Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 2 March 2023(1)
Case C‑723/21
Stadt Frankfurt (Oder),
FWA Frankfurter Wasser- und Abwassergesellschaft mbH
v
Landesamt für Bergbau, Geologie und Rohstoffe,
other party to the proceedings:
Lausitz Energie Bergbau AG
(Request for a preliminary ruling from the Verwaltungsgericht Cottbus (Administrative Court, Cottbus, Germany))
(Reference for a preliminary ruling – Admissibility – Environment – EU action in the field of water policy – Directive 2000/60/EC – Access to justice in environmental matters – Project authorisation procedure – Article 7 – Ban on deterioration in the quality of water – Project for the development of an artificial lake – Sulphate – Obligation of the Member States not to authorise a project that may cause a deterioration in the quality of water used for the production of drinking water)
1.        The present reference for a preliminary ruling
affords the Court of Justice an opportunity to interpret, for the first time, Article 7(3) of Directive 2000/60/EC (the Water Framework Directive;
‘the WFD’). (2) The action in the main proceedings was brought by
Stadt Frankfurt (Oder) (the City
of Frankfurt (Oder))
and by FWA Frankfurter Wasser- und Abwassergesellschaft mbH, Frankfurt (Oder)
(‘FWA’) against the President of the Landesamt für Bergbau, Geologie und Rohstoffe (Regional Office for Mining, Geology and Raw Materials), Cottbus, Germany (‘the Office’). The action concerns a planning approval decision (3) of the Office authorising the creation by Lausitz Energie Bergbau AG, Cottbus (the intervener in the main proceedings; ‘Lausitz’)
of the largest artificial lake in Germany (covering an area of 1 900 hectares, that is, some 2 660 football pitches).
I.      The facts giving rise to the dispute in the main proceedings and the questions referred for a preliminary ruling
2.        The City of
Frankfurt (Oder) is responsible for supplying its 57 000 inhabitants with drinking water. In order to carry out
that statutory task, it makes use of the services of FWA. FWA operates a waterworks on the basis of a permit granted to it under national water law.
3.        The waterworks produces drinking water from groundwater and water from the river Spree (‘the Spree’),
at a section located outside a safeguard zone within the meaning of the second sentence of Article 7(3) of the WFD.
4.        The water in the Spree has a high concentration of sulphate. The sulphate originates
from closed open-cast mines in the Spree’s catchment area. It is formed by the oxidation of the mineral pyrite, which is stored in the soil under anaerobic conditions until it is dug out. The drinking water fed into the supply lines must comply with a certain sulphate value, a requirement which has so far been only narrowly
respected by the waterworks.
5.        After operations in the
open-cast mine in question have been completed, Lausitz floods the pit resulting from the extraction of lignite. The lake created as a result of the flooding will have an overflow. The water leaving the overflow will enter the Spree and will have a significantly higher sulphate concentration than the water already in the Spree. The City of Frankfurt (Oder) and FWA fear that, due to that inflow into the waters of the Spree, the Spree’s sulphate concentration, which is already at a critical level in terms of
drinking water production, will be exceeded, such that they will have to stop producing drinking water at that point or will have to fundamentally overhaul it from a technical standpoint.
6.        By way of a planning approval decision, the Office approved the creation
of the lake, including the overflow, after having established, on the basis of an expert report, that the Spree’s waters
would not deteriorate within the meaning of Article 4 of the WFD. No assessments of the effects on the sulphate concentration under Article 7 of that directive at the water abstraction point and, where applicable, on the waterworks, were carried out. It is against the said planning approval decision that the City of Frankfurt (Oder) and FWA have brought the action in the main proceedings.
7.        In the context of that action, the Verwaltungsgericht Cottbus (Administrative Court, Cottbus) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
(a)      Is Article 7(3) of [the WFD] to be interpreted as meaning that all members of the public directly concerned by a project are entitled to bring judicial proceedings asserting breaches of the duty:
(a)      to avoid deterioration in the quality of bodies of water intended for the production of drinking water,
(b)      to reduce the level of purification treatment required in the production of drinking water,
on the basis of third-party protection in the context of the ban on deterioration of groundwater (see [judgment of 28 May 2020, Land Nordrhein-Westfalen (C‑535/18, EU:C:2020:391, paragraph 132 et seq.) (‘the judgment in Land Nordrhein-Westfalen’)]
and [judgment of 3 October 2019, Wasserleitungsverband Nördliches Burgenland and
Others (C‑197/18, EU:C:2019:824, paragraphs 40 and 42)]?
(b)      If Question (a) is answered in the negative:
In any event, are applicants who have been tasked with the production and purification treatment of drinking water entitled to bring proceedings asserting breaches of the prohibitions and requirements under Article 7(3) of the WFD?
(2)      In addition to the mandate for longer-term planning in management plans and programmes of measures, does Article 7(3) of the WFD
contain, in respect also of bodies of water outside safeguard zones within the meaning of the second sentence of Article 7(3) of [that directive], an obligation, similar to that in Article 4 [thereof], to refuse authorisation for specific projects on the ground of a breach of the ban on deterioration (see
[the judgment in
Land Nordrhein-Westfalen,
paragraph 75])?
(3)      Given that – unlike Annex V, referred to in Article 4 of the WFD – Article 7(3) [thereof] does not set its own parameters for assessing the ban on deterioration:
(a)      Under what conditions is it to be assumed that a body of water has deteriorated and, consequently, the level of purification treatment required in the production of drinking water has increased?
(b)      Could the limit values of Annex I to [Directive 98/83/EC (4) (‘the Drinking Water Directive’;
‘the DWD’)] be regarded as the relevant point of reference for an increase in the level of purification treatment and thus for the ban on deterioration under Article 7(3) of the WFD, as might be inferred from the last part of Article 7(2) of the [latter directive]?
(c)      If Question (b) is answered in the affirmative:
Can there be a breach of the ban on deterioration under Article 7(3) of the WFD
where the only significant value is not a limit value under Parts A or B of Annex I [to the DWD] but an “indicator parameter” in accordance with Part C of Annex I?
(4)      When is a breach of the ban on deterioration, in terms of the law on drinking water, in Article 7(3) of the WFD
to be assumed (see, in relation to the criterion for the ban on deterioration under Article 4 of the WFD: [the judgment in
Land Nordrhein-Westfalen, paragraph 119], and, previously, [judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C‑461/13, EU:C:2015:433, paragraph 52) (‘the judgment in Bund für Umwelt und Naturschutz Deutschland’)]?
(a)      Is any deterioration sufficient for the assumption of a breach
or
(b)      must it be probable that the indicator parameter for sulphate of 250 mg/l is not being complied with
or
(c)      must there be a threat of remedial action, within the meaning of Article 8(6) of the [DWD], which increases the treatment effort involved in the production of drinking water?
(5)      Does Article 7(3) of the WFD
also contain, in addition to the substantive criteria for examination, specifications regarding the regulatory approval procedure, that is to say, is the Court’s case-law on Article 4 of [that directive] transferable to the scope of examination under Article 7(3) [thereof] (see
[the judgment in
Land Nordrhein-Westfalen] – second question referred)?
(6)      Must the developer also commission an expert’s investigation of a possible deterioration under Article 7(3) of the WFD
as soon as the project is likely to infringe the provisions of Article 7(3) [of that directive]?
(7)      Must it be assumed in that respect also that the investigation must have been conducted by the time of the decision taken under water law, with the result that an investigation carried out subsequently during the court proceedings cannot remedy the illegality of the authorisation granted under water law (see
[the judgment in
Land Nordrhein-Westfalen, paragraphs 76 and 80 et seq.])?
(8)      In the balancing of interests carried out in the context of authorisation, can the requirements and prohibitions under Article 7(3) of the WFD
be outweighed by the objective pursued by the project where, for example, the purification treatment effort involved is low or the purpose of the project is of particular importance?
(9)      Does Article 4(7) of the WFD
apply to Article 7(3) thereof?
(10)      What obligations going beyond Article 4 of the WFD
can be inferred from Article 7(2) [thereof], with the consequence that they must be taken into account in a project authorisation procedure?’
II.    Procedure before the Court of Justice
8.        Written observations were submitted by the City of Frankfurt (Oder) and FWA, the Office, Lausitz and the European Commission.
III. Assessment
A.      Admissibility
9.        In my view, if the body of water used by FWA to catch raw water were
not a body of water for the purposes of Article 7(1) of the WFD, Article 7(3) of that directive would not be applicable to the case in the main proceedings.
10.      Indeed, the Office submits before the Court that the body of surface water of the Spree with identification number DERW_DEBB582_1743 is not a body of water falling under Article 7(1) of the WFD. A safeguard zone was designated, in accordance with the second sentence of Article 7(3) of the WFD, for the body of groundwater
‘Lower Spree 1’ (identification number DEGB_DEBB_HAV_US_3-1) determined in accordance with Article 7(1) of that directive.
11.      To my mind, the applicability of Article 7(1) and (3) of the WFD in the present case is founded on at least two arguments.
12.      First, there is the body of groundwater ‘Lower Spree 1’
which the river water from the Spree infiltrates. The facts set out by the referring court show that this body of water is (or would be) affected by the project at issue, with the result that the WFD is applicable.
13.      In the present reference for a preliminary ruling, the referring court operates on the basis that the relevant section of the Spree is a body of water for the purposes of Article 7(1) of the WFD. Moreover, the referring court was clear in its finding in its order for interim measures of 1 June 2021 (‘the order of 1 June 2021’) that ‘the section of the river Spree at issue here falls within the
scope
of [that provision]’. Indeed, FWA was authorised under national water law to abstract surface water from the Spree (through the process of infiltration) for the purposes of providing drinking water.
14.      Secondly, the Office argues that Article 7(3) of the WFD applies only to those water
bodies which have been ‘identified’ in accordance with Article 7(1) and (2) of that directive. The body of surface water of the Spree (DERW_DEBB582_1743)
has not been identified on that basis and
is therefore not a body of water falling under Article 7(1) of the WFD. That water body has not been designated under Article 6(2) of that directive, either.
15.      It is true that that body of water appears not to have been designated or identified by the competent authorities under Articles 6 and 7 of the WFD despite the fact that it is used for the production of drinking water, which might be an indication that Germany has failed to fulfil its obligations set out in Article 6(1) and (3), to keep the register up to date, and in Article 7 of that directive.
16.      After all, in order to
explain Article 7 of the WFD, recital 37
of that directive makes clear that ‘Member States should identify waters used for the abstraction of drinking water and ensure compliance with [the DWD]’.
17.      That being said, I do not consider it possible to apply Article 7(3) of the WFD directly to unidentified water bodies such as the one at issue, since that would render meaningless the regime of identifying the water bodies concerned and keeping a register
in accordance with those articles. There is also the problem of ambiguity as to the exact borders of protected areas to be delineated under Article 6(2) and Article 7(1) of that directive.
18.      Given that Article 7(1) is not directly applicable – it requires implementing measures – it is incumbent on the referring court to decide how to proceed under German law in order to ensure the protection of those water bodies (for instance,
by ordering the competent authority to adopt relevant implementing measures and identify the water bodies in question in accordance with Article 7(1) of the WFD).
19.      In that context, the referring court must preserve the effet utile of the WFD.
20.      Indeed, it should be remembered that Article 7(1) of the WFD makes it mandatory for Member States to identify specific types of water
bodies that should be protected under Article 7(2) and (3) of that directive.
Member States should not be able to deprive water
bodies,
intended for the production of drinking water, of protection
simply by opting not to (or failing properly to) identify them (Article 7(1) of the WFD), when
at the same time those Member States
authorise, under national water law, the same water bodies
to produce drinking water by mixing them with water
bodies that have been properly
identified (as is the case here). That would manifestly deprive the WFD of its effet utile, Article 7 thereof in particular.
21.      It is true that the groundwater
does seem to have been protected in the case in the main proceedings. Nevertheless,
this does not mean that Member States do not also have to protect the surface water used in the production of drinking water.
There is nothing in the wording of Article 7(3) of the WFD
to suggest – nor does it follow from its spirit and purpose – that a distinction
must be drawn according to whether the abstraction of water is direct or indirect (that is, obtained by infiltration).
22.      It follows from the foregoing considerations that the questions referred are admissible.
B.      Substance
1.      Question 1
23.      The referring court seeks to determine, in essence, whether Article 7(3) of the WFD is to be interpreted as meaning that all members of the public directly concerned by a project (avenue 1) or, in any event, persons who have been tasked with the production and purification treatment of drinking water (avenue 2),
are entitled to bring proceedings asserting breaches of the requirements under that provision, including breaches of the requirement aimed at avoiding deterioration in the quality of bodies of water intended for the production of drinking water, and of that
aimed at reducing the level of purification treatment required in the production of drinking water.
24.      It is sufficient to point out, however, that,
in the present case,
there is no need for the Court to rule on avenue 1, given that the applicants in the main proceedings are not members of the public but are instead legal persons tasked by law with the production and purification treatment of drinking water.
25.      The Court has ruled that,
‘according to settled case-law of the Court, it would be incompatible with the binding effect conferred by Article 288 TFEU on a directive to exclude, in principle, the possibility that the obligations which it imposes may be relied on by the persons concerned’ and ‘at least the natural or legal persons directly concerned by an infringement of provisions of an environmental directive must be in a position to require the competent authorities to observe such obligations, if necessary by pursuing their claims by judicial process’. (5)
26.      In order to determine whether the applicants in the main proceedings are directly concerned by a breach of the obligations laid down in Article 7(3) of the WFD, account must be taken of the purpose of that directive and of the content of that provision. (6)
27.      The purpose of the WFD, as evidenced by Article 1 thereof, is to protect water
bodies, including those used for the production of drinking water.
28.      Article 7(3) of the WFD places Member States under certain obligations in relation to the protection of waters used for the production of drinking water.
29.      A legal person authorised to draw and use groundwater (or surface water)
for the production of drinking water makes legitimate use of such groundwater (or surface water). That person is, therefore, directly concerned by a breach of the obligations to enhance and prevent deterioration of groundwater (or surface water), that breach being capable of limiting that person’s option by interfering with the legitimate use of that water. (7)
30.      Under national law, the City of Frankfurt (Oder) is responsible for providing its inhabitants with drinking water. It is therefore manifestly in its interests to carry out that task without undue interference – and a breach of Article 7(3) of the WFD amounts to such an interference – and, in particular, to prevent deterioration in the quality of water bodies used
by that city for the production of drinking water. Otherwise, it would not be able to fulfil its duty of providing its population with drinking water of appropriate quality.
31.      Article 7(3) of that directive also sets out certain aims in relation to the purification treatment required in the production of drinking water.
32.      It is in the interests of legal persons such as the City of Frankfurt (Oder) and FWA to maintain a low purification treatment effort in the context of producing drinking water. Both are legally responsible for supplying DWD-compliant water.
33.      Indeed, the purification treatment is necessary in order to protect human health and the purification requirements are set out in the DWD, to which Article 7(2) of the WFD expressly refers. The DWD provides for a complex mechanism which concretises what such purification should achieve.
34.      As we will see below in the present Opinion, compliance with Article 7 of the WFD is closely interconnected with compliance with the DWD. If a Member State breaches Article 7 of the WFD in respect of a catchment, the water supplier will be adversely affected in relation to its compliance with the DWD. (8)
35.      Therefore, the City of Frankfurt (Oder) and FWA must be in a position to require
that a competent authority, which is responsible for approving a project that will potentially adversely
affect the purification level of drinking water as required by the DWD, observe the obligations laid down in
Article 7(3) of the WFD, if necessary by bringing an action before a competent court.
36.      It follows from the foregoing considerations that Article 7(3) of the WFD, read in the light of Article 19(1) TEU (according to which ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’), must be interpreted as meaning that the legal persons tasked, under national law, with the production and purification treatment of drinking water, or those persons who have been entrusted with such production and purification treatment, have a right to require that a competent authority, responsible for approving a project that is liable to have an adverse impact on the purification level of drinking water as required by the DWD, observe the obligations laid down in Article 7(3) of the WFD. If necessary, such legal persons may do so by bringing an action before a competent court.
2.      Question 2
37.      The referring court seeks to ascertain whether Article 7(3) of the WFD contains, in respect also of bodies of water outside safeguard zones within the meaning of the second sentence of that provision, a stand-alone obligation, similar to that in Article 4 of the WFD, to refuse authorisation for individual projects owing to a breach of the ban on deterioration. The referring court specifically cites
in its question the judgment in Land Nordrhein-Westfalen, paragraph 75.
38.      In part 1, I will analyse the first sentence of Article 7(3) of the WFD in order to set out the general understanding of the protection of bodies of water used for the production of drinking water. In part 2, I will assess whether the second sentence of that provision, which allows Member States to establish safeguard zones, has any bearing on the present case.
(a)    Part 1 – first sentence of Article 7(3) of the WFD
39.      According to paragraph 75 of the judgment in Land Nordrhein-Westfalen,
‘when a project is liable to have adverse effects on water, consent may be given to it only if the conditions set out in Article 4(7)(a) to (d) of [the WFD] are satisfied. Without prejudice to the possibility of judicial review, the national authorities which are competent to authorise a project are required to review whether those conditions are satisfied before the grant of such an authorisation’.
40.      Although that case-law relates to Article 4 of the WFD, the interpretation of Article 7(3) of the WFD
should, to my mind, be informed by that case-law. This is not least because Article 7(3),
like
Article 4, provides for certain obligations for Member States – the difference being that the latter provision provides for obligations
for water protection in general whereas the former provision provides obligations
specific to water
bodies which are
used for the production
of drinking water.
41.      According to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (9)
(1)    Wording of Article 7(3) of the WFD
42.      The wording of that provision shows that the EU legislature has formulated therein an obligation on Member States to achieve a specific result. (10)
(i)    Meaning of ‘shall ensure’
43.      In the judgment in Bund für Umwelt und Naturschutz Deutschland (paragraphs 31 to 33), the Court deduces that the obligations under
Article 4 of the WFD have binding force from the fact that that provision contains wording indicating its binding effect and its relevance with regard to the authorisation of individual projects in the context of the legal regime governing the protection of water.
44.      Indeed, in those paragraphs of that judgment, the Court explains that the words ‘shall implement’ and the introductory term ‘in making operational the programmes of measures’ attest to the binding force of that provision, with which the competent authorities must comply when approving individual projects.
45.      Similar to Article 4 of the WFD, the fact that Article 7(3) of that directive provides that Member States ‘shall ensure the necessary protection for the bodies of water’ implies that that obligation has binding character and is relevant with regard to the approval of individual projects. The term ‘shall ensure the
necessary protection’ entails
an obligation for Member States to act to that effect, which implies that they must construe the authorisation process for an individual project as an
implementing measure
in order to ensure the
necessary protection (paragraph 32 of the above judgment).
46.      The fact that Articles 4 and 7(3) of the WFD contain slightly different wording in this respect (‘Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water’ versus ‘Member States shall ensure the necessary protection for the bodies of water identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water’) is not relevant for the purposes of the present assessment. It is clear that the wording ‘shall ensure’ implies that Member States must take the necessary measures in order to achieve the specific objectives
of the WFD.
This is further confirmed when we examine several other
language versions of this wording (for instance, the German, French, Italian, Spanish and Latvian language versions).
(ii) Meaning of ‘the necessary protection’
47.      The use of the above term in Article 7(3) of the WFD shows that the EU legislature opted for the ‘prevention approach’, as opposed to the (end-of-pipe)
‘treatment approach’
that was used in the past. In other words, the emphasis is no longer on treating contaminated raw water in order to make it safe to drink, but rather on protecting the sources of water used.
48.      As recital 11
of the WFD explains, ‘[EU] policy on the environment is to contribute to pursuit of the objectives of preserving, protecting and improving the quality of the environment, in prudent and rational utilisation of natural resources, and to be based on the precautionary principle and on the [principle] that preventive action should be taken …’ (emphasis added).
49.      The terms ‘the necessary protection’ in Article 7(3), in light of the prevention principle, indicate that, before the competent authority approves an individual project, it must first determine that that project will not have adverse effects on the quality of water bodies used for the production of drinking water.
(iii) Meaning of ‘bodies of water identified’
50.      The wording of Article 7(3) indicates that the protection measures under that article relate only to bodies of water that have undergone the identification process. However, Article 7(3) contains no limitation based on
how the water enters those bodies, that is, whether it happens naturally or by
anthropogenic infiltration (as is the case in the main proceedings). Hence, protection must be ensured for water present in the identified water bodies.
(iv) Meaning of ‘avoiding deterioration in their quality in order to reduce the level of purification treatment’
51.      This phrase shows that the aim of the actions that Member States must take is to reduce the level of purification treatment required in the production of drinking water and the means to achieve that aim is the obligation that Member States should, as a minimum, avoid deterioration in the quality of water
bodies.
52.      The Commission’s explanatory ‘Guidance Document No 16’ (11) supports my interpretation of Article 7(3) of the WFD. That guidance document, which represents a consensus position on best practice agreed by the Commission, all Member States and
other stakeholders,
explains Article 7(3) of the WFD as follows: ‘In practice, avoiding deterioration in the quality of a groundwater body would not in itself necessarily result in the reduction in the level of purification treatment that may be required to produce drinking water. An improvement in quality would be needed to reduce treatment. However, it is clear that there is an intention to avoid deterioration in groundwater quality, as a minimum. Ideally, the protection should be sufficient that, through time, purification treatment can be reduced’.
53.      The intrinsic link between the source (groundwater and surface water bodies used for the production of drinking water) and the product (the drinking water distributed to the population) present in the phrase ‘in order to reduce the level of purification treatment’ shows that Member States’ drinking
water management must comply with the DWD and with the water
quality criteria set out therein.
54.      It follows that the ‘avoidance of deterioration’ element in the wording of Article 7(3) of the WFD, in conjunction with the requirement to reduce the level of purification treatment, means that the ban on deterioration under that provision seeks to avert a situation in which the water
quality criteria set out in the DWD are not met.
(v)    Meaning of ‘in the production of drinking water’
55.      This phrase makes
it clear that the water
bodies concerned are only those which are used for the production of drinking water and, at the same time, it provides the necessary link between the WFD and the DWD.
56.      Thus,
the wording of Article 7(3) implies an obligation on
Member States to prevent the execution of projects that may increase the purification treatment level of identified water bodies used for the production
of drinking water if, without such an increase in
purification, the project may have an adverse impact on the
water quality requirements set out in the DWD.
(2)    Context of Article 7(3) of the WFD
(i)    Link between Article 7(3) and Articles 1 and 4 of the WFD
57.      My interpretation of Article 7(3) is confirmed by analysing the context of that article. First, the meaning of Article 7 can be deduced from the existing links between
that article and other provisions of the WFD, most notably Articles 1 and 4.
58.      First of all, the legal literature (for instance, Faßbender in an exhaustive analysis of the WFD (12)) has pointed out the close link and the fact that Article 7 contains a usage-related substantive tightening of the objectives under Article 4 of the WFD.
The production of drinking water is a specific use of water that embraces Article 4 of the WFD as a general provision and, therefore, it is necessary to take into account certain requirements relevant to drinking water.
59.      In that connection, the considerations of the Court’s Grand Chamber in relation to the scheme of Article 4 of the WFD in the judgment in Bund für Umwelt und Naturschutz Deutschlandmust serve as a guide also for the purposes of interpreting Article 7(3) of that directive, an interpretation of which is necessary in the present case.
60.      This is justified by the fact that the systematic conception of the WFD, as a framework directive, coordinates the protection of all water bodies, including  those used for the production of drinking water. (13)
61.      What is more, the latter protection, provided for under the first sentence of Article 7(3) of the WFD, constitutes an integral part of the general protection of water
bodies, under Article 1 of the WFD, which
is also pursued by Article 4 of that directive. (14) Hence, the overall water protection scheme established under Articles 1 and 4 of the WFD, as interpreted by the Court, fortifies the understanding of the protective and imperative nature of Article 7(3) of that directive.
(ii) Meaning of ‘identified water bodies’
62.      In order to understand the meaning of this term, it is necessary to consider the following two elements of the WFD: (i) the specific criteria set out in Article 7(1), and (ii) the duty to establish a register for identified water bodies under Article 6 in conjunction with Article 7. The WFD leaves Member States the task of adopting specific implementing measures in order to ensure the proper delineation of protected areas.
Finally, the wording of Article 7(3), when read in conjunction with Article 7(1), makes it clear that there is a duty on Member States to comply with Article 7(1) and to identify properly all water bodies concerned in order to provide protection to all water bodies which require it (in particular, those used for the production of drinking water).
(iii) Importance of the DWD in defining water quality under Article 7(3) of the WFD
63.      Next, I will analyse
the impact of the DWD on the understanding of the good quality of drinking water
that Article 7(3) seeks to ensure.
Article 7(2) of the WFD provides that ‘for each body of water identified under paragraph 1, in addition to meeting the objectives of Article 4 in accordance with the requirements of this Directive …
Member States shall ensure that under the water treatment regime applied, and in accordance with [EU] legislation, the resulting water will meet the requirements of [the DWD]’ (emphasis added).
64.      Article 7(2) of the WFD clearly links Article 7(3) of that directive and its objectives for raw water
protection to the existing standards and procedures (for ensuring good-quality drinking water) set out
in the DWD. Thus,
the standards in the DWD for potable water directly influence catchment management by defining the minimum level of water quality to be ensured during water treatment and, in particular, purification. This shows that the credibility of the catchment management, which seeks to achieve
the objectives of Article 7 of the WFD,
will be inextricably linked to the DWD standards for potable water. (15)
65.      Hence, there is no doubt of the close link between the ‘mother’ directive (the WFD, which is a framework directive for the overall water management system) and the ‘daughter’ directive (the DWD, which is a directive specific to drinking water and constitutes an inherent part of that system). Indeed, Article 7 of the WFD not only introduces DWD rules for the protection of drinking water using this close link, but
also adds an additional condition regarding purification minimisation. The wording of Article 7(3) makes it clear that protection under that provision must be carried out so as to achieve the quality of drinking water required by the DWD as well as to reduce, through time, the
level of purification treatment required in the production of drinking water.
(iv) Role of indicator parameters in identifying the deterioration in water quality
66.      Furthermore, it is necessary to clarify the means for detecting a deterioration in water quality. In order to understand the meaning of the requirement seeking to avoid deterioration in Article 7(3) of the WFD for the purposes of the present case,
it is necessary to examine Part C of Annex I to the DWD.
I agree with the Commission that the indicator parameter for sulphate of 250 mg/l, as set out in that Part C, is relevant for the purposes of narrowing down a pollutant such as sulphate and determining whether there is deterioration within the meaning of Article 7(3) of the WFD. That indicator parameter must be taken into account in the context of the production of drinking water.
67.      It follows that the link between the WFD and the DWD also provides one of the elements for the identification of deterioration in water quality and the link is helpful in defining how that indicator parameter may affect the authorisation process of individual projects, which I will address later in this Opinion.
(v)    Precautionary principle and remedial actions
68.      Apart from
Annex I to the DWD, Article 8 of that
directive provides an important input in understanding the content of the duty to ensure the protection of drinking water. That article, entitled ‘Remedial action and restrictions in use’, sets out the consequences that follow when Member States fail to meet the parametric values set in accordance with Article 5 of that directive.
Importantly,
Article 8(6) of the DWD provides that ‘in the event of non-compliance with the parametric values or with the specifications set out in Annex I, Part C, Member States shall consider whether that non-compliance poses any risk to human health. They shall take remedial action to restore the quality of the water where that is necessary to protect human health’.
69.      As I have mentioned above,
recital 11
of the WFD refers to Article 174
TEC (now Article 191 TFEU), which requires EU policy on the environment – that is, including its
drinking water management – to be based on the precautionary principle and on the principle that preventive action should be taken.
As will be explained later in this Opinion, the possible impact of sulphate-contaminated drinking water on human health has
not yet been fully explored. Therefore, the need to ensure necessary protection as prescribed by Article 7(3) of the WFD, read in the light of the precautionary and prevention
principles, means that Member States must
evaluate and act before a
project
with a possible adverse effect
on the
environment has been approved. It follows that there is an ex ante duty to evaluate individual projects such as the one in the main proceedings in order to avoid a situation where it is necessary to resort to remedial actions.
(3)    Objective of Article 7(3) of the WFD
70.      That interpretation of Article 7(3) is supported by the importance that EU primary law attaches to environmental protection. Article 191(2) TFEU obliges the European Union to ensure a high level of protection which, inter alia, requires an environment policy that is ‘based on the precautionary principle and on the principle that preventive action should be taken’. Furthermore, Article 37 of the Charter of Fundamental Rights of the European Union requires that a high level of environmental protection and the improvement of the quality of the environment be integrated into the policies of the European Union. (16)
71.      Moreover, one of the objectives of ensuring good water status, in accordance with the WFD, is the objective of securing the drinking water supply for the population (recital 24
of
the WFD).
72.      More specifically, as I have explained in point 53 of the present Opinion, there is an intrinsic link between the source (groundwater and surface water bodies used for the abstraction of drinking water) and the product (the drinking water distributed to the population), a link which is reflected in the spirit and purpose of Article 7(3).
Hence,
a high level of protection of the source is indispensable in order to produce
good-quality drinking water in a way that is sustainable.
73.      In the judgment in Bund für Umwelt und Naturschutz Deutschland (paragraphs 34 to 43), the Court based its interpretation also on the objective of the WFD: ‘[the WFD] establishes common principles and an overall framework for action in relation to water protection … The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States by means of the adoption of individual measures in accordance with the timescales laid down in the directive.’
74.      In particular, Article 1 of the WFD states that the purpose of that directive is to contribute to ‘the provision of the sufficient supply of good quality surface water and groundwater as needed for sustainable, balanced and equitable water use’.
75.      The above findings made by the Court in the judgment in Bund für Umwelt und Naturschutz Deutschlandare directly relevant for the purposes of the teleological interpretation of Article 7(3) of that directive. Indeed, that provision must also be interpreted in the light of the general objective of the WFD, which includes
‘[promoting] sustainable water use based on a long-term protection of available water resources’ (Article 1, first subparagraph, point (b)), which is one of the
objectives that must be put into practice by Member States when they are authorising individual projects.
76.      Moreover, the findings relating to the environmental objectives set out in Article 4 of the WFD are also relevant, given that – under Article 7(2) of that directive – the objectives set out in Article 4 thereof for surface water
bodies apply also to the water bodies covered by Article 7.
77.      It follows from the foregoing considerations that, in order to ensure the sustainable use of water for the production of drinking water and to maintain good water quality, it is indispensable to avoid the pollution of that water and to act in a preventive manner. In other words, it is necessary to assess ex ante individual projects which are liable to have adverse effects on the quality of water used for the production of drinking water and which would therefore require the level of purification treatment to be increased – and not
reduced as required by Article 7(3) of the WFD.
(4)    The travaux préparatoires concerning Article 7(3) of the WFD
78.      The above interpretation and the importance of paragraph 3 of Article 7 in the scheme of the WFD is also confirmed when we look at the legislative history of that provision.
79.      That history shows that, at the beginning of the legislative process, the WFD contained only what are now Articles 7(1) and 7(2) of the WFD.
80.      What is now Article 7(3) was added at a later stage, during the consultation process between the Council of the European Union and the European Parliament. (17) In doing so, the EU legislature
was seeking to make the provisions of Article 7 stricter and make it clear that, under the new approach to water management, priority was being given to the ex anteprotection of raw water over the ex post
increasing of the purification treatment level.
(b)    Part 2 – second sentence of Article 7(3) of the WFD
81.      The referring court also mentions, in question 2, the second sentence of Article 7(3), according to which ‘Member States may establish safeguard zones for [the] bodies of water [referred to in the first sentence of Article 7(3) of the WFD]’. However, like the Commission, I consider that that possibility has no impact on the obligations set out under the first sentence of Article 7(3), in so far as those obligations are also applicable outside such safeguard zones.
82.      The wording of Article 7(3) of the WFD is clear. The establishment of safeguard zones is a possibility, but it does not have any impact on a case such as the one in the main proceedings. The establishment of such zones to protect the groundwater at issue is just one measure among others. This is clear from the phrase ‘Member States shall ensure the necessary protection …’, which is then followed in the next sentence by ‘Member States may establish safeguard zones for those bodies of water’.
83.      As Guidance Document No 16 explains, ‘the second sentence in Article [7(3)] allows Member States, at their discretion, to establish safeguard zones within which the necessary protection may be focused. In a number of Member States these are what are commonly understood to be “drinking water protection zones”. …
The aim is to prevent deterioration arising from anthropogenic pressures in any contaminant that could require additional treatment in order to meet drinking water standards’ (p. 13, emphasis added).
84.      Therefore, the general duty of protection as interpreted above relates to all bodies of water identified under Article 7(1), but the establishment of a safeguard zone is
merely an additional and optional measure, which supplements the general protection if a Member State deems it necessary. (18)
(c)    Conclusion on question 2
85.      It follows from all the foregoing considerations that Article 7(3) of the WFD
forms an integral part of the water protection scheme established under Article 4 of the WFD. It includes a ban on deterioration in
water quality
in so far as authorising an individual project which
is liable to lead to such deterioration prevents a Member State from complying with the duty to reduce the level of purification treatment required in the production of drinking water.
Necessary protection measures
include a binding duty on Member States to evaluate,
ex ante, individual projects
which are liable to have an adverse impact
on the quality of identified water bodies used for the production of drinking water – irrespective of what kind of water is present in such bodies. The aim
is:
(i) to act preventively and avoid deterioration in water quality, (ii) to reduce, through time,
the level of purification treatment required in the production of drinking water as part of the objective seeking to ensure a sustainable use of water resources and (iii) to prevent a situation where the deployment of remedial actions under the DWD is necessary. That duty is applicable irrespective of whether that water
body is inside or outside safeguard zones within the meaning of the second sentence of Article 7(3) of the WFD.
3.      Questions 3 and 4
(a)    What constitutes a breach of the ban on deterioration under Article 7(3) of the WFD?
86.      I consider that these questions should be dealt with together, given that they both relate to the criterion for assessing a
breach of the ban on deterioration in
water quality
under Article 7(3) of the WFD. The referring court seeks to know, in essence, what constitutes a breach of the ban on deterioration under that provision. It asks, in particular, whether any deterioration is sufficient for a breach to be found or whether there must be an exceedance of the indicator parameter of 250 mg/l, indicated for sulphates in Part C of Annex I to the DWD, or whether there must be a threat of remedial action under Article 8(6) of that directive (an action which increases the treatment effort required for the production of drinking water).
87.      As I have noted above,
Article 7(3) of the WFD obliges Member States to prevent deterioration in the quality of water
bodies used for the production of drinking water in order to reduce the level of purification treatment required.
88.      As regards the term ‘deterioration’, the Court has already held, in relation to Article 4(1) of the WFD, which deals with ‘the concept of “deterioration of the status” of a body of surface water’, that it is ‘a concept of general scope’, which must be determined by taking account of its wording, context and the objectives pursued by the provisions at issue. (19) The same approach is applicable when analysing the deterioration in the quality of water used for drinking water production.
89.      First, as regards the wording of Article 7(3) of the WFD, there are two elements relevant for the purposes of defining the notion of ‘deterioration’. The first element is that that article refers to the quality of the water without connecting it with the status of the water or with any other condition. The second element is the fact that it relates specifically to the quality of drinking water,
thereby narrowing it down to the water bodies used for the production of drinking water. Thus, the wording of that article implies that ‘deterioration’ encompasses any activity having an adverse impact on water bodies specifically used for the production of drinking water.
90.      Secondly, as regards the context of Article 7(3) of the WFD, I will make the following observations.
91.      The referring court is essentially asking whether the microbiological, chemical and indicator parameters set out in Annex I to the DWD may constitute a point of reference for a ban on deterioration
in water quality under the first sentence of Article 7(3) of the WFD.
92.      To my mind, the answer to that question must be yes.
93.      That is valid, in any case, as far as sulphates are concerned. As we shall see below, if there is a risk to human health, the indicator parameter constitutes a relevant point of reference for Article 7(3) of the WFD.
94.      Thirdly, as regards the objectives of Article 7(3) of the WFD, that provision must also be interpreted on the basis of the general objectives of that directive, which include the promotion of ‘sustainable water use based on a long-term protection of available water resources’ (point (b) of the first paragraph of Article 1 of the WFD).
A sustainable use of such resources for the production of drinking water necessarily includes,
as a minimum, the avoidance of any pollution of those resources in order to achieve the aim of reducing the level of their purification.
95.      As I have pointed out in point 76 of the present Opinion, arguments relating to the environmental objectives set out in Article 4 of the WFD are also relevant, given that, under Article 7(2) of that directive, the objectives set out in Article 4 thereof for surface water
bodies apply also to the water bodies covered by Article 7.
As I have explained above, the ban on deterioration
in water quality in Article 7(3) of the WFD is closely related to the purification treatment.
The purification treatment is, in turn, linked with the pollutant in question and therefore
the evaluation of the ban on deterioration in water quality
necessarily depends on the nature of the pollutant. In the present case, we are dealing with sulphate, which is a monitoring parametric value
and so the relevant legal consequences derive from Article 8(6) of the DWD.
96.      On the one hand, in so far as the DWD appears to regard the impact of sulphate on drinking water production as comparatively less dangerous (Note 1 in Part C of Annex I providing in this respect only that ‘the water should not be aggressive’), sulphate should be treated less stringently than, for instance, pollutants indicated in Parts A and B of that annex.
97.      On the other hand,
it
should also be borne in mind that recent scientific
literature argues that sulphate can, in fact, affect the status of a water body and can be more dangerous to human health than has been accepted so far. (20)
98.      Based on the legal analysis, I agree with the Commission that the indicator parameter for sulphate of 250 mg/l, as set out in Part C of Annex I to the DWD, is relevant for the purposes of determining whether there is deterioration in
quality within the meaning of Article 7(3) of the WFD. That indicator parameter must be taken into account in the context of the production of drinking water such as at issue in the main proceedings.
99.      However, while a simple exceedance of that indicator parameter does not automatically lead to such deterioration, the fact remains that the indicator parameter is relevant since it constitutes a point of reference. Article 7(1) of the DWD obliges Member States to monitor the quality of drinking water, in particular, in accordance with the indicator parameters set out in Article 5 thereof. In that context, as is provided in the second sentence of Article 5(2) of that directive, as regards the parameters set out in Annex I, Part C, the values need to be fixed ‘only for monitoring purposes and for the fulfilment of the obligations imposed in Article 8’ (emphasis added).
100. It follows from recital 11
of that directive that the indicative value fixed for sulphates does not constitute a parameter ‘directly relevant to health’. Therefore, in case of exceedance, contrary to what is established for indicator parameters set out in Parts A and B of Annex I (see Article 8(2) of the DWD), Member States are not necessarily obliged to take remedial action in order to restore water quality. According to Article 8(6) of the DWD, they must first consider ‘whether that non-compliance poses any risk to human health’ and they must take remedial action only ‘where that is necessary to protect human health’.
101. However, if the exceedance of indicator parameter levels fixed for sulphates presents a risk for human health and if the Member State concerned does not take the necessary remedial action in order to restore the water quality, I consider, as does the Commission, that that amounts to a breach not only of Article 8(6) of the DWD, but also of the obligation to prevent deterioration in the quality of water
bodies concerned and to reduce the level of purification treatment necessary for the production of drinking water, in accordance with Article 7(3) of the WFD.
102. It follows that the deterioration in water quality under Article 7(3) of the WFD arises where a project is liable to exceed the parameters established under the DWD. However, in a case involving a pollutant indicated in Part C of Annex I to the DWD,
such exceedance does not establish deterioration solely based on the established level of a pollutant such as sulphate.
In such a case, in
order to establish deterioration in water quality under Article 7(3) of the WFD, there should be a risk for human health and consequently, in order to avoid such a risk, there should be a
need to adjust the purification process.
103. Next, I will examine whether,
despite the duty only to monitor the sulphate level (Part C of Annex I to the DWD)
that
could indicate that the evaluation of the impact of the individual project on the sulphate level could also be carried out ex post
in the context of the monitoring, Article 7(3) must be read as imposing an ex ante duty to evaluate individual projects such as the one in the main proceedings.
(b)    Examination of the planning approval decision
104. On review of
the scientific literature, and even the planning approval decision at issue here, it is clear that there are significant doubts as to the influence of sulphate-contaminated drinking water on human health. As a result, Article 7(3) of the WFD, when read in the light of the precautionary and prevention principles, requires that a proper assessment under that provision be carried out before an approval decision is taken.
105. In the planning approval decision (p. 174),
the Office states that, as a result of the project at issue, a slight increase in sulphate concentration is expected (see, also, page 46, point 1.3.3.13, of that decision, which shows that the Office recognises the risks: ‘in order to avoid the worsening of the ecological status or potential of the surface water bodies downstream, the function of which is to achieve ecological passability as a priority, the sulphate emissions of the lake must be managed so as to respect the long-term upper discharge value of 620 mg/l for water discharged at control point 1 (overflow structure)’). In spite of the above, in the context of the approval procedure, any checks into whether the project at issue (including the overflow from the Cottbuser Ostsee) was compatible with the provisions of the WFD in relation to its Article 7 were simply omitted. Those checks that were actually carried out concern Article 4 of the WFD
exclusively. The fact that the actual sulphate pollution has not yet been investigated is conceded by the Office itself, when it states, in the planning approval decision (p. 175), that ‘the actual degree of dilution or reduction up to the Briesen waterworks must be determined specifically’.
To the extent that the Office estimates that ‘the project does not stand in the way of safeguarding the drinking water supply’ (planning approval decision, p. 175), I agree with the referring court that there has not been sufficient technical investigation in this regard. (21)
106. On examination of the planning approval decision, the document shows that the impact of the project at issue on the sulphate level has not been analysed in detail.
In particular, the interdependence between the heightened concentration in the groundwater during flooding and the expected diffuse entry of sulphate into the river Spree has not been analysed (see page 173 of the approval decision).
An increase in sulphate concentration in the groundwater body is expected (pages 171 and 174), whereas, in the long run, no additional exposure is expected (page 172).
The approval decision itself explicitly admits that ‘the actual degree of dilution or reduction up to the Briesen waterworks must be determined specifically’ (page 175).
Later on, the approval decision states that ‘the increase in sulphate in the groundwater body due to the project is not quantifiable in practice’.
(c)    Scientific literature on the dangers of sulphate pollution
107. A comprehensive study on sulphate pollution in freshwater ecosystems (22) concluded that ‘the literature reviewed clearly demonstrates that [sulphate] pollution may have toxic effects on aquatic plants and animal organisms, including, among others, fishes, invertebrates and amphibians, and it may also have negative implications for human health’. According to the authors, ‘there is a great need for action to reduce sulphate concentrations in water bodies. … With our study, we would like to draw attention to the problem, show the current status for reducing sulphate pollution and at the same time point out the numerous knowledge gaps that still exist’. (23)
108. The same study discusses the very sulphate pollution problem at issue in the main proceedings (sulphate pollution and the river Spree): ‘little is known about the direct health impacts of elevated [sulphate] intake, particularly through drinking water’ and ‘today, the persistent and increasing levels of [sulphate] in freshwater ecosystems result from a variety of human activities … that threaten both ecosystem function and drinking water supplies’. In particular, ‘notable examples of aquatic ecosystems with ample [acid-mine drainage] research include … the Spree River, [(24)] … it seems unlikely that downstream [sulphate] concentrations will return to “natural” levels within a few years or even decades after mining activities have stopped. For example, [sulphate] concentrations in the River Spree …
have increased over the last decades as a consequence of the abandonment of lignite open-pit mines and the associated restoration of groundwater levels … Consequently, elevated [sulphate] concentrations have been recorded in downstream lakes in the Spree system, frequently exceeding the drinking water limits for [sulphate] of 250 mg L-1 in Germany …, which is highly problematic as these waterbodies are used as a drinking water source – typically via groundwater abstraction through bank filtration. With the termination of lignite mining for energy production in many countries, it seems reasonable to assume that [sulphate] export from such regions will continue to be an environmental problem’. (25)
(d)    Conclusion on the use of a parametric value
109. Given the increasing importance of the precautionary and prevention principles in environmental law, in a case of a pollutant regarding which there are doubts as to its adverse
impact on human health, Article 7(3) of the WFD
must be interpreted in a manner which does not allow waiting until the pollution has already taken place.
Therefore, despite the fact that the parametric
value such as the one fixed for sulphate
is meant primarily for monitoring purposes, I consider that it is also valid as an indicator for the purposes of a preventive evaluation in establishing risks for the deterioration in water quality under Article 7(3) of the WFD.
4.      Questions 5, 6 and 7
110. These questions should be dealt with together, in so far as, by those questions, the referring court is asking, in essence, whether, under Article 7(3) of the WFD, the competent authority is required to carry out an investigation of or commission an expert to investigate a possible deterioration
in quality of the body of water concerned by the project before that project is authorised or, failing that, whether such an investigation may be carried out ex post during the court proceedings (so as to remedy the illegality of the authorisation granted
under national
water law).
111. As has been discussed above,
Article 7(3) of the WFD, read in the light of the precautionary and prevention principles, requires that a situation where remedial action needs to be taken be avoided.
As we have seen in the scientific literature above, the fact that the danger and adverse impact of sulphate on water used in the production of drinking water have not yet been sufficiently assessed and established, fortifies, in conjunction with the precautionary and prevention principles, my interpretation that Article 7(3) of the WFD requires an ex ante
assessment of individual projects such as the one in the main proceedings.
112. My previous analysis of the meaning of Article 7(3) of the WFD indicates that the above
ex ante assessment
must contain two main lines of evaluation. The first would have to consider
the impact on human health if purification remains unchanged, including what remedial action would be needed under the DWD, based on the established link. The second would require an evaluation of
the impact on the level of purification treatment: whether existing methods can still produce the same quality level of water if a project is approved and implemented.
113. It may be useful to set
out in this context the
kind of ex ante
measures that may be taken by the competent authorities in order to meet their obligations under Article 7(3).
114. These measures are: (i) identification of water bodies under Article 7(1) of the WFD,
(ii) monitoring of water bodies used for the production of drinking water and (iii) assessment of individual projects in order to establish whether they are liable to lead to a deterioration in
water bodies’ quality to a level that prevents a Member State from complying with its duty to reduce the level of purification treatment required in the production of drinking water.
115. In the context of what kind of measures must be taken under Article 7(3) of the WFD, I would point out here that the new recast drinking water directive (Directive (EU) 2020/2184 (26)), which had to be transposed by 12 January 2023, places Member States, in Article 8 thereof, under the obligation to ‘ensure that risk assessment and risk management of the catchment areas for abstraction points of water intended for human consumption are carried out’.
116. Therefore, I consider that, under that new provision (which expressly refers to Article 7(3) of the WFD in two places), just as under Article 7(3) of the WFD, it is necessary for Member States to take measures which
concern not only the water in our glasses but also the water bodies from which water is abstracted and treated for the purposes of drinking water production.
117. The case-law of the Court makes it clear that, ‘during the procedure for approval of a project, and therefore before the decision is taken, the competent authorities are required, under Article 4 of [the WFD], to check whether that project may have adverse effects on water which would be contrary to the requirements to prevent deterioration and to improve the status of bodies of surface water and groundwater. That provision therefore precludes such a check from taking place only after that time’. (27)
118. In view of that case-law and because Article 7(3) of the WFD forms an integral part of the water protection scheme under Article 4 of that directive, the impact on water
bodies used for the production of drinking water – which is a question directly linked to human health – must necessarily be evaluated before a project is authorised.
119. The above observations confirm my previous analysis according to which Article 7(3) of the WFD, read in the light of the precautionary and preventive principles, must be interpreted as meaning that the necessary protection measures include a binding duty on Member States to evaluate, ex ante, individual projects which are liable to have adverse effects on the quality of identified water bodies used for the production of drinking water.
120. Hence, Article 7(3) of the WFD obliges the competent authority concerned not to approve a project when it is liable to cause the quality of the water
body concerned to deteriorate so as to increase the purification treatment level necessary for the production of drinking water
before an evaluation under Article 7 of the WFD in conjunction with the DWD is carried out. In other words, such an evaluation constitutes a mandatory procedural step before such a project may be considered for possible approval.
121. It is clear from the order for reference, from the documents before the Court and from the observations of the parties at the hearing that such an assessment was completely absent in the case in the main proceedings. Indeed, the only assessment that was carried out was the one relating to Article 4 of the WFD.
122. As has been pointed out by the City of Frankfurt (Oder) and FWA, the assessment of the project in the main proceedings was carried out under the general ban on deterioration according to Article 4 of the WFD. However, that assessment clearly fails to satisfy the requirements of Article 7(3) of that directive, in that it seeks to ‘[avoid] deterioration in [water] quality’ and ‘reduce the level of purification treatment required in the production of drinking water’. Disregarding
those requirements is potentially liable to have an impact on ensuring the protection of human health in the context of the authorisation process and on the result of that authorisation procedure, on which the referring court must now rule.
123. It follows that the competent authority is required, under Article 7(3) of the WFD, to verify, during the planning approval procedure – and so before the actual approval decision is taken – whether the project at issue is liable to have an adverse impact on the fulfilment of the obligations laid down in that article. That provision precludes such verification from taking place only after that approval has been given.
5.       Questions 8 and 9
124. These questions should be addressed together. The referring court is asking, in essence, whether a ban on deterioration specific to drinking water under Article 7(3) of the WFD may be overcome by a balancing of interests with the objective pursued
by the project (for instance, where the purification treatment effort required is low or where the project is of particular importance) or whether Article 4(7) of that directive is applicable to Article 7(3).
125. First, as follows from point 51 of the present Opinion, the aim of the actions that Member States must take under Article 7(3) of the WFD is to reduce the level of purification treatment of water required in the production of drinking water and the means to achieve that aim is the obligation that one should, as a minimum, avoid deterioration in the quality of water bodies.
126. Secondly, the ban on deterioration in water quality applicable to the authorisation of individual projects under that provision seeks to safeguard that aim.
127. Thirdly, however, as I will explain below, certain individual projects may nonetheless be approved, provided that they meet certain conditions, either under Article 4(7) of the WFD or by application of the principle of proportionality.
128. In the judgment in Bund für Umwelt und Naturschutz Deutschland (paragraphs 44 to 47), in interpreting Article 4 of the WFD, the Court relies on the derogation regime provided for in Article 4(7) of that directive.
129. The wording of Article 4(7) of the WFD is important in showing that it is applicable beyond Article 4, since
it clearly provides in its introduction in a general manner that Member States ‘will not be in breach of this Directive’ (emphasis added) when the requirements of that provision are fulfilled. It does not provide that Member States will not be in breach of this article.
130. Moreover, the fact that there is a reference to Article 4 in Article 7 of the WFD shows that those provisions are interlocked and that the obligations under Article 4(1) and Article 7(3) of the WFD are closely linked.
131. However, contrary to the Commission’s submission that Article 4(7) applies unconditionally to Article 7(3), it is clear from the two subparagraphs at the beginning of Article 4(7) that it is applicable only to activities
which are liable to affect the status of water bodies.
132. Therefore, Article 4(7) of the WFD must be interpreted as being applicable to the
process for the authorisation of individual projects, which affect obligations under Article 7(3) of that directive, but only where those projects are liable to affect the status of water bodies.
In such situations,
Article 4(7), as interpreted by the Court, provides the competent authorities of Member States with guidance as to the necessary steps they need to take in the authorisation process.
133. However, in certain cases, the deterioration in quality banned under Article 7(3) of the WFD
may not affect the status of water bodies. For such projects
that
are liable to have an adverse impact on the obligations under Article 7(3) (but not
on the status of water bodies), I consider that,
in the process for the authorisation of those projects,
the principle of proportionality ought to
apply instead of Article 4(7).
134. The overall construction of the WFD as manifested in detail by Article 4 thereof shows that the EU legislature has considered that, under certain conditions, derogations from the duties imposed on Member States by that directive may be permitted. However, Article 7 in itself does not contain any reference to a possible derogation. In my view,
interpreting
Article 7(3) as containing an absolute duty to ban deterioration in water quality could impose insuperable difficulties on Member States seeking to ensure the
smooth management of their water resources in the short term.
In such situations, a ban on deterioration under Article 7(3) of the WFD during the process for the authorisation of an individual project must be interpreted in the light of the principle of proportionality and of a balancing of interests, in particular, with the objective pursued by that project. The fact that recital 32
of the WFD makes it clear that the applicability of derogations may exist ‘for reasons of overriding public interest’ militates in favour of this.
135. Therefore, the competent authority, during the process for the authorisation of an individual project liable to have an adverse impact on the duties under Article 7(3), has an obligation to evaluate the necessity of
prohibiting such a project if that
authority has established that the project in question may cause water quality
to deteriorate and, as a result, prevent the Member State from complying with the duty to reduce the level of purification treatment required in the production of drinking water. The importance of the element of ‘necessity’ in that
regard is reflected in the wording of Article 7(3).
That article
itself clearly provides that Member States are to
ensure ‘the necessary protection for the bodies of water identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water’.
136. This requirement of necessity, (28) read in the light of the principle of proportionality, requires Member States to have recourse to measures which, in order to safeguard the objectives of Article 7(3) of the WFD, ‘do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation at issue … when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued’. (29)
137. It follows that the referring court should, in the context of applying the principle of proportionality, verify whether a balancing of interests in the context of authorisation of an individual project has been carried out. Such a balancing should establish whether the ban on deterioration in water quality under Article 7(3) of the WFD can be outweighed by the objective pursued by the project. However, such an outweighing would be possible
only over a short-term period (provided that, in the long
term, compliance with Article 7(3) is restored) and
where the following conditions are met:
(i)
the purification treatment effort required
is low and would decrease through time;
(ii)
the project is of particular importance and demonstrates overriding public interest;
(iii)
all necessary steps are taken to mitigate,
through time,
the adverse impact on the obligations under Article 7(3);
and
(iv)
the project does not cause the Member State
serious
difficulties for ensuring DWD-compliant drinking water.
6.      Question 10
138. The referring court is asking which obligations in addition to those in Article 4 of the WFD can be inferred from Article 7(2) of that directive, with the consequence that they must be taken into account in a project authorisation procedure.
139. Article 4 of the WFD imposes on Member States an obligation 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’ (30) (unless a derogation is granted). The same applies to groundwater bodies.
140. It follows that Article 4 applies to the protection of water bodies as such.
141. Article 7(2) of the WFD goes beyond that obligation.
142. Article 7(2) provides that, ‘for each body of water identified under paragraph 1, in addition to meeting the objectives of Article 4 in accordance with the requirements of this Directive, for surface water bodies including the quality standards established at Community level under Article 16, Member States shall ensure that under the water treatment regime applied, and in
accordance with Community legislation, the resulting water
will meet the requirements of [the DWD]’.
143. Thus, that provision makes it clear that the water abstracted and treated for human consumption must, in the end, meet the requirements of the DWD, that is, it must be fit for human consumption.
144. I consider, as does the Commission, that that requirement – in the manner of Article 7(3) of the WFD – goes beyond the obligations set out in Article 4(1)(a)(i) or Article 4(1)(b)(i) of that directive. In other words, Article 7(2) of the WFD adds an additional dimension to Article 4 of that directive (and provides an extended protection vis-à-vis Article 4), which is directed, in particular, at human health and is based on the DWD.
There is
thus not only a duty to protect a water
body under Article 4 as regulated in that article
in detail, but also
to treat that water
body under Article 7(2) in order to meet the requirements of the DWD.
145. Thus, contrary to the arguments of Lausitz, Article 7(2) of the WFD is not merely declaratory and, as a result, Article 7(2) of the WFD must also be taken into account in the course of the planning approval procedure to verify whether the consequences of
implementing the project in question may affect the treatment regime applied to a body of water in order to achieve the aims of the DWD.
146. It may be pointed out that Guidance Document No 16 explains, in relation to Article 7(2) of the WFD, that ‘the Article 4 objectives (that is, status, prevent or limit, implementation of trend reversal and other protected area objectives) must be met independently of meeting the Article [7(2)] objective; and the requirements of the [DWD] must be met. This includes a general requirement to ensure water is free from contamination that could constitute a danger to human health and the requirement to comply with formal DWD standards at the point of delivery to consumers (i.e. the tap)’.
147. To my mind, Article 7(2) of the WFD adds an additional point to the balancing of interests under the WFD, that is, the approval of a project is possible only where its implementation does not adversely affect the water provided (through the tap) to the inhabitants of the affected area. I consider that to mean that a project may be approved only where it includes, where appropriate, a set of necessary measures in order to ensure that compliance with the DWD is not adversely affected.
148. It follows from the foregoing considerations that Article 7(2) of the WFD must be interpreted as meaning that that provision, like Article 7(3) of that directive, contains obligations going beyond those referred to in Article 4(1)(a)(i) or Article 4(1)(b)(i) of that directive, which must be taken into consideration in the context of a project approval procedure. In particular, a project may be approved only where it includes a set of necessary measures in order to ensure that compliance with the DWD is not adversely affected.
IV.    Conclusion
149. I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Verwaltungsgericht Cottbus (Administrative Court, Cottbus, Germany) as follows:
Question 1
Article 7(3) 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 must be interpreted as meaning that the legal persons
tasked, under national law, with the production and purification treatment of drinking water, or those persons who have been entrusted with such production and purification treatment, have a right to require that a competent authority, responsible for approving a project that is liable to
have an adverse impact on the purification level of drinking water as required by Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, observe the obligations laid down in Article 7(3) of Directive 2000/60. If necessary, such legal persons may do so by bringing an action before a competent court.
Question 2
Article 7(3) of Directive 2000/60 includes a ban on deterioration in
water quality in so far as authorising an individual project which
is liable to lead to such deterioration prevents a Member State from complying with the duty to reduce the level of purification treatment required in the production of drinking water. Necessary protection measures include a binding duty on Member States to evaluate, ex ante, individual projects which are liable to have an adverse impact on the quality of identified water bodies used for the production of drinking water – irrespective of what kind of water is present in such bodies. That duty is applicable irrespective of whether that water body is inside or outside safeguard zones within the meaning of the second sentence of Article 7(3) of Directive 2000/60.
Questions 3 and 4
The deterioration in water quality under Article 7(3) of Directive 2000/60 arises where a project is liable to exceed the established parameters under Directive 98/83. However, in a case involving a pollutant indicated in Part C of Annex I to Directive 98/83, such exceedance does not establish deterioration solely based on the established level of a pollutant such as sulphate. In such a case, in order to establish deterioration in water quality under Article 7(3) of Directive 2000/60, there should be a risk for human health and consequently, in order to avoid such a risk, there should be a need to adjust the purification process.
In the case of a pollutant regarding which there are doubts as to its adverse impact on human health,
the established parametric value such as the one fixed for sulphate
can serve as an indicator for the purposes of a preventive evaluation in establishing risks for the deterioration in water quality under Article 7(3) of Directive 2000/60.
Questions 5, 6 and 7
Article 7(3) of Directive 2000/60 must be interpreted as meaning that the competent authority is required to verify, during the planning approval procedure – and so before the actual approval decision is taken – whether the project at issue is liable to have an adverse
impact on the fulfilment of the obligations laid down in that article. Article 7(3) precludes such verification from taking place only after that approval has been given.
Questions 8 and 9
Upon receiving the evaluation under Article 7(3) of Directive 2000/60, a competent authority is required to carry out a balancing of interests in the form of the test under Article 4(7) of that directive in order to decide whether or not to approve the project, provided that it is dealing with a situation relating to the status of water bodies affected by the project.
For other projects affecting obligations under Article 7(3) of Directive 2000/60, but not affecting the status of water bodies, that authority must carry out such a balancing of interests in the light of the principle of proportionality in order to establish whether the ban on deterioration in water quality under Article 7(3) can be outweighed by the objective pursued by the project. That is possible only over a short-term period – provided that, in the long
term, compliance with Article 7(3) is restored – and where the following conditions are met:
(i)
the purification treatment effort required is low and would decrease through time; (ii)
the project is of particular importance
and demonstrates overriding public interest; (iii)
all necessary steps are taken to mitigate,
through time, the adverse impact on the obligations under Article 7(3);
and (iv)
the project does not cause the Member State serious difficulties for ensuring Directive 98/83-compliant drinking water.
Question 10
Article 7(2) of Directive 2000/60 must be interpreted as meaning that that provision, like Article 7(3) of that directive, contains obligations going beyond those referred to in Article 4(1)(a)(i) or Article 4(1)(b)(i) of that directive, which must be taken into consideration in the context of a project approval procedure. In particular, a project may be approved only where it includes a set of necessary measures in order to ensure that compliance with Directive 98/83 is not adversely affected.
1      Original language: English.
2      Directive 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).
3      See: https://lbgr.brandenburg.de/sixcms/media.php/9/PFB_Endfassung%20schwarz%20gez.pdf.
4      Council Directive of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32).
5      Judgment in Land Nordrhein-Westfalen, paragraphs 121 and 123
and the case-law cited.
6      See, to that effect, judgment in Land Nordrhein-Westfalen, paragraph 125 and the case-law cited.
7      See, by analogy, judgment of 3 October 2019, Wasserleitungsverband Nördliches Burgenland and
Others (C‑197/18, EU:C:2019:824, paragraphs 40 and 42).
8      This clear link has been identified in the literature. See, for instance, Dolan, T., Water Framework Directive Article 7, the Drinking Water Directive and European Pesticide Regulation: Impacts on Diffuse Pesticide Pollution, Potable Water Decision Making and Catchment Management Strategy, Cranfield University, 2013.
9      See judgment of 3 October 2019, Wasserleitungsverband Nördliches Burgenland and
Others (C‑197/18, EU:C:2019:824, paragraph 48 and the case-law cited).
10      Cf. judgment of 30 November 2006, Commission v Luxembourg (C‑32/05, EU:C:2006:749, paragraph 75).
11      ‘Guidance on groundwater in drinking water protected areas’,
Common Implementation Strategy for the Water Framework Directive (2000/60/EC), …’, at: https://circabc.europa.eu/sd/a/aef48d98-7715-4828-a7ee-df82a6df4afb/Guidance%20No%2016%20-%20Groundwater%20in%20DWPAs.pdf.
12      Faßbender, K., ‘Gemeinschaftsrechtliche Anforderungen an die normative Umsetzung der neuen EG-Wasserrahmenrichtlinie’ (Community law requirements for the normative implementation of the new EC Water Framework Directive), Neue Zeitschrift für Verwaltungsrecht, Vol. 3, 2001, p. 245 et seq.
13      See, in that connection, judgment in Land Nordrhein-Westfalen, paragraph 70,
in which the Court relied, in particular, on the fact that the objectives of the WFD for surface waters and for groundwater were similar.
14      See also the order of 1 June 2021, paragraph 11.
15      See Dolan, T., op. cit., p. 108.
16      See also Opinion of Advocate General Kokott in EIB v ClientEarth and Commission v EIB (C‑212/21 P and C‑223/21 P, EU:C:2022:1003, point 110).
17      Rumm, P., von Keitz, S. and Schmalholz, M., (eds.), Handbuch der EU-Wasserrahmenrichtlinie [Handbook on the WFD], Erich Schmidt Verlag, Berlin, 2006, p. 432.
18      See also the Commission’s Guidance Document No 18 ‘Guidance on groundwater status and trend assessment’, Section ‘4.4.6 Test: Meet the requirements of WFD Article 7(3) – Drinking Water Protected Areas’ at
https://op.europa.eu/en/publication-detail/-/publication/76543005-ce9e-4b3c-9191-3c3f97b90ab1.
19      Judgment in Bund für Umwelt und Naturschutz Deutschland, paragraphs 55 and 61.
20      Zak, D., Hupfer, M., Cabezas, A., Jurasinski, G., Audet, J., Kleeberg, A., McInnes, R., Munch Kristiansen, S., Jes Petersen, R., Liu, H. and Goldhammer, T., ‘Sulphate in freshwater ecosystems: A review of sources, biogeochemical cycles, ecotoxicological effects and bioremediation’, Earth-Science Reviews,
Vol. 212, 103446, 2021. See point 107 et seq. of the present Opinion.
21      See the order of 1 June 2021, paragraph 13.
22      Zak, D. and others, op. cit, p. 1.
23      https://www.leibniz-gemeinschaft.de/en/about-us/whats-new/news/forschungsnachrichten-single/newsdetails/sulphate-in-water-bodies.
24      See Grünewald, U., ‘Water resources management in river catchments influenced by lignite mining’, Ecological Engineering, Vol. 17, 2001, pp. 143 to 152, and Graupner, B.J., Koch, C. and Prommer, H., ‘Prediction of diffuse sulfate emissions from a former mining district and associated groundwater discharges to surface waters’, Journal of Hydrology, Vol. 513, 2014, pp. 169 to 178.
https://doi.org/10.1016/j.jhydrol.2014.03.045.
25      Zak, D. and others, op. cit., pp. 2, 7 and 13 (emphasis added).
26      Directive of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast) (OJ 2020 L 435, p. 1).
27      Judgment in Land Nordrhein-Westfalen, paragraph 76 (emphasis added). See also Opinion of Advocate General Hogan in Land Nordrhein-Westfalen (C‑535/18, EU:C:2019:957, point 45), in which the precautionary principle is mentioned. I would add that it is relevant to mention the prevention principle also in this context. Indeed, both principles are referred to in recital 11 of the WFD.
28      See, by analogy, judgment of 7 July 2022, PH (Regional ban on GMO cultivation) (C‑24/21, EU:C:2022:526, paragraph 49 and the case-law cited).
29      Judgment of 28 May 2020, ECO-WIND Construction (C‑727/17, EU:C:2020:393, paragraph 81 and the case-law cited).
30      Judgment in Bund für Umwelt und Naturschutz Deutschland, point 1 of the operative part.