Opinion of Advocate General Rantos delivered on 21 September 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:697
• Date: 21 September 2023
• Celex Number: 62022CC0301
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 21 September 2023 (1)

Case C‑301/22

Peter Sweetman

v

An Bord Pleanála,

Ireland and the Attorney General,

interveners

Bradán Beo Teoranta,

Galway City Council,

Environmental Protection Agency

(Request for a preliminary ruling from the High Court (Ireland))

(Reference for a preliminary ruling – Environment – Directive 2000/60/EC – Framework for EU action in the field of water policy – Article 4(1)(a) – Environmental objectives relating to surface waters – Obligation of the Member States not to authorise a project that may cause deterioration of the status of a body of surface water – Article 5 and Annex II – Characterisation of surface water body types – Article 8 and Annex V – Classification of the ecological status of surface waters – Lake with a surface area below 0.5 km2 – Absence of a requirement to characterise and classify that body of water – Obligations imposed on a Member State in the case of a proposed development that may affect that body of water)

I. Introduction

1. Are Member States required to characterise – in accordance with Article 5 of and Annex II to Directive 2000/60/EC – (2) and subsequently classify the ecological status of – in accordance with Article 8 of and Annex V to that directive – all lakes located within their territory with a surface area below 0.5 km²? If not, what are the obligations of Member States under that directive to ensure the protection of such a body of water when a proposed development is likely to affect it? Those are, in essence, the questions posed by the High Court (Ireland).

2. Those questions follow on from the judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C‑461/13, EU:C:2015:433, paragraph 50), in which the Court of Justice held that unless a derogation is granted, any deterioration of the status of a body of water must be prevented, irrespective of the longer-term planning provided for by management plans and programmes of measures.

3. The request for a preliminary ruling has been made in the context of a dispute between Mr Peter Sweetman (‘the applicant’) and the An Bord Pleanála (Planning Board, Ireland; ‘the Board’) concerning the authorisation of a proposed development consisting of extracting water from a lake with a surface area of 0.083 km².

II. Legal context

A. European Union law

4. Article 1 of Directive 2000/60, entitled ‘Purpose’, states as follows:

‘The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:

(a) prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems;

…’

5. Article 2 of that directive, entitled ‘Definitions’, states as follows:

‘For the purposes of this Directive the following definitions shall apply:

1. “Surface water” means inland waters, except groundwater; transitional waters and coastal waters, except in respect of chemical status for which it shall also include territorial waters.

…

5. “Lake” means a body of standing inland surface water.

…

10. “Body of surface water” means a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, part of a stream, river or canal, a transitional water or a stretch of coastal water.

…

17. “Surface water status” is the general expression of the status of a body of surface water, determined by the poorer of its ecological status and its chemical status.

…

21. “Ecological status” is an expression of the quality of the structure and functioning of aquatic ecosystems associated with surface waters, classified in accordance with Annex V.

…’

6. Article 4 of that directive, entitled ‘Environmental objectives’, provides as follows in paragraph 1:

‘In making operational the programmes of measures specified in the river basin management plans:

(a) for surface waters

(i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;

(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

(iii) Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;

…

(c) for protected areas

Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established.

…’

7. Article 5 of the Directive 2000/60, entitled ‘Characteristics of the river basin district, review of the environmental impact of human activity and economic analysis of water use’, is worded as follows in paragraph 1:

‘Each Member State shall ensure that for each river basin district or for the portion of an international river basin district falling within its territory:

– an analysis of its characteristics,

– a review of the impact of human activity on the status of surface waters and on groundwater, and

– an economic analysis of water use

is undertaken according to the technical specifications set out in Annexes II and III and that it is completed at the latest four years after the date of entry into force of this Directive.’

8. Article 6 of Directive 2000/60, entitled ‘Register of protected areas’, states in paragraph 1 that Member States shall ensure the establishment of a register or registers of all areas lying within each river basin district which have been designated as requiring special protection under specific Community legislation for the protection of their surface water and groundwater or for the conservation of habitats and species directly depending on water.

9. Article 8 of that directive, entitled ‘Monitoring of surface water status, groundwater status and protected areas’, states:

‘1. Member States shall ensure the establishment of programmes for the monitoring of water status in order to establish a coherent and comprehensive overview of water status within each river basin district:

– for surface waters such programmes shall cover:

(i) the volume and level or rate of flow to the extent relevant for ecological and chemical status and ecological potential, and

(ii) the ecological and chemical status and ecological potential;

– …

– for protected areas the above programmes shall be supplemented by those specifications contained in Community legislation under which the individual protected areas have been established.

2. … Such monitoring shall be in accordance with the requirements of Annex V.

…’

10. Article 11 of that directive, entitled ‘Programme of measures’, provides, in its paragraphs 1 to 3:

‘1. Each Member State shall ensure the establishment for each river basin district, or for the part of an international river basin district within its territory, of a programme of measures, taking account of the results of the analyses required under Article 5, in order to achieve the objectives established under Article 4. Such programmes of measures may make reference to measures following from legislation adopted at national level and covering the whole of the territory of a Member State. Where appropriate, a Member State may adopt measures applicable to all river basin districts and/or the portions of international river basin districts falling within its territory.

2. Each programme of measures shall include the “basic” measures specified in paragraph 3 and, where necessary, “supplementary” measures.

3. “Basic measures” are the minimum requirements to be complied with and shall consist of:

…

(e) controls over the abstraction of fresh surface water and groundwater, and impoundment of fresh surface water, including a register or registers of water abstractions and a requirement of prior authorisation for abstraction and impoundment. These controls shall be periodically reviewed and, where necessary, updated. Member States can exempt from these controls any abstractions or impoundments which have no significant impact on water status;

…’

11. Annex II to Directive 2000/60 states as follows:

‘1. Surface waters

1.1. Characterisation of surface water body types

Member States shall identify the location and boundaries of bodies of surface water and shall carry out an initial characterisation of all such bodies in accordance with the following methodology. Member States may group surface water bodies together for the purposes of this initial characterisation.

(i) The surface water bodies within the river basin district shall be identified as falling within either one of the following surface water categories – rivers, lakes, transitional waters or coastal waters – or as artificial surface water bodies or heavily modified surface water bodies.

(ii) For each surface water category, the relevant surface water bodies within the river basin district shall be differentiated according to type. These types are...