What remains of the "class theory" following the ECJ's 1 July 2015 (C-461/13) ruling with regard to the "no-deterioration" clause?

Requirement to achieve the "good status" of all water bodies – "Requirement to improve"

As one of its main environmental objectives, EU Directive 2000/60/EC ("Water Framework Directive" – WFD), in concreto its art 4, requires all Member States to achieve – subject to several exemptions, such as the possibility to extend the timeframe – the "good status" of all surface water bodies and groundwater bodies by 22 December 2015. That goal requires the water body to be in both "good chemical status" and "good ecological status." To that end, Member States had – to the degree this was not provided for directly by provisions of EU law, such as through Directive 2008/105/EC for certain pollutants in surface water bodies – to establish which values for certain quality elements result in which status classification (to be determined for five classes defining the "ecological status": "very good", "good", "moderate", "poor" or "bad", while only two classes define the "chemical status": "good" or "bad"). Relevant quality elements include the composition and abundance of fish fauna, oxygenation conditions, or the concentration of specific pollutants. Any body of water must – based on data generated from monitoring programmes – be classified in a lower class as soon as one of the quality elements falls below the level for the current class ("one-out, all-out" principle).

No-deterioration clause

At the same time, art 4 WFD requires the Member States not only to achieve the above-mentioned status (ie to meet the "requirement to improve"), but also to take measures against all (new) "deteriorations" of the water status. Such "deteriorations" can in particular be caused by infrastructure projects (eg a hydropower plant) or extensions of existing projects (such as the extension of an industrial facility with altered wastewater discharges). Deviations from the "no-deterioration clause" for such "new modifications" are only allowed in exceptional cases: According to art 4 (7) WFD, particularly both an overriding public interest for the new project and the absence of any better environmental options must be determined. Even stricter prerequisites are in place with regard to new or extended discharges of pollutants.

"Class theory" vs "status-quo theory"

By 2013, the ECJ was asked by the German Federal Administrative Court (Bundesverwaltungsgericht) to rule on whether the term "deterioration of the status" in art 4 WFD must be interpreted as covering only detrimental changes which lead to a classification in a lower class (the so-called "class theory") or also other changes, possibly even any detrimental changes (the so-called "status quo theory").

In a 2011 ruling, the Austrian Supreme Administrative Court (Verwaltungsgerichtshof) found that only a change of the water body status into a lower class constitutes "deterioration" within the meaning of art 4 WFD (and the respective national implementation provisions in Austria's Water Act – Wasserrechtsgesetz) and requires the application of the above-mentioned conditions for exemptions from the "no-deterioration rule" to permit affected projects. However, it should be noted that the Water Act nevertheless requires that any significant detrimental changes to the ecological or chemical quality – even if there is no change in the status class – must not contradict the public interests. In this respect, that stance could be seen as being more stringent than a mere "class theory" (depending on what is to be considered as "significantly" detrimental in each individual case).

ECJ Advocate General Niilo Jääskinen suggested interpreting "deterioration" as "covering [author note: any] detrimental changes relating to a substance or to a quality element, without such a change necessarily having to result in a classification change." The Advocate General justified his opinion in particular by highlighting a consequence from the combined application of the above-mentioned class theory and the "one-out,-all-out" principle, which in his view contradicts the WFD's objectives: if a water body has been downgraded to a lower class due to the application of the "one-out, all-out" principle, detrimental changes of all the other quality elements would – according to the class theory – not be considered as a "deterioration" according to art 4 WFD.

The ruling in case C-461/13

In its judgement of 1 July 2015, the ECJ found that "deterioration" occurs as soon as the status of at least one of the quality elements falls by one class, even if that fall does not result in a fall in the classification of the body of surface water as a whole. However, if the quality element concerned is already in the lowest class (thus "bad" for the ecological status), any deterioration of that element constitutes a "deterioration of the status" for the body of surface water. The interpretation now taken by the ECJ seems to be less strict than that suggested by the Advocate General; the ECJ requires that a quality element or substance must "fall by one class", while the Advocate General apparently referred to any detrimental changes of those elements as constituting "deterioration." However, the ECJ emphasized in its reasoning for the judgment that – and in this respect it joined the Advocate General's view –the concept of "deterioration" must be interpreted by "reference to a quality element or a substance."

Possible consequences for Austria?

Despite the above-mentioned already more stringent approach taken by Austria's Water Law, one can expect that the ECJ's interpretation with regard to the "no-deterioration clause" of art 4 WFD will put further limits on the permissibility of certain projects that could potentially affect the ecological or chemical status of bodies of surface water or groundwater. In any event, the assessment efforts for the preparation of projects or in permitting procedures will increase significantly (particularly with regard to the existence of "better environmental options").

It remains to be seen whether and how the Austrian Water Administration will address the issue in the second National Water Management Plan, which will be issued by the end of 2015.