EU Water Law

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Role of a judge when dealing with files on water
EU water legislation as an indirect basis or argument in litigation

 

(B) Water law as a collateral consideration for other environmental law provisions

Certain activities carried out in the course of implementing water law may fall within the scope of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. The decisions taken by competent authorities in furtherance of that other legislation could also be challenged before the national courts of competent jurisdiction. In addition, there may be interfacing issues between that EU environmental liability regime and other national liability regimes (e.g. general civil liability) which national courts would have to sort out.

Litigation could be expected to increase in national courts in cases of leakages or spill-over of polluted waters into the soil or even of other hazardous substances in the soil and ground water. A producer or the holder of such substances which were spilled unintentionally in the soil and ground water of a facility and must therefore be held liable for the costs of excavating and recovering such waste; by way of consequence, the ground water contaminated by substances spilled accidentally could be qualified as waste, and this is irrespective of whether it was excavated or not, because the operator “discards” those substances, which is a primary characteristics of waste (case C-1/03, Van de Walle et autres v. Texaco Belgique). That case law was applied to the used waters of a water company, and even to the hydrocarbons spilling from the torn-apart hull of a tanker after it sank and polluted beaches. Given the lack of specific soil legislation at EU level, and in view of the significant discrepancies between national laws, waste law is relied upon in civil litigation to deal with such situations.