Brussels, 16 April 2014
Environment: Commission takes Austria to Court over failure to protect water quality on Schwarze Sulm river
The European Commission is taking Austria to Court for its failure to ensure adequate protection for the Schwarze Sulm river in Steiermark. In the Commission's view, the construction of a proposed power plant would cause a serious deterioration in the quality of the river, which is one of the longest undisturbed rivers in the region. The Commission is of the view that the regional authority failed to respect the water quality requirements of the Water Framework Directive when it authorised the hydropower project in 2007. Indeed, the permit in question was revoked by the Austrian Federal Ministry of Environment in 2009, but Austria's constitutional court dismissed that revocation on purely formal grounds in 2012. The permit therefore came back into force and can no longer be challenged before a national court. This led the Commission to open infringement proceedings in 2013, on the grounds that the permit for the power plant is not in line with the requirements of the Water Framework Directive. As building work now appears to have begun on the project, the Commission is referring the case to the EU Court of Justice, on the recommendation of Environment Commissioner Janez Potočnik
Under European legislation, Member States must take measures to prevent the status of their water bodies from deteriorating. An exemption from the non-deterioration principle can only be granted if certain requirements are fulfilled, one of which is the demonstration of an overriding public interest. In the Commission's view the authorising body did not demonstrate the overriding interest of the project, a view confirmed by the assessment of the Austrian Federal Ministry of Environment, which also contested the overriding public interest.
Austria agreed to review the authorisation decision, but in the review procedure the regional authority merely downgraded the water status of the Schwarze Sulm, claiming that an exemption from the non-deterioration principle was no longer necessary. This would be a violation of the Water Framework Directive, as the quality of the Schwarze Sulm was documented as 'high' in the river basin management plan of 2009, and the conditions for changing the status of the river have not been respected.
As the procedure chosen by the regional authority risks setting a negative precedent for similar hydropower projects in Austria, and as the legality of the permit for the hydro power plant on the river Schwarze Sulm can no longer be challenged before a national court, the Commission has decided to take Austria to Court.
The Water Framework Directive obliges Member States to protect and restore all bodies of ground water and surface water (rivers, lakes, canals and coastal water) to achieve "good status" by 2015 at the latest, meaning that the waters show as few traces of human impact as possible. Under the Directive, Member States implement measures to prevent the status of surface water bodies from deteriorating. Exemptions to this requirement can only be granted under the conditions laid down in Article 4(7), one of which is a requirement to demonstrate that the project is of "overriding public interest". While the legislation does contain a degree of flexibility, exemptions are only possible on certain carefully defined grounds. All practicable steps must be taken to mitigate adverse impacts, and in cases of overriding public interest, the benefits of the modifications must outweigh the benefits to the environment and society of achieving good water status, and it must be impossible for those beneficial objectives to be achieved by other means. Hydropower plants lead to lower water status as they affect the river continuity, which is one of the criteria in the Water Framework Directive for attributing "high" water status to a river.
For more information:
More details on water policy:
On the April infringement package decisions, see MEMO/14/293
On the general infringement procedure, see MEMO/12/12
For more information on infringement procedures:
For current statistics on infringements in general, see: