EU WATER LEGISLATION & JUGDES

Thus, when water law is breached, sanctions are to be applied that also trigger significant criminal practice. One of the most significant types of criminal litigation involving water is that pertaining to unauthorised and/or unlawful discharges of used water and/or substances, especially hazardous substances. Leachates from industrial or agricultural facilities as well as from waste storages of landfills are also a potential issue. Civil and commercial courts appear to be less likely to be confronted by water law issues, although this may change with time. The unlawful discharge or accidental spill-over of wastewater, liquid waste (such as leachates) or hazardous substances, including those products within the ambit of the Nitrates Directive, on a piece of property or even on public lands can be detrimental to the environment at large, within and outside such site. This could happen if the impacted land and surface waters or groundwater are downstream from the point source of the place where a discharge or spillover occurs. While this would more often than not be a situation for administrative practice, it can be also detrimental to the neighbours or to a tenant or an acquirer of the piece of land in question, not to mention workers employed on that site and consumers or users of water taken at downstream wells. This obviously can give rise to a number of claims based on the applicable municipal property law, sales law, or civil liability law. In such a situation, the violation of waste law will allow the court to characterise the nuisance, the defectiveness or non-compliance of the piece of real estate that was conveyed, or the fault or negligence of the owner or holder of the land vis-a-vis its neighbours or further local consumers and users. In the above-mentioned matter where a French administrative court had ordered the state to indemnify a water company, the private operator had itself been ordered by a civil court to pay damages to the inhabitants of a Brittany city for having provided them with water, the quality of which was not compliant with EU water quality requirements .
Judges may also have to ascertain the conformity of national laws implementing EU water law provisions with Directive 2008/99/EC on the protection of the environment through criminal law. Under that Directive, Member States shall rule that certain conduct constitutes a criminal offence when unlawful and committed intentionally or with at least serious negligence. Such conduct relates, inter alia, to “the discharge, emission or introduction of a quantity of materials or ionising radiation into (…) water, which causes or is likely to cause death or serious injury to any person or substantial damage to (…) the quality of water (…)” (Art. 3(a)), and to “the collection, transport, recovery or disposal of waste, (…) which causes or is likely to cause death or serious injury to any person or substantial damage to (…) the quality of water (…)” (Art. 3(b)). As previously mentioned (see Part 2), certain activities carried out in the course of implementing water law may fall within the scope of Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage. The decisions taken by competent authorities in furtherance of that other legislation could also be challenged before the national courts of competent jurisdiction. In addition, there may be interfacing issues between that EU environmental liability regime and other national liability regimes (e.g. general civil liability) which national courts would have to sort out.

Public education, information and participation contribute to increase the vigilance of citizens and NGO which are actively involved in detecting infringements of national and EU environmental Law. A number of actions brought by the Commission against Member States originate from complaints by environmental associations to the Commission. In addition, as underlines the CJEU, the Commission “does not have investigative powers of its own in this area” and the Commission is “largely reliant on the information provided by potential complainants or by the Member States concerned” .
Environmental associations are one of the sentinels of the effectivity of environmental EU law and fulfil their function as “watchdogs (…) essential in a democratic society”. Several references for preliminary rulings also illustrate the actions of NGO in national courts.