European Commission v Republic of Austria.
Date: 2016-05-04
23


First, it must be pointed out that neither the Statute of the Court of Justice of the European Union nor its Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (order of 4 February 2000 in Emesa Sugar, C‑17/98, EU:C:2000:69, paragraph 2, and judgment of 6 September 2012 in Döhler Neuenkirchen, C‑262/10, EU:C:2012:559, paragraph 29).
24


Next, as regards the reopening of the oral procedure, it must be pointed out that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure under Article 83 of its Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see judgments of 3 March 2009 in Commission v Austria, C‑205/06, EU:C:2009:118, paragraph 13, and of 6 September 2012, Döhler Neuenkirchen, C‑262/10, EU:C:2012:559, paragraph 30).
49


In assessing the compatibility of the 2007 decision with the provisions of Directive 2000/60, it must be remembered that the obligations provided for in Article 4 thereof have been applicable per se only since 22 December 2009, when the time limit granted to the Member States under Article 13(6) thereof to publish river basin management plans expired (see, to that effect, judgment of 11 September 2012 in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 51 to 56).
50


However, according to the Court’s settled case-law, 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. That obligation to refrain, which is binding on all national authorities, must be understood as referring to the adoption of any measure, general or specific, liable to produce such a compromising effect (judgment of 11 September 2012 in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 57 and the case-law cited).
51


Consequently, although the contested project did not, at the time the 2007 decision was adopted, come within the scope of Article 4 of Directive 2000/60, the Republic of Austria 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, to that effect, judgment of 11 September 2012 in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 60).
53


Recital 25 of Directive 2000/60 states that environmental objectives should be set to ensure that good status of surface water and groundwater is achieved throughout the European Union and that deterioration of the status of waters is prevented at EU level. It is also clear from the wording of Article 4(1)(a)(i) of that directive, which provides that ‘Member States shall 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 one covered by the 2007 decision must be understood to be an implementation coming within the scope of that provision (see, to that effect, judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraphs 31, 32 and 35).
54


The Court has thus held that 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 (judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 43).
55


In that regard, the derogation regime provided for in Article 4(7) of that directive constitutes a matter which confirms the interpretation that prevention of deterioration of the status of the bodies of water is binding in nature (see, to that effect, judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 44).
56


Moreover, it should be emphasised that 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, to that effect, judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 47).
58


That status is determined on the basis of ecological quality ratios broken down, for each surface water category, into five classes by means of a limit value for the biological quality elements which shows the boundary between those different classes, namely ‘high’, ‘good’, ‘moderate’, ‘poor’ and ‘bad’ (judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 57).
59


The Court has held in that regard that there is ‘deterioration of the status’ of a body of surface water within the meaning of Article 4(1)(a)(i) of Directive 2000/60 as soon as the status of at least one of the quality elements within the meaning of Annex V to the directive falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned within the meaning of that annex is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water (judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 69).
64


It must be remembered that unless a derogation is granted, 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) of the directive (see, to that effect, judgment of 1 July 2015 in Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 50).
65


Thus, the Court has held that, when a project is liable to have adverse effects on water of the kind stated in Article 4(7) of that directive, consent may be given to it, at the very least if the conditions set out in Article 4(7)(a) to (d) of that directive are satisfied (judgment of 11 September 2012 in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraphs 67 and 69).
66


In the present case, in order to determine whether the 2007 decision 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, to that effect, judgment of 11 September 2012 in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C‑43/10, EU:C:2012:560, paragraph 67).
70


In that regard, the Member States must be allowed a certain margin of discretion for determining whether a specific project is of such interest. Directive 2000/60, which was adopted on the basis of Article 175(1) EC (now Article 192(1) TFEU), establishes common principles and an overall framework for action in relation to water protection and coordinates, integrates and, in a longer perspective, develops the overall principles and the structures for protection and sustainable use of water in the European Union. Those principles and that framework are to be developed subsequently by the Member States by means of the adoption of individual measures. Thus, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water (judgments of 30 November 2006 in Commission v Luxembourg, C‑32/05, EU:C:2006:749, paragraph 41; 11 September 2014Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 50; and of 1 July 2015Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 34).
72


Article 194 TFEU provides in paragraph 1, that, in the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, European Union policy on energy is to aim, in a spirit of solidarity between Member States, to ensure the functioning of the energy market, ensure security of energy supply in the European Union, promote energy efficiency and energy saving and the development of new and renewable forms of energy and promote the interconnection of energy networks (judgment of 6 September 2012 in Parliament v Council, C‑490/10, EU:C:2012:525, paragraph 65).
73


Moreover, the promotion of renewable energy sources, which is a high priority for the European Union, is justified in particular because the exploitation of those energy sources contributes to environmental protection and sustainable development, and can also contribute to security and diversification of energy supply and make it possible to meet more quickly the targets of the Kyoto Protocol, annexed to the United Nations Framework Convention on Climate Change (judgment of 26 September 2013 in IBV & Cie, C‑195/12, EU:C:2013:598, paragraph 56).