80
8 Transboundary Water Governance in the European Union
conflictual interstate disputes. Finally, EU member states are highly industrialised,
high income countries, with no apparent political or economic hegemon in the bloc.
The exceptional level of economic development, environmental consciousness as
well as the relative abundance of aquatic resources therefore limits the potential pool
of transboundary water problems.
8.1.2 Normative Features of Transboundary Water
Governance in the European Union
The distinctive normative characteristics of EU transboundary water governance stem
from the unique constitutional construction of the European Union. Under its founding treaties, notably the Treaty on European Union (TEU)
1 and the Treaty on the
Functioning of the European Union (TFEU),
2 the EU disposes of an autonomous
supranational legal system that—in case of a conflict—supersedes national law
(Craig and de Búrca 2003).
In most policy fields—such as water—the EU and its member states share responsibilities. In such shared competence areas, the EU (typically the Council of Ministers
and the European Parliament) adopts legislation that is binding on member states.
Moreover, the EU also concludes international agreements that apply automatically
to EU institutions and member states alike irrespective of national ratification (Art.
216.1. TFEU). While the existence of EU legislation does not automatically preempt national measures in areas of shared competences, member state autonomy is,
nonetheless, seriously constrained by three layers of EU law:
– the founding treaties and the jurisdiction of the Court of Justice of the European
Union (primary law),
– international treaties ratified by the EU, as well as,
– legislation adopted by EU institutions (secondary law) (Kuijper 2013).
Importantly, through the prism of the EU legal system, any other legal norm, such
as intra-member state treaties, are basically considered as national law and remain
subject to the supremacy of EU law. In other words, EU law limits member states
legislative powers not only internally, but also in the international arena (Kuijper
2013).
From the above constitutional construction follows the fact that transboundary
water governance in the EU is regulated by no less than four (!) levels of supranational
law:
– EU primary law: the founding treaties define the distribution of powers in the field
of water policy between the EU and its member states. They also establish horizontal institutional requirements—e.g. on enforcement and dispute settlement—that
apply to water issues regardless of the provisions of multi- or bilateral treaties;
1 Treaty on European Union, Maastricht, 7 February 1992.
2 Treaty on the Functioning of the European Union, Rome, 25 March 1957.
8 Transboundary Water Governance in the European Union
conflictual interstate disputes. Finally, EU member states are highly industrialised,
high income countries, with no apparent political or economic hegemon in the bloc.
The exceptional level of economic development, environmental consciousness as
well as the relative abundance of aquatic resources therefore limits the potential pool
of transboundary water problems.
8.1.2 Normative Features of Transboundary Water
Governance in the European Union
The distinctive normative characteristics of EU transboundary water governance stem
from the unique constitutional construction of the European Union. Under its founding treaties, notably the Treaty on European Union (TEU)
1 and the Treaty on the
Functioning of the European Union (TFEU),
2 the EU disposes of an autonomous
supranational legal system that—in case of a conflict—supersedes national law
(Craig and de Búrca 2003).
In most policy fields—such as water—the EU and its member states share responsibilities. In such shared competence areas, the EU (typically the Council of Ministers
and the European Parliament) adopts legislation that is binding on member states.
Moreover, the EU also concludes international agreements that apply automatically
to EU institutions and member states alike irrespective of national ratification (Art.
216.1. TFEU). While the existence of EU legislation does not automatically preempt national measures in areas of shared competences, member state autonomy is,
nonetheless, seriously constrained by three layers of EU law:
– the founding treaties and the jurisdiction of the Court of Justice of the European
Union (primary law),
– international treaties ratified by the EU, as well as,
– legislation adopted by EU institutions (secondary law) (Kuijper 2013).
Importantly, through the prism of the EU legal system, any other legal norm, such
as intra-member state treaties, are basically considered as national law and remain
subject to the supremacy of EU law. In other words, EU law limits member states
legislative powers not only internally, but also in the international arena (Kuijper
2013).
From the above constitutional construction follows the fact that transboundary
water governance in the EU is regulated by no less than four (!) levels of supranational
law:
– EU primary law: the founding treaties define the distribution of powers in the field
of water policy between the EU and its member states. They also establish horizontal institutional requirements—e.g. on enforcement and dispute settlement—that
apply to water issues regardless of the provisions of multi- or bilateral treaties;
1 Treaty on European Union, Maastricht, 7 February 1992.
2 Treaty on the Functioning of the European Union, Rome, 25 March 1957.