EU Water Law

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General Framework of EU Water Law
The institutional nature of water legislation

 

In the first place, the international dimension of water legislation, beyond EU boundaries, is all the more important that the provisions of so-called “mixed” international agreements, to which both the Union and the Member States are parties, “form an integral part” of European law (Case 181/73 Haegeman, para. 5). The Court of Justice of the European Union (hereinafter – the CJEU) therefore asserts jurisdiction to appreciate whether the Member States do comply with certain provisions of environmental protection international agreements which may have a direct effect, and it did so in particular with respect to a case of eutrophication of the Etang de Berre (case C-213/03 Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la région v Electricité de France), in southern France, in which for lack of relevant EU legislation properly said, it applied the Athens Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources to the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (see also, case C-239/03 Commission v France).

Second, measures affecting “quantitative management of water resources or affecting, directly or indirectly, the availability of those resources” could only be adopted by the European Council unanimously with a simple consultation of the European Parliament because they are based on Article 192(2) TFEU (albeit none of them was as a matter of fact adopted), while qualitative aspects thereof are subject to the ordinary legislative procedure under Article 192(1), i.e. with a majority vote of the European Parliament and a qualified majority vote of the Council.

Third, actions against marine pollution were for a long time not dealt with by “native” EU legislation but rather by international conventions rather than approved by the Union and thus integrated within the European legal order they may have been. However, this is not entirely true anymore since the adoption of Directive 2008/56/EC, the so-called “Marine Strategy Framework Directive”. Unsurprisingly, the “Marine Strategy Framework Directive” was also based on former Article 175(1) TEC, now Article 192(1) TFEU.

Fourth, like all legislation based on Article 192 TFEU (or its predecessor articles in the TEC), they leave open the possibility for the Member States to, individually, maintain or establish “more stringent protective measures” as provided by Article 193 TFEU. In other words, the Member States may go further than a measure adopted on the basis of Article 192 TFEU and act with a greater intensity, albeit their actions must in all events remain “compatible with the Treaties.”