Role of the European Court of Justice in Implementation of the European Water Framework Directive: Implications for Turkey

A recent ruling of the highest court of Europe, namely the European Court of Justice (ECJ) signalled that the so-called “toothless tiger”, the Water Framework Directive (WFD) would be interpreted in a more stringent manner than observers has hitherto suggested.

Upon a request for a ruling from the Bundesverwaltungsgericht (German federation for the environment and the conservation of nature), concerning the deepening of the River Weser, the ECJ ruled that the WFD norms should be read in such a way that the exemptions in the WFD could only be justified on limited occasions. While the environmentalists are content with the ECJ’s approach, Hamburg port authorities tried to remain optimistic regarding the ramifications of the ruling on the projects in the pipeline. Jeremy Wates, the Secretary General of the European Environmental Bureau, for instance, has argued that “this ruling means Europe’s rivers should be given a much higher level of protection against harmful developments than has been the case today”, while Maersk (world’s biggest container company) stated that “the ECJ ruling has no short-term implications for Maersk Line business”.

However, it should be noted that the Court’s ruling has a relevance well beyond river dredging plans, or Germany’s ports, only. It has been expected that this ruling would pave the way for serious reevaluations of the ongoing or future projects, including dams. It is worth quoting ruling of the court at length:

“1. Article 4(1)(a)(i) to (iii) 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 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.

2.      The concept of ‘deterioration of the status’ of a body of surface water 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, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned, within the meaning of that annex, 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 Article 4(1)(a)(i).damage to water quality must be considered when authorities approve river dredging to expand ports, in a ruling which could hinder expansion at the German ports of Bremen and Hamburg.”

The Court has basically grounded its ruling on the premises that “a deterioration of the status of a body of water, even if transitory, is authorised only subject to strict conditions” …… “the threshold beyond which breach of the obligation to prevent deterioration of the status of a body of water is found must be low”  and “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. 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.”

Hence, the Court both effectively defined the  “deterioration of the status” of a body of water, a definition which the WFD lacked; and adopted a rather stringent interpretation of the WFD principles. This ruling will have significant implications for all Member States and candidate countries aspiring to become members of the EU. A preliminary assessment by Austrian attorneys, discussing the meaning of ruling for Austrian water management, has concluded that the recent ruling of the ECJ “will put further limits on the permissibility of certain projects that could potentially affect the ecological or chemical status of bodies of surface water or groundwater. In any event, the assessment efforts for the preparation of projects or in permitting procedures will increase significantly (particularly with regard to the existence of "better environmental options”).” A similar scenario could be expected for Turkey, too. That is to say, infrastructure projects in Turkey which could bear risks for either surface waters or bodies of groundwater would be subject to greater scrutiny from European norms. Despite the fact that the utility of the concept of “overriding public interest” so far provided hopes for exemptions,Turkish authorities will now need to more meticulously study the water related impacts of the new infrastructure projects, including roads, airports, dams, irrigation networks, etc. In specific, he Environmental Impact Assessment reports will have to take water more seriously.