10.5 Dispute settlement
159
the infringement procedure will ever emerge as a mechanism that can be readily
triggered to solve transboundary water disputes, especially in relation to questions
belonging to the regulatory grey zone of water quantity management.
Under the Treaty on the Functioning of the European Union a member state can
also sue another member state directly before the European Court of Justice (Art.
259.). This procedure, however, also suffers from a series of structural shortcomings
that render such avenue almost completely ineffective. First of all, prior to seizing
the Court, the applicant member state must submit the matter to the Commission for
pre-litigious consideration. Thus, only if the Commission fails to take over the case
within three months, can the applicant member state proceed with the case to the
Court. This, however, also implies that the Commission is not convinced of the legal
(or political) merit of the case, so it is likely to intervene in the procedure against
the applicant member state, reducing the chances of success dramatically. Finally,
member states themselves are very reluctant to challenge each other directly under
EU law. Therefore, not only are such cases extremely rare (only four such judgements
have been delivered since 1958), recourse to an Art. 259 procedure is also regarded
as politically unfriendly gesture and a legally risky enterprise (Baranyai 2015).
Mention can also be made of the so-called preliminary ruling procedure which
concerns the abstract interpretation of EU law by the European Court of Justice
upon the initiative of a national court of a member states. It cannot be excluded that
a particular question submitted by the national judge to the ECJ is also subject to a
water-related dispute by two (or more) EU basin states (see Sect. 8.3.5). In such a
specific case the verdict of the ECJ can significantly contribute to the resolution of
the problem. Nevertheless, such an eventuality is likely to remain extremely rare. As
outlined above, the range of EU provisions that directly relate to the most contentious
transboundary water problems is inherently narrow. Thus, in the first place—apart
from certain water quality issues—it is difficult to find a question that would make
an adequate subject for preliminary ruling. Second, even if such a question can be
isolated, the national judge can only engage the ECJ, if he or she identifies hitherto
unresolved uncertainties as to the proper meaning of the legal provision that is (also)
the subject of the transboundary water dispute. But transboundary water disputes
usually emerge not because the erring state is unable to correctly construe e.g. an
important definition of the Water Framework Directive, rather, because of actual
implementation gaps. The establishment of an implementation gap by a member
state, however, cannot as such become the proper subject of preliminary ruling by
the ECJ as it belongs to the infringement procedure. Third, a preliminary ruling
procedure presupposes the existence of a judicial process before a national court of
law. Since EU member states cannot directly sue each other before national courts
for non-compliance with EU law—that would pre-empt the prerogatives of the ECJ
under Article 259 of the TFEU—any such procedure could only be triggered by a
proxy actor (e.g. a like-minded NGO). Even if the aggrieved state finds a suitable
by the general infringement statistics of the Commission and the case law of the European Court
of Justice. These two sources do not identify a single case where the Commission voluntarily took
over an explicit bilateral dispute between member states. Also see Sect. 8.3.5.
159
the infringement procedure will ever emerge as a mechanism that can be readily
triggered to solve transboundary water disputes, especially in relation to questions
belonging to the regulatory grey zone of water quantity management.
Under the Treaty on the Functioning of the European Union a member state can
also sue another member state directly before the European Court of Justice (Art.
259.). This procedure, however, also suffers from a series of structural shortcomings
that render such avenue almost completely ineffective. First of all, prior to seizing
the Court, the applicant member state must submit the matter to the Commission for
pre-litigious consideration. Thus, only if the Commission fails to take over the case
within three months, can the applicant member state proceed with the case to the
Court. This, however, also implies that the Commission is not convinced of the legal
(or political) merit of the case, so it is likely to intervene in the procedure against
the applicant member state, reducing the chances of success dramatically. Finally,
member states themselves are very reluctant to challenge each other directly under
EU law. Therefore, not only are such cases extremely rare (only four such judgements
have been delivered since 1958), recourse to an Art. 259 procedure is also regarded
as politically unfriendly gesture and a legally risky enterprise (Baranyai 2015).
Mention can also be made of the so-called preliminary ruling procedure which
concerns the abstract interpretation of EU law by the European Court of Justice
upon the initiative of a national court of a member states. It cannot be excluded that
a particular question submitted by the national judge to the ECJ is also subject to a
water-related dispute by two (or more) EU basin states (see Sect. 8.3.5). In such a
specific case the verdict of the ECJ can significantly contribute to the resolution of
the problem. Nevertheless, such an eventuality is likely to remain extremely rare. As
outlined above, the range of EU provisions that directly relate to the most contentious
transboundary water problems is inherently narrow. Thus, in the first place—apart
from certain water quality issues—it is difficult to find a question that would make
an adequate subject for preliminary ruling. Second, even if such a question can be
isolated, the national judge can only engage the ECJ, if he or she identifies hitherto
unresolved uncertainties as to the proper meaning of the legal provision that is (also)
the subject of the transboundary water dispute. But transboundary water disputes
usually emerge not because the erring state is unable to correctly construe e.g. an
important definition of the Water Framework Directive, rather, because of actual
implementation gaps. The establishment of an implementation gap by a member
state, however, cannot as such become the proper subject of preliminary ruling by
the ECJ as it belongs to the infringement procedure. Third, a preliminary ruling
procedure presupposes the existence of a judicial process before a national court of
law. Since EU member states cannot directly sue each other before national courts
for non-compliance with EU law—that would pre-empt the prerogatives of the ECJ
under Article 259 of the TFEU—any such procedure could only be triggered by a
proxy actor (e.g. a like-minded NGO). Even if the aggrieved state finds a suitable
by the general infringement statistics of the Commission and the case law of the European Court
of Justice. These two sources do not identify a single case where the Commission voluntarily took
over an explicit bilateral dispute between member states. Also see Sect. 8.3.5.