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General Considerations on the Environmental and Water Policy in the European Union

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General Considerations on the Environmental and
Water Policy in the European Union
Carmen Tirado Robles1
Abstract: The community environmental policy is an area of shared competences
which is configured as a horizontal policy within the European construction process
and, also as a protection policy for the different natural resources, urging community
institutions and member states to protect them within their respective competences.
One of these resources is water, so the so-called “community water policy” is inserted
within the general framework of the environmental policy. The largest number of
community regulations, one cay say, can be found in this field. Over the last few
years, emphasis has been placed on the adoption of the well-known Water Framework
Directive 2000/60, as a central standard of this water policy, the axis of this new global
water management model in the whole community territory.
Key words: community environmental policy, environmental action programme,
community water policy, water framework directive, detailed directives.
Contents: I. INTRODUCTION. THE GENERAL FRAMEWORK OF THE ENVIRONMENTAL
POLICY IN THE EUROPEAN UNION. 1. FIRST COMMUNITY INITIATIVES. THE
ENVIRONMENTAL ACTION PROGRAMMES. 2. THE SINGLE EUROPEAN ACT AND THE
MAASTRICHT TREATY. 3. THE AMSTERDAM TREATY AND THE CONCEPT OF SUSTAINABLE
DEVELOPMENT. 4. AMENDMENTS INTRODUCED BY THE NICE TREATY. 5. THE FAILED
EUROPEAN CONSTITUTION AND THE LISBON TREATY RELATED TO ENVIRONMENTAL
PROTECTION. II. THE EVOLUTION OF THE COMMUNITY WATER POLICY UNTIL THE
PREPARATION OF THE FRAMEWORK DIRECTIVE. III. THE WATER FRAMEWORK
DIRECTIVE. 1. A GLOBAL AND ECOLOGICAL APPROACH TO WATER RESOURCES. 2. A
COMBINED PROPOSAL AGAINST WATER CONTAMINATION. 3. THE PEOPLES’
PARTICIPATION. 4. THE APPLICATION OF THE “POLLUTER PAYS” PRINCIPLE. IV. THE
TRANSPOSITION OF THE COMMUNITY RULE OF LAW ON WATER IN SPAIN. V.
CONCLUSIONS. VI. BIBLIOGRAPHIC SOURCES.
1 Professor of International Public Law, University of Zaragoza.
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I. INTRODUCTION. THE GENERAL FRAMEWORK OF THE ENVIRONMENTAL POLICY IN
THE EUROPEAN UNION.
1. FIRST COMMUNITY INITIATIVES. THE ENVIRONMENTAL ACTION PROGRAMMES.
The development of the community environmental policy dates back to the sixties,
despite there being no provision in the constitutional treaties that give express
competence to community institutions to legislate on this matter; a logical situation if
we consider that the Treaties of Rome and Paris are documents of the fifties and, at that
time, environmental concerns were very limited at an international level.
The legal basis for the first community standards in environmental matters can be
found in article 2 of the Treaty of Rome, more specifically when it indicates that one of
the missions of the Community is to promote “a more harmonious development of
economic activities throughout the Community” and foster “continuous and balanced
expansion”.
Community standards, mainly directives, started to be adopted in the seventies, under
the protection of articles 100 and 235 of the ECT. More specifically, article 100,
current article 94 ECT, is one of the general clauses that permits the approximation of
national provisions that have a direct impact on the establishment or working of the
common market (together with article 95 ECT). But its application conditions are very
strict: on the one hand, a direct impact of the national provisions on the common
market is required, and on the other hand, the decision must be taken unanimously at
the Council. On its part, article 235, current article 308 ECT, is the so-called clause of
imprévision or closure clause of the community competence system, as it serves to take
the place of the lack of competence conferred expressly or implicitly on the community
institutions by the member states in the treaty, so long as these competences are
necessary for the Community to carry out its work and achieve the objectives
established by the treaty. The application requirements are also strict in this case: the
achievement of one of the Community objectives must be pursued, the action
necessary to achieve these objectives must be taken, there must be no other legal basis
possible or a reservation of competence in favour of member states, so, obviously, it
may only be applied collaterally.
On the other hand, at the Paris Summit of Heads of State and Government in 1972
(which is the direct precedent of the current European Councils), an article is devoted
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to the environment in its conclusions for the first time in this type of documents,
indicating that:
“8. The Heads of State or Government underline the importance of an environmental
policy in the Community, and with this aim, they invite the institutions of the
Community to establish, before 31 July 1973, an action programme with an accurate
calendar”.
This laid the foundations for the Environmental Action Programmes (EAP)2, which
acts as a benchmark for this entire community policy, establishing priority objectives
which will be used to develop the legislation of derivative Law. The legal form that
the EAP has adopted has always been atypical, either a Declaration or Resolution of
the Council and of the Representatives of the Governments of the Member States,
which clearly shows the controversial nature of community competence in
environmental matters, as the regulatory force of these Programmes has been nonexistent,
although they have marked, as mentioned, the general directives of this
policy, acting as a basis for standards that did have a binding force.
This does not mean that the EAPs have not received certain recognition, which has
been reflected in the Treaties: the EUT, in article 130S of its Maastricht version
acknowledged their role to set priority objectives, and this is maintained in the Treaty
of Amsterdam, in article 175.3. We are currently within the period covered by the 6th
Programme, which establishes continuity as one of its main features, as in the case of
the previous programmes. This has meant that the environmental policy is no longer a
sectoral aspect of the community action and now affects all the areas of the European
construction process.
The sixth EAP includes an innovative strategy, indicating four priority work fields: the
improvement of the application of the environmental legislation in force, the
2 The first environmental Action Programme is adopted on 22 November 1973, following the Paris
Summit of 19 October 1972, and water is one of the main concerns of this document (vid. the
Declaration of the Council of the European Communities and of the Representatives of the Governments
of the Member States met within the Council, of 22 November 1973, concerning an Action Programme
of the European Communities on environmental matters, OJEC C 122, of 20 December 1973), followed
by the second and the third (OJEC C 139, of 13 June 1977 and OJEC C 46, of 17 February 1983). The
fourth programme covers the period 1987-1992 (vid. OJEC C 328, of 7 December 1987). The main
theme of the fifth programme is sustainable development (vid. OJEC C 138, of 17 May 1993) and
currently we are in the period covered by the sixth programme, entitled “Environment 2010: our future,
our choice” which was presented by the Commission in two parts: the first is the political report of the
Commission, which constitutes the main part of the programme, and the second is the text proposed by
the Commission for a decision of the Ministers of the Environment of the Member States and of the
European Parliament (vid. http://www.europa.eu.int/comm/environment/newprg/index.htm).
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integration of the environmental concerns in the other policies, involving companies
and consumers in environmental work, not limiting itself to penalising cases of nonfulfilment
but also rewarding good results, and, finally, procuring adequate information
for the people, as decisions are taken that have direct or indirect effects on the
environment. It is a significantly smaller EAP with respect to volume since, as
indicated in the actual Considerations, it only represents the environmental part of a
global or more extensive community strategy that refers to the other community
policies, via the environmental integration mechanism in the rest of the community
policies, as we will see.
2. THE SINGLE EUROPEAN ACT AND THE TREATY OF MAASTRICHT
But the great step in constituent treaties related to the environment takes place much
earlier, in the Single European Act, as a specific Title, Title VII, is introduced into this
reform of the treaties. This title is comprised of articles 130 R to 130 T3, where the
Community competence in environmental matters is definitely established, acting as a
counterweight to the achievement of the interior market. At that time, the decisionmaking
would be done unanimously whilst in the reform carried out with the Treaty of
Maastricht some years later, apart from reinforcing the community environmental
objectives, the decisions are taken by qualified majority, which represents a
considerable reinforcement of the environmental policy. At the same time, the
environment becomes a horizontal type community policy, as, for example, the
Cohesion Fund is enabled to finance the environmental actions decided by the
beneficiary states, together with the transport infrastructures. A financial instrument
for the environment is thus created in 1992, called LIFE, to support the development
3 According to the SEA, the decision-making on environmental matters imposed unanimity whilst after
the reform represented by the Treaty of Maastricht the decisions are made by qualified majority vote,
which represents a considerable reinforcement of this community policy. Some questions remain,
however, both in the regulation contained in the Treaty of Amsterdam and in the Treaty of Nice, which
are still decided by unanimous vote by virtue of their exceptional importance and the fact that they are
exceptions to the general rule (those of taxation, of territorial organisation and use of soil, the
management of water resources and the measures that affect the choice of different energy sources by a
member state and the general structure of its energy supply).
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and application of the legislation and the policy of the Union in environmental
matters4.
The European Environmental Agency5 also begins to operate in that period. This
Agency is created in order to give objective information about the environment in the
European Union and about the pressures that comparatively take place in this field in
the different areas of the community territory, so ORTEGA ÁLVAREZ6 indicates that
its functions are essentially instrumental ones. The EEA is an organisation that has its
own legal personality, with headquarters in Copenhagen and which has had 31 member
countries for several years now7. Thus, the Agency becomes the first body of the EU
to receive the then candidate countries as members. It also cooperates actively with
other international entities interested in environmental matters both inside and outside
the Union; for example, the Directorate General for the Environment of the
Commission, Eurostat, the United Nations Programme for the Environment, the WHO,
the Economic Commission of the United Nations for Europe, the North American
Agency for the protection of the environment, etc.
The mission of this Agency is, in due course, to gather and disseminate specific,
relevant and reliable information about the state and evolution of the environment on a
European level. The EEA publishes the Environmental Indicators each year as well as
other reports and an information bulletin8.
4 This financial instrument for the environment is created by Regulation 1973/92 (OJ L 206, of 22 July
1992), and is amended by Regulation 404/96 (OJ L 181, of 20 July 1996), which integrates all the
existing instruments in this field (GUA, Medspa, Norspa, ACNAT).
5 Vid. Council Regulation 1210/90/EEC, of 7 May 1990 (OJ L 120, of 11 May 1990), amended by
Council Regulation (EC) 933/1999, of 29 April 1999 (OJ L 117, of 5 May 1999). Its web page has the
following address: www.eea.eu.int. The Regulation is the fruit of the impulse given by the Decision of
the Council of Ministers of the Environment of 28 November 1989. A community agency is a body of
European public law, which differs from community institutions and has its own legal personality.
Community agencies are created via a community act of secondary legislation in order to perform a
specific task of a technical, scientific or managerial nature that is specified in the relative foundational
act. Currently there are thirteen bodies that respond to this definition of community agency, although
there are several words used to name these bodies (Centre, Foundation, Agency, Office, Observatory)
which may give rise to certain confusion, above all bearing in mind that other bodies that use these same
denominations are not agencies according to this definition.
6 Vid. ORTEGA ÁLVAREZ, Luis (2000), p. 88.
7 The twenty-seven members of the European Union are Member states, as well as Iceland, Norway and
Liechtenstein as members of the European Economic Space and Turkey, which has been a member since
1 April 2003, as we have already indicated; negotiations have also been started with Switzerland.
8 Four reports have come out to date: The environment in Europe, the Dobris report in 1995 ; The
environment in the European Union 1995 : report to review the fifth action programme, also in 1995; the
Environment in Europe: second report, of 1998 and, finally, the Environment in the European Union on
the threshold of the 21st century; facts and perceptions, of 1999. With respect to this latter report, we
must highlight that it presents a global vision of the situation of the environment in the community
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Three states become members of the Union at that time: Austria, Finland and Sweden,
which have always been portrayed as maintaining high standards in the environmental
policy, so their entry into the Union also fosters community concerns for this field of
competences.
Finally, the Treaty of Maastricht introduces an amendment into article 228, with the
addition of paragraph 2, which grants the Commission the possibility to decide
whether to start the procedure established in this article (appeal against noncompliance)
submitting the matter to the Court, in which case, it must also decide if the
non-complying State should receive a sanction or pay a coercive fine and in this latter
case it will establish the sum when presenting the demand. After the reform, article
228 of the ECT permits the Commission to start a second procedure for noncompliance
of a decision of the Court of Luxemburg, which may give rise to the
imposition on the non-complying state of a coercive fine or of a lump sum. The
Commission has indicated in a Communication of 5 June 1996 (OJEC C 242, of 21
August 1996) that it considers the coercive fine channel to be more appropriate,
although this does not mean that the lump sum system cannot be used. In any case,
these will never be symbolic quantities as the dissuasive effect must be guaranteed.
The Commission used this new procedure for the first time in 1997 when it presented a
demand against Greece due to the non-execution of the decision of 7 April 19929
which had sentenced it on the basis of non-compliance with the obligations that were
incumbent upon this State by virtue of Directives 75/442 and 78/319, on the
environment. The sentence consisted in a coercive fine which the Court finally
established at 20,000 euros per day’s delay in the adoption of the measures to comply
with the previous decision, where the ECJ had declared the non-compliance of Greece.
Some conclusions can be drawn from this first pronouncement of the ECJ: firstly the
retroactive application of article 228.2 to cases initiated prior to the entry into force of
the Treaty of Maastricht is possible, so long as the application phase of the procedure
of this article is started after this entry into force (indeed, the non-complied decision is
dated April 1992 although the application of 228.2 starts in 1997, as we have
territory until 2010 and the repercussions of the economic development in this field. With respect to the
management of water resources the situation presented is not very encouraging, both related to the
situation presented today and the forecasts for the future, above all in marine and coastal areas..
9 Vid. XV Annual Report on the control of the application of Community Law (1997), EJ C 250, of 10
August 1997, on the Commission/Greece, C-45/91 which ends with the decision of 4 July 2002, on the
subject, Commission/Greece, C-387/97, Rec. 2000, p. 5047 and following.
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indicated); secondly, the burden of proof falls upon the Commission, which must
demonstrate the lack of execution of the conviction due to non-compliance and, finally,
the fact that the first case where this precept was applied was in an environmentrelated
matter and that the Commission chose the coercive fine and not the sanction, is
indicative of the importance of the community environmental policy at all levels10.
2. THE TREATY OF MAASTRICHT AND THE CONCEPT OF SUSTAINABLE DEVELOPMENT
The Treaty of Amsterdam grants more extensive competence to the community
institutions to take action in this matter and it transfers the principle of integration of
the environmental protection requirements to the definition and the execution of the
other community actions and policies. Thus it can be stated that the community
environmental policy is a horizontal type policy affecting all community actions. It is
also a general principle that inspires community action, because if previously it was
included in the community policies just like all other policies, since the Treaty of
Amsterdam the mandate to reach a high environmental protection level is transferred to
the first Part of the Treaty, which addresses the general principles of the Community,
in current article 6 of the ECT11. The reference to sustainable development constitutes
a novelty of the Treaty of Amsterdam and links up with the reference that was included
in article 3, relating to the sustainable development of economic activities throughout
the Community12.
Despite this, we must point out that although it is well established in theory that the
community environmental policy is a horizontal policy, it must be acknowledged that
its practical application represents serious difficulties as there are community actions
and policies where environmental protection acts as a filter, which are sometimes very
difficult to apply, as for instance, the transport policy, or the industrial policy. In these
cases the aim is to limit the negative effects that these policies may have on the
environment. In this sense, it must be highlighted that this principle of integration does
10 On this matter in particular vid. SÁENZ DE SANTA MARÍA, Paz (2000).
11 Which says textually: “The environmental protection requirements must be integrated into the
definition and execution of the Community actions and policies mentioned in article 3, above all with a
view to fostering sustainable development”.
12 With respect to the concept of «sustainable development» the document of the United Nations
Environment and Development Commission of 1987 must be taken into account, entitled “Our common
future” (also called Brundtland Report, for its author), which indicates “Sustainable development is
understood as the development that covers current needs without compromising the possibility of future
generations satisfying their own needs”
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not mean, as some delegations wanted during the negotiations of the Treaty of
Amsterdam, that the environmental protection will impose the introduction of new
requirements in the different policies, for example13.
Furthermore, there are no mechanisms that absolutely guarantee that the environment
will be respected during the execution of the community actions and policies; thus,
what normally happens in the best of the situations is that the preambles of the
community standards state that respect for the environment has been taken into
account. On the other hand, the Treaty of Amsterdam includes a Declaration attached
to the Final Document, which contains the commitment by the Commission to prepare
environmental impact assessment studies14.
But the most important amendment introduced by the Treaty of Amsterdam in
environment-related matters is the concept of sustainable development15 which is
included in different articles of the new Treaty: in the preamble (in the seventh
whereas and not in a separate whereas as Denmark wanted), in article 2 of the EUT
(former article B), in article 2 of the ECT16 and also in article 3C thus extending the
13 Thus, some States presented proposals in this regard that were not accepted by the other members:
Sweden proposed a new article which was to foresee the possibility of the entire proposal of the
Commission including an assessment of the foreseeable environmental implications; Germany, Austria,
Finland and Sweden proposed amendments with respect to the free circulation of goods in an attempt to
protect the environment and the work medium; Austria, Denmark and Sweden tried to introduce some
environmental protection requirements into the CAP with concepts such as the “ecologically feasible
agricultural production”; Sweden proposed, as a new objective of the common transport policy, respect
for the principle of “road development from the environmental perspective” and together with Austria
and Denmark, they proposed measures that implied, among other things, generalising the eco-rates
throughout the Union, with the logical increase of road transport costs, and, finally, Austria, Denmark
and Sweden formulated proposals related to Trans-European networks with a view to bearing in mind
the requirements related to sustainable development and quality improvement of the environment in this
policy (vid., among others, documents CONF/3966/96, CONF/3852/96, CONF/3904/96,
CONF/3922/96, CONF/3910/96 and CONF/3919/96).
14 Declaration no. 12 indicates: «The Commission undertakes to prepare environmental impact
assessment studies when it formulates proposals that may have important repercussions on the
environment”. This is a more ambitious Declaration than the Declarations concerning the assessment of
repercussions of the community measures on the environment adopted at the Intergovernmental
Conference of 1992, as here the commitment of the Commission was, in general, “to fully bear in mind
the effects on the environment” every time it made its proposals, but also more limited, as the
commitment of 92 was not limited to the proposals subject to having important repercussions, but rather,
it was valid for all types of repercussions.
15 Indeed, the European Council of Florence (21 and 22 June 1996) requests the Irish Presidency to trace
the general lines of a review project of the Treaties for the Dublin meeting and to pay special attention to
the following objectives: “(…) a study must be made of the way to increase and improve the efficiency
and coordination of the efforts that both the governments and the social agents carry out (…) making the
environmental protection more effective and consistent with the level of the European Union to
guarantee sustainable development”.
16 The Spanish assistant permanent representative points out (vid. NAVARRO PORTERA, Miguel
Angel (1998)) that the solution defended by the Nordic countries together with Germany, Belgium and
the United Kingdom had been clearly anti-cohesive and had mortgaged the Spanish growth potential (it
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objectives of the Community with the new principles of integration of the
environmental requirements that we have referred to above.
Thus, two major tendencies are formed around this concept: that of Germany, Austria,
Denmark and Sweden, which defended the amendment of article B to introduce the
concept of sustainable development as an obligation among the Union’s objectives.
The other tendency was represented by countries such as Spain that took importance
away from the environment and supported the introduction of this concept but, given
their lower economic level than the countries of the first tendency, they considered it
important to maintain the reference to balanced development. Finally, as it is known,
the formula that was adopted was an example of equilibrium in the negotiations that
talks about “balanced and sustainable development”.
In answer to specific proposals made by Germany, Austria, Denmark, Sweden,
Belgium and the United Kingdom, a formula of consensus was finally achieved in this
article. It was very important for Spain for the environmental protection objectives not
to displace the economic development, especially bearing in mind that the
environment-related decision-making system in this Treaty is by qualified majority.
On the other hand, it must be pointed out that the community environmental policy has
been traditionally considered as a field of shared competences between the Community
and its member states, except when related to the preservation of the biological
resources of the sea, where the exclusive competence of the Community is recognised,
inserting this task into the fisheries policy (in this sense the decision of the Court of
Justice of 5 May 1981, Commission/United Kingdom, as. 804/79, Rec. 1981, page
1045 and following is representative). Related to shared competences, mention is
made, on the one hand, of the technique of competition, according to which, member
states are free to adopt their own regulation if there is no community legislation, but
once the Community has intervened, the community legislation has precedence, which
becomes imperative both for the past and future actions of the Member states17 (this is
would have made us lose our situation of positive discrimination in greenhouse gas emissions reduction,
for example, and it would have forced us to make very substantial environmental investments in the
medium term, for which we were not prepared and which, also, went much further than our
commitments in the framework of the Rio de Janeiro Agreement.
17 LOZANO CUTANDA, Blanca (2001) indicated that community intervention could occur either based
on article 95 ECT in connection with the achievement of the domestic market, or according to the
procedure regulated in article 175 ECT in connection with the regulation of the protection of the
environment in areas that had no relationship with the domestic market. With respect to these questions
concerning the legal basis of community competence it must be added that the Court of Justice has not
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the technique used in the community environmental policy), and on the other hand, the
techniques of complementary shared competences, which do not mean that the
community action replaces the action of the member states, but that the action of the
Community simply supports or complements the action of the member states.
With respect to the decision-making system, a change has been made from the
cooperation procedure to the qualified majority co-decision system18, so that the
European Parliament becomes a co-legislator in this matter and, on the other hand, the
consultation to the Committee of the Regions is introduced. Furthermore, this Treaty
introduces the possibility of using the reinforced cooperation system in environmental
matters, too, which means that the interested States can use this system to advance in
matters that are still pending such as taxation19, as some States established serious
obstacles to make decisions in these issues. It must be taken into account that the
Treaty of Nice, currently in force, establishes the possibility of reinforced cooperation
in this matter without the need for a majority of members, and furthermore, unanimity
is no longer required to begin a reinforced cooperation system, as established in
articles 43 and following of the EUT.
We consider this channel to be the most appropriate for countries that wish to advance
further in environmental matters, such as the Nordic countries, Austria and in certain
issues, Germany and the Benelux countries, countries that stood out in the negotiation
of Amsterdam as they defended an in-depth reform of the environmental provisions,
dealt with the matter exclusively for the environment, as the selection of the appropriate legal basis is
something that is raised in other community policies. It can be said that the criterion established by the
Court of Luxemburg is that the essential objective of the specific community document must be
identified, via the analysis of its purposes and content, excluding the consequences that it might
represent for other related community policies (in this sense, vid. Decision of 25 February 1999,
Parliament/Council, subject C-164/97 and C-165/97, Rec. 1997, page I-1153 and following, where a
conflict of legal bases arises between the agricultural policy and the environmental policy).
18 As it is known, an exception to this procedure is the decision-making by unanimity in mainly taxrelated
aspects, in spatial organisation and use of soils, water resources management and measures that
significantly affect the choice by a Member state of different energy sources. There was a proposal by
Austria, supported by Italy, Ireland, the Nordic countries and the Commission, which defended the
implementation in these fields, too, of the qualified majority. This proposal, however, did not prosper
due to opposition of France, Germany, United Kingdom, Netherlands and Spain, which defended the
quasi-constitutional nature and the highest sensitivity of these issues.
19 With respect to the tax-related issues and the difficulty to make decisions in this field, it can be
indicated that Denmark proposed a Protocol to the Treaty of Amsterdam on minimum common
environmental rates, where it said that they would not have a tax nature and whose legal basis would be
the current 175.1, giving the possibility to establish higher rates on a national level and to influence the
income of the national budget, which implied a certain environmental harmonisation in the European
Union by qualified majority. This meant that this proposal was quickly rejected by a large opposition of
the Intergovernmental Conference. Finally, it must be taken into account that the European Council of
Nice gives precedence to environment incentives, above all in tax-related matters, as the aim is prepare a
European strategy for sustainable development and these incentives can be decisive for their success.
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seeking a higher level of community protection but also the possibility of raising the
level of national protection and making environmental protection a higher principle
that has priority over the specific objectives of a good number of common policies,
thus managing to export their greater environmental costs. On the other hand, the rest
of the States do not wish to be continually forced to accept the maximalist tendencies
of the States mentioned, as this implies assuming higher environmental costs which, in
some cases, were unnecessary, as the countries of the North, due to internal political
considerations, had absorbed these costs de facto20.
3. THE AMENDMENTS INTRODUCED BY THE TREATY OF NICE
The Treaty of Nice introduces some amendments relating to the environment, although
the more radical postures were finally not admitted: in effect the postures that defended
the total suppression of part 2 of article 175 (which includes exceptional cases where
decisions will be taken unanimously) were rejected and finally that provision was rewritten,
specifying its terms, which had given rise to doubts and controversies. Above
all in connection with the “water resources management” in decision of ECJ of 30
January 2001, in subject 36/98, Spain/Council, an anticipation is made of the
amendment introduced by the Treaty of Nice in the sense that the expression “water
resources management” refers to quantitative management and to the “measures that
directly or indirectly affect the availability of these resources”. This proposal was
introduced by Austria.
Thus, the five exceptions existing in the treaty of Amsterdam, where the decisions will
be taken unanimously, are maintained, whilst the general norm will continue being
qualified majority. When interpreting these exceptions the will of the community
legislator must be taken into account in the sense that his idea, when amending them,
was not to extend the limitation related to the energy supply to the fields of territorial
organisation, water resources management and use of the soil, as the proposal that
contemplated this was rejected. On the other hand and at the request of Denmark, the
Conference approved a declaration, verifying the will for the European Union to act as
20 Vid. In this sense the indication given by NAVARRO PORTERA, Miguel Angel (1998), pages 142
and 143), which is still true today, above all bearing in mind the last two enlargements.
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a driving force for the protection of the environment both in the Union and on an
international level21.
With respect to the Law derived from the provisions of the original Law that we have
analysed hereto, it must be pointed out that the community environmental standards
have been grouped together by sectors:
– sustainable development
– waste management
– sound disturbance
– atmospheric pollution
– water protection and management
– protection of nature and of the biodiversity
– soil protection
– civil protection
– climate change
Different regulatory instruments were prepared with respect to all these fields from the
seventies onwards (there are now more than two hundred), whose aim is to limit
pollution by introducing minimum standards, above all in waste management and
water and air pollution related matters. This, of course, has not managed to prevent the
deterioration of the environment in the European Union but it has helped make the
public aware of the importance of the problem and of the need for a harmonised
approach not only on a European level but also on an international level.
A great majority of the standards adopted in this issue have the form of directives (such
as the framework directive that we will deal with later), as the advisable thing in those
numerable cases was to give member states the freedom to choose the means to protect
the environment, establishing a minimum level throughout the community territory.
Other standards, on the contrary, have the form of regulations, decisions, but
regulatory instruments have been intensely using sui generis, non-binding instruments,
21 Vid. Ministry of Foreign Affairs, Secretariat of State for European Affairs, Treaty of Nice.
Justification Report for the ratification proceedings of the Treaty of Nice, Madrid, 2001, page 53 and
following
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etc. such as the Programmes, of which we will speak later, the green and white papers,
the communications and others.
It must be taken into account that the European construction process has been accused
on occasions of favouring economic development and trade in detriment of
environmental protection, so work in this field, which has been some of the most
intense in respect of regulatory development, has served to verify the need to unite
these two concepts (economic development and environment protection). This has
become evident very recently, as the environmental facet of the economic development
has been highlighted more and more in the European Community, acknowledging that
it cannot be based on the exhaustion of the natural resources.
In this regard we can highlight the evolution in the so-called Lisbon process which
came about at the European Council of Lisbon, held on 23 and 24 March 2000,
representing a great turnaround in the preparation of policies in Europe. It was the first
time that Heads of State attended a Council focused specifically on the economic
reform within the European Union, which, based on three years’ activity, established a
new work framework in the area of economic and social policy with the aim of
reaching higher levels of growth, productivity, employment and social inclusion. The
main conclusion drawn in Lisbon was the following:
“The European Union has established a new strategic objective today for the coming
decade : to become the most competitive and dynamic economy in the world, based on
knowledge, able to maintain the economic growth with more and better jobs and
greater social cohesion”.
The Council of Lisbon authorised the development of a series of structural indicators to
support the analyses of the extent to which the Lisbon objective has been achieved.
These indicators cover the six main aspects of the economic reform process: general
economic situation, employment, innovation and research, economic reform, social
cohesion and environment. In connection with this latter point, in 2003 the
Commission presented a Communication to the Council and to the European
Parliament entitled “Towards a thematic strategy for the sustainable use of natural
resources”. This communication is a first stage in the preparation of the thematic
strategy relating to the use and lasting management of the resources foreseen by the
Sixth Community Action Programme for the Environment. It launches a debate on a
14
framework of use of the resources foreseen in the objectives of the Lisbon process and
the strategy of the Union in favour of sustainable development22 .
4. THE FAILED EUROPEAN CONSTITUTION AND THE TREATY OF LISBON IN CONNECTION
WITH ENVIRONMENTAL PROTECTION
Although our applicable Law at community level is now constituted by the Treaty of
Nice, the, for the time being, two attempts to reform it must be taken into account, the
failed European Constitution and the new Treaty of Lisbon. Both make contributions
to the community policy on environmental protection which, according to all signs, are
not going to be put into practice, at least via the texts mentioned.
The Treaty of Lisbon amends articles 174 and 175 and also includes an especially
relevant aspect that the Constitutional Treaty had not considered in its articles and
which, during the last months of the so-called “period of reflection” had opened up a
divide in the community agenda: the climatic change. Indeed, the Treaty of Lisbon
includes an explicit reference to “the particular need to fight against the climate change
with international measures” within the article related to the environment. This
represents an extension with respect to that contemplated in the constitutional Treaty:
the objectives of the Union policy in environment-related matters had been completed
by the Constitutional Treaty, adding to the stipulations of the Treaty of Nice “the
promotion of international measures aimed at coping with regional or global
environmental problems”. The 2007 reform has added this sentence to the objective:
“and in particular to fight against climate change”. Indeed, a good majority of those
measures could have quite easily been adopted in the current community competences,
if, of course, there were a political will to do so. Thus, the derivation of external
competence based on the existing internal competence on environment-related matters
would, in our opinion, be more than sufficient to adopt the so-called actions in climate
change matters. Even so, its inclusion must not be disregarded. It may facilitate the
adoption of this type of action by the Union and it probably transmits the political
sensation of a certain compensation to the public opinion of the States that had already
ratified the Constitutional Treaty. .
22 Vid. Bol. 10-2003, point 1.4.25 and COM(2003) 572 final.
15
II. THE EVOLUTION OF THE COMMUNITY WATER POLICY UNTIL THE PREPARATION OF
A FRAMEWORK DIRECTIVE.
The most numerous, most meticulous and complex series of regulations of the entire
community environmental legislation are those related to water resources protection.
Indeed, the community action related to water begins to develop in the seventies and
from then until now the series of rules adopted have increased in number but also in
complexity23. Firstly we must point out that, strictly speaking, there is no real
community water policy. What there is, is a community environmental policy where
water protection represents one of the priority elements to be considered, despite the
fact that in some community documents, reference is specifically made to this concept,
as for example, in the Communication of the Commission to the Council and to the
Parliament on “The water policy in the European Community”24 or in Directive
2000/60/EC which establishes a community framework of action in the water policy
field, which we will deal with later25.
Thus, the community institutions, using the legal basis available at each moment of
this evolution, have adopted standards for the protection of community waters and in
this regard, we can highlight that numerous authors have proposed different stages to
classify this evolution. One of these proposals was made by REICHERT26,
distinguishing three stages until the adoption of the Framework Directive:
– The first stage, between 1973 and 1980, when attention would be focused on
controlling pollution to protect water quality, which, in the author’s opinion, is a
problem that is much easier to solve than others that occur in the field of water
protection. In this regard, the first Environmental Action Programme proposes two
strategies. The first, to limit the emissions of certain substances in the water, and, the
23 Respect to the community water policy, refer to FANLO LORAS, Antonio (1998) “La evolución del
Derecho comunitario europeo sobre el agua”, in EMBID IRUJO, Antonio (dir.) El nuevo Derecho de
agua: las obras hidráulicas y su financiación Madrid, Seminar on Water Law of the University of
Zaragoza, Ebro River Basin Authority and Civitas, page 183, as well as REICHERT, Goetz, (2005)
“The European Community’s Water Framework Directive: A Regional Approach to the Protection and
Management of Transboundary Freshwater Resources?”, in BOISSON DE CHAZOURNES, Laurence
et SALMAN, Salman M. A. (dir.), Les resources en eau et le droit internacional – Water Resources and
Internacional Law, Académie de Droit internacional, Martines Nijhoff Publishers, page 429 and
following as well as my recent contribution in the collective work, Antonio EMBID IRUJO (dir.),
(2007) Diccionario de aguas (vid. the voice “Derecho comunitario de aguas”), Madrid, Iustel.
24 Vid. COM (96) 59 end, of 21 February 1996.
25 Adopted by the European Parliament and by the Council of 23 October 2000, OJEC L 327, 22
December 2000.
26 Vid. REICHERT, Goetz (2005), page 432 and following
16
second, to indicate water quality objectives, bearing in mind the different uses of
water: drinking water, bathing water, water suitable for the lives of fish or to breed
molluscs and urban waste water. These directives, several of which are not currently
in force, normally respond to a common outline, establishing minimum values or
standards for the quality of this water, requiring States to prepare plans or programmes,
in order to respect these standards.
– The second stage, between 1980 and 1991, is characterised by the perception of the
insufficiencies of the previous stage, for example, the fact that the community
legislation in water matters was excessively focused on one of the sources of
contamination (industrial uses), marginalising other possible sources (domestic and
industrial uses). The result is Council Directive 91/271/EC related to the treatment of
urban waste water27 which refers to the collection, treatment and discharge of urban
waste water as well as the treatment and discharge of waste water from some industrial
sectors. The aim of the Directive is to protect the environment against any
deterioration due to the discharge of that water. Hence a calendar is established to
equip urban areas, which member states must respect and which satisfies the criteria
established in the Directive, related to waste water collection and treatment systems.
– The third and final stage prior to the adoption of the Framework Directive takes place
between 1991 and 2000, a period when the need is perceived for a reform in this field
of environmental community action, avoiding the existing fragmentation and verifying
that the implementation of the standards in the national field leaves a lot to be desired
in the majority of the cases28. A process is thus started to reform the water resources
protection legislation of the community territory, seeking to integrate the quantitative
and qualitative aspects of its management, as well as develop actions for a rational use
of water. The final result of this period is the Council Directive Proposal whereby a
community action framework is established in the water policy area29 whose aim is to
implement several changes: expand the viewpoint to the protection of any type of
water, integrating it into basins, introducing the so-called “combined approach” for
limit emissions values and water quality standards which were dealt with separately in
the first directives of the seventies, intensifying the people’s participation as well as
27 Directive of 21 May 1991 (OJ L 135, of 30 May 1991).
28 In fact, it can be pointed out that in the year 2001 nine of the ten Member states were declared to have
breached the community law by the Court of Justice in forty-two cases concerning seventeen directives
on water.
29 Vid. COM (97) 49 end
17
establishing appropriate water prices. We are going to centre our brief analysis of this
important legal standard on these four aspects.
III. THE WATER FRAMEWORK DIRECTIVE
We must begin by saying that it is during the 5th environmental action programme
when this Directive is prepared, the most significant directive in water matters in the
community construction process. The Framework directive opens up some new
perspectives for the development of the water policy in the Community and constitutes
a new stage in the construction of this community policy, as it means rationalising the
entire legislation that existed until that time, which, as we have already pointed out,
was a fragmented group of standards. The new standard, on the contrary, offers an
integrated and global approach and is going to enable the Community, over these
years, to carry out a complete renewal of its water policy. Furthermore, the
Framework directive acknowledges that the community water policy, like any
community environmental policy, must be a horizontal policy that affects “(…) other
community policy areas, such as energy, transport, agriculture, fisheries, regional
policy and tourism”, as indicated in point 16 of its preamble.
The Framework Directive approaches the management of community water, which, in
our opinion, converges in the general ideal of globality, of water integrity, which is the
centre of this standard. This is deduced from the content of its first provision; indeed,
article 1.a) talks of preventing further deterioration, protecting and enhancing the status
of aquatic ecosystems, terrestrial ecosystems and wetlands directly depending on
aquatic ecosystems.
The Framework Directive is based on a fundamental idea, namely the fact that the
different parts of the water cycle are interconnected, related and not only referring to
water per se, but also that this relationship entails the ecosystems that surround it, the
climate, etc., and that, of course, this existing connection cannot be broken artificially.
Consequently, the different components cannot be regulated in an isolated manner and
thus, in contrast with the sectoral approach that characterised the previous legislation,
the Framework directive proposes a new approach:
1. A GLOBAL AND ECOLOGICAL APPROACH TO WATER RESOURCES
18
The aim of the Directive that we are commenting on is to create a consistent, global
and transparent legislative framework in the management of community water in order
to protect it and give it a sustainable use. With this aim, the WFD abolishes several of
the Directives adopted throughout the previous thirty years and therefore establishes
transitory periods of seven and thirteen years after its entry into force, which took place
on the day of its publication in the OJEC, on 22 December 2000 (the measures to be
abolished during these periods are included in article 22 of the WFD).
In this regard, we can distinguish several approaches to community water management
among the provisions of the Directive, which, in our opinion, though based on different
viewpoints, converge in the general idea of globality, of water integrity, which is the
centre of this standard. Firstly, there is an “ecosystemic” or ecological30 approach as
article 1.a) talks of preventing further deterioration, protecting and enhancing the status
of aquatic ecosystems, terrestrial ecosystems and wetlands directly depending on
aquatic ecosystems. Thus, the concerns are not centred on a specific use of water, or
on a special type of water (fresh or salt), but rather a broad area of a specific territory is
taken into account and the environmental provisions are applied to that area without
any specific meaning, in principle (although in some cases specifications are made for
certain areas, for example, article 4 establishes different environmental objectives for
surface water and protected areas) and therefore, the area of application includes both
surface water and transitional water, coastal water and groundwater, so it constitutes a
novel vision even among national legislations31 that normally deal with fresh water and
saltwater separately.
The definitions of each one of the types of water are clearly specified in article 2 of the
Directive, devoted integrally to this task. With respect to the definition of surface
water it must be indicated that the concept of territorial waters disappears from the
30 The New York Convention of 1997 on the Law related to international watercourses for different
navigation purposes, in its article 20 deals with the protection and preservation of the ecosystems in the
following manner: “Watercourse States shall, individually, and, where appropriate, jointly, protect and
preserve the ecosystems of the international water courses”.
31 The Spanish legislation mentions the Integral Water Management (IWM) and both groundwater and
surface water are included in this concept (Water Act of 1985 reinforced in this regard by the successive
reforms of 1999, 2001 and 2003). OLSEN indicates that the Water Act of 1985 organises water
management around the basin concept but that other legislations of Member States of the Community do
not bear this concept in mind, so the application of the Directive will be more difficult (vid. OLSEN,
Asger (2001) “The new water framework Directive. Prospects for sustainable water policy for the
coming decades”, International Conference Spanish Hydrologic Plan and Sustainable Water
Management. Environmental aspects, water reuse and desalination, June, 13th – 14th, Zaragoza (Spain);
http://circe.cps.unizar.es/.)
19
definite text of the Framework directive, although it can be found in the preparatory
documents32; it appears almost exclusively in the definition of surface and continental
water, but it is a key concept; in any case they are marine waters, which is clear, if we
refer to the Convention of the United Nations on the Law of the Sea, signed in
Montego Bay on 10 December 1982. This Convention in its article 2 and following
defines the dimensions of the territorial sea of a State, referring to a concept used by
the Directive: the baseline, which is normally the low-water line along the coast, as
marked on large-scale charts officially recognised by the coastal State (in our opinion,
this need to refer to concepts of international law supports the idea that community law
is a specialised rule of law within international law and it must be referred to in the
case of lacunae.
With respect to coastal waters, we must point out that this is an innovation of this
Directive and one of the reasons for including them is that, firstly, as we have already
mentioned, the principle of integration plays an important role in this community
standard and, secondly, there were some delegations that were especially interested in
including saltwaters within the field of application of this Directive, in order to cover
the obligations included in international agreements33. The definition of groundwater
did not pose any problems in the negotiations and the definition established in the work
document passes to the definite text without any changes34. However, we must
emphasise here that groundwater does not always form easily identifiable units, and it
32 The Commission left record of its reservations on this elimination (vid. Situation Report of the
COREPER to the Council, Brussels, 17 March 1998, interinstitutional proceedings no. 97/0067 (SYN),
note 1, p. 5). In our opinion it is important to point out that the drafters of the Directive, on occasions,
committed some errors that may lead to confusion, such as the fact that on some occasions they speak
separately of territorial waters and seawaters, as if they were different. This occurs in the work
document but this passes to the definite text in article 1, in its penultimate bullet, when it indicates that
the Directive will try to contribute, among other things, to “protect territorial and sea waters…”. More
specifically, the Commission, in its work documents, pointed out that it preferred not to eliminate the
notion of territorial water and maintain the notion of seawater, so the Presidency of the time suggested
that the definition of “surface water” should be adapted if the “territorial waters” were finally eliminated
from the Directive, which, as we know, did not occur (vid. Situation report of the COREPER to the
council, Brussels, 17 March 1998, Interinstitutional proceedings no. 97/0067 (SYN), note 5, p. 8) .
33 More specifically, Denmark, Sweden and Finland are the delegations, apart from the Commission,
that place emphasis on this idea in the debates (vid. Situation Report of COREPER to the Council,
Brussels, 17 March 1998, Interinstitutional proceedings no. 97/0067 (SYN), note 1, p. 4). On the
contrary, for Spain, the inclusion of coastal waters is going to mean problems in the transposition of the
community standard, as our internal rule of law traditionally regulates saltwaters (Coastal Act) and fresh
water (Water Act) in a clearly separate manner.
34 “All the water that is under the surface of the soil in the saturation area and in direct contact with the
soil and subsoil”. One must bear in mind that there was already a previous regulation on groundwater,
specifically related to its pollution by certain hazardous substances (Directive 80/68/EEC of 17
December 1979) which had already been replaced with a new Directive in the year 2006.
20
is not even clear in the Directive whether they belong or not to the river basin concept
that we will deal with later35.
Thus, the field of application of this Directive is much broader than that of other
community standards on water management, as it includes the marine medium and
fresh water, as we have just mentioned. In this regard, the notion of water body
appears, which will be used to help disassociate the different elements of the aquatic
medium36, including all the water resources available in the community territory, not
only the natural resources but also those created by human activity in an artificial
manner. This adds another novel element to the application field of the Framework
Directive, as, until that time Water Directives had dealt with water bodies of a natural
origin.
In any case, we can say that it is a novel vision of water management, even from the
viewpoint of national legislations of the different Member States which, in general,
treated fresh water and saltwater separately. This occurred, for example, in the
Spanish legislation.
2. A COMBINED PROPOSAL AGAINST POLLUTION OF WATER
Among the provisions of the Directive that deal with the pollution of water, article 10
indicates the need for a combined approach for point and diffuse sources of pollution.
This is defined in article 2.36 and in point 40 of the preamble and can be explained as
follows: as it is necessary to control the discharges carried out into surface waters, the
States must set emission controls or emission limit values, applying the principle of
correction of attacks on the environment, preferably at the source.
Both for diffuse sources and for point sources, the controls that must be established
will include the best environmental practices, as well as those already indicated in the
previous legislation, such as Directives 96/61/EEC, 91/271/EEC, 91/676/EEC, the
Directives listed in article 16 of the Framework Directive, as well as the Directives
35 Despite the above, the solution of the river basin, according to Commission Communication on water
in the Community (in the aforementioned COM (96) 59 final, of 21 February 1996), seems to be the
most logical solution for groundwater aquifers.
36 According to article 2, which contains the Directive definitions, water bodies can be “bodies of
artificial water, much modified water body, surface water body, groundwater body”. In other words,
“water body” as a global concept contains all the elements of an aquatic ecosystem, which are
subdivided, for the Directive, depending on the environmental requirements to be applied, as we will
see.
21
mentioned in Appendix IX and the entire applicable community legislation. It is also
possible to establish stricter conditions according to paragraph 3 of article 10 of the
Framework Directive..
The Directive indicates a flexible combined approach imposed by the Commission
(limit emission values and environmental quality standards) and not clearly determined
in the Directive, because these limit values are not set with precision. Instead they are
coordinated for all the Member States taking several existing Directives as reference
but leaving the application and/or start-up to the States in agreement with the principle
of subsidiarity. This combined approach must be translated into programmes of
measures: article 11 related to the programmes of measures indicates that the measures
listed in article 10 are basic measures, in other words, minimum requirements.
The Directive contains strategies to fight against pollution in general, which article 16
makes reference to: this is a very clear example of the “framework” nature of the
Directive that we are studying and of the subsequent need to develop both the
community and national legislation. In effect, this provision indicates the obligation of
the Parliament and of the Council to adopt specific measures against pollution of water
by individual pollutants or groups of pollutants presenting a significant risk to or via
the aquatic environment, especially for the abstraction of drinking water. This
mechanism is organised via proposals of the Commission to progressively reduce, stop
or phase-out discharges, emissions and the losses. Thus, the Commission presented a
list at the time establishing the priority substances37.
3. THE PARTICIPATION OF THE GENERAL PUBLIC
Already in the preamble, the WFD places emphasis on the importance of information
and of consulting the general public. In line with this spirit, Article 14 establishes a
procedure for public information and consultation38 that means that the water resources
37 Appendix X of the Directive is established for this function but when the Directive was
adopted it was still void of content. This lacuna was filled with the adoption of Decision
2455/2001/EC, of 20 November 2001, of the Parliament and of the Council, establishing the
list of priority substances in the field the water policy and amending Directive 2000/60/EC
(OJEC L 331, of 15 December 2001). Article 19 of the Framework Directive foresees an
update mechanism for the proposals, the measures and the strategies derived from article 16
whereby the Commission presents a information plan to the regulation Committee created by
article 21.
38 On this particular aspect of the Framework Directive, vid. HARRISON Adam, (2001)
WWF’s Preliminary Comments on Public Participation in the Context of the Water
22
management and planning documents are placed at the disposal of the general public
within the different time intervals established by the actual standard. Consequently,
Members states and community institutions have the obligation to inform, consult the
public and mutually notify each other of hydrological data.
Thus, to prepare the basin hydrological plans, Member States place the necessary
documents at the disposal of the public for the citizens to be able to present comments
in writing and have an influence on the preparation of the management documents of
the basin or basins located in their territory, so the system established by the Directive
does not just involve informing the users, but also their participation in the project.
However, it does not say what virtuality they will have, or what path the comments
presented by the public will follow. The counterpart to this right is the obligation
imposed on the States and the institutions of the Union by the WFD to notify the other
Member States and the Commission of the information related to the basin
hydrological plans once prepared.
Furthermore, Member states must prepare a series of documents that the Directive
demands for the correct management of the water in each river basin district: firstly,
the management plans which will include a summary of the Law and of the waterrelated
uses in each district, as indicated in article 13 and in appendix VII; secondly,
the programmes of measures for each district too, which contain, not only basic
measures but also supplementary measures, all of them included in article 11 of the
Directive; thirdly, the follow-up programmes, whose aim, according to article 8.1 of
the Directive is “to establish a coherent and comprehensive overview of water status in
each river basin district” and, finally, the register of protected areas, which are areas
resulting from the application of some sectoral Directives in the field of water that
protect areas assigned to harness water for human consumption, areas appointed for the
protection of significant aquatic species from the economic viewpoint, water bodies for
recreational use, etc.
4. THE APPLICATION OF THE “POLLUTER PAYS” PRINCIPLE
Framework Directive and Integrated River Basin Management, WWF European Freshwater
Programme, as well as the document of the Ministry of the Environment and the
Guadalquivir River Basin Authority, Information and Monitoring Panel of the WFD, whose
first part is integrally given over to the participation of the general public in the Directive
and to the Spanish experience in this aspect.
23
This traditional environmental principle developed in the framework of the OECD and
incorporated into several international instruments, has appeared in Community Law
since the 1st environmental action programme and can be explained by saying that its
objective is to compensate for the damage already caused and which was impossible to
avoid and that it will be the polluter that must support the cost of the necessary
measures to eliminate it or to reduce it to an acceptable level according to the
environmental quality standards adopted. The environmental policy is thus prevented
from being defrayed with public aids or subsidies both from the Community and from
the Member States, although these exist (not only state aids that contribute to the
protection of the environment via subsidies, deductions and other tax incentives
granted to the companies, but also financial resources provided by the Community via
the LIFE programme).
The principle is included without ambiguities in point 11 of the preamble of the
Directive, together with the other principles of environmental law, and is developed in
the important article 9. Its interpretation can lead to the deduction that the Directive
aims for the States, in agreement with this principle, to bear in mind the recovery of
costs for water services, including environmental and resource costs, ensuring a pricing
policy that provides adequate incentives for users to use water resources efficiency and
thereby adequately contributes to the different water uses (industry, households and
agriculture) to the recovery of the costs of water services. So far, one could say that
the rule is the integral recovery of the costs of the works on account of the users, but
the problem arises when we verify that the WFD includes a part 4 in this article 9 that
contemplates extremely important exceptions to this cost recovery principle: indeed,
the Directive indicates that the States shall not be in breach if they decide in
accordance with established practices not to apply the aforementioned provisions, for a
given water-use activity, where this does not compromise the purposes and the
achievement of the objectives of the WFD. All this information must be included in
the basin hydrological plans.
With these provisions, the integral cost recovery principle has been eliminated, above
all due to the pressure of Spain39, although, as EMBID IRUJO indicates, an attenuated
39 Indeed, this moderated approach to the “polluter pays” principle is the result of two
circumstances: firstly, the actual Treaties empower the Council to establish exceptions to the
application of this principle (article 175.5 of the ECT) and, secondly, it is the fruit of the
community negotiation since, as we can see, the commission project presented the principle
24
cost recovery principle is still included, as the exceptions must be encouraged
“appropriately and not easily, given the terms used by the precept, and whose
appreciation, in any case, will remain in the hands of the European Commission”40. In
the opposite opinion to the author mentioned, CARO-PATÓN CARMONA41
following DELGADO PIQUERAS indicates that the final draft of article 9 is
pragmatic, as it permits the States not to apply the principle so long as this does not
compromise the purposes of the Directive and, furthermore, the objective has been
established in the legal calendar for the efficient use of water and the appropriate
economic contribution of the users to be effective before 2011.
In any case, we could say that although the theoretic recognition of the principle is
explicit, putting it into practice implies certain problems as article 9 connects “the
polluter pays” principle with the cost recovery of the services linked to the use of water
but no provision of the Directive defines what the environmental costs are and what the
resource costs are, so the application of the principle in this community standard is
done in a more reduced manner.
The Directive does not bear in mind, either, the ideas of the Communication of the
Commission of 26 July 2000 on the pricing policy and sustainable use of water
resources42, which indicated that the prices must be directly related to the quantities of
water used or to the pollution produced in order to thus encourage users to use water
better and reduce its pollution. This viewpoint involves the users and this has not been
taken into account in the text of the Directive.
IV. THE TRANSPOSITION OF THE COMMUNITY LEGAL ORDER ON WATER IN SPAIN
Firstly, we must point out that new standards have derived from the Framework
Directive, approved by the community institutions, which supplement it, develop or
modify it and which form part of this “new epoch” of the community water policy, like
of integral cost recovery (deduced from the changes in the initial proposal, included in
article 12 of the COM Document (97) 49 end), but nine delegations (Belgium, Denmark,
Germany, Spain, France, Holland, Portugal, Finland and Sweden) presented a new text,
whose spirit is finally accepted, which bears in mind social and environmental effects, as
well as the economic effects, of the recovery of costs, as well as the geographic and weather
conditions of the region in question.
40 Vid. respect to this question, EMBID IRUJO, Antonio (2003), p. 5, and, also EMBID
IRUJO, A. (1996), p. 23 and following
41 Vid. CARO-PATÓN CARMONA, Isabel (2006), p. 37 and following
42 Vid. COM (2000) 477 end.
25
Decision 2455/2001/EC of the European Parliament and of the Council of 20
November 2001 (OJ L 331, of 15 December 2001) establishing the list of priority
substances in the field of water policy and amending Directive 2000/60/CE, Decision
2005/646/EC of the Commission, of 17 August 2005, on the establishment of a register
of sites to from the intercalibration network in accordance with Directive 2000/60/EC
(OJ L 243, of 19 August 2005), Directive 2006/7/EC of the European Parliament and
of the Council, of 15 February 2006, concerning the management of bathing water
quality and repealing Directive 76/160/EEC (OJ L 64, of 4 March 2006), Directive
2006/118/EC of the European Parliament and of the Council, of 12 December 2006, on
the protection of groundwater against pollution and deterioration (OJ L 372, of 27
December 2006), Directive 2007/60/EC of the European Parliament and of the
Council, of 23 October 2007, on the assessment and management of flood risks (OJ L
288, of 6 November 2007) and Directive 2008/32/CE of the European Parliament and
of the Council, of 11 March 2008, amending Directive 2000/60/EC, regarding the
implementing powers conferred on the Commission (OJ L 81, of 20 March 2008).
The reasons for this relatively plentiful regulatory development are very clear: this is a
framework directive, which, compared with the so-called “detailed directives” must be
completed to make a consistent application easier, as the framework directive leaves an
extensive margin of action to the States. It only indicates the general guidelines, the
most important objectives sought, without going into details, sometimes very technical
ones, that are left for this type of detailed guidelines. On the other hand, the fact that
the standard we are analysing is a Directive means that its transposition to the
legislation of the Member states is necessary43; in other words, the states must
implement the obligations contained in the Directive via the adoption of national
standards that coincide with the content of the community standard. Really, we can
say that the success or failure of a standard like this one depends on this. In addition, it
is logically a standard that has had a transcendental influence on the water legislations
of all the Member states and it will continue to do so in coming years. On the other
43 However, despite the fact that the transposition time ended on 22 December 2003, there
are still several States that have either not complied with their obligation to transpose, or
have not informed the Commission of its national transposition standards of the Directive
which, in any case, is a breach of the obligations linked to the fact of being Member states of
the Communities: more specifically, the Commission has no information about the
transposition of the framework directive in Ireland, Italy, Luxemburg, Portugal and Sweden.
26
hand, it will also influence the legislation of the Candidate states and of all the states
interested in being so at some moment in time44.
In the Spanish case, the transposition of the Directive took place with some delay, and
following a channel which, in a first approach, one can say, would not be the approach
considered for this state obligation. More specifically, it occurs via an article, no. 129,
of the Act on tax and administrative measures and of a social order, the so-called
Accompaniment Act of the General State Budgets for the year 200445 .
With respect to the content of the aforementioned article of the Act we have no
objections referring to Spain’s compliance with its obligation to transpose the
Framework directive. It is said that the new Act will watch over the improvement of
the water quality, both referring to continental waters and coastal waters (the
aforementioned is a novelty introduced into the Spanish legislation by the Community
law), for which it will use mechanisms such as the integral management of water
bodies, something that was already reflected in our legislation some years ago. The
new Act amends the Water Act integrating the basic definitions of the Directive into it,
as for instance, the definition of river basin in article 16, the definition of basin district
area in 16 A, or all the concepts linked to water resources management, as they appear
in the Framework directive, included in the new article 40 A. However, there are some
important definitions that do not appear in the new Act such as those related to the
good status of the surface water and groundwater, the ecological status, etc.
With respect to the concept of river basin district, we must point out that according to
some46, the new wording of the Act does not determine this specifically, leaving this to
subsequent standards, establishing the territorial limits of the basin authorities. In this
regard, FANLO LORAS indicates that the concepts of river basin and river basin
district are approached in a different manner in the Spanish legislation and in the
44Article 49 of the EUT must be brought up here. This article demands, for adhesion, respect
for the principles contained within article 6 of the same EUT and a negotiation of the
conditions that will logically include respect for the acquis communautaire, of the
community heritage, namely, not only the community Law in a strict sense, but also the
content, political principles and objectives established in the Treaties, the legislation adopted
in application of the Treaties, the jurisprudence of the Court of Justice, the acts adopted in
the intergovernmental pillars, the international agreements executed by the Community and
by the Member states among each other, as well as the statements and decisions adopted
within the framework of the Union.
45 Vid. BOE no. 313, of 31 December 2003, more specifically, p. 46955 and following
46 Especially the Regional Ministers of the Environment in the socialist Autonomous
Communities (vid. The document in this regard of 20 February 2004 at www.psoe.es).
27
Framework Directive: the concept of river basin in Spain is polyvalent as it has a
geographical or physical meaning, it appoints a territorial water planning area and
determines the area of competences of the River Basin Authorities; however, the
concept of river basin district in the framework directive is a legal-administrative
concept that integrates the river basin, transitional waters and coastal waters47. This
marks a clear difference between Spanish regulation and the community regulation that
would have required a more specific reform, because now there is going to be
overlapping between the competences of the River Basin Authorities (on the river
basins) and the competences on transitional and coastal waters, spaces with a
multiplicity of administrative competences (Coastal districts, municipalities,
Autonomous Communities). The concept of river basin districts has only been recently
determined in Spain, in an attempt to strictly comply with the area of river basin
district given in the Directive, bearing in mind that in Spain, such determination could
not take place in a preliminary vacuum. On the contrary, the consolidated structure of
river basins must be respected and adapted to the organisational structure and the
division of competences between the State and autonomous communities48.
In the new wording, the Water Act includes the instructions indicated by the WFD for
river basin planning, namely, river basin management plans (which article 40 and
following of the Act deal with), programmes of measures (article 92 quater) and
registers of protected areas (article 99 A), as include in the community standard that
this Law transposes.
On the other hand, new organisations are created by direct mandate of the Directive,
for example, the Water Council of the river basin district, in article 26.3, based on the
current Water Councils of the basins, although incorporating competent agents in
coastal and transitional water areas, which were not included in the competence of the
previous Councils. These Councils become the appropriate channel for public
participation in the river basin planning processes, so the stipulations given in the
Framework Directive on this point are satisfied. The Water Councils are comprised of
representatives of the administrations, users and social or economic organisations and
one of their functions is to present the River Basin Plan to the Government.
47 Vid. A. FANLO LORAS, “La adaptación de la Administración pública española a la
Directiva marco comunitaria del agua”, Application in Spain of the European Water
Framework Directive, Madrid, Ecoiuris, 2003, p. 169 and following
48 Vid. Royal Decree 125/2007, of 2 February, which establishes the territorial scope of the
river basin districts (BOE of 3 February 2007).
28
Therefore, the current organisation chart of organisations is maintained in essence,
although to coordinate the application of the protection standards a new organisation is
created, which the Framework Directive per se refers to, called competent Authority
Committee, in article 36A of the new wording, which will not represent, of course, any
amendment related to the distribution of competences, as it is an organisation of simple
coordination comprised of representatives from the competent administrations in
matters related to continental, coastal and transitional waters, which, as known, are
different in Spain.
Article 121 A is introduced as a relative novelty in the Water Law, relating to
community responsibility: this provision indicates that the competent public
administration in each river basin district, which breaches the community objectives
established by the Directive for water management and is transposed by the new
drafting of the Water Act, and which gives rise with its action to Spain being sued due
to breach of the community law, must assume the responsibility of such breach being
attributed to it. In this regard, it must be said that the configuration of Spain as a State
with a complex structure must be combined with the principle of responsibility of the
State due to breach of the Community Law, whatever the power from which this
breach emanates. The combination of both elements has given rise to the birth in
Spanish law of mechanisms or instruments that guarantee compliance with community
law, bearing in mind that although the competence with respect to guaranteeing that
compliance is attributed to the State49, this cannot affect the competence that the
Autonomous Communities must constitutionally develop.
Important criticism50 has already been heard with respect to the way in which the
transposition has taken place, as this has been made via the incorporation in the Senate
of the amendments introduced by the Popular Party to the 2004 Budget
Accompaniment Act, which is considered by some as unconstitutional51. This Act, the
accompaniment act, which we could call a “dumping ground”, which the Government
49 As indicated by the Constitutional Court in its decision 80/1993 of 8 March, which
interprets article 93 of the Constitution, taking into consideration, too, the content of its
article 149.1.3.
50 Vid. the evaluation made on the transposition in Spain by CARO-PATON CARMONA,
Isabel (2006), p. 44 and following.
51 Vid. in this regard, the declarations of the Regional Minister of the Environment of the
Catalan Generalitat that appear in Heraldo de Aragon of 7 February 2004, p. 5. Furthermore,
other Autonomous Communities expressed their intention to present appeals of
unconstitutionality against this Act.
29
in power uses to introduce legislative initiatives that may have been presented before
that time, so not much care has been taken when including some concepts of the
Directive (for example, the date to reach the environmental objectives in the Directive
is 22 December, whilst the Spanish Act states 31 December). Fundamental questions
such as the determination of the territorial area of the river basin districts, which has
been recently done, have been relegated for ulterior legislative developments.
Objectively, it would have to be pointed out that such an important Act as the Water
Act, in our country, should have been the subject of a more meditated reform, above all
bearing in mind that the Directive was adopted seven years ago now, and that all the
States knew from that moment that they had to transpose it to the internal rule of law.
On the other hand, the report of the State Council and Economic and Social Council
has been avoided.
Thus, a reform process of the Water Act is now proposed in order to attend to the faults
committed in this hurried reform that we have commented. In this coming reform, the
problems detected must be solved and also, as LACALLE52 advises: “The new Water
Act should clearly and globally assume the new proposals of the water policy of the
European Union, especially the ecosystem proposal, the priority of protection,
sustainable use and a broad integrating vocation” and this process must be carried out
now in the legislature that begins this year, 2008.
V. CONCLUSIONS
In our opinion, it must be pointed out that after more than thirty years’ legislative
activity, the community water policy is configured as one of the most developed fields
of the environmental protection policy in the community territory: during the first
stages, the adoption of standards did not have a clear strategy or a general framework
with single guidelines. Rather it was a way of solving problems case by case and,
therefore, the directives that were adopted were focused on controlling the resource
pollution levels, establishing, for instance, maximum emission limits for certain
substances, and, on the other hand, treating water from the viewpoint of the use it was
52 LACALLE, Abel (2008).
30
destined for. This situation is solved by the adoption of the Framework Directive
which, despite being subject to criticism, becomes the essential standard for the
construction of a coherent water policy, with clear objectives, deadlines to comply with
them and clearly establishing the parties concerned.
Hence, the Directive is a legislative example of water management that bears in mind
not only the community dimension of this management but also, because it is a
directive, the national dimension, which affects the public powers and the individual
powers of the Member States, and finally, the international dimension, as it also
includes the protection levels established by the international treaties via a vocabulary,
some environmental principles or some internationally acknowledged application
instruments53. We can say, therefore, that the community water policy is in a
construction phase but that it already has theoretic and practical experience that
converts it into an original, sophisticated and multi-dimensional, legal regime, which is
matchless in the current water-related legislative panorama.
Despite the general positive balance, it is only fair, too, to point out that the framework
directive has some criticisable aspects such as excessive deadlines which, to achieve its
objectives, are set for the Member States or the fact that the participation of the general
public is not clearly defined in the Directive, which means that its application in the
member states is difficult.
Insofar as the application of this Directive in Spain is concerned, we must point out
that, in our opinion, it is a standard that introduces important novelties. It even, in the
words of some authors such as EMBID IRUJO54 incorporates a change with respect to
the water culture. Indeed, the Directive implies a change in the water resource
management because this will be done globally, including all the waters and
ecosystems attached to them, as well as saltwaters. Furthermore, it means that the
States assume the planning by basins and river basin districts and reform the
organisations and authorities that are responsible for that management.
53 According to CARO-PATÓN, Isabel (2006), p. 54, the Directive represents the incorporation of the
principles of international law on equitable and reasonable use of water, as included in the European
Charter on Water Resources of the Council of Europe of 17 October 2001, which indicates that this
principles requires the consideration of geographic, hydrographic, hydrological, climatic and ecological
aspects; the economic and social needs of the populations concerned; the effects of the utilisation of the
resource on the users and the need to conserve water, harness water resources and avoid wastage, as well
as the cost of measures taken to this end.
54 Vid. EMBID IRUJO, Antonio (2003), p. 3 and following
31
In any case, it sets a challenge for the adaptation capacities of the institutional legal
framework of the States, specifically in the Spanish case, characterised in many case
by the overlapping of competences among the different levels of the State
Administration. It is the local level that is going to give rise to greater difficulties,
although the participation of the general public will be essential to overcome them. So,
our assessment of this standard is a very positive one; the Framework Directive is a
step forward, a progression and an important contribution to the protection of the
environment on a European regional level, but the collaboration of all the stakeholders
will be necessary for these important objectives to be fulfilled as, due to the fact that it
is a framework standard it will require an ulterior development both via community
law provisions and in the national law of each Member state. We will see where
changes are made in the new pending reform of the Spanish Water Act, a reform that is
totally necessary to adequately transpose the WFD and, in general, the community
water policy.
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ACRONYMS
EEA- European Environmental Agency
COM- COM Documents (Documents of the European Commission)
WFD- Water framework directive
EAP- Community Environmental Acton Programme
EUT- European Union Treaty
ECT- European Community Treaty
OJ- Official Journal of the European Union