Title|Previous|Next

3. The Case of Community Water Law

The stringent demands made by the European Court of Justice for the implementation and enforcement of Community law have not been met by the Member States in numerous cases. In the field of water, it can be stated that there is hardly a single Water Directive which has been or is being implemented and enforced in the required form and to the required deadline (Table 1).

Table 1: Number of Judgements of the ECJ in the field of water (until Summer 2000)

The causes of these shortcomings, however, are of a political nature only in exceptional cases. Community water law is particularly highly differentiated, in some cases contradictory, and the relatively high number of individual directives in specific sectors (surface water, drinking water, groundwater), which are only poorly integrated with one another, clash with highly complex national administrative systems in the Member States. The causes of the implementation deficits are, as is be expected, very different from one Member State and one directive to another. Essentially, the deficits can be listed as follows (see Table 2):

• Programmes not set up or programmes which are set up are too general
• Directives implemented by administrative regulations, programmes and circulars
• The required limits not set
• No permits or insufficient permits
• Failure to transform into national law
• Failure to implement in regions
• Incorrect interpretation of concepts
• No legally binding regulations for the enforcing authorities
• Lengthy parliamentary legislative procedures
• Internal reforms
• Social change
• Climatic situation
• Deadlines not met
• Reference to other directives (with longer implementation deadlines)
• Non-compliance with directives because of their integration into the Water Framework Directive (WFD)
• Lack of financial resources
• Protection areas not precisely defined
• Too broad interpretation of variation terms
• Lack of monitoring activity.

Table 2: Causes of implementation deficits

NOTES: + Denotes judgement; * Denotes action pending; - No judgements against France, Finland, Ireland, Austria or Sweden. Judgements analysed until July 2000.

A particularly striking point here is the high number of actions for treaty breaches and judgements of the European Court relating to Directives 76/464/EEC and 80/68/EEC. With regard to these directives there were judgements against six of the 15 Member States; there are also numerous proceedings still pending. There were five judgements against Member States relating to the implementation of the Bathing Waters Directive 76/160/EEC.

In the implementation of Directive 76/464/EEC and its successors the main deficits lay in the fact that the Member States had not given notification of any specific programme for the directive or had given insufficient detail. It is also notable that there was mostly a lack of information on the quality objectives required by the Directive. Finally, there is often a lack of proper implementation of the obligation regarding authorisation. Directive 80/68/EEC was not transformed sufficiently precisely into national law by most Member States. There were also differences in interpretation, and references to existing legislation which do not constitute implementation in line with the directive.

In the case of Directive 76/160/EEC the implementation deficits differed. In some cases it was simply that too few locations were identified as bathing waters. Spain argued in Case C-92/96 that social changes now underway meant that traditional bathing areas were no longer being used as such. It was also argued that the water pollution was a result of local sewage and that the deadlines of the Directive on Urban Waste Water should therefore be those complied with (these deadlines would give Spain a considerable amount of extra time). Finally, it was claimed that the occurrence of an extraordinary drought was responsible for the limits under Art. 5 (2) having been exceeded. However, the Court ruled that Spain was unable to prove the cause. Spain also pointed out that the directive was to be integrated into the new Water Framework Directive and that therefore the old deadlines were no longer applicable. The European Court rejected this argument and argued that all the deadlines in the directives which were to be integrated in future into the Framework Directive remained valid.

In the case of the Drinking Water Directive 80/778/EEC there were problems regarding, above all, with the interpretation of directive regulations, particularly the deadlines in Art. 19 and the definition of "emergency" in Art. 9. In Case C-42/89 against Belgium, financial difficulties also played a part. The limits were also not complied with by several Member States. In Case C-340/96 the Court criticised the fact that non-binding agreements between state authorities and the water authorities did not represent implementation conforming to the directive, since these agreements ("undertakings") permit exceptions and variations from its provisions. The United Kingdom argued, in addition - as Spain had previously done in Case C-92/96 - that the implementation of the directive was unnecessary, since it was to be integrated into the new Water Framework Directive. The proceedings on the Urban Waste Water Directive are still continuing. Experiences so far (in Cases C-302/95, C-297/95 and C-161/95) lead to the conclusion that the implementation of the directive, above all at subnational level, constitutes a serious problem.

Directive 78/659/EEC was in most cases transformed too late into national law, and the necessary special programmes for improvement of the water quality were not set up. The same problems were found with regard to the implementation of the Mussel Waters Directive 79/923/EEC.

In the case of Directive 75/440/EEC the causes of the implementation deficits are also various, and result from institutional reforms, implementation by means of administrative regulations, financial and technical problems, etc.

The proceedings against the implementation of the Nitrate Directive 91/676/EEC - like those regarding Directive 91/271/EEC - are still ongoing at the time this study was being written. Initial information also leads to the conclusion that the necessary programmes are not being set up and the limits for nitrates are not being met. In the case of the Nitrate Directive the integration of environmental requirements into agricultural practice has also not yet been achieved.

Proceeding for treaty breaches have been started against 13 Member States in the case of the Nitrate Directive 91/676/EEC. So far (up to the beginning of 1999) judgements against two states have been given. Similar problems to those regarding the Nitrate Directive have been encountered in the case of the Urban Waste Water Directive 91/271/EEC. Further judgements concerning these two directives are expected shortly.

In a study on the implementation of the Nitrate Directive, Urban Waste Water Directive and Sewage Sludge Directive, the European Court of Auditors found that, in particular, the implementation reports on the Directives in question were not being submitted by some Member States.¹⁷ The Court of Auditors found large deficits in enforcement of the Urban Waste Water Directive, particularly in the southern Member States, while the deficits in the Nitrate Directive (especially by pollution of waters owing to nitrates) were discussed predominantly as problems in Belgium, Denmark, parts of Germany, France, the United Kingdom and the Netherlands. Problems in the application of the Sewage Sludge Directive were diagnosed particularly in France, parts of Germany, Ireland and Italy.

17 European Court of Auditors, Special ReportNo. 3/98, OJ C 191/2 of 18.6.1998.

Top|Title|Previous|Next