Court of Justice of the EU on drinking water policy: Member States are obliged not to authorise a project that may cause a deterioration in the quality of a body of water

According to the rules, the approval of a project is only possible when the implementation does not adversely affect the quality of the drinking water provided to the inhabitants in the affected area. The Regional Office for Mining, Geology and Raw Materials, Cottbus (Germany) approved an application submitted by Lausitz Energie Bergbau AG for the construction of an artificial lake, the overflow of which would flow into the river Spree. Upon creation of the lake, the water leaving the overflow would have a significantly higher sulphate concentration than the water already in the Spree. The Spree is also one of the sources Frankfurter Wasser- und Abwassergesellschaft (FWA) uses to produce drinking water and the river’s water already has a high concentration of sulphate, originating from closed open-cast mines. The City of Frankfurt (Oder) and FWA therefore brought an action against the planning approval decision.

The Verwaltungsgericht Cottbus referred several questions to the Court of Justice for a preliminary ruling aimed at interpreting for the first time Article 7(3) of the Water Framework Directive. (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 L 327, 22.12.2000, p. 1)  With regard to the issue of legal standing, the Advocate General posits that the legal persons tasked, under national law, with the production and purification treatment of drinking water have a right to require that a competent authority, responsible for approving a project that is liable to have an adverse impact on the purification level of drinking water, observe the obligations laid down in the Water Framework Directive.

Advocate General Medina then specifies the scope of the Member States’ obligation to ensure the necessary protection of bodies of water used for the production of drinking water.

To summarize: member states must take the necessary measures in order to achieve the specific objectives of the Water Framework Directive and the use of the terms ‘the necessary protection’ in Article 7(3), in light of the prevention principle, indicates that, before the competent authority approves an individual project, it must first assess that that project will not have adverse effects on the quality of water bodies used for the production of drinking water. Once again: the approval of a project is possible only where its implementation does not affect adversely the water provided (through the tap) to the inhabitants in the affected area. That means that a project may be approved only where it includes, where appropriate, a complete set of measures in order to ensure that compliance with the Drinking Water Directive is not adversely affected.

Author: Krivanics Ildikólaw student, University of Debrecen, Faculty of Law

Further reading:

Advocate General’s Opinion in Case C-723/21