EU Water Law

As water law involves a great deal of general interest and public policy considerations, it should not come as a surprise that it gives rise to administrative litigation in the majority of cases coming before courts of Member States (A). However, for that very same reason, sanctions are to be applied when water law is breached, and it thus also triggers significant criminal practice (B). Lastly, although to a less significant extent, there may be instances of civil and commercial practice involving water law (C).

(A) Administrative practice

Many cases deal with the authorisation or permit to conduct some activity in relation to water. Often, the permit to operate a water treatment plant is refused by the competent authority, or the terms and conditions thereof are found to be too drastic by the operator who therefore brings a challenge against such an administrative decision in the court of competent jurisdiction. Conversely, such permits may be challenged by members of the public, either neighbours of the facility or NGOs, precisely because of the very fact that they were granted or that they are felt not to be demanding enough on the facilities’ operation. The price billed for water supply and/or the fees and taxes levied in relation to water use are also often challenged, either by users where they are assessed (as being too high) or by water companies which receive it (as being too low).

The liability of public authorities may also be based on EU water law. A French administrative court ordered the state to indemnify a water company for the financial consequences of the state’s infringement of EU law (Tribunal administratif of Rennes (France), 18 April 2001, Société Suez Lyonnaise des eaux, Req. 97). Interestingly, the CJEU sometimes later declared that France had breached its obligations under the Directive by failing to take the appropriate steps to identify waters affected by pollution and, consequently, to designate the corresponding vulnerable zones (case C-258/00, Commission v. France). A state may also be held liable for the injuries caused by the proliferation of green algae caused by the breaches of rules on the application of livestock manure as a result of the late transposition of the Nitrates Directive (Cour administrative d’appel, Nantes (France), 1 December 2009, no 07NT03775).