EU Advocate General: Opinion in Case C-301/22 Sweetman

Thursday 21st September 2023

Opinion in Case C-301/22 Sweetman

(Environment)

Directive 2000/60/EC (EU Water Directive) sets out rules to halt deterioration in the status of the EU water bodies and achieve ‘good status’ for rivers, lakes and groundwater. The directive places clear responsibilities on national authorities in protecting all forms of water – surface, ground, inland and transitional – to reduce pollution in water bodies, prevent degradation, improve the condition of aquatic ecosystems, preserve and restore the ecosystems in and around those.

The Irish High court referred a number of questions concerning the obligation of the Member States to characterize and then classify the ecological status of the lakes within its territory. The High Court asks whether this responsibility covers all lakes, including the ones with a surface area of less than 0.5 km2 (the minimum threshold). If this is answered in the negative, the High Court asks whether the directive creates any obligations on Member States to ensure the protection of such a water body when a development project is likely to affect it.

These questions follow on from the judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland (C-461/13), in which the Court held that, subject to the granting of a derogation, any deterioration in the status of a body of water must be avoided, irrespective of the longer-term planning provided for by management plans and programmes of measures.

The dispute between M. Peter Sweetman and An Bord Pleanála (the Agency) stems from the authorization granted by the Agency to the Bradán Beo Teoranta company to extract fresh water from Loch an Mhuilinn, under specific conditions and in specific amounts. The plan was for the water to be pumped from the lake, through a pipeline, to bathe sick salmon to rid them of amoebic gill disease and sea lice. The lake in question is a private inland non-tidal lake located on Gorumna Island, County Galway, Ireland, with a surface area of 0.083 km2 or 8.3 hectares.

It had not been identified by the Environmental Protection Agency (EPA) as a body of water covered by the Water Directive, because it did not meet the criteria relating to surface area or location in a protected area. As a result, the EPA had not classified the lake’s ecological status.

Mr Sweetman appealed against this decision to the High Court, arguing that, by authorizing the development project, the Agency had breached its obligation to take the necessary measures to prevent deterioration in the status of this body of surface water.

By judgment of January 15, 2021, the referring court annulled the decision to authorize the development project on the sole ground that it did not comply with the requirements of the EU Water Directive.

Relying on the European Commission’s guidance document no. 2, entitled “Identification of water bodies”, the EPA had stated that there was no obligation to classify the ecological status of all bodies of water and to classify the lake’s ecological status .According to that document, Member States would have the flexibility to decide whether the objectives of the directive, applying to all surface waters, can be achieved without having to identify each minor element of surface water as a body of water.

Minor lakes can be subject to the EU Water Directive, if they are ecologically significant, if they fall within one of the protected areas, or if they have a significant negative impact on other bodies of surface water.

Background Documents C-301/22