EU Water Law

EU water legislation is already well into its third generation. It initially arose between 1975 and 1986 with Directives on such diverse topics as surface waters, bathing waters, discharges of hazardous substances in surface waters and ground water, “fresh waters needed protection or improvement in order to support fish life” or the quality required of shellfish waters, not to mention the probably single most important one such piece of legislation, on the quality of water intended for human consumption. During a second phase, from 1991, some of these initial Directives were revised, such as those pertaining to human consumption water and bathing waters, and others were adopted, dealing with urban waste water, nitrates, etc.

The legislation pertaining to water protection, thus a far from homogeneous ensemble which dates back to the 1970’s, was to a large extent upset by the introduction of Directive 2000/60/EC, in short sometimes designated as the “Water Framework Directive” or even the “WFD”. The ambition underlying the WFD’s title suggests that, when discussing it, the legislature intended to induce some type of a renaissance of what it itself calls a “policy” even though it does not have the characteristics of an EU policy properly said since it strictly belongs to environmental policy. Indeed, the WFD as well as other major EU legislation in the field of water was adopted on the basis of former Article 175(1) TEC, now Article 192(1) of the Treaty on the Functioning of the European Union (hereinafter - TFEU), and thus definitely imbedded in environmental policy.

Environmental policy is defined in Title XX of the TFEU (Articles 191-193 TFEU). The legal basis properly said is found in Article 192(1) and (2) TFEU and it aims at the achievement of the objectives which are listed in Article 191(1) TFEU. As a matter of fact, water is in one way or another relevant to all of the objectives of the environmental policy as defined in Article 191(1) TFEU. The first objective, that of protection of the environment itself, can be described as “quasi-exhaustive” in as much as it provides for “preserving, protecting and improving the quality of the environment.” Environmental policy, which also pursues an objective of “protecting human health”, to which water is essential, is thus ambivalent because it relies on an anthropocentric conception of the environment, and this even though the European Union also has a specific, albeit limited, competence in the area of public health (Article 168 TFEU). The third objective of environmental policy, which consists in the “prudent and rational utilisation of natural resources”, obviously encompasses water resources as one of its main concerns. And even the fourth objective of environmental policy, which consists in “promoting measures at international level to deal with regional or worldwide environmental problems (...)”, has strong connections with the EU’s waters, some of which belong to rivers which travel through the territories of several Member States and others to seas the subject-matter of regional treaties.