Provisional text

delivered on 3 December 2020 (1)

(Deterioration of the Doñana natural area)

(Environment – Directive 2000/60/EC – Framework for Union action in the field of water policy – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Deterioration of bodies of groundwater in the Doñana natural area – No further characterisation of those groundwater bodies or groups of bodies in the Doñana natural area which have been identified as being at risk – Appropriate basic and supplementary measures in the management plan for the Guadalquivir river basin district – Deterioration of various natural habitats)

Table of contents

II. Legal framework

III. Facts and pre-litigation procedure

(a) Effect on protected habitats

(b) Applicability ratione temporis of the prohibition of deterioration

(c) No rebuttal by the Kingdom of Spain

(a) Recognition of the infringement by the Kingdom of Spain

(b) The territorial division of the groundwater bodies

(c) The number of measurement points

(d) Gaps in the estimate of abstraction

(a) Change from good to bad status

(b) Deterioration of bad status

(i) Notion of deterioration

(ii) Arguments concerning the abstraction balance

(iii) Arguments concerning surface waters and terrestrial ecosystems

(c) Justification of deterioration

(a) Legalisation

(b) Allocation of finances

(c) Supply of surface water for irrigation purposes

VI. Costs

VII. Conclusion

II. Legal framework

‘The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:

(a) prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems;

…

and thereby contributes to:

– the provision of the sufficient supply of good quality surface water and groundwater as needed for sustainable, balanced and equitable water use,

…’

7. Article 2 of the Water Framework Directive includes the following definitions:

‘…

12. “Body of groundwater” means a distinct volume of groundwater within an aquifer or aquifers.

…

26. “Quantitative status” is an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions.

27. “Available groundwater resource” means the long-term annual average rate of overall recharge of the body of groundwater less the long-term annual rate of flow required to achieve the ecological quality objectives for associated surface waters specified under Article 4, to avoid any significant diminution in the ecological status of such waters and to avoid any significant damage to associated terrestrial ecosystems.

28. “Good quantitative status” is the status defined in table 2.1.2 of Annex V.

…’

‘The level of groundwater in the groundwater body is such that the available groundwater resource is not exceeded by the long-term annual average rate of abstraction.

Accordingly, the level of groundwater is not subject to anthropogenic alterations such as would result in:

— failure to achieve the environmental objectives specified under Article 4 for associated surface waters,

— any significant diminution in the status of such waters,

— any significant damage to terrestrial ecosystems which depend directly on the groundwater body,

and alterations to flow direction resulting from level changes may occur temporarily, or continuously in a spatially limited area, but such reversals do not cause saltwater or other intrusion, and do not indicate a sustained and clearly identified anthropogenically induced trend in flow direction likely to result in such intrusions.’

‘(i) Member States shall implement the necessary measures to prevent or limit the input of pollutants into groundwater and to prevent the deterioration of the status of all bodies of groundwater, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8 of this Article and subject to the application of Article 11(3)(j);

(ii) Member States shall protect, enhance and restore all bodies of groundwater, ensure a balance between abstraction and recharge of groundwater, with the aim of achieving good groundwater status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8 of this Article and subject to the application of Article 11(3)(j);

…’

10. Article 4(1)(c) of the Water Framework Directive includes protected areas in the quality objectives of the Water Framework Directive:

‘…

Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established.’

12. Article 4(4) of the Water Framework Directive allows the target date for good water status to be deferred:

‘The time limits laid down in paragraph 1 may be extended for the purposes of phased achievement of the objectives for bodies of water, provided that no further deterioration occurs in the status of the affected body of water when all the following conditions are met:

…’

13. Article 4(7) of the Water Framework Directive permits a departure from the environmental objectives, irrespective of the time limits for the requirement for improvement, under certain conditions.

14. Article 5 of the Water Framework Directive governs the assessment of water status:

‘1. Each Member State shall ensure that for each river basin district or for the portion of an international river basin district falling within its territory:

— an analysis of its characteristics,

— a review of the impact of human activity on the status of surface waters and on groundwater, and

— an economic analysis of water use

is undertaken according to the technical specifications set out in Annexes II and III and that it is completed at the latest four years after the date of entry into force of this Directive.

15. Point 2.1 of Annex II to the Water Framework Directive regulates the initial characterisation of the status of groundwater bodies, which includes ‘the degree to which they are at risk of failing to meet the objectives for each groundwater body under Article 4’. Point 2.2 provides for further characterisation in certain cases:

‘Following this initial characterisation, Member States shall carry out further characterisation of those groundwater bodies or groups of bodies which have been identified as being at risk in order to establish a more precise assessment of the significance of such risk and identification of any measures to be required under Article 11. Accordingly, this characterisation shall include relevant information on the impact of human activity and, where relevant, information on:

…

— an inventory of associated surface systems, including terrestrial ecosystems and bodies of surface water, with which the groundwater body is dynamically linked,

— estimates of the directions and rates of exchange of water between the groundwater body and associated surface systems,

— sufficient data to calculate the long term annual average rate of overall recharge,

…’

16. Article 11 of the Water Framework Directive governs the measures which may be adopted by the Member States in order to achieve the objectives of the directive:

‘1. Each Member State shall ensure the establishment for each river basin district, or for the part of an international river basin district within its territory, of a programme of measures, taking account of the results of the analyses required under Article 5, in order to achieve the objectives established under Article 4. …

(a) those measures required to implement Community legislation for the protection of water, including measures required under the legislation specified in Article 10 and in part A of Annex VI;

…

(c) measures to promote an efficient and sustainable water use in order to avoid compromising the achievement of the objectives specified in Article 4;

…

(e) controls over the abstraction of fresh surface water and groundwater, and impoundment of fresh surface water, including a register or registers of water abstractions and a requirement of prior authorisation for abstraction and impoundment. These controls shall be periodically reviewed and, where necessary, updated. Member States can exempt from these controls, abstractions or impoundments which have no significant impact on water status;

…

17. Article 1(e) of the Habitats Directive defines good conservation status of habitats as follows:

‘…

The conservation status of a natural habitat will be taken as “favourable” when:

— its natural range and areas it covers within that range are stable or increasing, and

— the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and

— the conservation status of its typical species is favourable as defined in (i)’

18. Article 6(2), (3) and (4) of the Habitats Directive contains the central provision governing the protection of sites:

‘2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

…’

III. Facts and pre-litigation procedure

21. These protected areas cover only parts of the Doñana natural area, which is the subject of the present case. For the purposes of the application of the Water Framework Directive, in the first management plan pursuant to Article 13, the Plan Hidrológico del Guadalquivir 2009-2015 (Guadalquivir Basin Hydrological Plan 2009 to 2015), (10) the natural area was amalgamated almost entirely into a single body of groundwater, Almonte-Marismas. (11) This administrative division corresponds largely to the geological aquifer of that same name, which does, however, also include an adjacent groundwater body, according to the submissions made by the Kingdom of Spain. The Almonte-Marismas groundwater body was not specified in Article 41 of that plan as one of the bodies of groundwater in respect of which the objective of good quantitative status was considered to be at risk. Rather, the overall objective of good status was prescribed for 2015. (12)

22. In the second management plan, the Plan Hidrológico del Guadalquivir 2016-2021 (Guadalquivir Basin Hydrological Plan 2016 to 2021), (13) the Almonte-Marismas groundwater body was divided up. Three of the five new groundwater bodies, Almonte (ES050MSBT000055101), Marismas (ES050MSBT000055102) and La Rocina (ES050MSBT000055105) are of bad quantitative status. (14) All three have a low groundwater level (15) while more groundwater is abstracted than recharged in the latter two. (16)

23. Following various complaints and a question in the European Parliament, the Commission initiated an investigation, on the basis of which it sent the Kingdom of Spain a letter of formal notice on 17 October 2014 calling on it, pursuant to Article 258 TFEU, to submit its observations on possible infringements of the Water Framework Directive and the Habitats Directive in relation to groundwater in the Doñana area. After the Kingdom of Spain had replied, the Commission sent it a reasoned opinion on 29 April 2016, raising the same complaints, and called on it to address the objections by 29 June 2016. Notwithstanding further replies by the Kingdom of Spain, the Commission brought the present action on 22 July 2019.

24. The European Commission claims that the Court should:

— declare that, by failing to adopt the measures necessary to prevent the deterioration of the status of the bodies of groundwater in the Doñana region, by failing to carry out further characterisation of those groundwater bodies which are at risk, and by failing to identify the necessary measures and to include appropriate basic and supplementary measures in the programme of measures in the management plan for Guadalquivir river basin district, the Kingdom of Spain has failed to fulfil its obligations under: Article 4(1)(b) of the Water Framework Directive, in conjunction with Article 1(a) thereof and point 2.1.2 of Annex V thereto; Article 5 of the Water Framework Directive, read in conjunction with point 2.2 of Annex II thereto; and Article 11(1), Article 11(3)(a), (c) and (e) and Article 11(4) of the Water Framework Directive;

— declare that, by failing to take appropriate steps to avoid the deterioration of natural habitats and habitats of species for which the areas concerned (ZEPA/LIC ES0000024 Doñana, ZEPA/LIC ES6150009 Doñana Norte y Oeste and ZEPA ES6150012 Dehesa del Estero y Montes de Moguer) have been designated, the Kingdom of Spain has failed to fulfil its obligations under Article 6(2), read in conjunction with Article 7, of the Habitats Directive;

— order the Kingdom of Spain to pay the costs.

26. For the first time in the rejoinder, the Kingdom of Spain expressly contends that the Court should:

— declare the action to be inadmissible or at least dismiss the action, and