A wider notion of the scope of water services in EU water law boosting payment for Water-Related ecosystem services to ensure sustainable water management?

Utrecht Law Review

Volumn 8, Issue 3, 2012, Pages 86-101

  Lindhout, Petra E ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

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[No Author keywords available]

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EID: 84877314434     PISSN: None     EISSN: 1871515X     Source Type: Journal    
DOI: 10.18352/ulr.207     Document Type: Article

References (48)

1. Directive 2000/60/EC, OJ L 327, 22.12.2000, p. 1.
2. E.g. C-188/07, Commune de Mesquer, Para. 38.
3. Common Implementation Strategy of the Water Framework Directive (2000/60/EC), Guidance document no. 1, Economics and the environment, the implementation challenge of the Water Framework Directive, European Communities 2003.
4. I.e. areas designated as requiring special protection under specific Community legislation (see Art. 6 WFD).
5. Art. 2 sub. 15 WFD: a 'river basin district' means the area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and coastal waters, which is identified under Art. 3 (1) as the main unit for the management of river basins.
6. For the purposes of my outline, I will focus on Art. 9 (1) and will not address the remainder of the article unless specifically mentioned.
7. An overview of the difficulties that arise in assessing the nature of the obligations (an obligation of best efforts or an obligation of results?) is provided by J. van Kempen. He outlines that the absence of a deadline is a hint for an obligation of best efforts, but the presence of a deadline does not automatically result in an obligation of results. Furthermore, he outlines that the presence of exemptions implies an obligation of results, but the absence of exemptions does not automatically lead to an obligation of best efforts
8. J. van Kempen, 'Countering the Complexity of Obligations in European Environmental Law, illustrated by an analysis of article 4 of the European Water Framework Directive', 2012 Journal for Environmental Law, accepted, forthcoming.
9. See likewise H. Unnerstall, 'The principle of full cost recovery in the EU-Water Framework Directive-Genesis and Content', 2007 Journal of Environmental Law 19, no. 1, p. 33.
10. Recreational angling as an example will not qualify as water use, as it does not have a significant impact on the status of surface water or groundwater
11. See differently: W. Howarth, 'Cost recovery for water services and the polluter pays principle', 2009 ERA Forum, DOI 10.1007/s12027-009-0134-3.
12. European Commission, Press release IP/11/1101; IP/11/1264; IP/11/1433
13. Common Implementation Strategy of the Water Framework Directive (2000/60/EC), Guidance document no. 1, Economics and the environment, the implementation challenge of the Water Framework Directive, European Communities 2003.
14. See on the difficulties in the implementation of environmental directives, outlining also the function of guidance documents therein: B.A. Beijen, 'The Implementation of European Environmental Directives: Are Problems Caused by the Quality of the Directives?', 2011 European Energy and Environmental Law Review 20, no. 4, pp. 15-163.
15. Common Implementation Strategy of the Water Framework Directive (2000/60/EC), Guidance document no. 1, Economics and the environment, the implementation challenge of the Water Framework Directive, European Communities 2003, p. 73.
16. Written question E-1571/02 by Rolf Linkohr (PSE) to the Commission, 4 June 2002
17. European Commission, Press release IP/11/1101
18. European Commission, Press release IP/11/1101; IP/11/1264; IP/11/1433. The three press releases differ slightly on the formulation of the services ('impoundment or storage of surface waters for navigation purposes' vs. 'restriction of surface waters for navigation purposes') and the consequences of the exclusion of water services by the country involved ('exclusion hinders the full and correct application of the Water Framework Directive' vs. an extra addition 'contributing to inefficient or wasteful use of water').
19. European Commission, Press release IP/12/536; The Commission also notes that similar cases are being investigated in several other Member States (Austria, Belgium, Denmark, Finland, Hungary, the Netherlands and Sweden) and if these cases remain unresolved, the Commission will also refer those countries to the European Court of Justice
20. Complaint to the European Commission concerning the failure of Austria, Belgium, Denmark, Estonia, Finland, Germany, Hungary, Ireland, Poland, Sweden and the Netherlands to comply with the provisions of the EU Water Framework Directive 2000/60/EC ('WFD') Article 5§1, Brussels, 17 July 2006, WWF/EEB
21. See C-72/95 Kraaijeveld [1996] ECR I-5403, Para. 28.
22. H.F.M.W. van Rijswick, 'Transities in het Europese waterrecht: Kansen, bedreigingen en misvattingen rond de Kaderrichtlijn Water', in S. van der Arend et al. (eds), Tien Jaar Ervaring met de Europese Kaderrichtlijn Water, Ambities en Ambivalenties, 2010, p. 20.
23. C-188/07, Commune de Mesquer, Para. 38.
24. European Commission, Press release IP/11/1101; IP/11/1264; IP/11/1433
25. See also H.F.M.W. van Rijswick & H.J.M. Havekes, European and Dutch Water Law, 2012, p. 431, remarking that in the implementation process of the WFD in the Netherlands, the position was taken that the concept of water services should be interpreted broadly, referring to Dutch parliamentary documents: Kamerstukken II 2002/2003, 28 808, no. 3, pp. 16-17. However, regardless of this remark in parliamentary documents a number of water-related activities/services were not appointed as a water service.
26. The Netherlands holds the view that hydro power is not a water service due to its very limited use in the Netherlands (not significant) and the fact that it has a limited effect on water. What limited effect it does have is not mentioned, however.
27. Rijkswaterstaat, 'Kostenterugwinning van Waterdiensten in Nederland', RWS Waterdienst rapport 2008.051, p. 11.
28. R. Brouwer, Payment for Ecosystem Services: Making Money Talk, 2010, p. 21.
29. Proposal for a Council Directive establishing a framework for Community action in the field of water policy, COM(97) 49 final, pp. 16-17.
30. Amended proposal for a European Parliament and Council Directive establishing a framework for Community action in the field of water policy, (COM(1997) 49 final), COM(1999) 271 final, p. 26.
31. Although in this conceptual text the Member States needed to take into account the principle of cost recovery with a view to setting charges at a level which encourages the attainment of the environmental objectives, therefore limiting it to the objectives mentioned in Art. 4 and no longer to Art. 1 WFD, this changed again in later versions by redefining 'water use' and relating this water use (including services) to the purposes of Art. 1 WFD (see Art. 2 (39) WFD second sentence).
32. OJ C 343, 31.11.1999, Art. 2 (34).
33. COM(2000) 219 final
34. The European Parliament/The Council, 'Joint text approved by the Conciliation Committee provided for in Article 251 (4) of the EC Treaty 1997/0067 (COD), C-5-0347/00, PE-CONS 3639/00 ENV 221 Codec 513 (2000)'
35. See also Van Kempen on the presence of exemptions in Directives in J. van Kempen, 'Countering the Complexity of Obligations in European Environmental Law, illustrated by an analysis of article 4 of the European Water Framework Directive', 2012 Journal for Environmental Law, accepted, forthcoming.
36. H. Unnerstall, 'The principle of full cost recovery in the EU-Water Framework Directive-Genesis and Content', 2007 Journal of Environmental Law 19, no. 1, p. 35.
37. E.g. D.M. Post et al. (eds.), 'The problem of boundaries in defining ecosystems: A potential landmine for uniting geomorphology and ecology', 2007 ScienceDirect Geomorphology 89, p. 113: 'They also provide us with a useful definition of an ecosystem-a region of strong interactions among organisms and between organisms and the flux and flow of energy or material.' Also see the other definitions of ecosystems provided in this article.
38. Recommendation on Payments for Ecosystem Services in Integrated Water Resources Management, UN Doc. ECE/MP.WAT/22 (2007), p. 2.
39. T.C.P. Melman & C.M. van der Heide, 'Ecosysteemdiensten in Nederland: verkenning betekenis en perspectieven. Achtergrondrapport bij Natuurverkenning 2011', WOt rapport 111 (2011).
40. Recommendation on Payments for Ecosystem Services in Integrated Water Resources Management, UN Doc. ECE/MP.WAT/22 (2007), p. 4.
41. See for instance Millennium Ecosystem Assessment,, Chapter 7, p. 185 (last visited November 2012).
42. Recommendation on Payments for Ecosystem Services in Integrated Water Resources Management, UN Doc. ECE/MP.WAT/22 (2007), p. 4: 'Conservation agriculture refers to a range of soil management practices that minimize effects on composition, structure and natural biodiversity and reduce erosion and degradation (...) Furthermore, less contamination of surface water [emphasis added] occurs and water retention and storage are enhanced, which allows recharging of aquifers.'
43. Recommendation on Payments for Ecosystem Services in Integrated Water Resources Management, UN Doc. ECE/MP.WAT/22 (2007), p. 4.
44. European Commission, Press release IP/11/1101; IP/11/1264; IP/11/1433. Art. 294 TFEU.
45. J. Jans & H.H.B. Vedder, European Environmental Law, After Lisbon, 2012, p. 62.
46. C-36/98, Spain vs. Council, Paras. 50, 52.
47. See a.o. Rijkswaterstaat, 'Syntheserapport Gebiedspilot meerlaagsveiligheid', no. 0243629.00, (2011).
48. See Art. 6.2.4 Besluit ruimtelijke ordening (21 April 2008); e.g. environmental research costs, costs for backfilling of surface waters, plan costs, compensation costs for loss of water facilities, damage costs.