WATER FRAMEWORK DIRECTIVE

A Member State is thus “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” (Id., para 50). However, “unless a derogation is granted, any deterioration of the status of the body of surface water must be prevented” .
In case C-559/19, the Court highlights that “it is clear from the scheme of article 4 of Directive 2000/60 that a deterioration of the status of a body of water, even if transitory, is authorised only subject to strict conditions and that the threshold beyond which breach of the obligation to prevent deterioration of the status of a body of water is found must be low” . The example of the authorisation for the construction of a hydropower plant on the Schwarze Sulm in Austria clearly illustrates the complexity of the weighing-up of interests, particularly when it comes to promoting renewable energy sources while ensuring compliance with the WFD and other EU environmental legislation. In this regard, in 2014 the Commission brought an action against Austria for failure to comply with WFD . The Republic of Austria recognises that such a project would cause a deterioration in the status of the body of surface water of the Schwarze Sulm , but it relied on the derogation under article 4 (7) c of WFD. It argued that this hydropower plant project meets the overriding public interest required for the promotion of renewable energies. The Court then examines under the requirements of article 4 (7) whether “all practicable steps were taken to mitigate the adverse impact of the contested project on the status of the body of water concerned”, whether “the reasons behind the project were specifically set out and explained”, 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 finally whether “the beneficial objectives pursued by that project cannot, for reasons of technical feasibility or disproportionate cost, be achieved by others means which are a significantly better environmental option”. According to the certain margin of discretion for determining whether a specific project is an overriding public project , the Court considers that the republic of Austria is “entitled to consider that the contested project, the aim of which is to promote the production of renewable energy through hydroelectricity, is an overriding public interest”. The Court also underlines that the promotion of renewable energy is a “high priority” for the EU. Finally, contrary to the Commission’s assertions, the Court of Justice concludes that the 2007 Austrian decision “sets out in a detailed manner the reasons for the contested project, its impacts on the environment and the alleged advantages of the project” and is based “on a detailed and specific scientific analysis (…) before conclude that the conditions for a derogation from the prohibition of deterioration were met” . The Court of Justice rejected the Commission’s action considering that the Commission has failed to establish the infringement as alleged.

As stated by the Commission, in its report in 2019, the exemptions foreseen in Article 4 cover around half of Europe's water bodies and this “mainly concerns natural water bodies but increasingly also heavily modified and artificial water bodies, next to new physical modifications” . The Commission states that Member States must guarantee that “the exemptions applied for one water body do not permanently exclude or compromise the achievement of the environmental objectives in other water bodies” . For their third River Basin Management Plans, Member States are strongly invited to “reduce reliance on exemptions” and “improve transparency in relation to the justifications used” .

Measures for the protection, enhancement and restoration of water bodies were to be taken with a view to achieving a status of water bodies characterised as “good”, in principle by 2015. This deadline could be extended if it could not reasonably be complied with for technical, natural or cost reasons and provided, inter alia, that no further deterioration occurs, within the limit of two updates (2021, 2027) of the River Basin District Management Plan, except in the case of natural conditions requiring it (Article 4(4)). However as stated the Court, the “exception of postponing achievement of the objectives laid down in article 4 (1) is applicable only to the enhancement obligation (…) but not to the obligation to prevent deterioration” .
“These is not much time left to 2027, when mot possibilities for exemption from the obligations of the WFD run out, and water bodies have to be in good status” .