Opinion of Advocate General Rantos delivered on 16 November 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:894
• Date: 16 November 2023
• Celex Number: 62022CC0671
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 16 November 2023 (1)

Case C‑671/22

T GmbH

v

Bezirkshautpmannschaft Spittal an der Drau

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))

(Reference for a preliminary ruling – Environment – EU action in the field of water policy – Directive 2000/60/EC – Article 4(1)(a) – Environmental objectives relating to surface waters – Obligation of the Member States not to authorise a project that may cause a deterioration of the status of a body of water – Annex V, point 1.2.2 – Ecological status classification of the biological quality element ‘fish fauna’)

Introduction

1. The request for a preliminary ruling has been made by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) in an action brought by T GmbH (‘the applicant’) following the rejection of its application for permission to construct a boathouse on a lake in the Land of Carinthia (Austria), on the ground that the water status of that lake did not appear to satisfy the conditions imposed by EU law, on account of poor management of the fish population.

2. The present case will lead me to determine whether, for the purposes of defining the ecological status of a lake in accordance with the criteria set out in Table 1.2.2 of Annex V to Directive 2000/60/EC, (2) account should be taken exclusively of ‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’, to the exclusion of other anthropogenic impacts.

Legal framework

European Union law

3. Article 1 of Directive 2000/60, entitled ‘Purpose’, provides:

‘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;

…’

4. Article 2 of that directive, entitled ‘Definitions’, provides:

‘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.

…

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.

18. “Good surface water status” means the status achieved by a surface water body when both its ecological status and its chemical status are at least “good”.

…

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.

22. “Good ecological status” is the status of a body of surface water, so classified in accordance with Annex V.

…’

5. Article 4 of that directive, entitled ‘Environmental objectives’, provides:

‘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;

…’

6. Point 1.2 of Annex V to that directive, entitled ‘Normative definitions of ecological status classifications’, states:

‘Table 1.2. General definition for rivers, lakes, transitional waters and coastal waters

The following text provides a general definition of ecological quality. For the purposes of classification the values for the quality elements of ecological status for each surface water category are those given in tables 1.2.1 to 1.2.4 below.

Element	High status	Good status	Moderate status
General	There are no, or only very minor, anthropogenic alterations to the values of the physico-chemical and hydromorphological quality elements for the surface water body type from those normally associated with that type under undisturbed conditions. The values of the biological quality elements for the surface water body reflect those normally associated with that type under undisturbed conditions, and show no, or only very minor, evidence of distortion. These are the type-specific conditions and communities.	The values of the biological quality elements for the surface water body type show low levels of distortion resulting from human activity, but deviate only slightly from those normally associated with the surface water body type under undisturbed conditions.	The values of the biological quality elements for the surface water body type deviate moderately from those normally associated with the surface water body type under undisturbed conditions. The values show moderate signs of distortion resulting from human activity and are significantly more disturbed than under conditions of good status.

Waters achieving a status below moderate shall be classified as poor or bad.

Waters showing evidence of major alterations to the values of the biological quality elements for the surface water body type and in which the relevant biological communities deviate substantially from those normally associated with the surface water body type under undisturbed conditions, shall be classified as poor.

Waters showing evidence of severe alterations to the values of the biological quality elements for the surface water body type and in which large portions of the relevant biological communities normally associated with the surface water body type under undisturbed conditions are absent, shall be classified as bad.’

7. That general definition, set out in point 1.2 of Directive 2000/60, is followed by specific definitions for ‘ecological status in rivers’ (point 1.2.1), in ‘lakes’ (point 1.2.2), in ‘transitional waters’ (point 1.2.3) and in ‘coastal waters’ (point 1.2.4). (3) In each of those four categories, the assessment of ecological status is based on three elements, namely biological quality elements, hydromorphological quality elements and physico-chemical quality elements, each of those quality elements comprising a long list of parameters.

8. As regards lakes in particular, table 1.2.2 of Annex V to that directive, entitled ‘Definitions for high, good and moderate ecological status in lakes’, states:

‘Biological quality elements

Element	High status	Good status	Moderate status
…	…	…	…
Fish fauna	Species composition and abundance correspond totally or nearly totally to undisturbed conditions. All the type-specific sensitive species are present. The age structures of the fish communities show little sign of anthropogenic disturbance and are not indicative of a failure in the reproduction or development of a particular species.	There are slight changes in species composition and abundance from the type-specific communities attributable to anthropogenic impacts on physico-chemical or hydromorphological quality elements. The age structures of the fish communities show signs of disturbance attributable to anthropogenic impacts on physico-chemical or hydromorphological quality elements, and, in a few instances, are indicative of a failure in the reproduction or development of a particular species, to the extent that some age classes may be missing.	The composition and abundance of fish species differ moderately from the type-specific communities attributable to anthropogenic impacts on physico-chemical or hydromorphological quality elements. The age structure of the fish communities shows major signs of disturbance, attributable to anthropogenic impacts on physico-chemical or hydromorphological quality elements, to the extent that a moderate proportion of the type specific species are absent or of very low abundance.
…	…	…	…

Hydromorphological quality elements

Element	High status	Good status	Moderate status
…	…	…	…

Physico-chemical quality elements

Element	High status	Good status	Moderate status
…	…	…	…

…’

Austrian law

9. Paragraph 30a(1) of the Wasserrechtsgesetz 1959 (Law relating to the protection of water of 1959) of 16 October 1959, (4) in the version of 22 November 2018, (5) provides, in essence, that surface waters must be protected, enhanced and restored in order to prevent deterioration of their status. The target status for surface water is achieved when the body of surface water has an ecological status and a chemical status which are at least good.

10. Paragraph 104a(1)(1)(b) of the WRG provides, in essence, that projects in which, due to changes in (i) the hydromorphological characteristics of a body of surface water or (ii) the water level of groundwater bodies, deterioration of the status of a surface water or groundwater body is probable are in any event projects likely to have impacts on public policy considerations.

11. Paragraph 105(1) of the WRG provides, in essence, that an application for authorisation of a project may be rejected in the public interest, in particular where a significant deterioration of the ecological status...