Diversion of river allowed if numerous conditions are met

Case C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias (Greece), 11 September 2012

The European Court of Justice (ECJ) issued a preliminary ruling in a case about the river Acheloos in western Greece. By a number of legislative acts, Greece aimed at the partial diversion of the upper waters of this river to another river, Pinio. This would serve irrigation needs, produce electricity and supply local towns with water. Numerous organisations and local authorities, notably the Prefectural Authority of Aitoloakarnania, opposed the project. The Simvoulio tis Epikrateias, i.e. the Greek Council of State, asked the ECJ for help in the matter of the interpretation of the Water Framework Directive (WFD), the Habitats and Wild Birds Directives, the Directive on Environmental Impact Assessment (EIA) and the one on Strategic Environmental Assessment (SEA). The latter instrument covers plans and programmes and not projects for the partial diversion of waters of a river, the ECJ found.

According to the ECJ, the WFD does not preclude a priori the diversion of water from one river basin to another. Management plans are only required from 22 December 2009 onwards, so in itself the absence of them does not stand in the way of decision preceding that date. However, it is settled ECJ case law that during transposition and transition periods of directives, member states must refrain from any measures liable to seriously compromise the attainment of the result prescribed by the directive. Hence, the diversion may not seriously threaten the objectives of the WFD. In case a river diversion might have adverse effects on the water status (Article 4(7) WFD), then consent may only be given if at the very least the conditions set out in Article 4(7)(a) to (d) are satisfied. This means inter alia that the MS has taken all the necessary measures to prevent water deterioration. The diversion can be justified by overriding public interest reasons, however.

Adopting the project through legislation means that the EIA Directive does not apply, provided that the objective of this Directive, including that of supplying information, are achieved through the legislative process (art. 1(5) EIA Dir. 85/337). If such information (detailed in point 85 of the judgment) was not made available to parliament, the exception of art. 1(5) EIA cannot be used.

The ECJ noted that, based on Habitats directive 92/43/EEC, the supply of drinking water can be considered as an “imperative” reason of “overriding public interest” to accept river diversion in Sites of Community Importance (SCI) that host priority natural habitats or species, but in principle irrigation purposes cannot, unless irrigation has beneficial consequences of primary importance for the environment (point 128). It is stressed also that the Habitats Directive in the light of the objective of sustainable development laid down in article 11 TFEU (ex article 6 EC) still allows for the conversion of a natural fluvial ecosystem that forms a part of the Natura 2000 network into a largely man-made fluvial and lacustrine ecosystem, provided the provisions of the directive are satisfied. This means inter alia that (in line with article 6(4) Habitats directive) compensatory measures are to be taken that ensure the integrity of the network (point 139). As for wild birds, the ECJ stressed that development consent for a project that will divert water and is not directly connected with or necessary to the conservation of a special protection area, but likely to have a significant effect on it, may not be given in the absence of information or reliable and updated data on birds in that area (point 117).

Case law

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