HAVET & VANHUFFEL – Association d’avocats
The Court of Justice of the European Union condemns Ireland for failing to correctly transpose numerous provisions of Directive 2000/60/EC, the “Water Framework Directive”, into Irish law.
General context of the case
The Court of Justice of the European Union was seised of an infringement action brought by the European Commission against Ireland. The Commission alleged that this Member State had incompletely or incorrectly transposed a large number of provisions of Directive 2000/60/EC, known as the Water Framework Directive (WFD). The passages analysed by the Court relate more specifically to several complaints concerning the absence or inadequacy of national measures ensuring the implementation of the technical obligations relating to the management, monitoring, assessment and prevention of pollution of surface waters and groundwater.
The directive requires Member States to define, monitor and protect the ecological and chemical status of water bodies. It contains technical annexes setting out the methodologies to be followed. The Commission argues that Ireland failed to correctly transpose several of these essential, often highly technical but binding, aspects of the directive.
The Commission raises several grievances.
First grievance: incomplete transposition of the definition of “water services” (Article 2(38) of Directive 2000/60)
The Commission considers that Ireland failed to correctly transpose the EU definition of “water services”. It criticises the Irish legal order for containing two competing definitions:
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the definition in the 2003 Regulations, which transposes the directive by reference;
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the definition in the 2007 Water Services Act, which is more restrictive, notably excluding abstraction and impoundment, and failing to cover certain private operators.
This coexistence, according to the Commission, creates legal uncertainty, particularly as regards whether abstraction and impoundment activities must be included in national rules on cost recovery, an obligation laid down in Article 9 of the directive. The Commission also notes that the 2022 Water Abstractions Act likewise does not classify these activities as “water services”.
Ireland contends, by contrast, that:
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the definition introduced in 2022 into the 2003 Regulations clarifies the transposition;
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the 2007 Act does not seek to transpose the directive and operates within a different scope;
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there is no gap, since the 2003 Regulations cover all relevant uses.
The Court accepts the Commission’s argument. It recalls that transposition must be clear, precise and legally certain. The coexistence of two definitions creates uncertainty, notably for public authorities subject to both instruments. The Court notes that the 2007 Act was notified as a measure of transposition and may in practice influence the application of the directive. Accordingly, the transposition is considered incomplete, and the grievance is upheld.
Second grievance: incomplete transposition of Article 4(2) regarding environmental objectives
Article 4(2) requires Member States to apply the most stringent objective when several environmental objectives apply to the same water body. The Commission reproaches Ireland for failing to provide any domestic rule applying this hierarchy for:
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groundwater,
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protected areas.
Ireland argues that Article 12 of the 2003 Regulations, requiring Irish authorities to “set environmental objectives in accordance with Article 4”, suffices to transpose this obligation. It nevertheless acknowledges having strengthened this wording in 2022 and indicates that it will take further steps to comply.
The Court rejects Ireland’s defence. The general reference to “Article 4” is insufficient to transpose the specific obligation to apply the most stringent objective, which must be expressly and clearly set out in domestic law. The Court also notes that Ireland failed to explain why only surface waters had benefited from an explicit transposition prior to 2022.
The grievance is therefore upheld, and amendments made after 2020 cannot be taken into account.
Third grievance: failure to transpose Article 5(2) concerning the review of analyses
Article 5 requires Member States to carry out a series of analyses (hydrological characteristics, human impacts, economic analysis) and then review them every six years. Ireland had transposed this review obligation in Article 7(6) of the 2003 Regulations, but that provision was inadvertently repealed in 2014. The Commission observes that no domestic provision currently transposes this requirement.
Ireland acknowledges the omission and announces that it will reintroduce the provision.
For the Court, the State’s intention is irrelevant: whether the failure stems from intent or oversight, the objective obligation is not fulfilled. The accidental deletion of the provision transposing Article 5(2) constitutes an infringement.
The grievance is therefore upheld.
Fourth grievance: incomplete transposition of Article 7(3) regarding the protection of water intended for human consumption
Article 7(3) requires Member States:
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to protect water bodies used, or intended to be used, for the abstraction of drinking water so as to reduce the level of treatment required;
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to assess the need to establish safeguard zones.
a) Groundwater
The Commission argues that Irish law contains no specific protective obligation meeting the requirements of Article 7(3). The existing provisions — a general prohibition on pollution and a general duty to protect water — are insufficient to transpose the precise obligation to prevent deterioration of groundwater used for drinking water abstraction.
Ireland admits that its domestic legislation, particularly the 2010 Groundwater Regulations, will need to be amended, but argues that the directive leaves Member States discretion regarding the means of implementation.
The Court recalls that although States may choose the instruments, the obligation itself must be clearly set out in national law. It finds that no domestic provision in force before the end of 2020 specifically transposed the obligation to prevent deterioration of groundwater intended for abstraction. This part of the grievance is upheld.
b) Surface waters
The Commission acknowledges that the 2009 Surface Water Regulations reproduce Article 7(3) verbatim but argues that the transposition is incomplete because:
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the concrete implementing measures are not identified;
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the authorities responsible for applying the obligation (Irish Water, group water schemes) are not clearly designated.
Ireland responds that the measures appear in the 2018–2021 River Basin Management Plan and that the 2023 Drinking Water Regulations allocate responsibilities.
The Court rejects these arguments:
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a management plan does not have sufficient binding force to transpose a normative obligation;
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the invoked legislation is post-2020 and thus irrelevant;
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the directive requires a clear legal basis and binding arrangements.
Transposition regarding surface waters is therefore also incomplete.
Fifth grievance: incomplete transposition of Article 9(2) of Directive 2000/60 (water pricing policy and cost recovery)
The Commission argues that Ireland failed to correctly transpose the obligation requiring Member States to report, in river basin management plans, on the measures implemented to apply the water pricing policy (Article 9(1)) and the contribution of the different economic sectors (industry, households, agriculture) to cost recovery.
According to the Commission, Irish legislation (notably Article 13 of the 2003 Regulations) is limited to a general reference to the directive and does not specify the elements that the national report must contain. This multi-layered reference (“triple cross-reference”) does not ensure the clarity, precision and binding force required for proper transposition. The Commission also observes that the second Irish river basin plan does not identify sectoral contributions to cost recovery and does not explain how the pricing policy incentivises efficient water use.
Ireland maintains that the cross-references in domestic law are sufficient, that the management plans do contain an adequate economic analysis, and that it has strengthened its legislation since (2007 Act, 2013 Act, 2022 amendment). It also invokes the discretion accorded to Member States under Article 9.
The Court rejects these arguments. It finds that Irish transposition does not detail the necessary reporting elements required by Article 9(2), and that river basin plans cannot compensate for an unclear transposition. The grievance is upheld.
Grievances 6 to 9: failure to transpose Article 11(3)(a)–(d) concerning “basic measures” for groundwater
These grievances relate to the absence of specific transposition of the first four categories of basic measures set out in Article 11(3) of the directive, as applied to groundwater:
a) measures required by EU water legislation;
b) adequate measures within the meaning of Article 9 (cost recovery);
c) measures promoting efficient and sustainable water use;
d) measures necessary for compliance with Article 7 (drinking water abstraction).
The Commission argues that while Ireland transposed these measures for surface waters (via the 2009 Regulations), it did not adopt equivalent provisions for groundwater.
Ireland responds that the 2003 Regulations — in particular Article 12(2) and Article 3, which requires public authorities to exercise their functions in conformity with the directive — transpose these obligations. It adds that the framework was further clarified in 2022 and that additional amendments are planned before the end of 2024.
The Court holds that these provisions are too general:
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Article 3 of the 2003 Regulations merely imposes a general duty of compliance with the directive;
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Article 12(2) simply states that programmes of measures must include “basic measures” without specifying them.
This is not a clear and precise transposition. The Court further notes that Ireland cannot transpose the basic measures linked to Articles 7 and 9, since it has not correctly transposed those provisions either (grievances 4 and 5 upheld). Therefore, grievances 6 to 9 are upheld.
Tenth grievance: incorrect transposition of Article 11(3)(e) (control of abstractions and impoundments)
The directive requires Member States to establish:
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control of freshwater abstractions (surface and groundwater),
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control of impoundments,
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a register of abstractions,
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a system of prior authorisation,
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with derogations allowed only for abstractions with no significant impact on water bodies.
According to the Commission, neither the 2003 Regulations nor the 2009 Surface Water Regulations transpose this obligation. Furthermore, the 2018 Irish abstraction regulations set a registration threshold of 25 m³/day, whereas smaller abstractions may still have significant impacts. In addition, the 2022 Abstractions and Impoundments Act had not entered into force at the relevant time and depended on further implementing regulations.
Ireland argues that:
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the 2003 Regulations, supplemented by other texts, ensure transposition of Article 11;
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the 10 m³/day threshold invoked by the Commission (derived from Article 7(1)) is irrelevant here;
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the 2022 Act, now in force, resolves the issue.
The Court acknowledges that the 10 m³/day threshold is not directly applicable. However, it confirms that the national 25 m³/day threshold is too high, as it allows exemptions for abstractions that may significantly affect water status, contrary to Article 11(3)(e). It further finds that the Irish rules do not define a sufficiently precise control framework. The tenth grievance is upheld.
Eleventh grievance: transposition of Article 11(3)(i)
1. First limb: absence of a binding authorisation or registration system for surface waters
Under Article 11(3)(i), Member States must adopt “basic measures” to ensure that the hydromorphological conditions of artificial or heavily modified water bodies enable them to achieve good ecological status or potential. To this end, the directive allows for controls in the form of prior authorisation or registration based on binding general rules.
The Court finds that although the 2009 Surface Water Regulations formally reproduce this requirement, Ireland has not demonstrated the existence, in domestic law, of binding general rules establishing an effective hydromorphological control system. The State merely refers to several “detailed control systems” without identifying their legal basis.
This limb is therefore upheld.
2. Second limb: scope of the obligation with respect to groundwater
The Commission argued that Article 11(3)(i) should also apply, directly or indirectly, to groundwater. The Court rejects this argument: the artificial or heavily modified water bodies referred to in this provision relate exclusively to surface waters.
The Commission’s new argument, raised only in the reply, that indirect impacts on groundwater must also be considered, is unsupported by any legal basis. The burden of proof has not been met.
This limb is therefore dismissed.
Conclusion on the eleventh grievance: partially upheld (for surface waters), rejected for groundwater.
Twelfth grievance: failure to transpose Article 11(3)(l)
This provision requires Member States to adopt measures to prevent significant leaks of pollutants and pollution accidents liable to affect aquatic ecosystems, including groundwater.
The Commission argues that Ireland has not introduced a clear system for detecting, alerting and preventing such pollution with respect to groundwater. Ireland relies on Articles 3 and 12 of the 2003 Regulations, supplemented by the 2009 Regulations, and maintains that these already cover the obligations; it nevertheless commits to amending the 2010 Groundwater Regulations.
The Court rejects Ireland’s arguments, referring to its earlier reasoning: the cited provisions do not suffice to transpose the detailed requirements of Article 11(3)(l).
The twelfth grievance is therefore upheld.
Thirteenth grievance: failure to transpose points 1.4 and 1.5 of Annex II
1. Nature of the untransposed requirements
These two points of Annex II concern:
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1.4: Identification of anthropogenic pressures, including pollution sources, abstractions, hydrological and morphological alterations, etc.;
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1.5: Assessment of the impacts of these pressures on the status of water bodies.
These elements are central to the characterisation of river basin districts required by Article 5 of the directive.
2. Court’s assessment
The Court finds that, by the deadline set in the reasoned opinion (December 2020), no Irish provision transposed these requirements. Ireland argued that the EPA had discretion to determine the scope of pressures to be analysed, given the technical nature of the annexes.
The Court rejects this argument: although technical requirements may be implemented by a specialised authority, national law must clearly frame its mandate and impose the obligation to apply the criteria laid down in the directive. The 2003 Regulations merely require authorities to carry out a general analysis without incorporating the mandatory criteria of points 1.4 and 1.5.
The Court adds that transposition does not require literal reproduction of the annexes, but it does require a sufficiently detailed legal framework defining the tasks and criteria to be respected.
The thirteenth grievance is upheld.
Fourteenth grievance: failure to transpose several provisions of Annex V
1. Requirements at issue
The Commission argues that Ireland failed to transpose:
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points 1.3.1 to 1.3.5 of Annex V, relating to the monitoring of the ecological and chemical status of surface waters;
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point 2.4.5 (first paragraph), concerning the interpretation and presentation of the chemical status of groundwater.
These elements are essential for implementing Article 8 on monitoring programmes.
2. Court’s assessment
The Court notes that although the 2003 Regulations require the EPA to establish a monitoring programme, no domestic standard transposes the technical criteria in Annex V. The mere general reference to the annex in later amendments is insufficient.
Ireland’s argument that the EPA in practice applies these criteria is rejected: transposition cannot rely solely on administrative practice.
The fourteenth grievance is therefore upheld.
Final conclusion of the Court
The Court finds that Ireland has failed to fulfil its obligations under a wide range of provisions of Directive 2000/60, namely:
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Article 2(38),
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Article 4(2),
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Article 5(2),
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Article 7(3),
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Article 9(2),
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Article 11(3)(a)–(d) for groundwater,
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Article 11(3)(e),
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Article 11(3)(i) (for surface waters),
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Article 11(3)(l) (for groundwater),
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points 1.4 and 1.5 of Annex II,
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points 1.3.1 to 1.3.5 and point 2.4.5 of Annex V.
Ireland did not however fail to comply with its obligations concerning the second limb of the grievance relating to Article 11(3)(i), with respect to groundwater.
to access te jusgment, follow the link : https://curia.europa.eu/juris/document/document.jsf;jsessionid=E2F68F4F8F4FD02CBA3A07B4FB329EFC?text=&docid=306384&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9226857.