Case C‑301/22
Peter Sweetman
v
An Bord Pleanála
and
Ireland and the Attorney General
(Request for a preliminary ruling from the High Court (Ireland))
Judgment of the Court (Second Chamber) of 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 water – 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 0.5 km²)
1. Environment – EU action in the field of water policy – Directive 2000/60 – Obligation to establish type-specific reference conditions for surface water body types – Scope – Small lakes – Not included
(European Parliament and Council Directive 2000/60, first indent of Art. 5(1) and Annex II)
(see paragraphs 26-31, 41, operative part 1)
2. Environment – EU action in the field of water policy – Directive 2000/60 – Obligation to establish programmes for the monitoring of surface water status – Scope – Small lakes – Not included
(European Parliament and Council Directive 2000/60, Art. 8 and Annexes II and V)
(see paragraphs 32-41, operative part 1)
3. Environment – EU action in the field of water policy – Directive 2000/60 – Environmental objectives relating to surface water – Obligation to implement the necessary measures to improve the status of bodies of surface water and prevent their deterioration – Application for development consent for a project which potentially affects a small lake – Obligation for the competent authorities to assess the effect of such a project on other surface water bodies – Scope
(European Parliament and Council Directive 2000/60, Art. 4(1)(a))
(see paragraphs 45, 48-61, 69, operative part 2)
4. Environment – EU action in the field of water policy – Directive 2000/60 – Environmental objectives relating to surface water – Obligation to implement the necessary measures to improve the status of bodies of surface water and prevent their deterioration – Application for development consent for a project which potentially affects a small lake – Obligation on the competent authorities to ensure that the project is compatible with the programme of measures established for the river basin district concerned – Scope
(European Parliament and Council Directive 2000/60, Arts 4(1)(a) and 11)
(see paragraphs 62-69, operative part 2)
Résumé
Ruling on a request for a preliminary ruling from the High Court (Ireland), the Court of Justice clarifies Member States’ environmental obligations under Directive 2000/60 (1) in relation to small lakes situated in their territories.
In July 2018 An Bord Pleanála (Planning Board, Ireland) granted consent for a development project seeking to abstract freshwater from a lake with an area of 0.083 km² situated in County Galway (Ireland).
By judgment of 15 January 2021, the High Court set aside that decision granting consent on the ground that the Environmental Protection Agency (‘the EPA’) had failed to assign an ecological status to the lake in question, as required by Directive 2000/60.
After that judgment had been delivered, a party to the proceedings before the High Court sought the view of the EPA. In response, the EPA’s view was that the lake in question did not constitute a water body falling within Directive 2000/60.
Taking the view that the EPA’s position had the potential to affect the outcome of the case, the High Court decided to reopen the case and to put questions to the Court of Justice concerning Member States’ obligations under Directive 2000/60 regarding the characterisation and classification of the status of small lakes and regarding the conditions for authorising a project which potentially affects a small lake which has not been characterised nor has its status been classified under that directive.
Findings of the Court
As regards, in the first place, the obligation of the Member States to characterise lakes and classify their ecological status, the Court recalls that, in order to ensure the preservation or restoration of good status of surface water, Directive 2000/60 lays down a series of provisions 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.
As regards, more specifically, the Member States’ obligation to characterise lakes within their territory, Article 5 of Directive 2000/60 requires an analysis of the characteristics of each river basin district to be undertaken, according to the technical specifications set out in Annex II to that directive. It is clear from the wording of that annex that the obligation to establish type-specific reference conditions for surface water body types which it lays down does not relate to lakes with a surface area below 0.5 km².
Since Member States are not required to characterise, under Article 5 of, and Annex II to, Directive 2000/60, lakes with a surface area below 0.5 km², it follows logically that they are also not obliged to classify the ecological status of such lakes, in accordance with Article 8 of, and Annex V to, that directive. That interpretation is supported in particular by a combined reading of Annexes II and V to Directive 2000/60.
Nevertheless, those observations do not prevent the Member States which consider it appropriate to make certain types of lakes with a surface area below 0.5 km² subject to the characterisation and classification requirements laid down in Directive 2000/60.
In the second place, as regards national authorities’ obligations when authorising a project which potentially affects a small lake which has not been characterised or had its ecological status classified, the Court notes that the obligations to prevent deterioration and to enhance bodies of surface water, laid down in Article 4 of Directive 2000/60, do not cover lakes whose surface area is below 0.5 km² and which have not been grouped together by the Member States for the purposes of characterisation under that directive in accordance with the option provided for in Annex II thereto.
It would 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 bodies of surface water which did not, and were not required to, undergo a characterisation or classification, since the rationale of characterisation or classification is, however, to enable the data which is necessary to achieve those objectives to be obtained.
That being so, since 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, the Court points out that, in accordance with Article 4 of Directive 2000/60, unless a derogation is granted, the competent authority of a Member State is required to refuse to grant consent for a project where its effects on a lake with a surface area below 0.5 km² may cause a deterioration of the status of another surface water body which has been or ought to have been the subject of a characterisation under Directive 2000/60, 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.
Furthermore, it is also for the competent authority to ascertain whether the achievement of the project in question 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, in order to achieve the objectives of that directive. It follows from the wording of that provision that the scope of a programme of measures is not limited solely to surface water body ‘types’ characterised in the implementation of Article 5 of, and Annex II to, Directive 2000/60.
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 so as to avoid compromising the achievement of the objectives specified in Article 4 of that directive.
In view of the fact that the quality of a small surface water element can affect the quality of another larger element, 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 characterised under Directive 2000/60 may prove necessary in that context. For the same reason, it may prove to be necessary to apply controls over the abstraction of water to those small sized surface water bodies, as referred to in Article 11(3)(e) of Directive 2000/60 and point (viii) of Part B of Annex VI thereto.