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Verschlechterungsverbot und Verbesserungsgebot der Wasserrahmenrichtlinie 2000/60/EG in der Entscheidung des EuGH zur Weservertiefung vom 1.7.2015

Anmerkung zu EuGH, Urteil vom 1.7.2015 – Rs.C-461/13 (Bund für Umwelt und Naturschutz Deutschland e.V./Bundesrepublik Deutschland)

Ekkehard Hofmann

In its judgment of July 1, 2015, the Court of Justice of the European Union (CJEU) answered, in essence, three questions posed by the German Federal Administrative Court (Bundesverwaltungsgericht) concerning Art. 4(1)(a)(i), (ii), and (iii), of Directive 2000/60. The German court asked, first, whether Art. 4 was to be interpreted as meaning that the Member States must — unless a derogation is granted — refuse to authorise a project if it may cause a deterioration in the status of a body of surface water, or whether that provision is merely a statement of an objective for management planning. Second, the requesting court asked if the term “deterioration of the status” in Art. 4(1)(a)(i) of Directive 2000/60 was to be interpreted as covering only detrimental changes which lead to classification in a lower class in accordance with Annex V to the directive, and, if this question is to be answered in the negative (third question), under what circumstances arises a “deterioration of the status” within the meaning of Art. 4(1)(a)(i) of Directive 2000/60. The CJEU answered to the first question that Art. 4 of Directive 2000/60 is applicable to authorization acts of individual projects as well. In its reply to the second question, the court held that “deterioration of the status” must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constituted a “deterioration of the status” of a body of surface water, within the meaning of Art. 4(1)(a)(i). The following comment agrees with CJEU’s judgment with respect to its answer to the first question, primarily based on the argument that the wording of Art. 4 of Directive 2000/60 and its main environmental objectives support the inclusion of individual licensing acts. Regarding the second part of the ruling, the author observes that the court abandons the “one out all out” rule (Art. 2(17) of the directive) without offering adequate explanation for that shift in jurisprudence, and, furthermore, it fails to present a proper and feasible interpretation of “deterioration of status”. Instead, the judgment leaves public authorities as well as private stakeholders in the dark concerning some essential interpretation issues such as which falls of biological quality elements by one class result in a fall of the body of surface water as a whole and which falls do not.

Der Verfasser ist Inhaber des Lehrstuhls für Öffentliches Recht, insbesondere Umweltrecht, und Direktor des Instituts für Umwelt- und Technikrecht (IUTR) der Universität Trier sowie Mitherausgeber der EurUP.


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