AG Opinion on Doñana Case (C-559/19): a “watered-down” concept on the prohibition of groundwater deterioration?

On 3 December 2020, the CJEU issued an Advocate General’s Opinion on the Case C-559/19 European Commission v Kingdom of Spain, on the deterioration of the Doñana natural area. This case deals with the interpretation of the Water Framework Directive and Habitats Directive for the protection of groundwater and connected wetlands.

There is considerable concern about a key part of the opinion, regarding the interpretation of the concept of further deterioration of bad quantitative status of groundwater. In this case, water extractions for agriculture exceed groundwater recharge and groundwater levels have been falling for many years, with likely adverse effects on wetlands and connected surface protected areas. The Commission argues that Spain has infringed the Water Framework Directive’s prohibition of deterioration regarding groundwater.

However, the Advocate General finds that where a water body is already of bad quantitative status, neither lowering the level nor excessive abstraction, constitutes further deterioration under the Water Framework Directive. Only an increase in the current overexploitation would meet the definition. A further deterioration within the scope of bad status would require an increase in the current deficit that is, increasing overexploitation.

This interpretation would not be in line with the broad interpretation of deterioration settled by the Court for surface water status and chemical groundwater status in cases C-461/13 and C-535/18. The Court established in those cases that the obligation to prevent deterioration encompasses all changes liable to undermine achievement of the principal objective of the Directive, that is, to preserve and restore good status of all waters. However,  the restrictive interpretation of Case C-559/19 Advocate General’s Opinion could jeopardise the full effectiveness of Water Framework Directive’s prohibition of deterioration for groundwater.

Water Framework Directive’s prohibition of deterioration

The Water Framework Directive (Directive 2000/60/EEC) does not define the concept of “deterioration of the status” of surface water or groundwater. Therefore, its meaning and scope must be established by taking into account both the terms used in the Directive and its context (C-461/13, p.53 and 54).

Article 4(1)(b)(i) of the Directive requires Member States to implement the necessary measures to prevent deterioration of the status of groundwater (prohibition of deterioration). They must also protect, enhance and restore them and ensure a balance between abstraction (i.e. removing water from the environment) and recharge (i.e. water naturally added by the environment) to achieve ‘good status’ by 2015 (requirement for improvement), although this deadline has passed, time extensions and derogations were possible in justified cases. Member States are required to adopt programmes of measures and management plans, reviewed every six years and must adequately characterise or assess water status and pressures so that environmental objectives and appropriate measures can be set out in the plans. For groundwater, good status is achieved when both its quantitative and chemical status are good (Article 2.20).

Point 2.1.2 of Annex V specifies that good quantitative groundwater status is achieved when the level of groundwater is such that the long-term average annual abstraction does not exceed the available resources. This level must also not be subject to human alterations, which would result in the deterioration of the status or failure to achieve environmental objectives for associated surface waters, or significantly damage terrestrial ecosystems which depend on groundwater.

Article 4(7) of the Directive states that there will not be a breach when failure to achieve good status or to prevent deterioration is due to alterations of groundwater level and several conditions are met. The reasons for the alterations must be of overriding public interest and/or the environmental and social benefits of prevent deterioration and achieving good status have to be outweighed by the benefits of the alterations to human health, human safety or sustainable development. The benefits from alterations also cannot, for technical feasibility or disproportionate cost be achieved by other significantly better environmental options. These reasons have to be explained in the river basin management plan and all practicable mitigation measures must be adopted.

Key issues in Case C-559/19

The Doñana, in the southwest of Spain, is one of the most important natural areas in Europe. It includes significant Natura 2000 sites and is a Ramsar Wetland, UNESCO Biosphere Reserve and a National Park. It is affected by significant extractions of underground water used to irrigate growing areas for strawberries and ‘red fruit’. A large proportion is illegally extracted, and there are also extractions for tourist developments along the coast.

In case C-559/19, the Commission contends that Spain has infringed:

(1) The Water Framework Directive’s prohibition of deterioration regarding groundwater in Doñana.

(2) The Habitats Directive’s prohibition of deterioration in the Natura 2000 areas of Doñana.

(3) Investigation and assessment obligations under the Water Framework Directive.

(4) The river basin management plan has not included appropriate measures to achieve good status of Doñana’s groundwater.

Although these issues are related, the interpretation of the concept of deterioration of bad quantitative status of groundwater proposed by the Advocate General is particularly troubling.

The Commission contends that, a ‘deterioration of status’ should be considered to exist when the level of groundwater continues to fall due to excessive abstraction, where more water continues to be extracted than is recharged, and in addition, where there is a possible deterioration of surface waters and associated terrestrial ecosystems.

The Advocate General admits that there is evidence of continued overexploitation, but it has not been demonstrated that it is increasing, and only this increase would breach the prohibition on deterioration. The Advocate General adds that this restrictive interpretation of the prohibition of deterioration stems in all likelihood from economic considerations. [paragraphs 127, 132-135, 141].

The risks associated with this interpretation

  1. This interpretation would not be in line with the broad interpretation of deterioration settled by the CJEU for other types of water, and could jeopardise the Water Framework Directive’s full effectiveness (C-461/13, C-535/18).

The Court has previously given a broad interpretation of the concept of further deterioration of surface water status and chemical groundwater status. If a quality indicator is already in the lowest class, any decline in that indicator constitutes a ‘deterioration of the status’. The extent of ‘deterioration of the status’ is determined by the same principles regardless of the type of water, surface water or groundwater, as the objectives of the Directive for both are largely identical. The Court has emphasised that given the purpose of the Directive, bad water status calls for particular attention in the context of water management (C-535/18, p. 92-98, C-461/13, p. 63).

 The Court has previously held that, with regards to the criteria for concluding that there is deterioration: ‘it is clear from the scheme of Article 4 of Directive 2000/60, in particular Article 4(6) and (7), that a deterioration of the status of a body of water, even if transitory, is authorised only subject to strict conditions’, since it is a derogation from a general obligation. It follows that the threshold beyond which breach of the obligation to prevent deterioration is found must be as low as possible (C535/18, p. 101 and C-461/13, p. 67).

  1. Such an interpretation would not differentiate between the obligation to prevent deterioration and an Article 4(7) derogation. Only the latter contains elements of weighing up of economic interests (C-461/13).

In the Advocate General’s view, the restrictive interpretation would stem from economic considerations and the harm that the immediate cessation of excessive abstraction in 2009 could have caused to the agricultural sector [paragraph 135]. But the Court has already made clear that the interpretation that only ‘serious impairment’ constitutes a deterioration of the status of a water body, founded upon the weighing up of water-related economic interests, cannot be inferred from the wording of the prohibition of deterioration of Article 4 of Water Framework Directive. The Court held that ‘such an interpretation does not respect the difference established by the Directive between the obligation to prevent deterioration of the water body’s status  and the grounds of derogation laid down in Article 4(7) of the Directive, since only the latter involve some weighing up of interests’ (C-461/13, p. 68).

  1. This interpretation does not apply the precautionary principle, since in view of the existing indications, it would be up to Spain to demonstrate – with appropriate characterisation and assessment – that existing over-exploitation has not caused further groundwater deterioration.

Article 6(2) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora requires Member States to take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats.  The European Commission contends that infringement of Article 6(2) of the Habitats Directive (deterioration of surface waters and terrestrial ecosystems) would show a deterioration of the quantitative status of groundwater. However, the Advocate General considers that this only shows indications of bad groundwater status, but not of further deterioration [paragraphs 147-149].

It should also be borne in mind that although the prohibition of deterioration under the Water Framework Directive has a different protection objective than the prohibition under the Habitats Directive, the precautionary principle of Article 191 TFEU would apply in both cases. In this case, it has been demonstrated that there was a poor characterisation and assessment of the status of groundwater bodies of Doñana in both the first and second Guadalquivir River Basin management plans. Illegal abstractions for agriculture and drinking water supplies to certain areas have not been taken into account. As the Advocate General acknowledges, this failure makes it difficult to assess in detail the evolution of groundwater, and therefore a possible deterioration [paragraph 114]. Spain has not provided evidence to show that the existing over-exploitation has not led to any further deterioration in the quantitative status.

Overall, this is a highly problematic interpretation for groundwater protection.  Excessive water abstraction is a serious and widespread problem in Spain and other EU Mediterranean countries, and there is often a lack of full and accurate information.

The Fitness Check of the Water Framework Directive carried out in 2019, strongly emphasised the principle of non-deterioration as a fundamental provision for ensuring the objectives of the Directive. The Court has already highlighted this fundamental role with regard to surface water and the chemical status of groundwater.

The Court must carefully consider whether to follow the restrictive interpretation of the concept of quantitative deterioration of groundwater proposed in the Opinion on the Case C-559/19 in its final judgment.  The prohibition of deterioration plays a key role in meeting the objectives of the Water Framework Directive and its full effectiveness to improve the status of water in Europe may well be weakened.