Role of a judge when dealing with files on water
Introduction
When faced with litigation somehow involving water, the courts of a Member State will normally not enforce EU law as such. EU water legislation as well as other EU environmental law and a significant part of EU law in general takes the form of directives, which directives will normally have been transposed into national law. As a result, disputes brought before a national court will be based on, and argued with respect to the national law transposing the EU legislation.
There are of course situations where it is indeed EU law as such which is relied upon in a national court, such as where a directive has not been transposed, where a national provision transposing EU law must be interpreted or where its legality is challenged under EU law. However, this is not the most likely situation. In this part, there will be no distinction made as to whether it is formally an EU directive or a national legal provision incorporating such EU provision into national law which is formally relied upon.
An illustration of the diversity of issues at stake and of the intensity of the litigation they may trigger was given by a national project of diverting the waters from a river to another one. Twenty years of litigation, five rulings by the national Administrative Supreme Court and the cancelling of multiple administrative decisions led to a reference for preliminary ruling to the CJEU with respect to no less than fourteen questions involving four of the most notorious environmental directives (case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias e.a v. Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon e.a). Among many other and diverse questions which were addressed by courts in this case is that, as soon as in the course of the period allowed to Member States for the implementation of the Directive (in this case, the Water Framework Directive), they must refrain from taking any measures liable to seriously compromise the attainment of the results prescribed by that Directive.
Dr Matthias Keller