Tackling eutrophication: the implications of a precautionary approach

Abstract:

Eutrophication is a major water pollution problem which affects inland and coastal waters throughout the European Community. This article examines the Community’s response to this issue. The Community appeared to have established a comprehensive framework of measures when, in the 1991, it adopted the Urban Waste Water Treatment Directive and the Nitrates Directive. However, as this article points out, it soon became apparent that there were several important gaps within this framework. With the adoption of the Integrated Pollution Prevention and Control Directive, in 1996, and of the Water Framework Directive in 2000 the Community put in place even more extensive provisions that would plug these gaps. However, one important question has remained. When exactly should individual water bodies be considered to be eutrophic? Both the Urban Waste Water Treatment Directive and the Nitrates Directive contain very similar definitions of eutrophication. However, Member States have been left to their own devices in interpreting and applying these definitions. This has led some Member States to adopt a restrictive approach with the result that some eutrophic waters have been left unprotected. The European Court of Justice has now turned its attention to this matter. In two enforcement actions, against France, the Court has provided its interpretation of the definitions set out in these Directives. This article examines these cases and points out that the Court adopted a highly precautionary and purposive approach. The article also analyses the wider implications of this case law. It points out that the Court’s judgments in these cases have potentially far reaching consequences not just in relation to the Urban Waste Water Treatment Directive and the Nitrates Directive, but also with regard to the steps that must be taken under the Integrated Pollution Prevention and Control Directive and also the Water Framework Directive.