EU WATER LEGISLATION & JUGDES

The voluntarism, indeed the activism of the CJEU in favor of European construction and of its sui generis legal integration process is well known. Various judgements show the determination of the CJEU to contribute actively “in the respect of the law in the interpretation and in the implementation of environmental law such as water legislations. As the former President of the CJEC (1967-1976), Robert Lecourt reminds us “where the precision of the text ends, the power of the judge begins (…) who cannot, without a denial of justice, hide behind the imprecision of the treaties to refuse to state the law” .
The choice of a teleological and systemic interpretation of the provisions of EU Water Directives allows the Court of Justice to ensure a uniform and “effective” implementation, countering attempts by Member States to undermine the full practical effect of the obligations to protect and improve the quality of bodies of water and aquatic environment . Thus, in line with its established case law, the Court of Justice interprets provisions, which are subject to divergent interpretation between the litigants, in the light of the context, wording, scheme and purpose, even the substance of the provisions.
This intrinsic complexity of EU water protection legislations (such as all environmental protection legislation) is reflected by the inclusion of numerous technical-scientific notions and parameters whose definitions or methodologies are sometimes imprecise or subjected to controversies and conflicts of interpretation. Different cases brought before the Court of Justice show these problems (e.g. notion of eutrophication). This high level of extra-legal technicality justifies a a-minimum training of judges as well as the mobilisation of external expertise if needed.
Beyond these complex issues, other cases, cited in this module illustrate the key role of the Court in clarifying concepts, interpreting obligations in compliance with a high level of protection and clarifying the links between EU water legislation and other environmental legislation. Similarly, the Court of Justice systematically rejects arguments from States that argue they have administrative or financial difficulties in complying with EU obligations. Several cases also provide interesting elements on the evidence that the Commission must provide to the Court when demonstrating the existence of a failure by a State to fulfil its obligations .

Given the obvious complexity of the water directives and their certain imprecise terminology, the CJEU’s contribution is therefore essential, including for national courts.