Opinion of the Advocate General — ECLI:EU:C:2017:1
Date: 2017-01-10
Language of the case: German
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (First Chamber) of 1 June 2017 1. Environment — Prevention and remedying of environmental damage — Environmental liability — Directive 2004/35 — Temporal application — Environmental damage produced after the expiry of the period prescribed for transposing the directive but caused by the operation of a plant put into service before that date — Applicability of the directive (European Parliament and Council Directive 2004/35, as amended by Directive 2009/31, Art. 17) 2. Environment — Prevention and remedying of environmental damage — Environmental liability — Directive 2004/35 — Concept of ‘environmental damage’ — National legislation excluding from the concept of environmental damage any damage covered by an authorisation issued under the national provisions on water — Not permissible (European Parliament and Council Directive 2004/35, as amended by Directive 2009/31, Art. 2(1)(b)) 3. Environment — Community action in the field of water policy — Directive 2000/60 — Environmental objectives — Obligation to implement the necessary measures to prevent deterioration in the status of a body of surface water or groundwater — Possibility of a derogation for projects in the overriding public interest — Conditions set out in Article 4(7) of that directive — Obligation for a national court to review compliance with the conditions laid down by that provision in order to determine whether environmental damage exists within the meaning of Directive 2004/35 in the event of an authorisation being issued without examining compliance with those conditions — None (European Parliament and Council Directives 2000/60, Art. 4(7)(a) to (d) and 2004/35, as amended by Directive 2009/31, Art. 2(1)(b)) 4. Environment — Prevention and remedying of environmental damage — Environmental liability — Directive 2004/35 — Review procedures — National legislation precluding persons holding fishing rights from initiating a review procedure in relation to environmental damage — Not permissible (European Parliament and Council Directives 2004/35, as amended by directive 2009/31, Arts 12 and 13) 1. Article 17 of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, as amended by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009, must be interpreted as meaning that, subject to investigations which are for the national court, that directive applies ratione temporis to the environmental damage that occurred after 30 April 2007 but which was caused by the operation of a facility authorised in accordance with the law governing matters relating to water and put into operation before that date. (see para. 25, operative part 1) 2. Directive 2004/35, as amended by Directive 2009/31, and in particular Article 2(1)(b) thereof, must be interpreted as precluding a provision of national law which excludes, generally and automatically, that damage which has a significant adverse effect on the ecological, chemical or quantitative status or ecological potential of the water in question be categorised as ‘environmental damage’, due to the mere fact that it is covered by an authorisation granted under that law. (see paras. 34, operative part 2) 3. In the event that an authorisation has been granted pursuant to national provisions without an examination whether the conditions laid down in Article 4(7)(a) to (d) 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 have been complied with, a national court is not required to itself verify whether the conditions laid down in that article are satisfied in order to determine whether environmental damage within the meaning of Article 2(1)(b) of Directive 2004/35, as amended by Directive 2009/31, has arisen. Without prejudice to a possible judicial review, the national authorities which are competent to authorise a project are required to review whether the conditions set out in Article 4(7)(a) to (d) of Directive 2000/60 are satisfied before granting such an authorisation. In contrast, EU law in no way obliges the national courts to take the place of the competent authority by itself examining those conditions when that authority has granted the authorisation without having carried out that examination. (see paras 39, 40, operative part 3) 4. Article 12 and 13 of Directive 2004/35, as amended by Directive 2009/31, must be interpreted as precluding a provision of national law, such as that at issue in the case in the main proceedings, which does not entitle persons holding fishing rights to initiate a review procedure in relation to environmental damage within the meaning of Article 2(1)(b) of that directive. (see para. 50, operative part 4)