124
10 The Resilience of Transboundary Water Governance …
(the so-called “passerelle”), but arriving at such a decision requires unanimity among
member states in the first place too (see Sect. 8.3.1).
Importantly, the current formulation of the quantity management clause is relatively new as it was incorporated into the predecessor of the TFEU in reflection to a
judgement of the European Court of Justice in a case launched by Spain against the
Council of the European Community for the ratification of the 1994 Danube Convention by the EU.
11 The legal substance of the case concerned the limits of the EU’s
powers to adopt legislation on water management questions, rather than cooperation
in the Danube basin itself (that lies thousands of kilometres away from Spain). While
the judgement usefully clarified the EU’s powers to regulate water protection through
the ordinary legislative procedure, it nonetheless introduced and ossified a sharp and
rather artificial distinction between water quality and water quantity management
that has pervaded EU water law ever since.
12 As a result, today both the current treaty
language and the explicit jurisprudence of the ECJ refers water quantity measures
squarely to the unanimity box, which practically amounts to a natural political break
on any significant consideration of transboundary water quantity issues at EU level.
Consequently, the quantitative aspects of water management appear in EU water
law only sporadically. In fact, the Water Framework Directive
13 itself begins with
reinstating the secondary role of water quantity by way of declaring that “[t]his Directive aims at maintaining and improving the aquatic environment in the Community.
This purpose is primarily concerned with the quality of the waters concerned. Control of quantity is an ancillary element in securing good water quality […]” (Recital
(19)) (emphasis added).
In a slightly contradictory manner, however, the WFD also makes a modest effort
to incorporate certain water quantity considerations with reference to “the need for
11 C-36/98, Spain v. Council, ECR 2001, I-00779.
12 When the EU ratified the Danube Convention by Council Decision 97/825/EC, Article 1302(2) of
the Treaty establishing the European Community (predecessor of the TFEU) called for unanimity
vote for the adoption of any measures “concerning the management of water resources”. As the
relevant Council decision had been approved by qualified majority Spain brought an action against
the ratification before the Court alleging that it was adopted on an inappropriate legal basis. Spain’s
plea was based on a broad interpretation of “water management” and of the objectives and content
of the Convention. Notably: water management is to be construed to encompass all measures
that are designed to administer and rationalise the use of water (para 10). As the Convention
affects various aspects of water management, it could have only been ratified through unanimity in
Council. The European Court of Justice however—in line with the arguments of the Council, the
Commission, Portugal and France—concluded that the term “management of water resources” had
to be construed narrowly, covering only measures “which regulate the quantitative aspects of the use
of those resources […], not those concerning the improvement and the protection of the quality of
those resources” (para 52). Thus the adequate procedure for the ratification of the Convention must
be determined in view of the primary purpose and the content of the measure (para 58). When water
quantity aspects appear only “incidentally” in a complex water-related legislation—such as in the
case of the Danube Convention—the measure must be regarded as an “environmental protection”
rather than “water management” instrument. Consequently, it can be adopted through the ordinary
(co-)decision procedure, rather than by unanimity in Council (para 74).
13 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.
10 The Resilience of Transboundary Water Governance …
(the so-called “passerelle”), but arriving at such a decision requires unanimity among
member states in the first place too (see Sect. 8.3.1).
Importantly, the current formulation of the quantity management clause is relatively new as it was incorporated into the predecessor of the TFEU in reflection to a
judgement of the European Court of Justice in a case launched by Spain against the
Council of the European Community for the ratification of the 1994 Danube Convention by the EU.
11 The legal substance of the case concerned the limits of the EU’s
powers to adopt legislation on water management questions, rather than cooperation
in the Danube basin itself (that lies thousands of kilometres away from Spain). While
the judgement usefully clarified the EU’s powers to regulate water protection through
the ordinary legislative procedure, it nonetheless introduced and ossified a sharp and
rather artificial distinction between water quality and water quantity management
that has pervaded EU water law ever since.
12 As a result, today both the current treaty
language and the explicit jurisprudence of the ECJ refers water quantity measures
squarely to the unanimity box, which practically amounts to a natural political break
on any significant consideration of transboundary water quantity issues at EU level.
Consequently, the quantitative aspects of water management appear in EU water
law only sporadically. In fact, the Water Framework Directive
13 itself begins with
reinstating the secondary role of water quantity by way of declaring that “[t]his Directive aims at maintaining and improving the aquatic environment in the Community.
This purpose is primarily concerned with the quality of the waters concerned. Control of quantity is an ancillary element in securing good water quality […]” (Recital
(19)) (emphasis added).
In a slightly contradictory manner, however, the WFD also makes a modest effort
to incorporate certain water quantity considerations with reference to “the need for
11 C-36/98, Spain v. Council, ECR 2001, I-00779.
12 When the EU ratified the Danube Convention by Council Decision 97/825/EC, Article 1302(2) of
the Treaty establishing the European Community (predecessor of the TFEU) called for unanimity
vote for the adoption of any measures “concerning the management of water resources”. As the
relevant Council decision had been approved by qualified majority Spain brought an action against
the ratification before the Court alleging that it was adopted on an inappropriate legal basis. Spain’s
plea was based on a broad interpretation of “water management” and of the objectives and content
of the Convention. Notably: water management is to be construed to encompass all measures
that are designed to administer and rationalise the use of water (para 10). As the Convention
affects various aspects of water management, it could have only been ratified through unanimity in
Council. The European Court of Justice however—in line with the arguments of the Council, the
Commission, Portugal and France—concluded that the term “management of water resources” had
to be construed narrowly, covering only measures “which regulate the quantitative aspects of the use
of those resources […], not those concerning the improvement and the protection of the quality of
those resources” (para 52). Thus the adequate procedure for the ratification of the Convention must
be determined in view of the primary purpose and the content of the measure (para 58). When water
quantity aspects appear only “incidentally” in a complex water-related legislation—such as in the
case of the Danube Convention—the measure must be regarded as an “environmental protection”
rather than “water management” instrument. Consequently, it can be adopted through the ordinary
(co-)decision procedure, rather than by unanimity in Council (para 74).
13 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.