EN
28.2.2022
Official Journal of the European Union
C 95/15
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 the WFD, an obligation, similar to that in Article 4 of the WFD, to refuse authorisation for specific projects on the ground of a breach of the ban on deterioration (see CJEU, judgment of 28 May 2020, Land Nordrhein-Westfalen, C-535/18, paragraph 75)? 3.
Given that — unlike Annex V, referred to in Article 4 of the WFD — Article 7(3) of the WFD 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 Council Directive 98/83/EC (4) 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 WFD? 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 Drinking Water Directive] 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: CJEU, judgment of 28 May 2020, Land Nordrhein-Westfalen, C-535/18, paragraph 119, and, previously, judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C-461/13, (5) paragraph 52)? 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 Drinking Water Directive, 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 the WFD transferable to the scope of examination under Article 7(3) of the WFD (see CJEU, judgment of 28 May 2020, Land Nordrhein-Westfalen, C-535/18 — 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 the WFD? 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 CJEU, judgment of 28 May 2020, Land Nordrhein-Westfalen, C-535/18, paragraphs 76 and 80 et seq.)?