Bund für Umwelt und Naturschutz Deutschland e.V. v Bundesrepublik Deutschland.
Date: 2015-07-01
30. In accordance with settled case-law of the Court, the scope of those provisions must be determined by taking into account both the terms in which they are couched and their context, as well as the objectives pursued by the legislation of which they form part (see, in particular, judgments in Lundberg , C‑317/12, EU:C:2013:631, paragraph 19; SFIR and Others , C‑187/12 to C‑189/12, EU:C:2013:737, paragraph 24; and Bouman , C‑114/13, EU:C:2015:81, paragraph 31) and, in the circumstances of this case, the history of that legislation.
31. It should be noted that, contrary to the submissions of Bundesrepublik Deutschland and the Netherlands Government, the wording of Article 4(1)(a)(i) of Directive 2000/60, which provides that ‘Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water’, attests to the binding force of that provision. The words ‘shall implement’ involve an obligation on the Member States to act to that effect.
32. It is necessary, as the referring court has done, to construe authorisation of an individual project as such implementation.
34. It should also be pointed out that Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC (now Article 192(1) TFEU). It 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. 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. However, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water (judgments in Commission v Luxembourg , C‑32/05, EU:C:2006:749, paragraph 41, and Commission  v Germany , C‑525/12, EU:C:2014:2202, paragraph 50).
35. Recital 25 in the preamble to Directive 2000/60 confirms that the environmental objectives should be set to ensure that good status of surface water and groundwater is achieved throughout the European Union and that deterioration in the status of waters is prevented at EU level.
43. These matters confirm the interpretation 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.
44. The derogation regime provided for in Article 4(7) of Directive 2000/60, the conditions for the application of which have been examined by the defendant in the main proceedings but are not the subject of the referring court’s questions, likewise constitutes a matter which confirms the interpretation that prevention of deterioration of the status of the bodies of water is binding in nature.
47. The structure of the categories of derogation which are laid down in Article 4(7) of Directive 2000/60 permits the inference that Article 4 of the directive does not contain solely basic obligations, but that it also concerns individual projects. As the Advocate General has observed in point 78 of his Opinion, the grounds for derogation apply in particular where failure to comply with the objectives follows new modifications to the physical properties of the body of surface water, resulting in adverse effects. That may occur following new authorisations for projects. Indeed, it is impossible to consider a project and the implementation of management plans separately.
48. Consequently, those projects are covered by the obligation, laid down in Article 4 of Directive 2000/60, to prevent deterioration of the status of bodies of water. However, the projects may be authorised pursuant to the system of derogations provided for in Article 4.
50. It follows that, unless a derogation is granted, any deterioration of the status of a body of water must be prevented, irrespective of the longer term planning provided for by management plans and programmes of measures. The obligation to prevent deterioration of the status of bodies of surface water 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 or should have 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.
51. In the light of all the foregoing considerations, the answer to the first and fourth questions is that Article 4(1)(a)(i) to (iii) of Directive 2000/60 must be interpreted as meaning that the Member States are required — unless a derogation is granted — to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive.
Questions 2 and 3
54. In the absence of such a definition in EU law, the meaning and scope of that concept must, in accordance with settled case-law of the Court, be determined by taking into account both the terms in which the provision of EU law concerned is couched and its context (see, in particular, judgments in Lundberg , C‑317/12, EU:C:2013:631, paragraph 19; SFIR and Others , C‑187/12 to C‑189/12, EU:C:2013:737, paragraph 24; and Bouman , C‑114/13, EU:C:2015:81, paragraph 31).
57. It is at the stage of drawing up ecological quality ratios that the Member States divide the ecological quality ratios 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. The limit values are to be established following an intercalibration exercise, which involves comparing the classification results of the national monitoring systems for each biological element and for each common surface water body type among Member States in the same geographical intercalibration group, and assessing the consistency of the results with the normative definitions set out in Section 1.2 of Annex V to Directive 2000/60.
69. That said, the view should be taken, as the Commission has done, 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, within the meaning of Article 4(1)(a)(i).