Case C‑346/14

European Commission

v

Republic of Austria

‛Failure of a Member State to fulfil obligations — Article 4(3) TEU — Article 288 TFEU — Directive 2000/60/EC — EU water policy — Article 4(1) — Prevention of deterioration of the status of bodies of surface water — Article 4(7) — Derogation from the prohibition of deterioration — Overriding public interest — Authorisation to construct a hydropower plant on the Schwarze Sulm River (Austria) — Deterioration of the water status’

Summary — Judgment of the Court (First Chamber), 4 May 2016

Environment — EU water policy — Directive 2000/60 — Environmental objectives for surface waters — Obligation to implement necessary measures to prevent deterioration of the status of all bodies of surface water— Possibility of derogation for a project serving an overriding general interest — Classification of a project serving an overriding general interest — Member States’ discretion — Application to a project aimed at promoting the production of renewable energy through hydroelectricity — Lawfulness

Judicial proceedings — Oral part of the procedure — Reopening — No obligation to reopen the oral phase of the procedure in order to allow the parties to submit observations on points of law raised by the Advocate General

See the text of the decision. (see paras 23, 24)

During the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. Such an obligation to refrain being incumbent on all the national authorities, it must be understood to refer to the adoption of any measure, general or specific, liable to produce such a compromising effect. Consequently, although a project did not, at the time the authorisation decision was adopted, come within the scope of Article 4 of Directive 2000/60 establishing a framework for Community action in the field of water policy, the Member State concerned was nevertheless required, even before the expiry of the time limit granted under Article 13(6) of that directive to the Member States for the publication of river basin management plans, to refrain from taking measures liable seriously to compromise the attainment of the objective provided for by Article 4. (see paras 50, 51)

It is clear from the wording of Article 4(1)(a)(i) of Directive 2000/60 establishing a framework for Community action in the field of water policy, which provides that Member States are to implement the necessary measures to prevent deterioration of the status of all bodies of surface water, that the Member States are in fact required to adopt such measures. In that regard, authorisation for a specific project, such as the construction of a hydropower plant on a river that runs through a Member State, must be understood to be an implementation coming within the scope of that provision. Article 4(1)(a) of Directive 2000/60 does not simply set out, in programmatic terms, mere management-planning objectives, but has binding effects, once the ecological status of the body of water concerned has been determined, at each stage of the procedure prescribed by that directive. Moreover, in the grounds for derogation laid down in Article 4(7) of that directive, the structure of the categories of derogation which are laid down in that provision permits the inference that Article 4 thereof does not contain solely basic obligations, but that it also concerns specific projects. The grounds for derogation apply in particular where failure to comply with the objectives of Article 4 follows new modifications to the physical properties of the body of surface water, resulting in adverse effects, or new sustainable human development activities. That may occur following new authorisations for projects. Indeed, it is impossible to consider a project and the implementation of management plans separately. (see paras 53, 54, 56)

See the text of the decision. (see paras 58, 59)

Unless a derogation is granted under Article 4(7) of Directive 2000/60 establishing a framework for Community action in the field of water policy, any deterioration of the status of a body of surface water must be prevented. The obligation to prevent such deterioration thus remains binding at each stage of implementation of Directive 2000/60 and is applicable to every surface water body type and status for which a management plan has been adopted. The Member State concerned is consequently required to refuse authorisation for a project where it is such as to result in deterioration of the status of the body of water concerned or to jeopardise the attainment of good surface water status, unless the view is taken that the project is covered by a derogation under Article 4(7). In order to determine whether a project authorisation was adopted in compliance with the requirements of Article 4(7) of Directive 2000/60, it must be ascertained, first, whether all practicable steps were taken to mitigate the adverse impact of the contested project on the status of the body of water concerned; second, whether the reasons behind the project were specifically set out and explained; third, whether the project serves an overriding general interest and/or the benefits to the environment and society linked to the achievement of the objectives set out in Article 4(1) are outweighed by the benefits to human health, the maintenance of human safety or the sustainable development resulting from that project; and, fourth, whether the beneficial objectives pursued by that project cannot, for reasons of technical feasibility or disproportionate cost, be achieved by other means which are a significantly better environmental option. (see paras 64, 66)