Opinion of the Advocate General — ECLI:EU:C:2023:894
Date: 2023-11-16
Language of the case: German
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-671/22 – 1 
Case C-671/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 October 2022 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
20 October 2022 
Appellant on a point of law: 
T GmbH 
Respondent authority: 
Bezirkshauptmannschaft Spittal an der Drau (District Commission 
of Spittal an der Drau) 
  
Subject matter of the main proceedings 
Directive 2000/60/EC – Status of a body of surface water – Biological quality 
elements – Fish fauna– Anthropogenic impacts 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
Is point 1.2.2 of Annex V (Definitions for high, good and moderate ecological 
status in lakes) to 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 to be interpreted as meaning that ‘disturbed conditions’ in 
the ‘biological quality elements’ table, ‘fish fauna’ row, ‘high status’ column refer 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-671/22 
 
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exclusively to anthropogenic impacts on physico-chemical and 
hydromorphological quality elements? 
If Question 1 is answered in the negative: 
2. Is the aforementioned provision to be interpreted as meaning that if a 
biological quality element ‘fish fauna’ deviates from ‘high status’ as a result of 
disturbed conditions other than anthropogenic impacts on physico-chemical and 
hydromorphological quality elements, the biological quality element ‘fish fauna’ 
also cannot be classified as having ‘good status’ or ‘moderate status’? 
Provisions of European Union law relied on 
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 Commission Directive 2014/101/EU of 30 October 
2014 
Provisions of national law relied on 
Wasserrechtsgesetz (Austrian Water Act) 1959 
Paragraph 30a. (1) Surface water, including heavily modified and artificial water 
bodies (Paragraph 30b), shall be protected, enhanced and restored with the aim of 
achieving […] the target status at the latest by 22 December 2015. The target 
status for surface water is achieved when the surface water body has at least a 
good ecological status and a good chemical status. The target status for heavily 
modified or artificial water bodies is achieved when the surface water body has at 
least a good ecological potential and a good chemical status. 
Paragraph 104a. (1) Projects in which, 
1. due to changes in the hydromorphological characteristics of a surface water 
body or changes in the water level of groundwater bodies, 
a) failure to achieve good groundwater status, good ecological status or, where 
applicable, good ecological potential or 
b) deterioration of the status of a surface water or groundwater body is to be 
anticipated, 
[…] 
are, in any case, expected to have an impact on public interests (Paragraph 104(1), 
Paragraph 106). 
BEZIRKHAUPTMANNSCHAFT SPITTAL AN DER DRAU 
 
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Paragraph 105. (1) In the public interest, an application for authorisation of a 
project may, in particular, be considered inadmissible or may only be granted 
subject to appropriate conditions and ancillary provisions if: 
[…] 
m) the project may cause significant deterioration of the ecological status of the 
water bodies; 
n) the project may cause significant detriment to the objectives arising from other 
provisions of EU law; 
[…] 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2013, the appellant on a point of law applied to the District Commission of 
Spittal an der Drau for permission under nature conservation and water law to 
construct a boathouse by Lake Weissensee. The District Commission rejected the 
application in 2016.  
2 The appellant on a point of law filed an appeal against this rejection with the 
Landesverwaltungsgericht Kärnten (Regional Administrative Court, Carinthia, 
Austria) which dismissed this appeal as unfounded at the second stage of 
proceedings on 21 February 2020. The reasoning given by the Regional 
Administrative Court was that the overall status of Lake Weissensee had to be 
classified as ‘poor’, since the biological quality element ‘fish fauna’ was in a poor 
condition and the criteria with the worst classification was decisive for the overall 
assessment. The poor status of the fish fauna is essentially due to the fact that only 
six of the eight original fish species are still present, while nine foreign fish 
species have been added. The cause of this was primarily ‘incorrect fish 
management’.  
3 According to the requirements of Directive 2000/60/EC and the Austrian Water 
Act 1959 (‘the WRG 1959’), the objective is a ‘good’ surface water status. 
Measures must be taken to achieve this objective and anything that would 
jeopardise the attainment of a good status for Lake Weissensee must be prohibited 
(requirement for improvement under water law). Due to the requirement for 
improvement, any measures that would prevent improvement or are not intended 
to help bring about improvement are prohibited. The boathouse itself would not 
alter the status of Lake Weissensee as a whole, but it would cause a change in 
ecological development in the area in which it was constructed, as a lake 
installation near the shore displaces natural spawning grounds for fish. Even such 
small-scale effects would prevent improvement and there is a risk that the entire 
water body might deteriorate if potential future building developments were 
included in the assessments. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-671/22 
 
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4 The appellant on a point of law filed an appeal on a point of law against that 
decision with the Verwaltungsgerichtshof (Supreme Administrative Court, 
Austria). It essentially argues that the requirement for improvement under water 
law does not mean that the authorisation applied for should not be granted. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 According to the case-law of the Court of Justice of the European Union on 
Directive 2000/60/EC, Member States are required – unless a derogation is 
granted – to refuse authorisation for an individual project where it may cause a 
deterioration of the status of a body of surface water or where it jeopardises the 
attainment of good surface water status or of good ecological potential and good 
surface water chemical status by the date laid down by the directive (judgment of 
1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C-461/13, 
EU:C:2015:433, paragraph 71). Furthermore, Member States are not permitted, 
when assessing whether a specific programme or project is compatible with the 
objective of preventing deterioration of water quality, to disregard temporary 
effects of short duration which do not have long-term consequences for the water 
bodies unless these effects, by their very nature, are obviously only going to have 
a minor impact on the status of the water body in question and cannot lead to a 
‘deterioration’ of its status within the meaning of this provision (judgment of 
5 May 2022, Association France Nature Environnement (Impacts temporaires sur 
les eaux de surface), C-525/20, EU:C:2022:35, paragraph 46). 
6 The referring court assumes, on the basis of this case-law, that projects which do 
not contribute to the required attainment of a good surface water status, but also 
do not jeopardise the achievement of this objective (neutral projects), should not 
be prohibited on the basis of Directive 2000/60/EC. However, if a project 
compromises the attainment of a good status because it is not, by its very nature, 
obviously only going to have a minor impact on the status of the water body in 
question, no authorisation may be granted. 
7 Against this background, the referring court is of the opinion that the Regional 
Administrative Court must conduct further investigations as to which measures 
are envisaged or required in order to achieve a good status for Lake Weissensee. 
On this basis, it would then have to be assessed whether the specific project would 
compromise the measures to more than merely a minor extent and thus jeopardise 
the attainment of the objective. 
8 However, this requires that the current overall ecological status of Lake 
Weissensee actually be classified as worse than ‘good’, and the referring court has 
doubts as to whether this is actually the case here, as the deterioration of the fish 
fauna is merely a result of fish management measures and is not attributable to 
anthropogenic impacts on physico-chemical and hydromorphological quality 
elements. The classification to be carried out also depends on the answer to the 
first question referred. If this is answered in the negative, the decisive factor for 
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further action is whether the ‘fish fauna’ component must have a good or high 
status in order to achieve the required good status for the lake (second question). 
9 Directive 2000/60/EC defines different statuses to describe the condition of the 
individual biological, hydromorphological and physico-chemical quality elements. 
Of these, only the description of the biological quality element ‘fish fauna’ 
assumes that a deviation from high status is ‘attributable to anthropogenic impacts 
on physico-chemical or hydromorphological quality elements’. The other 
descriptions make no mention of causes. Other causes for the deterioration of fish 
fauna (e.g. fish management measures) would thus be excluded. 
10 This different definition indicates that special provision should be made for fish 
fauna, which also takes into account the reason for deviation from the original 
status. The directive does not provide a direct explanation for this differing 
approach. 
11 However, in the regulatory description of high status for the biological quality 
element ‘fish fauna’, the directive refers – as for all the other quality elements – to 
‘undisturbed conditions’ (with no further restrictions). This creates a certain 
tension with the restriction to certain causes in the description of good and 
moderate status. 
12 For the referring court, there are three possible interpretations, which are to be 
clarified by the questions referred.  
13 Option 1: When assigning any status to fish fauna, only anthropogenic impacts on 
physico-chemical and hydromorphological quality elements are important 
(affirmative answer to the first question). This option is supported by the fact that 
the special provision for fish fauna described above is taken into account and that 
it is essentially consistent with the wording of the directive. It also fits into the 
status class system.  
14 However, an argument against this option is that the disturbed conditions 
referenced in the description of the high status of the biological quality element 
‘fish fauna’ would have to be interpreted differently than for the other quality 
elements – namely as limited to anthropogenic impacts on physico-chemical and 
hydromorphological quality elements. This could complicate the determination of 
the status of fish fauna, especially in those cases where deterioration from high 
status has several causes. Moreover, comprehensive protection of aquatic 
ecosystems could not be achieved in this way, as adverse effects on fish fauna that 
are not attributable to the aforementioned causes would be disregarded when 
applying the directive. 
15 Option 2: Only anthropogenic impacts on physico-chemical and 
hydromorphological quality elements are relevant when classifying fish fauna into 
the ‘good’ and ‘moderate’ categories (first question answered in the negative and 
the second in the affirmative). One argument in favour of this option is that it 
takes full account of the wording of the directive. If fish fauna does not have high 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-671/22 
 
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status due to disturbed conditions, it cannot be classified as ‘good’ or ‘moderate’ 
if the deviation has causes other than anthropogenic impacts on physico-chemical 
and hydromorphological quality elements. Even in the event of minor deviations, 
a classification as ‘poor’ at most would be possible. The protection of aquatic 
ecosystems would therefore be more comprehensive than in Option 1. 
16 One argument against this option is that it does not fit in with the rest of the status 
class system. An at best ‘poor’ status with only minor or moderate deviations from 
undisturbed conditions cannot be explained by the general definitions for the five 
status classes. Furthermore, in order for the overall surface water status to be 
classified as good, this option requires the biological quality element ‘fish fauna’ 
to have high status, as a good or moderate status is by definition out of the 
question. Overall, this would lead to stricter rules for effects on fish fauna than for 
other undisturbed conditions. 
17 Option 3: When assigning any status to fish fauna, all causes of deviation from 
high status are equally important (first and second question answered in the 
negative). One argument in favour of this option is the fact that the biological 
quality element ‘fish fauna’ is treated in the same way as all other quality 
elements, in that the classification is carried out without taking the causes of 
deterioration into account. This also provides comprehensive protection for 
aquatic ecosystems, makes classification comparatively simple and is in line with 
the legal view taken by the Regional Administrative Court of Carinthia on this 
matter. 
18 One argument against this option is that the special features of the directive in this 
respect, set out above, are not considered.