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.