EU Water Law

A major feature of the Urban Waste Water Treatment Directive, and a most widely litigated one, is Article 4 requirement that urban waste-water entering collecting systems shall be subject to secondary treatment or equivalent treatment, i.e. “by a process generally involving biological treatment with a secondary settlement or other process” and meeting certain requirements in terms of concentration limit values and minimum percentage of reduction, or to an equivalent treatment (Article 4 and Annex I). In addition, for discharges to fresh-water and estuaries from agglomerations of less than 2,000 p.e., and for discharges to coastal waters from agglomerations of less than 10,000 p.e., urban waste-waters shall be subject to an “appropriate treatment”, i.e. “by any process and/or disposal system which after discharge allows the receiving waters to meet the relevant quality objectives and the relevant provisions of this and other Community Directives” (Article 2(9) and Article 7).

Steep financial penalties are nowadays imposed on the Member States which still do not comply with those requirements. For instance, Greece was ordered to pay a lump sum of 10,000,000 euros and a periodic payment of 3,640,000 euros per semester until full compliance with the CJEU’s finding of breach. Interestingly, the periodic payment is to be decreased for each period of six months by a percentage corresponding to the ratio between the number of p.e. of the remaining non-compliant agglomerations at the end of the period and that of the agglomerations concerned at the time of the judgment (Case C-167/14 Commission v Greece (available only in French)). By contrast, with only one agglomeration at stake, Portugal was ordered to pay 8,000 euros for each day of delay in implementing the measures necessary to comply and a lump sum payment of 3,000,000 euros (Case C-557/14 Commission v Portugal).

The CJEU noted that, even where a large number of small agglomerations are concerned, Member States cannot rely on material, technical and budgetary constraints as a defence because of the EU legislature, “conscious of the scope of the infrastructure work required for the application of the Directive and the costs of its full implementation, granted the Member States a period of several years to carry out their obligations” (Case C-395/13 Commission v Belgium, para. 51). Yet the Commission alone being competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State on the basis of which those proceedings should be brought, has a general practice according to which, notwithstanding the fact that the Directive requires a collection rate of 100%, it brings such proceedings only in respect of agglomerations whose collection rate is lower than 98% or where the uncollected 2% residue represents a p.e. greater than or equal to 2,000 (Case C-395/13 Commission v Belgium, para. 33).