Role of a judge when dealing with files on water
EU water legislation as an indirect basis or argument in litigation
Water law sometimes appears in litigation not as the main basis for a claim or as a direct argument in support of a claim or in defence against such a claim, but more as some type of a collateral consideration in the context of the application of some other legislation, be it general EU law (A) or environmental law other than water legislation (B).
(A) Water law considerations in the application of general EU law
The range of general EU law provisions, as opposed to water law or even environmental law in general, the application of which may implicate some water law considerations, appears to be limited. Such an application should be much less frequent, for example, than for waste law considerations as waste is characterised as a good for the purposes of the free circulation in the internal market.Obviously that remark applies to water understood as the natural resource drawn from the environment at local level for human consumption or use which, although clearly a good, gives rise to much less commercial transactions. By contrast, mineral water does come up as "any other product" in internal market litigation. For example, a legislation under which natural mineral water producers and distributors can no longer have recourse to a collective collection system for their non-reusable drinks packaging and must therefore set up an individual deposit and return system, which applies to all producers and distributors operating in the national territory, does not affect the marketing of natural mineral water produced in Germany and that of drinks from other Member States in the same manner, so that it does constitute a barrier to intra-Community trade under Article 34 TFEU (case C-463/01 Commission v Germany).
In a closely related legal context, water public procurement can give rise to the full line of problems generally found in that area. Also, there may be some antitrust concerns such as when operators who are competitors agree on pricing, territories, etc.
There may be state aids cases with respect to projects that merely implement water law or help to do so: subsidies to the construction and/or operation of water facilities.