OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 13 January 2022 (1)
Case C‑525/20
Association France Nature Environnement
v
Premier ministre,
Ministre de la Transition écologique et solidaire
(Request for a preliminary ruling
from the Conseil d’État (Council of State, France))
(Reference for a preliminary ruling – Environment – Directive 2000/60/EC – Framework for European Union action in the field of water policy – Article 4(1)(a) – Environmental objectives relating to surface water – Obligation of the Member States not to authorise a project that may cause a deterioration of the status of a body of water – Concept of ‘deterioration’ of the status of a body of surface water – Arrangements for assessment – Article 4(6) and (7) – Derogations from the prohibition of deterioration – Conditions – Programme or project having temporary, short-term impacts on the status of a body of water which are without lasting consequences)
I. Introduction
1. As is stated in recital 1 of Directive 2000/60/EC, (2) ‘water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such’. With global warming, (3) the need to ensure the protection of this common asset in the European Union takes on even greater importance.
2. That directive provides an overall framework within which EU, national and regional authorities can develop integrated and coherent water policies. (4) With this in view, one of the directive’s objectives is to prevent deterioration of the status of all bodies of surface water in the European Union.
3. In the main proceedings, the Premier ministre (Prime Minister) of the French Republic adopted a decree under which, when assessing whether programmes and administrative decisions are compatible with the objective of preventing deterioration of water quality, account is not to be taken of ‘temporary, short-term impacts without lasting consequences’. Association France Nature Environnement has brought an action on grounds of misuse of powers before the Conseil d’État (Council of State, France), claiming that this provision is not consistent with Directive 2000/60, which prohibits any deterioration, even temporary, of the status of bodies of surface water.
4. The Court is thus called upon to examine whether Article 4(1) of that directive permits the competent national authorities, during the authorisation procedure for an individual programme or project, not to take into account temporary, short-term impacts on the status of a body of surface water which are without lasting consequences and, if so, under what conditions the derogations from the prohibition of deterioration of a body of water under Article 4(6) and (7) may be applicable.
II. Legal context
A. European Union law
5. According to recitals 1, 25 and 33 of Directive 2000/60:
‘(1) Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such.
…
(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.’
6. Article 1 of the directive, entitled ‘Purpose’, provides:
‘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;
…’
7. 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;
…
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;
…’
8. 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;
…
6. Temporary deterioration in the status of bodies of water shall not be in breach of the requirements of this Directive if this is the result of circumstances of natural cause or force majeure which are exceptional or could not reasonably have been foreseen, in particular extreme floods and prolonged droughts, or the result of circumstances due to accidents which could not reasonably have been foreseen, when all of the following conditions have been met:
(a) all practicable steps are taken to prevent further deterioration in status and in order not to compromise the achievement of the objectives of this Directive in other bodies of water not affected by those circumstances;
(b) the conditions under which circumstances that are exceptional or that could not reasonably have been foreseen may be declared, including the adoption of the appropriate indicators, are stated in the river basin management plan;
(c) the measures to be taken under such exceptional circumstances are included in the programme of measures and will not compromise the recovery of the quality of the body of water once the circumstances are over;
(d) the effects of the circumstances that are exceptional or that could not reasonably have been foreseen are reviewed annually and, subject to the reasons set out in paragraph 4(a), all practicable measures are taken with the aim of restoring the body of water to its status prior to the effects of those circumstances as soon as reasonably practicable, and
(e) a summary of the effects of the circumstances and of such measures taken or to be taken in accordance with paragraphs (a) and (d) are included in the next update of the river basin management plan.
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.
…’
9. Article 8 of Directive 2000/60, entitled ‘Monitoring of surface water status, groundwater status and protected areas’, reads as follows:
‘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.
…’
10. Sections 1.3, 1.3.1 and 1.3.4 of Annex V to the directive provide:
‘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.
…
1.3.1. Design of surveillance monitoring
…
Selection of monitoring points
Surveillance monitoring shall be carried out of sufficient surface water bodies to provide an assessment of the overall surface water status within each catchment or subcatchments within the river basin district. In selecting these bodies Member States shall ensure that, where appropriate, monitoring is carried out at points where:
– the rate of water flow is significant within the river basin district as a whole; including points on large rivers where the catchment area is greater than 2 500 km2,
– the volume of water present is significant within the river basin district, including large lakes and reservoirs,
– significant bodies of water cross a Member State boundary,
– sites are identified under the Information Exchange Decision 77/795/EEC, [(5)] and
at such other sites as are required to estimate the pollutant load which is transferred across Member State boundaries, and which is transferred into the marine environment.
…
1.3.4. Frequency of monitoring
For the surveillance monitoring period, the frequencies for monitoring parameters indicative of physico-chemical quality elements given below should be applied unless greater intervals would be justified on the basis of technical knowledge and expert judgement. For biological or hydromorphological quality elements monitoring shall be carried out at least once during the surveillance monitoring period.
For operational monitoring, the frequency of monitoring required for any parameter shall be determined by Member States so as to provide sufficient data for a reliable assessment of the status of the relevant quality element. As a guideline, monitoring should take place at intervals not exceeding those shown in the table below unless greater intervals would be justified on the basis of technical knowledge and expert judgement.
Frequencies shall be chosen so as to achieve an acceptable level of confidence and precision. Estimates of the confidence and precision attained by the monitoring system used shall be stated in the river basin management plan.
Monitoring frequencies shall be selected which take account of the variability in parameters resulting from both natural and anthropogenic conditions. The times at which monitoring is undertaken shall be selected so as to minimise the impact of seasonal variation on the results, and thus ensure that the results reflect changes in the water body as a result of changes due to anthropogenic pressure. Additional monitoring during different seasons of the same year shall be carried out, where necessary, to achieve this objective.
Quality element | Rivers | Lakes | Transitional | Coastal |
Biological | |
Phytoplankton | 6 months | 6 months | 6 months | 6 months |
Other aquatic flora | 3 years | 3 years | 3 years | 3 years |
Macro invertebrates | 3 years | 3 years | 3 years | 3 years |
Fish | 3 years | 3 years | 3 years |
|
Hydromorphological | |
Continuity | 6 years |
|
|
|
Hydrology | continuous | 1 month |
|
|
Morphology | 6 years | 6 years | 6 years | 6 years |
Physico-chemical | |
Thermal conditions | 3 months | 3 months | 3 months | 3 months |
Oxygenation | 3 months | 3 months | 3 months | 3 months |
Salinity | 3 months | 3 months | 3 months |
|
Nutrient status | 3 months | 3 months | 3 months | 3 months |
Acidification status | 3 months | 3 months |
|
|
Other pollutants | 3 months | 3 months | 3 months | 3 months |
Priority substances | 1 month | 1 month | 1 month | 1 month |
…’
11. Section 2.4 of Annex V to the directive concerns monitoring of groundwater chemical status and provides, inter alia, in section 2.4.1 thereof, that ‘[t]he monitoring network shall be designed so as to provide a coherent and comprehensive overview of groundwater chemical status within each river basin and to detect the presence of long-term anthropogenically induced upward trends in pollutants’.
B. French law
12. Article L. 212-1 of the Code de l’environnement (Environmental Code), in its version applicable in the main proceedings, states:
‘I. – The administrative authority shall define the basins or groups of basins, determining, where applicable, the groundwater bodies and the inland and territorial maritime waters assigned to them.
…
III. – Each river basin or group of river basins shall have one or more water development and management masterplans setting the objectives referred to in paragraph IV of this article and the guidelines for complying with the principles laid down in Articles L. 211-1 and L. 430-1. …
IV. – The water quality and quantity objectives set by the water development and management masterplans shall correspond:
1 for surface waters, except for bodies of water that are artificial or heavily modified by human activity, to a good ecological and chemical status;
…
4 to prevention of deterioration of water quality;
…
VII. – Modifications to the physical characteristics of waters or the exercise of new human activity may justify, under conditions defined by the decree provided for in paragraph XIII, reasoned derogations from compliance with the objectives mentioned in subparagraphs 1 to 4 of paragraph IV and in paragraph VI.
…
XI. – Programmes and administrative decisions in the field of water policy shall be compatible or made compatible with the provisions of the water development and management masterplans.
…
XIII. – A decree issued by the Conseil d’État [(Council of State)] shall determine the detailed rules for the application of this article.’
13. Article R. 212-13 of the Code de l’environnement, as amended by Decree No 2018-847, (6) provides:
‘For the purposes of the application of subparagraph 4 of paragraph IV of Article L. 212-1, prevention of deterioration of water quality shall consist in ensuring that:
– for the ecological status and ecological potential of surface waters, none of the quality elements characterising that status or potential is at a lower level than that which characterised it previously;
– for chemical status for surface waters, concentrations of pollutants do not exceed the environmental quality standards where they did not exceed them previously;
…
When assessing whether the programmes and administrative decisions mentioned in paragraph XI of Article L. 212-1 are compatible with the objective of preventing the deterioration of water quality mentioned in subparagraph 4 of paragraph IV of that article, account shall be taken of avoidance and reduction measures and account shall not be taken of temporary, short-term impacts without lasting consequences.’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
14. By an application and a further pleading, lodged on 1 April 2019 and 22 September 2020 respectively, Association France Nature Environnement brought an action against the Prime Minister and the Ministre de la Transition écologique et solidaire (Minister for Ecological and Inclusive Transition) before the Conseil d’État (Council of State) seeking the annulment, on grounds of misuse of powers, of Decree No 2018-847, in so far as it provides for a final paragraph to be added to Article R. 212-13 of the Code de l’environnement, according to which, when assessing whether programmes and administrative decisions adopted in the field of water policy are compatible with the objective of preventing deterioration of water quality, ‘account shall not be taken of temporary, short-term impacts without lasting consequences’ (‘the provision at issue’), and the implicit decision resulting from the Prime Minister’s refusal to grant its application for the withdrawal of that provision.
15. In support of its action, that association claimed that the provision at issue infringed Directive 2000/60, in particular Article 4(1) thereof, which prohibits any deterioration, whether temporary or lasting, of the status of bodies of water.
16. The referring court observes that, in its judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C‑461/13, EU:C:2015:433), (7) the Court ruled that Article 4(1)(a)(i) to (iii) of Directive 2000/60 must be interpreted as meaning that the Member States are required – unless a derogation is granted – to refuse authorisation 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.
17. According to the referring court, it follows from Directive 2000/60 that the Member States are required to refuse authorisation for an individual project where, inter alia, it may cause deterioration of the status of a body of surface water, subject to two derogations provided for in Article 4(6) and (7) of that directive.
18. Before that court, the Minister for Ecological and Inclusive Transition argued that the provision at issue does not fall within the derogation laid down in Article 4(6) of Directive 2000/60, which must be the result of circumstances of natural cause or force majeure, but rather the derogation provided for in Article 4(7), under which deteriorations in the status of a body of water resulting from new sustainable human development activities do not constitute an infringement of that directive provided that four cumulative conditions mentioned in that paragraph are met. She produced a document drawn up in December 2017 by the relevant authorities of the Member States and the European Commission, according to which, where such activities have only a temporary, short-term impact on the status of a body of water which is without lasting consequences, they may be authorised without that authorisation being made subject to compliance with the conditions mentioned in Article 4(7) thereof.
19. Under these circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 4 of [Directive 2000/60] be interpreted as permitting Member States, when authorising a programme or project, not to take into account their temporary, short-term impacts on surface water status which are without lasting consequences?
(2) If so, what conditions should those programmes and projects meet for the purposes of Article 4 of [Directive 2000/60] and in particular paragraphs 6 and 7 thereof?’
20. Written observations have been submitted by Association France Nature Environnement, the French, Czech and Netherlands Governments and the Commission. Association France Nature Environnement, the French and Netherlands Governments and the Commission also presented oral argument at the hearing held on 28 October 2021.
IV. Analysis
21. By its two questions, which should be examined together, the referring court asks, in essence, whether Article 4 of Directive 2000/60 must be interpreted as permitting Member States, when assessing whether an individual programme or project is compatible with the objective of preventing deterioration of water quality, not to take into account temporary, short-term impacts on the status of a body of surface water which are without lasting consequences and, if so, what conditions that programme or project should meet in order to be authorised having regard to Article 4(6) and (7).
22. It should be pointed out in that connection that Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC (now Article 192(1) TFEU). It establishes common principles and an overall framework for action in relation to water protection and coordinates, integrates and, in a longer perspective, develops the overall principles and the structures for protection and sustainable use of water in the European Union. The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States by means of the adoption of individual measures in accordance with the timescales laid down in the directive. However, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water. (8)
23. Under Article 1(a) of the directive, the purpose of the 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, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems.
24. As a preliminary point, I note that in its first question the referring court mentions ‘surface water’ status. The analysis below will therefore focus on ‘surface water’ as defined in Article 2(1) of Directive 2000/60.
25. In that regard, Article 4(1)(a)(i) of the directive provides that, in making operational the programmes of measures specified in the river basin management plans for surface waters, Member States are to 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 of that article.
26. According to the Court’s settled case-law, Article 4(1)(a) of Directive 2000/60 does not simply set out, in programmatic terms, mere management-planning objectives, but imposes an obligation to prevent deterioration of the status of bodies of water that has binding effects on Member States once the ecological status of the body of water concerned has been determined, at each stage of the procedure prescribed by that directive. (9)
27. In other words, Article 4 of that directive not only contains more long-term planning requirements provided for by management plans and programmes of measures, but also concerns specific projects to which the prohibition of deterioration of the status of bodies of water also applies. (10) A Member State is consequently 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 status’ for bodies of surface water or groundwater, subject to the derogations also provided for in Article 4. (11)
28. Therefore, during the procedure for approval of a project, and thus before the decision is taken, the competent national authorities are required, under Article 4 of Directive 2000/60, to check whether that project may have adverse effects on water which would be contrary to the requirements to prevent deterioration and to improve the status of bodies of surface water and groundwater. That provision therefore precludes such a check from taking place only after that time. (12)
29. The concept of ‘deterioration of the status’ of a body of surface water is not defined in the directive. (13) However, the Court has provided important clarifications as regards the criteria for concluding that there is a deterioration of the status of a body of water. The Court thus noted that it is clear from the scheme of Article 4 of the directive, in particular Article 4(6) and (7), that a deterioration of the status of a body of water, even if transitory, is authorised only subject to strict conditions. It follows that the threshold beyond which breach of the obligation to prevent deterioration of the status of a body of water is established must be as low as possible. (14)
30. In that regard, the concept of ‘deterioration of the status’ of a body of surface water, referred to in Article 4(1)(a)(i) of Directive 2000/60, must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, referred to in Annex V to that directive, (15) falls by one class, even if that fall does not result in a fall in classification of the body of water in question as a whole. However, if the quality element concerned is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water, within the meaning of that provision. (16)
31. The Court has stated that, unless a derogation is granted, any deterioration of the status of a body of water must be prevented, irrespective of the longer term planning provided for by management plans and programmes of measures, and that the obligation to prevent deterioration of the status of bodies of surface water remains binding at each stage of implementation of Directive 2000/60 and is applicable to every surface water body type and status for which a management plan has or should have been adopted. (17) In addition, the concept of ‘deterioration of the status’ of bodies of water must be interpreted by reference to both a quality element and a substance. Thus, the obligation to prevent deterioration of the status of a body of water retains all its practical effect, on condition that it encompasses all changes liable to undermine achievement of the principal objective of Directive 2000/60. (18)
32. It is thus clear from the Court’s case-law that, first, under the directive, the competent national authorities are required, during the authorisation procedure for an individual programme or project, to check whether it may cause deterioration of the status of the bodies of surface water concerned. Second, all deteriorations of the status of a body of water, as determined by the Court, are covered, including those which are transitory.
33. It is true that the interpretation of the concept of ‘deterioration’ of the status of a body of water adopted, inter alia, by the Court, sitting as the Grand Chamber, in the judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C‑461/13, EU:C:2015:433), might seem demanding for the Member States, which may authorise a programme or project only subject to strict conditions, including where the deterioration is likely to be short-term. (19) However, as the Court stated in that judgment, that interpretation is based on the terms in which Article 4(1)(a)(i) of Directive 2000/60 is couched and the context of that provision. (20)
34. In the present case, the provision at issue states that, when assessing whether programmes and administrative decisions in the field of water policy are compatible with the objective of preventing deterioration of water quality, ‘account shall not be taken of temporary, short-term impacts without lasting consequences’. (21)
35. Such impacts can take various forms but, in the light of Directive 2000/60, the benchmark is whether or not there is a deterioration of the status of the body of water concerned.
36. It is evident from the provision at issue that failure to take into account temporary, short-term impacts without lasting consequences occurs at the stage of the authorisation procedure for a programme or project. That provision is based on the idea that such impacts are likely to have non-significant (22) effects on the status of the body of surface water concerned. However, it is not entirely clear how that provision should be construed.
37. On a first possible interpretation of the provision at issue, the competent national authorities consider, prima facie and without an effective check, that certain programmes or projects will not, in view of their characteristics, cause deterioration of the status of the body of surface water concerned. In that sense, that provision would contain a petitio principii where it is assumed that for those programmes or projects there is no adverse impact on the status of that body of water. In this regard, as Association France Nature Environnement noted at the hearing, the provision does not establish as a condition an analysis of the impacts of a programme or project on at least one of the quality elements referred to in Annex V to Directive 2000/60, which determine the classification of the body of water concerned. If that interpretation is the one adopted by the competent national authorities, it would seem to raise a conceptual problem. How is it possible, without an effective check, to determine that the effects of a programme or project on the status of a body of water will be non-significant?
38. Such an interpretation would not therefore be consistent with Directive 2000/60. (23) According to the Court’s case-law, during the procedure for approval of a project, the Member States are required, under Article 4 of that directive, to check whether that project may cause deterioration of the status of a body of water, even if transitory. (24) Consequently, all programmes and projects must be the subject of an effective assessment of the effects which they may have on the status of the body of water concerned.
39. In its written observations, the French Government does not specify how the provision at issue is interpreted. It observes that, ‘nevertheless’, under the national legislation, there must be a detailed analysis of all the impacts on water of an individual project, whether its temporary, short-term impacts without lasting consequences or risks of deterioration of the status of bodies of water, in the studies enclosed with the authorisation application dossier for the project in question. In addition, any project is accompanied by measures to limit its impacts, including on the status of bodies of water, from its conception to its completion.
40. It is not clear, however, whether the provision at issue in itself requires such an analysis or whether, on the contrary, it exempts the national authorities from carrying out such an analysis, which is based on other provisions of national law. As the Court has been asked whether the provision at issue is compatible with Directive 2000/60, it is important to ascertain the precise meaning of that provision.
41. In this regard, according to settled case-law, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. (25) That court must therefore determine what interpretation of the provision at issue is adopted by the competent national authorities. If that interpretation consists in refraining, in the authorisation procedure, from carrying out an effective check of the effects of a programme or project on the status of the body of water concerned on the ground that those effects are deemed to be non-significant, I take the view, as has already been stated, that such an interpretation is not consistent with Article 4 of Directive 2000/60.
42. On the other hand, if the second possible interpretation of the provision at issue is applied, namely that it requires an effective check to be carried out during the authorisation procedure of the effects of a programme or project on the status of the body of surface water concerned, further analysis is warranted.
43. The problem with this check stems from the fact that it is based on a prior assessment of the effects of the programme or project in question on the status of the body of surface water, which are inherently difficult to determine, especially since a body of water is a dynamic system whose status can change over time, even without human intervention. This problem, which by definition arises for any environmental impact study, means that the check must be based on previously established scientific models.
44. Therefore, as the Commission noted in its written observations, it must take the form of a detailed and reasoned assessment based on calculations, modelling techniques or estimates providing a sufficiently precise understanding of the effects, in time and space, of the programme or project on the status of the body of surface water concerned, in the light of its characteristics and status prior to the implementation of the programme or project. (26) That check will have to take into account any other relevant circumstance, such as the existence of possible cumulative effects of multiple programmes or projects or the presence of multiple bodies of surface water which would be affected, in order to meet the environmental objectives defined in Article 4 of Directive 2000/60.
45. If, following their assessment, the competent national authorities reach the conclusion that the programme or project concerned is liable to cause only non-significant and reversible effects on the status of the body of surface water and that, accordingly, there will not be a ‘deterioration’ within the meaning of Article 4(1)(a)(i) of Directive 2000/60, that programme and project may be authorised pursuant to the directive.
46. However, if the assessment conducted by the competent national authorities leads them to believe that the programme or project being assessed may cause a ‘deterioration’ of the status of the body of surface water concerned, the derogations provided for in Article 4 of Directive 2000/60 should then be applied. (27)
47. How can it be determined whether a ‘deterioration’ of the status of a body of water within the meaning of Article 4(1)(a)(i) of the directive is liable to occur having regard to the temporary, short-term impacts without lasting consequences mentioned in the provision at issue? (28)
48. In its written observations, the Commission argues that, in assessing what constitutes a temporary, short-term impact that does not result in ‘deterioration’ within the meaning of that provision, the monitoring frequencies indicated in the table in section 1.3.4 of Annex V to Directive 2000/60, to which Article 8 of the directive refers, could be used as a reference by the competent national authorities called on to authorise an individual project. Those authorities may wish to consider that a one-off deterioration which has exhausted all its effects, that is to say, following which the affected quality element has returned to its previous status within an interval less than those frequencies, might not constitute ‘deterioration’ within the meaning of Article 4(1)(a)(i) of the directive.
49. I am not convinced by this argument. First, Directive 2000/60 does not make any distinction according to whether ‘deterioration’ is short-term or lasting. On the contrary, Article 4(6) of the directive mentions ‘temporary’ deterioration in the status of bodies of water, which means that this kind of deterioration is also covered by the directive. Thus, the Court has made reference to even transitory, (29) or transient, deteriorations. In other words, temporary deteriorations fall within the scope of Article 4(1)(a)(i) of the directive.
50. Second, from a practical point of view, section 1.3.4 of Annex V to Directive 2000/60 specifies that, for the surveillance monitoring period, different frequencies for monitoring parameters indicative of physico-chemical quality elements should be applied. Some are one month, such as for priority substances, others are three years, for macro-invertebrates and fish for example, and others still run to six years, namely for ‘continuity’ and ‘morphology’. For these latter two quality elements, the temporal criterion to be taken into account in determining whether deterioration will occur would then be six years. (30) I cannot see how such deterioration could be described as ‘temporary, short-term’.
51. In other words, the reference to the monitoring frequencies mentioned in section 1.3.4 of Annex V to Directive 2000/60 does not seem to be a relevant criterion in assessing deterioration of the status of a body of surface water, even though, according to the Court’s case-law, the threshold beyond which breach of the obligation to prevent deterioration of the status of a body of water is found must be as low as possible and that obligation encompasses all changes liable to undermine achievement of the principal objective of that directive. (31)
52. In any event, it does not appear from the file submitted to the Court that the relevant French legislation makes reference to the monitoring frequencies provided for in Annex V to the directive.
53. Furthermore, the Netherlands Government asserts that, under the directive, first, the monitoring cycle, frequency and points are selected so that the measurement data can provide a representative and reliable picture of the status of a quality element or substance in the body of surface water as a whole. Second, the data obtained at each monitoring point are converted into a single value, which is aggregated both spatially and temporally. Lastly, a quality element or a substance in a body of water is classified by means of an assessment of the calculated and aggregated value of that quality element or substance having regard to the classification rules laid down in Directive 2000/60.
54. I note in that regard that the Court has held that it is clear from the role and the importance of each monitoring site in the system for monitoring groundwater quality established by Directive 2000/60, in particular in section 2.4 of Annex V thereof, that the failure to comply with one quality element at a single monitoring point is sufficient for a finding that there is a deterioration of the status of a body of groundwater for the purposes of Article 4(1) of that directive. In accordance with section 2.4 of Annex V to that directive, the location of monitoring points must provide a coherent and comprehensive overview of groundwater chemical status within each river basin. To that end, that provision lays down various criteria in respect of the selection of monitoring sites which, as confirmed by Article 4(3) of Directive 2006/118/EC, (32) must provide representative monitoring data. Thus, the failure to comply with one quality element at a single monitoring point indicates the existence, for the purposes of Article 4(1)(b)(i) of Directive 2000/60, of a deterioration of the chemical status of at least a significant part of a body of groundwater. (33)
55. The Commission stated at the hearing that, in the light of this line of case-law of the Court, it cannot see how a short-term, completely reversible alteration could be regarded as sufficiently representative and significant in respect of the status of a body of surface water.
56. It is true that this case-law concerns groundwater and the Court made reference to section 2.4 of Annex V to Directive 2000/60, according to which the monitoring network is to be designed so as to provide a coherent and comprehensive overview of groundwater chemical status within each river basin and to detect the presence of long-term anthropogenically induced upward trends in pollutants.
57. However, in the same way for surface water, section 1.3 of Annex V to that directive provides that ‘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’. (34) Section 1.3.1 of that Annex states that monitoring is to be carried out at significant points within the river basin district with regard to the rate of water flow and the volume of water present.
58. In addition, according to recital 33 of Directive 2000/60, measures in respect of surface water and groundwater belonging to the same ecological, hydrological and hydrogeological system must be coordinated. Such coordination would not be ensured if a distinction were made between how representative monitoring points are for groundwater quality and for surface water quality.
59. In these circumstances, I take the view that the case-law concerning the arrangements for assessing a chemical deterioration of groundwater status can be applied to surface water. I therefore propose that the Court find that the failure to comply with one quality element at a single monitoring point indicates the existence, for the purposes of Article 4(1)(a)(i) of Directive 2000/60, of a deterioration of the status of at least a significant part of a body of surface water.
60. I would add that, at the hearing, the Netherlands Government asserted that the dynamism of a body of surface water is much greater than that of a groundwater body and that natural and human factors, such as precipitation, drought, temperature, shipping and recreational activities, exert an influence. Because of that dynamism, the status of a body of surface water could not be determined based on a single measurement at a specific time.
61. However, I recall that the check to be carried out by the competent national authorities constitutes a prior assessment and must be based on previously established scientific models. (35) Within this framework, the authorities must examine the effects of the programme or project in question and determine the extent to which they, in themselves, lead to deterioration of the status of the body of water, irrespective of the dynamism of that body of water.
62. Where ‘deterioration’, within the meaning of that provision, of the status of a body of surface water may occur, reference should be made to the derogations provided for in Article 4 of Directive 2000/60.
63. In this regard, Article 4(6) of the directive provides that temporary deterioration in the status of bodies of water is not in breach of the requirements of that directive if this is the result of circumstances of natural cause or force majeure which are exceptional or could not reasonably have been foreseen, in particular extreme floods and prolonged droughts, or the result of circumstances due to accidents which could not reasonably have been foreseen, when certain conditions have been met.
64. In other words, that derogation applies a posteriori and relates to fortuitous causes of deterioration. As the French Government rightly noted, the deterioration of the status of a body of water that may be caused by a programme or project, by definition, does not fall within the scope of that provision.
65. Furthermore, Article 4(7) of Directive 2000/60 provides that Member States will not be in breach of that 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. Likewise, no breach can be found to have been committed by the Member States when 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. (36)
66. In other words, that provision applies to new modifications or alterations or new sustainable development activities, if a number criteria and conditions are fulfilled, (37) in relation to programmes and projects.
67. Thus, when a project is liable to have adverse effects on water, consent may be given to it only if the conditions set out in Article 4(7)(a) to (d) of Directive 2000/60 are satisfied. Without prejudice to the possibility of judicial review, the national authorities which are competent to authorise a project are required to review whether those conditions are satisfied before the grant of such an authorisation. (38)
68. According to the French Government, the provisions of Article 4 of Directive 2000/60 would be rendered inconsistent if it were held that temporary, short-term impacts without lasting consequences should be taken into account and could therefore justify the refusal to authorise the programme or project in question. While programmes or projects liable to cause deterioration of the status of the body of surface water could be authorised on the basis of Article 4(7) of the directive, those causing only temporary, short-term impacts without lasting consequences could be prohibited on that ground, without them having the possibility of authorisation by way of derogation under those same provisions. Such an interpretation would thus, paradoxically, make only programmes or projects which may cause deterioration of the status of the body of surface water concerned subject to the prohibition arrangements that are the least stringent, as they are accompanied by derogations.
69. I do not concur with this argument. All programmes or projects are subject to the same legal arrangements if they may cause ‘deterioration’ of the status of the body of surface water concerned. Therefore, even programmes or projects whose impacts are temporary, short-term and without lasting consequences, but which would result in such deterioration being caused, could be granted a derogation under Article 4(7) of Directive 2000/60.
70. Consequently, projects that may, in the short term, have adverse effects on the status of a body of surface water, such as renaturation activities, but which are positive in terms of environmental protection, could benefit from such derogation and be authorised accordingly.
71. At the hearing, the Netherlands Government stated that the application of the derogation under Article 4(7) of Directive 2000/60 is problematical for Member States, particularly as regards the associated costs.
72. However, the directive was designed to prevent, as far as possible, deterioration in the status of bodies of water. Accordingly, as is stated in recital 25 of the directive, 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. These ambitious objectives necessarily entail expenditure for Member States, which seems to be even more justified against the background of the current situation of climate change.
73. Lastly, the referring court mentions a guidance document endorsed by the EU Water Directors at their meeting in Tallinn (Estonia) on 4-5 December 2017, (39) according to which ‘if the status or potential of an element is affected only temporarily over a short period of time and is expected to recover within a short period of time, either naturally or as a result of mitigation, and there will be no long-term adverse consequences, such fluctuations do not constitute deterioration of status/potential and the application of an Article 4(7) Test will not be required. If the effects on water body status/potential are expected to be permanent or over a long period of time, such activities should be subject to an Article 4(7) Test’. (40)
74. The French, Czech and Netherlands Governments make reference to that document in arguing that the provision at issue is consistent with Article 4 of Directive 2000/60.
75. It should be noted in that regard that, as is expressly stated in that document, which is intended to facilitate the implementation of that directive, it is not legally binding and does not necessarily reflect the views of the Commission, only the Court being competent authoritatively to interpret EU legislation.
76. As I have stated, the definition of the concept of ‘deterioration’ within the meaning of Article 4(1)(a)(i) of Directive 2000/60 does not make any distinction according to whether deterioration is short-term or lasting. The only criterion to be taken into account in the authorisation procedure for a programme or project is whether or not ‘deterioration’ within the meaning of that provision is liable to occur. I therefore take the view that that document does not reflect the content of the directive, as interpreted by the Court.
77. In the light of all the foregoing, I consider that Article 4 of Directive 2000/60 requires Member States, when assessing whether an individual programme or project is compatible with the objective of preventing deterioration of water quality, take into account temporary, short-term impacts on the status of a body of surface water which are without lasting consequences. Where, in the authorisation procedure for a programme or project, the competent national authorities determine that it may cause ‘deterioration’, within the meaning of Article 4(1)(a)(i) of that directive and as interpreted by the Court, of the status of a body of surface water, that programme or project may be authorised only if the conditions laid down in Article 4(7)(a) to (d) of the directive are met.
V. Conclusion
78. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows:
Article 4 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 must be interpreted as requiring Member States, when assessing whether an individual programme or project is compatible with the objective of preventing deterioration of water quality, to take into account temporary, short-term impacts on the status of bodies of surface water which are without lasting consequences. Where, in the authorisation procedure for a programme or project, the competent national authorities determine that it may cause ‘deterioration’, within the meaning of Article 4(1)(a)(i) of that directive and as interpreted by the Court, of the status of a body of surface water, that programme or project may be authorised only if the conditions laid down in Article 4(7)(a) to (d) of the directive are met.