JUDGMENT OF THE COURT (Second Chamber)
25 April 2024 (*)
(Reference for a preliminary ruling – Environment – Directive 2000/60/EC – Framework for EU action in the field of water policy – Article 4(1)(a) – Environmental objectives relating to surface waters – Obligation of the Member States not to authorise a project which may cause a deterioration of the status of a surface water body – Article 5 and Annex II – Characterisation of surface water body types – Article 8 and Annex V – Classification of surface water status – Article 11 – Programme of measures – Project for the abstraction of water from a lake with a surface area below 0.5km²)
In Case C‑301/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 26 January 2022, received at the Court on 3 May 2022, in the proceedings
Peter Sweetman
v
An Bord Pleanála,
Ireland and the Attorney General,
intervening parties:
Bradán Beo Teoranta,
Galway City Council,
Environmental Protection Agency,
THE COURT (Second Chamber),
composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl, J. Passer (Rapporteur) and M.L. Arastey Sahún, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Peter Sweetman, by J. Devlin, Senior Counsel, B. Harrington, solicitor, and M. Heavey, barrister,
– An Bord Pleanála, by J. Moore, solicitor, R. Mulcahy, Senior Counsel, and F. Valentine, Senior Counsel,
– Ireland, by M. Browne, A. Joyce, D. O’Reilly and M. Tierney, acting as Agents, and by J. Doherty, Senior Counsel, E. Egan McGrath, Senior Counsel, G. Gilmore, Barrister-at-Law, and A. McBride, Senior Counsel,
– the French Government, by B. Travard, J.-L. Carré and W. Zemamta, acting as Agents,
– the Netherlands Government, by M.K. Bulterman and M.S. Gijzen, acting as Agents,
– the Polish Government, by B. Majczyna, acting as Agent,
– the European Commission, by L. Armati and E. Sanfrutos Cano, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 21 September 2023,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1).
2 The request has been made in proceedings between Peter Sweetman and An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland, and the Attorney General (Ireland) concerning a development project seeking to abstract freshwater from a lake.
Legal context
European Union law
3 Recitals 25, 33, 34 and 36 of Directive 2000/60 are worded as follows:
‘(25) Common definitions of the status of water in terms of quality and, where relevant for the purpose of the environmental protection, quantity should be established. Environmental objectives should be set to ensure that good status of surface water and groundwater is achieved throughout the Community and that deterioration in the status of waters is prevented at Community level.
…
(33) The objective of achieving good water status should be pursued for each river basin, so that measures in respect of surface water and groundwaters belonging to the same ecological, hydrological and hydrogeological system are coordinated.
(34) For the purposes of environmental protection there is a need for a greater integration of qualitative and quantitative aspects of both surface waters and groundwaters, taking into account the natural flow conditions of water within the hydrological cycle.
…
(36) It is necessary to undertake analyses of the characteristics of a river basin and the impacts of human activity as well as an economic analysis of water use. The development in water status should be monitored by Member States on a systematic and comparable basis throughout the Community. This information is necessary in order to provide a sound basis for Member States to develop programmes of measures aimed at achieving the objectives established under this Directive.’
4 Article 1 of that directive, headed ‘Purpose’, provides as follows:
‘The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:
(a) prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems;
…’
5 Article 2 of the directive, entitled ‘Definitions’, states:
‘For the purposes of this Directive the following definitions shall apply:
1. “Surface water” means inland waters, except groundwater; transitional waters and coastal waters, except in respect of chemical status for which it shall also include territorial waters.
…
3. “Inland water” means all standing or flowing water on the surface of the land, and all groundwater on the landward side of the baseline from which the breadth of territorial waters is measured.
…
5. “Lake” means a body of standing inland surface water.
6. “Transitional waters” are bodies of surface water in the vicinity of river mouths which are partly saline in character as a result of their proximity to coastal waters but which are substantially influenced by freshwater flows.
7. “Coastal water” means surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of transitional waters.
…
10. “Body of surface water” means a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, part of a stream, river or canal, a transitional water or a stretch of coastal water.
…
17. “Surface water status” is the general expression of the status of a body of surface water, determined by the poorer of its ecological status and its chemical status.
18. “Good surface water status” means the status achieved by a surface water body when both its ecological status and its chemical status are at least “good”.
…
21. “Ecological status” is an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters, classified in accordance with Annex V.
22. “Good ecological status” is the status of a body of surface water, so classified in accordance with Annex V.
…’
6 Article 4 of that directive, entitled ‘Environmental objectives’, provides:
‘1. In making operational the programmes of measures specified in the river basin management plans:
(a) for surface waters
(i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;
(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;
(iii) Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;
…
…
7. Member States will not be in breach of this Directive when:
– failure to achieve good groundwater status, good ecological status or, where relevant, good ecological potential or to prevent deterioration in the status of a body of surface water or groundwater is the result of new modifications to the physical characteristics of a surface water body or alterations to the level of bodies of groundwater, or
– failure to prevent deterioration from high status to good status of a body of surface water is the result of new sustainable human development activities
and all the following conditions are met:
(a) all practicable steps are taken to mitigate the adverse impact on the status of the body of water;
(b) the reasons for those modifications or alterations are specifically set out and explained in the river basin management plan required under Article 13 and the objectives are reviewed every six years;
(c) the reasons for those modifications or alterations are of overriding public interest and/or the benefits to the environment and to society of achieving the objectives set out in paragraph 1 are outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development, and
(d) the beneficial objectives served by those modifications or alterations of the water body cannot for reasons of technical feasibility or disproportionate cost be achieved by other means, which are a significantly better environmental option.
8. When applying paragraphs 3, 4, 5, 6 and 7, a Member State shall ensure that the application does not permanently exclude or compromise the achievement of the objectives of this Directive in other bodies of water within the same river basin district and is consistent with the implementation of other Community environmental legislation.
…’
7 Article 5 of Directive 2000/60, entitled ‘Characteristics of the river basin district, review of the environmental impact of human activity and economic analysis of water use’, provides, in paragraph 1:
‘Each Member State shall ensure that for each river basin district or for the portion of an international river basin district falling within its territory:
– an analysis of its characteristics,
– a review of the impact of human activity on the status of surface waters and on groundwater, and
– an economic analysis of water use
is undertaken according to the technical specifications set out in Annexes II and III and that it is completed at the latest four years after the date of entry into force of this Directive.’
8 Article 8 of that directive, entitled ‘Monitoring of surface water status, groundwater status and protected areas’, provides:
‘1. Member States shall ensure the establishment of programmes for the monitoring of water status in order to establish a coherent and comprehensive overview of water status within each river basin district:
– for surface waters such programmes shall cover:
(i) the volume and level or rate of flow to the extent relevant for ecological and chemical status and ecological potential, and
(ii) the ecological and chemical status and ecological potential;
…
2. These programmes shall be operational at the latest six years after the date of entry into force of this Directive unless otherwise specified in the legislation concerned. Such monitoring shall be in accordance with the requirements of Annex V.
…’
9 Article 11 of that directive, entitled ‘Programme of measures’, states as follows:
‘1. Each Member State shall ensure the establishment for each river basin district, or for the part of an international river basin district within its territory, of a programme of measures, taking account of the results of the analyses required under Article 5, in order to achieve the objectives established under Article 4. Such programmes of measures may make reference to measures following from legislation adopted at national level and covering the whole of the territory of a Member State. Where appropriate, a Member State may adopt measures applicable to all river basin districts and/or the portions of international river basin districts falling within its territory.
2. Each programme of measures shall include the “basic” measures specified in paragraph 3 and, where necessary, “supplementary” measures.
3. “Basic measures” are the minimum requirements to be complied with and shall consist of:
…
(c) measures to promote an efficient and sustainable water use in order to avoid compromising the achievement of the objectives specified in Article 4;
…
(e) controls over the abstraction of fresh surface water and groundwater, and impoundment of fresh surface water, including a register or registers of water abstractions and a requirement of prior authorisation for abstraction and impoundment. These controls shall be periodically reviewed and, where necessary, updated. Member States can exempt from these controls, abstractions or impoundments which have no significant impact on water status;
…
4. “Supplementary” measures are those measures designed and implemented in addition to the basic measures, with the aim of achieving the objectives established pursuant to Article 4. Part B of Annex VI contains a non-exclusive list of such measures.
…’
10 Annex II to Directive 2000/60 states as follows:
‘1. Surface waters
1.1. Characterisation of surface water body types
Member States shall identify the location and boundaries of bodies of surface water and shall carry out an initial characterisation of all such bodies in accordance with the following methodology. Member States may group surface water bodies together for the purposes of this initial characterisation.
(i) The surface water bodies within the river basin district shall be identified as falling within either one of the following surface water categories – rivers, lakes, transitional waters or coastal waters – or as artificial surface water bodies or heavily modified surface water bodies.
(ii) For each surface water category, the relevant surface water bodies within the river basin district shall be differentiated according to type. These types are those defined using either “system A” or “system B” identified in section 1.2.
(iii) If system A is used, the surface water bodies within the river basin district shall first be differentiated by the relevant ecoregions in accordance with the geographical areas identified in section 1.2 and shown on the relevant map in Annex XI. The water bodies within each ecoregion shall then be differentiated by surface water body types according to the descriptors set out in the tables for system A.
(iv) If system B is used, Member States must achieve at least the same degree of differentiation as would be achieved using system A. Accordingly, the surface water bodies within the river basin district shall be differentiated into types using the values for the obligatory descriptors and such optional descriptors, or combinations of descriptors, as are required to ensure that type specific biological reference conditions can be reliably derived.
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1.2 Ecoregions and surface water body types
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1.2.2 Lakes
System A
Fixed typology | Descriptors |
Ecoregion | Ecoregions shown on map A in Annex XI |
Type | Altitude typology high: > 800 m mid-altitude: 200 to 800 m lowland: < 200 m
Depth typology based on mean depth < 3 m 3 to 15 m > 15 m
Size typology based on surface area 0.5 to 1 km2 1 to 10 km2 10 to 100 km2 > 100 km2
Geology calcareous siliceous organic |
System B
Alternative characterisation | Physical and chemical factors that determine the characteristics of the lake and hence the biological population structure and composition |
Obligatory factors | altitude latitude longitude depth geology size |
Optional factors | mean water depth lake shape residence time mean air temperature air temperature range mixing characteristics (e.g. monomictic, dimictic, polymictic) acid neutralising capacity background nutrient status mean substratum composition water level fluctuation |
…
1.3. Establishment of type-specific reference conditions for surface water body types
(i) For each surface water body type characterised in accordance with section 1.1, type-specific hydromorphological and physicochemical conditions shall be established representing the values of the hydromorphological and physicochemical quality elements specified in point 1.1 in Annex V for that surface water body type at high ecological status as defined in the relevant table in point 1.2 in Annex V. Type-specific biological reference conditions shall be established, representing the values of the biological quality elements specified in point 1.1 in Annex V for that surface water body type at high ecological status as defined in the relevant table in section 1.2 in Annex V.
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1.5. Assessment of Impact
Member States shall carry out an assessment of the susceptibility of the surface water status of bodies to the pressures identified above.
Member States shall use the information collected above, and any other relevant information including existing environmental monitoring data, to carry out an assessment of the likelihood that surface [water] bodies within the river basin district will fail to meet the environmental quality objectives set for the bodies under Article 4. Member States may utilise modelling techniques to assist in such an assessment.
For those bodies identified as being at risk of failing the environmental quality objectives, further characterisation shall, where relevant, be carried out to optimise the design of both the monitoring programmes required under Article 8, and the programmes of measures required under Article 11.
…’
11 Annex V of Directive 2000/60 states, in part 1, which contains the rules concerning the classification and monitoring of the status of surface waters, as follows:
‘…
1.2. Normative definitions of ecological status classifications
Table 1.2. General definition for rivers, lakes, transitional waters and coastal waters
The following text provides a general definition of ecological quality. For the purposes of classification the values for the quality elements of ecological status for each surface water category are those given in tables 1.2.1 to 1.2.4 below.
Element | High status | Good status | Moderate status |
General | There are no, or only very minor, anthropogenic alterations to the values of the physico-chemical and hydromorphological quality elements for the surface water body type from those normally associated with that type under undisturbed conditions. The values of the biological quality elements for the surface water body reflect those normally associated with that type under undisturbed conditions, and show no, or only very minor, evidence of distortion. These are the type-specific conditions and communities. | The values of the biological quality elements for the surface water body type show low levels of distortion resulting from human activity, but deviate only slightly from those normally associated with the surface water body type under undisturbed conditions. | The values of the biological quality elements for the surface water body type deviate moderately from those normally associated with the surface water body type under undisturbed conditions. The values show moderate signs of distortion resulting from human activity and are significantly more disturbed than under conditions of good status. |
Waters achieving a status below moderate shall be classified as poor or bad.
Waters showing evidence of major alterations to the values of the biological quality elements for the surface water body type and in which the relevant biological communities deviate substantially from those normally associated with the surface water body type under undisturbed conditions, shall be classified as poor.
Waters showing evidence of severe alterations to the values of the biological quality elements for the surface water body type and in which large portions of the relevant biological communities normally associated with the surface water body type under undisturbed conditions are absent, shall be classified as bad.
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1.2.6 Procedure for the setting of chemical quality standards by Member States
In deriving environmental quality standards for pollutants listed in points 1 to 9 of Annex VIII for the protection of aquatic biota, Member States shall act in accordance with the following provisions. Standards may be set for water, sediment or biota.
Where possible, both acute and chronic data shall be obtained for the taxa set out below which are relevant for the water body type concerned as well as any other aquatic taxa for which data are available. The ‘base set’ of taxa are:
– algae and/or macrophytes
– daphnia or representative organisms for saline waters
– fish.
…
1.3. Monitoring of ecological status and chemical status for surface waters
The surface water monitoring network shall be established in accordance with the requirements of Article 8. The monitoring network shall be designed so as to provide a coherent and comprehensive overview of ecological and chemical status within each river basin and shall permit classification of water bodies into five classes consistent with the normative definitions in section 1.2. Member States shall provide a map or maps showing the surface water monitoring network in the river basin management plan.
On the basis of the characterisation and impact assessment carried out in accordance with Article 5 and Annex II, Member States shall for each period to which a river basin management plan applies, establish a surveillance monitoring programme and an operational monitoring programme. Member States may also need in some cases to establish programmes of investigative monitoring.
…’
12 Annex VI of that directive sets out in part B a non-exclusive list of supplementary measures which Member States within each river basin district may choose to adopt as part of the programme of measures required under Article 11(4) of that directive. Those measures include at point (viii) ‘abstraction controls’.
Irish law
13 The relevant provisions of national law intended to implement Directive 2000/60 are found in the European Communities (Water Policy) Regulations 2003 (S.I. No. 722/2003) and the European Union (Water Policy) Regulations 2014 (S.I. No. 350/2014).
The dispute in the main proceedings and the questions referred for a preliminary ruling
14 The dispute in the main proceedings concerns an application for development consent for a project seeking to abstract water from Loch an Mhuilinn, a non-tidal private inland lake, with a surface area of 0.083 km² and situated on the island of Gorumna in County Galway (Ireland), by pumping a maximum of 4 680 m³ of fresh water per week via a pipeline, for four hours per day for a maximum of four days per week, for up to 22 weeks per year from May to September. The abstracted fresh water was to be used, once it had been transferred to four sites operated by Bradán Beo Teoranta, an Irish company, in Kilkieran Bay in County Galway, to bathe diseased salmon and to rid them of amoebic gill disease and sea lice.
15 Mr Sweetman brought an action before the High Court (Ireland), the referring court in the present case, against the Board’s decision of 20 July 2018 granting the consent sought.
16 By a judgment of 15 January 2021, the High Court set aside the Board’s decision, finding that it did not comply with the requirements of Directive 2000/60. In that regard, the High Court found, more specifically that the Environmental Protection Agency (‘the EPA’) ought to have assigned Loch an Mhuilinn a specific status, following precise evaluation and monitoring of that lake, as required by Directive 2000/60 and the Irish legislation intended to transpose that directive. Given the failure by the EPA to assign such a status to Loch an Mhuilinn, that court concluded it was impossible for the Board to evaluate whether the proposed works were compliant with Article 4(1) of Directive 2000/60.
17 Following the delivery of that judgment, Bradán Beo Teoranta sought the view of the EPA. In a letter dated 28 January 2021, the EPA set out its interpretation that, for lakes, Directive 2000/60 requires that only lakes larger than 0.5 km² in surface area are to be identified as constituting a water body covered by that directive. For lakes with a surface area below that threshold, Member States may decide to include them as water bodies covered by that directive if they are significant in the context of the purposes and provisions of that directive. In accordance with those principles, all lakes greater than 0.5km2 in size and smaller lakes in protected areas (Special Areas of Conservation or areas used for drinking water abstraction) were identified in Ireland as constituting water bodies falling within Directive 2000/60. However, Loch an Mhuilinn was not identified as a water body falling within that directive as it does not meet the criteria in relation to surface area or being located in a protected area and, consequently, the EPA did not determine a status for it.
18 In the light of that letter from the EPA, the Board applied for the case to be reopened, a request which the referring court granted, taking the view that the information contained in that letter has the potential of affecting the outcome of that case.
19 According to the High Court, a key question arises, in particular having regard to the considerations in the judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C‑461/13, EU:C:2015:433), concerning the interpretation of Directive 2000/60, namely whether it is necessary for all water bodies, irrespective of their size, to be subject to an analysis of their characteristics and to a determination of their status in accordance with that directive, so that, in the context of an application for consent to carry out a development affecting a surface water body, a court can assess the proposed development by reference to the concepts of ‘deterioration’ and ‘good surface water status’.
20 In those circumstances, the High Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) (a) Are Member States required to characterise and subsequently classify all water bodies, irrespective of size, and in particular is there a requirement to characterise and classify all lakes with a topological surface area below 0.5 km2?
(b) To what extent is the position different with respect to water bodies in a protected area, if at all?
(2) If the answer to question 1(a) is yes, can a competent authority for the purposes of development consent grant development consent for a project that may affect the water body prior to it being categorised and classified?
(3) If the answer to question 1(a) is no, what are the obligations on a competent authority when deciding upon an application for development consent that potentially affects a water body not characterised and/or classified?’
Consideration of the questions referred
The first question
21 According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it (judgment of 6 October 2021, W. Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 68 and the case-law cited).
22 In the present case, first, while the first question refers in general terms to ‘water bodies’, it is apparent from the request for a preliminary ruling and, moreover, from the clarification at the end of part (a) of that question, that the case in the main proceedings concerns a surface water body and, more specifically, a lake.
23 Second, while part (b) of the first question refers to bodies of water in a protected area, the referring court stated, in response to a written question from the Court, that the lake at issue in the main proceedings does not lie within such an area, but is in fact only linked to the Kilkieran Bay and Islands Special Area of Conservation by a direct tidal connection.
24 Third and lastly, while the first question does not identify the provisions of EU law whose interpretation is sought, it follows from the request for a preliminary ruling and from the verbs to ‘characterise’ and ‘classify’, which the referring court uses in that question, that, by that question, it refers, in essence, to the obligations laid down in the first indent of Article 5(1) and in Article 8 of Directive 2000/60, read in conjunction with Annexes II and V thereto.
25 In those circumstances, it must be held that, by its first question, the referring court is asking, in essence, whether the first indent of Article 5(1) and Article 8 of Directive 2000/60, read in conjunction with Annexes II and V to that directive, must be interpreted as meaning that a lake with a surface area below 0.5 km² is covered, first, by the obligation to undertake, for each river basin district, an analysis of its characteristics and, second, by the obligation to establish programmes for the monitoring of water status in order to establish a coherent and comprehensive overview of water status within each river basin district.
26 It should be recalled that, in order to ensure that Member States attain the qualitative objectives pursued by the EU legislature, namely the preservation or restoration of good status of surface water, Directive 2000/60 lays down a series of provisions, including Articles 5 and 8 and Annexes II and V, establishing a complex process involving a number of extensively regulated stages, for the purpose of enabling the Member States to implement the necessary measures, on the basis of the specific features and the characteristics of the bodies of water identified in their territories (see, to that effect, judgment of 24 June 2021, Commission v Spain (Deterioration of the Doñana natural area), C‑559/19, EU:C:2021:512, paragraphs 41 and 42 and the case-law cited).
27 As regards, in the first place, Article 5 of Directive 2000/60, that provision requires Member States to ensure, inter alia, that, for each river basin district, an analysis of its characteristics is undertaken according to the technical specifications set out in Annex II to that directive.
28 In accordance with point 1.1 of Annex II to Directive 2000/60, for the purposes of the characterisation of the surface water body types provided for in the first indent of Article 5(1) of that directive, Member States are, first, to identify the location and boundaries of bodies of surface water and, second, to identify surface water bodies within the river basin district as falling within either one of the surface water categories (rivers, lakes, transitional waters, coastal waters) or as constituting artificial surface water bodies or heavily modified surface water bodies and, finally, for each surface water category, differentiate the bodies within the river basin district according to types defined using either ‘system A’ or ‘system B’ identified in section 1.2 of that Annex II. Subsequently, in accordance with point 1.3 of that annex, type-specific reference condition for surface water body types must be established.
29 As regards lakes and their size typology based on surface area, point 1.2.2 of Annex II to Directive 2000/60 provides, for the purposes of system A, only for types of 0.5 to 1 km2, of 1 to 10 km2, of 10 to 100 km2 and greater than 100 km2. Furthermore, point 1.1(iv) of Annex II provides that, if system B is used, Member States must achieve at least the same degree of differentiation as would be achieved using system A, which allows Member States opting for system B also to use the minimum size of 0.5 km² as an obligatory factor for the characterisation relating to size within the meaning of point 1.2.2 of that Annex II.
30 In addition, as regards the fact, noted in the written observations of the applicant in the main proceedings, that a hydrological feasibility assessment carried out by Bradán Beo Teoranta indicated that the lake at issue in the main proceedings from which abstraction is intended to take place interconnects with at least seven other lakes, it should be recalled that, under Article 2(5) of Directive 2000/60, a lake means a body of standing inland surface water and that the referring court, which alone is responsible for appraising the facts, adopted such a classification in respect of the body of water at issue in the main proceedings. Furthermore, it should be noted, as did the Advocate General in footnote 17 of his Opinion, that while, under point 1.1 of Annex II to Directive 2000/60, Member States may group surface water bodies together for the purposes of the initial characterisation, that is an option and not an obligation.
31 It follows from the foregoing that the obligation laid down in point 1.3 of Annex II to Directive 2000/60 to establish type-specific reference conditions for surface water body types does not relate to lakes with a surface area below 0.5 km², irrespective of whether the Member State concerned uses system A or, as in the present case, in accordance with the answer of the referring court to the Court’s written question referred to in paragraph 23 of the present judgment, system B.
32 As regards, in the second place, Article 8 of Directive 2000/60, that requires Member States to establish programmes for the monitoring of water status in order to establish a coherent and comprehensive overview of water status within each river basin district and refers, in its title, inter alia, in general terms, to ‘surface water’.
33 That said, as the Advocate General observed, in essence, in point 38 of his Opinion, since Member States are not required to characterise lakes with a surface area below 0.5 km² pursuant to Article 5 of, and Annex II to, Directive 2000/60, it follows logically that Member States are also not required to classify the ecological status of such lakes, in accordance with Article 8 of, and Annex V to, that directive.
34 A combined reading of Annexes II and V to Directive 2000/60 confirms that interpretation, in so far as is necessary.
35 In particular, when point 1.2 of Annex V to Directive 2000/60 establishes the general definition of ecological status for rivers, lakes, transitional waters and coastal waters, for the purposes of their classification, it expressly refers to surface water body ‘types’, which are defined in Annex II to that directive which, as regards lakes, refers only to lakes having a surface area of at least 0.5 km², as follows from paragraph 29 of the present judgment. Similarly, as regards the procedure to be followed by the Member States in establishing the chemical quality standards for surface waters, point 1.2.6 of Annex V also refers to surface water body ‘types’.
36 Furthermore, it follows, for example, from point 1.3(i) of Annex II to Directive 2000/60 that the type-specific reference conditions for each surface water body type characterised in accordance with point 1.1 of that Annex II must be established in such a way as to represent the values of the hydromorphological, physicochemical and biological quality elements specified in point 1.1 of Annex V to that directive for that surface water body type at high ecological status, as defined in the relevant table in point 1.2 of Annex V. Similarly, in accordance with the third paragraph of point 1.5 of Annex II to Directive 2000/60, it is, inter alia, in order to optimise the design of the monitoring programmes required under Article 8 of that directive that further characterisation is, where relevant, required, in respect of bodies identified as being at risk of failing the environmental quality objectives.
37 In addition, in accordance with the second paragraph of point 1.3 of Annex V to Directive 2000/60, a surveillance monitoring programme and an operational monitoring programme must be established on the basis of the characterisation and impact assessment carried out in accordance with Article 5 of, and Annex II to, that directive.
38 The interpretation of Articles 5 and 8 of, and Annexes II and V to, Directive 2000/60 to the effect that neither the obligation to establish type-specific reference conditions for surface water body types nor the obligation to establish programmes for the monitoring of water status relate to lakes with a surface area below 0.5 km² is also borne out by the travaux préparatoires for that directive. First, the Proposal for a Council Directive establishing a framework for Community action in the field of water policy (OJ 1997 C 184, p. 20), as supplemented by an amended proposal (OJ 1998 C 108, p. 94), envisaged laying down obligations similar to those currently detailed in those Annexes II and V within a single Annex V. Second, that proposal for a directive, as supplemented, did not refer, in relation to system A, to lakes with a surface area below 0.01 km², whereas Directive 2000/60, as finally adopted, lays down a threshold of 0.5 km² for the same purpose.
39 Such an increase in the threshold for the size of lakes during the legislative procedure must, inter alia, be understood in the light of the complexity of the process referred to in paragraph 26 of the present judgment and of the fact – noted, after the adoption of Directive 2000/60, at point 3.5 of Guidance Document No 2, entitled ‘Identification of water bodies’, drawn up as part of the common implementation strategy for that directive, involving the European Commission, all the Member States, the accession countries, the Kingdom of Norway and other stakeholders and non-governmental organisations – that surface waters include a large number of very small bodies of water for which the administrative burden of their management may be enormous.
40 That said, that observation does not prevent the Member States which consider it appropriate to make certain types of lakes with a surface area below 0.5 km² subject, in the light of the objectives pursued by Directive 2000/60 in relation to the implementation of system B referred to in point 1.1(iv) of Annex II to that directive, to the regimes established by the provisions of Articles 5 and 8 of, and Annexes II and V to, that directive.
41 In the light of all of the foregoing, the answer to the first question is that the first indent of Article 5(1) and Article 8 of Directive 2000/60, read in conjunction with Annexes II and V to that directive, must be interpreted as meaning that a lake with a surface area below 0.5 km² is not covered by the obligation to establish its type-specific reference conditions or by the obligation to establish programmes for the monitoring of water status, which are laid down in those provisions.
The second question
42 Given the answer to the first question, there is no need to answer the second question.
The third question
43 By its third question, the referring court asks, in essence, what are the obligations on a competent authority under Directive 2000/60 when such authority decides on an application for development consent for a project which potentially affects a lake in respect of which, because its surface area is below 0.5 km², neither its type-specific reference conditions nor a programme for the monitoring of water status have been established pursuant to the first indent of Article 5(1) and Article 8 of Directive 2000/60, read in conjunction with Annexes II and V to that directive, respectively.
44 In order to answer that question, it should be recalled at the outset that recital 25 of Directive 2000/60 states that 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. Article 1(a) of Directive 2000/60 provides that the purpose of that directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which prevents further deterioration and protects and enhances the status of aquatic ecosystems and terrestrial ecosystems directly depending on the aquatic ecosystems. Lastly, Article 4(1) of that directive specifies the environmental objectives which the Member States are required to achieve (see, to that effect, judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraphs 35, 36 and 38).
45 Article 4(1) of that directive, which seeks to make operational the programmes of measures provided for in the river basin management plan, pursues two separate, albeit intrinsically linked, objectives. First, in accordance with Article 4(1)(a)(i) of Directive 2000/60, the Member States are to implement the necessary measures to prevent deterioration of the status of all bodies of surface water (obligation to prevent deterioration). Second, pursuant to Article 4(1)(a)(ii), the Member States are to protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) of that provision as regards artificial and heavily modified bodies of water, with the aim of achieving good status by the end of 2015 at the latest (obligation to enhance) (judgment of 21 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 39).
46 In so far as Article 4(1)(a)(i) and (ii) accordingly refers to ‘all bodies of surface water’, it must be observed that Article 2(10) of Directive 2000/60 defines a ‘body of surface water’ as constituting ‘a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, part of a stream, river or canal, a transitional water or a stretch of coastal water’ and Article 2(5) of that directive defines a ‘lake’ as being ‘a body of standing inland surface water’, without referring to any sort of threshold.
47 However, it should be recalled that, in accordance with settled case-law, it is necessary, when interpreting a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 26 April 2022, Landespolizeidirektion Steiermark (Maximum duration of internal border control), C‑368/20 and C‑369/20, EU:C:2022:298, paragraph 56 and the case-law cited).
48 In that regard, it should be noted, as regards Article 4(1)(a)(i) and (ii) of Directive 2000/60, that, in order to set the scope of the obligations to prevent deterioration and to enhance bodies of surface water, recalled in paragraph 45 of the present judgment, that provision also refers to the ‘status’ of those bodies of water. ‘Surface water status’ is defined in Article 2(17) of that directive as being ‘the general expression of the status of a body of surface water, determined by the poorer of its ecological status and its chemical status’, ‘ecological status’ being defined, in Article 2(21), as being ‘an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters, classified in accordance with Annex V’.
49 As has been stated in paragraph 35 of the present judgment, it is apparent from Table 1.2 of Annex V, entitled ‘General definition for rivers, lakes, transitional waters and coastal waters’, that ecological status classifications are envisaged only with regard to surface water body ‘types’. In addition, that Annex V refers to surface water body ‘types’ also when it lays down, in point 1.2.6, the procedure for the setting of chemical quality standards by the Member States.
50 Accordingly, it follows from the wording of Article 4(1)(a)(i) and (ii) of Directive 2000/60, interpreted in their context, that, like the obligations arising from the first indent of Article 5(1) and Article 8 of that directive, and subject to the option referred to in paragraph 30 of the present judgment, which is available to the Member States, to group surface water bodies together for the purposes of the initial characterisation, the two obligations laid down in Article 4(1)(a)(i) and (ii) do not cover lakes with a surface area below 0.5 km².
51 That interpretation is borne out by the fact that that Article 4 and the obligations established by it form part of, and are the culmination of, a complex process set up by Directive 2000/60.
52 As is apparent from the case-law referred to in paragraph 26 of the present judgment, in order to ensure that Member States achieve the environmental objectives pursued by Directive 2000/60 and set out in Article 4(1) of that directive, that directive lays down a series of provisions, in particular Articles 5 and 8 of, and Annexes II and V to, that directive, establishing a complex process involving a number of extensively regulated stages, for the purpose of enabling the Member States to implement the necessary measures, on the basis of the specific features and characteristics of the bodies of water identified in their territories.
53 It would accordingly be incompatible with the scheme of Directive 2000/60, and in particular with the complex nature of the process established by that directive, if the binding nature of the environmental objectives specified in Article 4(1) of that directive were also to concern surface water bodies which, in accordance with that directive, did not, and were not required to, undergo two stages of that process, namely the stages laid down in Articles 5 and 8 of that directive, for which the rationale is, however, to enable the data which is necessary to achieve those objectives to be obtained.
54 Furthermore, as regards the obligation to prevent deterioration of the status of bodies of surface water, referred to in Article 4(1)(a)(i) of Directive 2000/60, the Court has expressly held, on a number of occasions, that that obligation remains binding at each stage of implementation of that directive and is applicable to ‘every surface water body type’ and status for which a management plan has or ought to have been adopted (judgments of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland, C‑461/13, EU:C:2015:433, paragraph 50, of 4 May 2016, Commission v Austria, C‑346/14, EU:C:2016:322, paragraph 64; and of 5 May 2022, Association France Nature Environnement (Temporary impacts on surface water), C‑525/20, EU:C:2022:350, paragraph 25).
55 That said, it must be pointed out, as the Advocate General observed, in essence, in point 59 of his Opinion, that since surface waters can prove to be naturally connected with one another, the quality of a small surface water element can affect the quality of another larger element.
56 In addition, it is settled case-law that Article 4(1)(a)(i) to (iii) of Directive 2000/60 must be interpreted as meaning that Member States are required – unless a derogation is granted – to refuse to grant consent 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 (judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation, C‑664/15, EU:C:2017:987, paragraph 31 and the case-law cited).
57 Therefore, when a competent authority of a Member State assesses an application for development consent for a project which potentially affects a lake with a surface area below 0.5 km², it is not to limit that assessment to the effects of the project on that lake. On the contrary, in order to determine whether that project may cause a deterioration of the status of a surface water body or compromise the attainment of good surface water status or of good ecological potential and good chemical status of such waters, it is to take into account the water bodies to which that lake is connected.
58 It follows that the competent authority of a Member State is also required – unless a derogation is granted – to refuse consent for an individual project where it may cause – on account of its effects on a lake which, given its surface area is below 0.5 km², was not characterised pursuant to Article 5 of, and Annex II to, Directive 2000/60 and in respect of which a programme for the monitoring of water status has not, for the same reason, been established pursuant to Article 8 of and Annex V to that directive – a deterioration of the status of another surface water body which has been or ought to have been identified by that Member State as constituting a surface water body ‘type’ or where it may compromise the attainment of good surface water status or of good ecological potential and good chemical status of such other surface water body.
59 In that context, it should be recalled in particular that, in accordance with Article 4(8) of Directive 2000/60 as regards the application of, inter alia, Article 4(7) thereof, a Member State is to ensure that the application does not permanently exclude or compromise the achievement of the objectives of that directive in other bodies of water within the same river basin district and is consistent with the implementation of other EU environmental legislation.
60 In the present case, the referring court has specified, in response to a written question from the Court, that the lake at issue in the main proceedings is linked to the Kilkieran Bay and Islands Special Area of Conservation by a direct tidal connection. Furthermore, the applicant in the main proceedings states, in his written observations, that it follows from a hydrological feasibility assessment carried out by Bradán Beo Teoranta dating from July 2017 that the lake interconnects with other lakes.
61 It will be for the referring court to ascertain whether those other lakes or, as the case may be, a stretch of coastal water have been or ought to have been identified by Ireland as constituting surface water body ‘types’ and, if so, whether the achievement of the project at issue in the main proceedings may affect the status of those surface water bodies or, as the case may be, of another surface water body which has been or ought to have been identified as being a surface water body ‘type’.
62 Furthermore, it will be for the referring court to ascertain whether the achievement of the project at issue in the main proceedings is compatible with the measures implemented pursuant to the programme established, in accordance with Article 11 of Directive 2000/60, for the river basin district concerned.
63 While, in accordance with Article 11(1) of that directive, such a programme of measures must ‘tak[e] account of the results of the analyses required under Article 5’ of Directive 2000/60, it follows from the wording of Article 11 thereof that the scope of a programme of measures is not limited solely to the surface water body ‘types’ characterised in the implementation of Article 5 of, and Annex II to, that directive.
64 In particular, Article 11(3)(c) of Directive 2000/60 provides that the ‘basic measures’, which must be included in each programme of measures and constitute the minimum requirements to be complied with, must include measures to promote an efficient and sustainable water use in order to avoid compromising the achievement of the objectives specified in Article 4 of that directive.
65 In view of the considerations in paragraph 55 of the present judgment, protection of waters falling within surface water bodies which, like the lake at issue in the main proceedings, have not been and did not have to be identified by the Member State concerned as constituting surface water body ‘types’ may prove necessary in that context.
66 That interpretation is borne out by Guidance Document No.2, mentioned in paragraph 39 of the present judgment. While confirming that there is no obligation to identify lakes with a surface area below 0.5 km² as surface water body ‘types’, that document highlights the fact that ‘the purposes of [Directive 2000/60] apply to all surface waters’ and advocates that the basic measures listed in Article 11(3) of that directive be applied to so-called small elements of surface water at the very least ‘where necessary in order not to compromise the achievement of objectives in other water bodies’.
67 For the same reason, it may prove necessary to apply controls over the abstraction of water, referred to in Article 11(3)(e) of Directive 2000/60 and point (viii) of Part B of Annex VI thereto, even to surface water bodies which have not been and did not have to be identified as constituting surface water body ‘types’.
68 It will accordingly be for the referring court to ascertain whether such measures apply to the lake at issue in the main proceedings pursuant to a programme of measures adopted by Ireland in accordance with Article 11 of Directive 2000/60 and whether the achievement of the project at issue in the main proceedings is compatible with those measures.
69 In the light of all of the foregoing, the answer to the third question is that Article 4(1)(a) and Article 11 of Directive 2000/60 must be interpreted as requiring a competent authority – when it decides on an application for development consent for a project which potentially affects a lake in respect of which, because its surface area is below 0.5 km², neither its type-specific reference conditions, nor a programme for the monitoring of water status has been established pursuant to the first indent of Article 5(1) and Article 8 of Directive 2000/60, read in conjunction with Annexes II and V to that directive respectively – to satisfy itself, first, that the achievement of such a project is not liable to cause, on account of its effects on such a lake, a deterioration of the status of another surface water body which has been or ought to have been identified by that Member State as constituting a surface water body ‘type’, nor is it liable to compromise the attainment of good surface water status or of good ecological potential and good chemical status of such other surface water body and, second, that the achievement of that project is compatible with the measures implemented pursuant to the programme established, in accordance with Article 11 of that directive, for the river basin district concerned.
Costs
70 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. The first indent of Article 5(1) and Article 8 of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, read in conjunction with Annexes II and V to that directive,
must be interpreted as meaning that a lake with a surface area below 0.5 km² is not covered by the obligation to establish its type-specific reference conditions or by the obligation to establish programmes for the monitoring of water status, which are laid down in those provisions.
2. Article 4(1)(a) and Article 11 of Directive 2000/60
must be interpreted as requiring a competent authority – when it decides on an application for development consent for a project which potentially affects a lake in respect of which, because its surface area is below 0.5 km², neither its type-specific reference conditions, nor a programme for the monitoring of water status has been established pursuant to the first indent of Article 5(1) and Article 8 of Directive 2000/60, read in conjunction with Annexes II and V to that directive respectively – to satisfy itself, first, that the achievement of such a project is not liable to cause, on account of its effects on such a lake, a deterioration of the status of another surface water body which has been or ought to have been identified by that Member State as constituting a surface water body ‘type’, nor is it liable to compromise the attainment of good surface water status or of good ecological potential and good chemical status of such other surface water body and, second, that the achievement of that project is compatible with the measures implemented pursuant to the programme established, in accordance with Article 11 of that directive, for the river basin district concerned.
Delivered in open court in Luxembourg on 25 April 2024.
A. Calot Escobar | | A. Prechal |
Registrar | | President of the Chamber |