Spain rebuffed in bid to up-end EU water law

European Court advisor rejects call for national veto over directives dealing with water management

An attempt by Spain to win back the power of veto over EU laws that include measures affecting water resources management appears to be heading for the rocks, following the penultimate stage of a legal action brought in the European Court of Justice. The case has potentially major implications for the EU's new framework water directive, which is currently in final "conciliation" negotiations between the Council and the European Parliament (ENDS Daily 5 May).

Spain took the EU Council of Ministers to court to challenge the way in which the bloc approved the 1994 international convention on the protection of the Danube basin. The convention dealt with "management of water resources," Spain argued, and should therefore have been approved by unanimity rather than by qualified majority. The court action was a test case, since Spain is not close to the Danube area; its real target, according to EU officials, was the draft EU water framework directive.

Spain has consistently objected to several elements of the framework directive, including its requirement for river basin management and controversial proposals for full cost recovery in water charges (ENDS Daily 27 January). Full-cost pricing of water resources would threaten existing national policy on agricultural use of water. River basin management would reduce the country's legal room for manoeuvre over several catchments which are shared with Portugal.

Under the EU treaty, laws with an environmental objective must generally be based on paragraph 1 of article 175 (formerly article 130s). This specifies that the Council must take decisions by a "qualified majority," which means a minority of countries can be overruled. Paragraph 2 of the article specifies exceptions to this rule. In these cases - which include management of water resources - the Council must take decisions unanimously or not at all.

In its court action concerning the Danube convention, Spain is seeking to reaffirm the importance of this treaty provision. Management of water resources should be interpreted broadly, its lawyers argue, and EU laws should be based on article 2 of paragraph 175 where they include this element, even if other elements aim at maintenance of environmental quality.

Backed by the European Commission, Portugal, France and Finland, the Council of Ministers has argued the opposite. EU water laws should only be based on paragraph 2 of the treaty if their primary aim is quantitative management of water. In contrast, the central thrust of the Danube convention is to do with environmental protection, they said.

In his opinion on the case, released on Tuesday, advocate general Philippe Léger rejected Spain's arguments. There will now be a further delay of several months before the court releases an official judgement. This is not bound to follow Mr Léger's opinion, but it would be a major political shock for the EU were it to disagree.

Follow Up:
European Court of Justice, tel: +352 43031, and Philippe Léger's opinion. For background, see also the EU Council's adoption of the Danube convention, the Danube convention and the EU treaty.

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