26.1.2013

EN

Official Journal of the European Union

C 26/35

(Case C-525/12)

2013/C 26/67

Language of the case: German

Parties

Applicant: European Commission (represented by: E. Manhaeve and G. Wilms, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

1.declare that the Federal Republic of Germany has failed to fulfil its obligations under Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (the Water Framework Directive) (1) and in particular under Article 2(38) and Article 9, because it has adopted an interpretation which excludes certain services from the concept of ‘water services’.

2.order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Commission considers that the abstraction, impoundment, storage, treatment and distribution of surface water or ground water for the purposes of hydro electric power production, navigation and flood protection are also included within water services. Further, personal consumption is also be categorised under water services.

The use of the concept ‘water services’ by the defendant is contrary to Article 9 of the Water Framework Directive (WFD). The defendant excludes water services such as impoundment which is intended for hydro electric power production, navigation and flood protection from the scope of water services within the meaning of the Directive. Such a narrow interpretation is not compatible with the WFD, undermines the effectiveness of Article 9 WFD and thereby jeopardises the attainment of the Directive’s objectives.

It is true that the Member States enjoy a certain margin of discretion on the basis of Article 9 WFD to exclude water services from recovery of costs. They might first have regard to the social, environmental and economic effects of the recovery of costs as well as the geographic and climatic conditions. Further, a Member state might under Article 9(4) WFD decide not to apply the provisions of the second sentence of Article 9(1) WFD in relation to water-pricing policies and recovery of the costs of water services. That option is subject to the condition that there is an established practice in the Member State and that the purposes and the achievement of the objectives of the Directive are not compromised.

However, the complete exclusion of a substantial range of water services, as effected by the defendant, goes far beyond that margin of discretion.

(1) OJ 2000 L 321, p. 1