The Non-Regression Principle under EU and German Water Law 'on the Ground': A landmark decision of the European Court of Justice that leaves many questions open

In: ELNI review, S. 18-25

Abstract

For quite some time, non-regression of environmental law has been propagated as a principle of international, European and national environmental law. While emphasis has been placed on the 'non-regression movement' in a legal context in the sense that environmental legislation should not back-trap, the non-regression principle also applies to environmental quality as such. This appears plausible since non-regression of environmental law is not an objective in itself but serves to maintain and improve the quality of the environment. An expression of the non-regression principle has been established in the European Water Framework Directive of 2000 (WFD). In contrast to previous EU law, the Directive does not only regulate water pollution but also the ecological quality of water bodies. The case this article deals with concerned the deepening of three segments of the lower Weser in north-western Germany to make the river navigable for very large sea-going vessels up to the ports of Bremerhaven, Brake and Bremen. The legality of the planning permission was challenged by an environmental association before the Federal Administrative Court of Germany. The Federal Administrative Court assumed that the legislature had intended to implement the WFD without rendering German law more severe than the Directive. Therefore, it referred the case to the European Court of Justice for a preliminary ruling on the interpretation of the non-deterioration obligation under Article 267 of the Treaty on the Functioning of the European Union (TFEU). On the 1st July 2015, the Court rendered its judgement on the case. The decision can quite rightly be denominated as a landmark decision on EU water policy. This article assesses this decision of the European Court of Justice on the Non-Regression Principle and specifically addresses remaining open questions not answered by the court.