ii) of Annex V to that directive requires that all parameters be taken into consideration in the classification of the ecological status.
Yet the Regulation of 20 August 2008 provided, in point XIV of Part B of Annex 6 and point XV of Part B of Annex 7 thereto, that ‘until such time as methods for assessing the ecological potential on the basis of hydromorphological parameters have been drawn up, the classification of the ecological status of water may be done without taking account of those parameters’. Similarly, the Regulation of 9 November 2011 on the detailed rules for classification of the status of uniform bodies of surface water does not take account of hydromorphological parameters in the classification of the ecological status of bodies of water.
In the Commission’s submission, the exclusion of hydromorphological parameters from the classification of water status will inevitably result in the assessment of ecological status being incomplete; that incomplete assessment will, in turn, have an impact on the attainment of the basic environmental objectives referred to in Article 4 of Directive 2000/60.
The Commission submits in that regard that point 1.4.2(i) and (ii) of Annex V to Directive 2000/60 refers to ‘quality elements’, which are listed in point 1.1 of that annex, entitled ‘Quality elements for the classification of ecological status’. It is apparent from points 1.1.1 to 1.1.5 of that annex that the hydrological parameters support the biological parameters and that the quality elements are actually indispensable for the assessment of water status. That directive considers, in points 1.1.1 and 1.1.2 of Annex V, as ‘hydromorphological parameters of rivers and lakes’, the quantity and dynamics of water flow, residence time, connection to the body of groundwater, depth variation, quantity, structure and substrate of the river bed.
The Republic of Poland states, first, that it has transposed points 1.3, 1.3.4 and 2.4.1 of Annex V to Directive 2000/60 through Article 2(1)(5) of the Regulation of 29 March 2013.
Secondly, regarding point 1.3.5 of Annex V to that directive, the Republic of Poland states that it has been transposed, inter alia, through Article 5(4)(4) of the Regulation of 15 November 2011, which defines the objective pursued by the management of monitoring of protected areas, namely to ‘assess changes in the status of uniform bodies of surface water in protected areas’.
In the Republic of Poland’s submission, it follows that the provisions of Polish law allow for the assessment of the magnitude and impact of the pressure placed on bodies of water in protected areas, the aim of which is to guarantee adequate protection status of those areas.
The Republic of Poland also refers to Annex 2 of the Regulation of 15 November 2011, Part V, point 25 of which transposes the requirement arising from the last sentence of point 1.3.5 of Annex V to Directive 2000/60.
Thirdly, concerning point 1.4 of Annex V to Directive 2000/60, the Republic of Poland states that taking hydromorphological parameters into account in the classification and presentation of ecological status will be part of the reform of the Regulation of 9 November 2011 on detailed rules for the classification of the status of uniform bodies of surface water and environmental quality rules for priority substances.
Findings of the Court
Regarding the incorrect transposition of points 1.3, 1.3.4, 1.4 and 2.4.1 of Annex V to Directive 2000/60, the alleged transposition through the Regulation of 29 March 2013 was effected after the expiry of the time limit laid down in the reasoned opinion.
This conclusion also holds true for the transposition of point 1.3.5 of Annex V to Directive 2000/60, even though the Commission states that it recognises that the Regulation of 15 November 2011 removed certain elements of the incorrect transposition of that point, as they stood in the Regulation of 13 May 2009.
In that connection regard must be had to the Court’s settled case-law, referred to in paragraphs 121 and 130 above, according to which the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, judgment of 18 July 2013 in Commission v Poland,
C‑313/11
,
EU:C:2013:481
, paragraph
and the case-law cited).
Consequently, the sixth complaint, alleging incorrect transposition of points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to Directive 2000/60, must be held to be well founded.
The seventh complaint: incorrect transposition of points 7.2 to 7.10 of Part A of Annex VII to Directive 2000/60
Arguments of the parties
By the seventh complaint, alleging incorrect transposition of points 7.2 to 7.10 of Part A of Annex VII to Directive 2000/60, the Commission submits that, in its reply to the reasoned opinion, the Republic of Poland informed it that those provisions had been transposed by Articles 113, 113a and 114 of the Water Law and by Article 113b of the amended Water Law and that it had also referred to the draft law amending the Water Law as well as other laws.
In the Commission’s view, however, the national provisions referred to concern the national programme for water and the environment, which is the transposition of Article 11 of Directive 2000/60, which covers the programme of measures. That programme must be distinguished from the river basin management plan under Annex VII to Directive 2000/60, which requires that river basin management plans include a summary of the programme of measures adopted pursuant to Article 11 of that directive. The transposition of that article does not in itself suffice to transpose the requirements laid down in points 7.2 to 7.10 of Annex VII to Directive 2000/60. The Commission considers that Article 114(1)(7) of the Water Law imposes the obligation that river basin management plans include a summary of the measures contained in the national programme for water and the environment. That provision is, however, too general to guarantee the transposition of the requirements referred to in points 7.2 to 7.10 of Annex VII to Directive 2000/60. It is, moreover, clear from the wording of the different sub-points of point 7 of Annex VII to that directive that the EU legislature wanted the river basin management plans to contain not only a summary of the measures required under Article 11 of that directive, but also a summary of the measures adopted in that field.
Regarding the seventh complaint, the Republic of Poland submits that a correct transposition of the provisions at issue of Directive 2000/60 was effected through Article 113b of the amended Water Law, which transposes Article 11 of that directive. The Regulation of 29 March 2013 also contains a reference to that article, as Article 2(1)(10) of that regulation provides that the specific information required for drawing up a river basin management plan must include a summary of the measures contained in the national programme for water and the environment, referred to in Article 113b.
In the Republic of Poland’s submission, it follows that a river basin management plan must indeed include a summary of the measures contained in the national programme for water and the environment, which must be a programme of the measures adopted under Article 11 of Directive 2000/60, which ensures correct transposition of point 7 of Part A of Annex VII to that directive, on the basis of which a river basin management plan comprises precisely information about the measures taken in accordance with Article 11 of that directive.
Findings of the Court
The Republic of Poland’s principal argument put forward in response to the seventh complaint is analogous to the one relied on by it in relation to the third complaint. The Republic of Poland argues in essence that, in order to ensure a correct transposition of points 7.2 to 7.10 of Annex VII to Directive 2000/60, it is sufficient that Member States make provision requiring that the river basin management plan contains a summary of the programme of measures adopted pursuant to Article 11 of that directive. In the present case, it argues, compliance with that obligation was achieved through the reference to Article 113b of the amended Water Law and through Article 2(1)(10) of the Regulation of 29 March 2013.
That provision of national law was adopted after the end of the period laid down in the reasoned opinion, with the result that, according to settled case-law, it cannot be taken into account by the Court (see, inter alia, judgment of 18 July 2013 in Commission v Poland,
C‑313/11
,
EU:C:2013:481
, paragraph
and the case-law cited).
Therefore, the seventh complaint, alleging a failure to transpose correctly points 7.2 to 7.10 of Part A of Annex VII to Directive 2000/60 in the Polish legal order, is well founded.
It follows from all the foregoing considerations that the action must be held to be well founded.
Consequently, the conclusion is that, by failing to transpose completely or correctly Articles 2(19), (20), (26) and (27), 8(1), 9(2), 10(3) and 11(5) of Directive 2000/60, points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to that directive and points 7.2 to 7.10 of Part A of Annex VII to that directive, the Republic of Poland has failed to fulfil its obligations under those provisions and Article 24 of that same directive.
Costs
Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and the Republic of Poland has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby:

1.
Declares that, by failing to transpose completely or correctly Articles 2(19), (20), (26) and (27), 8(1), 9(2), 10(3) and 11(5) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, as amended by Directive 2008/32/EC of the European Parliament and of the Council of 11 March 2008, points 1.3, 1.3.4, 1.3.5, 1.4 and 2.4.1 of Annex V to that directive and points 7.2 to 7.10 of Part A of Annex VII to that directive, the Republic of Poland has failed to fulfil its obligations under those provisions and Article 24 of that same directive;

2.
Orders the Republic of Poland to pay the costs.

[Signatures]
(
*1
)	Language of the case: Polish.