Brief analysis of the european union's directives in the area of water protection and the level of their national implementation

Author:Ramona Duminica
Position:Senior Lecturer, Ph.D., Faculty of Economic Sciences and Law, University of Pitesti
Pages:46-54
SUMMARY

The present study starts from the fact that, at present, the water pollution is a real problem and the efforts unfolded for its prevention or for the removal of its negative effects when it occurred, must be supported, continuous requiring both a regional and an international cooperation. The action performed by the European Union in the area of water protection are reflected in different directives which have as main objectives the insurance of the drinking-water supply, the proper management of water resources, the battle against drought and floods, the battle against water pollution. The rational protection and management of water resources, as well as the insurance of their quality is an important part of the environmental policy of the European Union. Given these aspects, the current paper presents the main legislative interventions of the European Union in the area of water protection. It also aims to show to which extent Romania has managed to implement the EU legislation in this area. As a conclusion, given all efforts laid by the Member States, almost half of the European hydric systems have failed to reach the legislative objectives established by the Union. Starting from the reality that water is constantly under the threat of a wide variety of pressures exposing the sweet water ecosystems and the associated forms caused by humans and pollution, continuing with the fact that the use of fields, water intake, climatic changes represent changes modifying the natural debit of water systems, it is necessary that the fight against these factors be continuous and pointed in the same direction as a national, communitarian and international level, the divergences not being justified in this area.

 
CONTENT
46 RAMONA DUMINICĂ
BRIEF ANALYSIS OF THE EUROPEAN UNION'S DIRECTIVES
IN THE AREA OF WATER PROTECTION AND THE LEVEL
OF THEIR NATIONAL IMPLEMENTATION*
Ramona DUMINIC **
Abstract: The present study starts from the fact that, at present, the water pollution is a real
problem and the efforts unfolded for its prevention or for the removal of its negative effects when it
occurred, must be supported, continuous requiring both a regional and an international cooperation.
The action performed by the European Union in the area of water protection are reflected in different
directives which have as main objectives the insurance of the drinking-water supply, the proper
management of water resources, the battle against drought and floods, the battle against water
pollution. The rational protection and management of water resources, as well as the insurance of
their quality is an important part of the environmental policy of the European Union. Given these
aspects, the current paper presents the main legislative interventions of the European Union in the
area of water protection. It also aims to show to which extent Romania has managed to implement
the EU legislation in this area. As a conclusion, given all efforts laid by the Member States, almost
half of the European hydric systems have failed to reach the legislative objectives established by the
Union. Starting from the reality that water is constantly under the threat of a wide variety of
pressures exposing the sweet water ecosystems and the associated forms caused by humans and
pollution, continuing with the fact that the use of fields, water intake, climatic changes represent
changes modifying the natural debit of water systems, it is necessary that the fight against these
factors be continuous and pointed in the same direction as a national, communitarian and
international level, the divergences not being justified in this area.
Key words: Public law, environmental law, legal protection of waters, European Union
directives, national legislation.
Introduction
The development of human societies, the emergence and diversification of
industry, agriculture, transportation, sciences, technique, the incrementation of
urbanization and the modernization of social life generates some negative effects of
the most serious ones against the environment. The pollution is not specific to a
certain state or a continent, but a generalized phenomenon.
The water – element on which all known forms of life depend on – is currently
subjected to a high degree of pollution. Either they come from the sewage, from the
chemical substances used in agriculture and industry, through controlled or
accidental discharge, water pollution has become a worldwide reality.
Law Review special issue, Decembre 2019, pp. 46-54
Brief analysis of the European Union’s Directives… 47
This diversity and multiplication of the sources of water pollution1 and their
high degree of toxicity have imposed the necessity of identifying more and more
complex legal means and methods for their combat. In this context, the struggle
against improvidence, pollution and uneven distribution of water for daily use
refers to a national effort, and especially to regional and international cooperation.
1. The communitarian policy in the area of water protection. General aspects
Starting from 1987 with the entrance into force of the European Single Act
which for the first time inserted within the area of communitarian preoccupations
the environmental issues up to present times, the European Union, through its
institutions, had and has among its main objectives of environmental policy the
adoption of measures for the protection of water resources. Thus, the protection,
rational management of water resources and the insurance of their quality
represents an important part of the EU’s environmental policy.
Undergrounding its interventions on Art 191-193 from the Treaty on the
Functioning of the European Union (TFEU), the actions performed by the
European Union in the area of water protection are reflected in the adoption of two
main normative acts on the prevention and management of sweet waters and
marine resources, namely: the Directive establishing a framework for Community
action in the field of water policy and the Directive establishing a framework for
community action in the field of marine environmental policy (Marine Strategy
Framework Directive).
For the optimization of the application of the current legislation in this area, as
well as for the integration of the objectives of the policy regarding the water in all
the other sectorial policies, in 2012 the Commission has published the
“Communication from the Commission to the European Parliament, the Council,
the European Economic and Social Committee and the Committee of the Regions
A Blueprint to Safeguard Europe’s Water Resources2. The plan was designed to
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 4 November 2019.
** Senior Lecturer, Ph.D. – Faculty of Economic Sciences and Law, University of Piteşti
(duminica.ramona@gmail.com).
1 For a presentation of the sources of water pollution: D. Marinescu, Treatise on the environmental
law, 4th Ed., Bucharest: Universul Juridic Publ.-house, 2010, p. 161-162; A. I. Duşc, Environmental Law,
Bucharest: Universul Juridic Publ.-house, 2014, p. 104-106 etc.
2 Communication from the Commission to the European Parliament, the Council, the Europea n Economic
and Social Committee and the Committee of the Regions A Blueprint to Safeguard Euro pe's Water Resources /*
COM/2012/0673 final */, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/
?uri=CELEX:52012DC0673&from=RO
48 RAMONA DUMINICĂ
strengthen the policies regarding the water quantity and the efficiency of using
water resources for a durable management within the EU Strategy 2020-2050.
Among the communitarian institutions, the main attributions and
competences in this area belong to the European Commission, which performs
them through the Directorate-General for Environment3 (DG Environment)
established in 1973 with the purpose of protecting, preservation and improvement
of the environment in Europe for current and future generations.
The DG has competences regarding the proposals for policies and legislation
designed to protect the water quality, to insure the proper disposal of waste, aims
gathering information regarding the toxicity of chemicals and provides support for
European companies so that through their actions they will tend towards a durable
economy. In the same time, the DG insures the correct application by all Member
States of the communitarian legislation regarding the environment which implies
the support of their efforts to comply with the legislation, as well as the
investigation of the complaints filed by the Union’s citizens and by NGOs. The DG
Environment represents the European Union internationally in the relations
established regarding the environment and manages the general action plan in
this area4.
An important role in the application and evaluation of the current and future
policies of the EU on water is held by the European Environment Agency (EEA).
For instance, the EEA has presented a series of reports evaluating the condition of
the European waters5, emphasizing aspects referring to the use of water resources,
the ecological and chemical state, hydro-morphology, vulnerability and
biodiversity. In its activity, the Agency is supported by the European Topic Centre
on Inland, Coastal and Marine waters (ETC/ICM)6. For collecting and storing the
information regarding the water is responsible the Water Information System for
Europe (WISE)7 which acts as a partnership between the European Commission
and EEA, being considered the most complex point of multi-institutional access in
the area of information on waters.
Also, improving the implementation of the existing water policy and taking
new measures to make water management more efficient in the European Union
and preventing pollution are problems mentioned in the 7th Action Program for
Environment adopted by the European Parliament and the Council of the
3 https://ec.europa.eu/dgs/environment/index_en.htm
4 R. Duminic, Introduction to environmental law, Bucharest: Universitar Publ.-house, 2015, p. 70.
5 The policy on water was a main issue in the working program of the European Commission in
2012, declared as the European Year of Water (http://www.eea.europa.eu/themes/water/water-
assessments-2012). See also, R. Duminic, Brief presentation of the international and european actions in the
area of water protection, Journal of Law and Administrative Sciences (JOLAS), special Issue/2015,
pp. 832-838.
6 See also http://icm.eionet.europa.eu/.
7 Ibidem.
Brief analysis of the European Union’s Directives… 49
European Union on November 2013 and entered into force on January 2014 aiming
the period until 2020. This program has three key objectives: the protection,
preservation and incrementation of the EU’s natural capital, the transformation of
the Union’s economy into a green economy, efficient from the perspective of
resources and competitive from the perspective of the low level of carbon and
protection of the Union’s citizens against the pressures related to pollution and the
risks on health and welfare.
2. Directive establishing a framework for Community action in the field of
water policy and related directives regarding the water. The stage of their
implementation by Romania
Inserted in 2000, the Framework-Directive on Water8 was the first act which
approached this objective in an integrated manner, establishing a framework for
the protection of interior surface waters, underground waters, transitional and
coastal waters. The current directive aims the prevention and reduction of
pollution, the promotion of a durable use of water, the protection of environment,
the improvement of aquatic ecosystems and the amelioration of the effects of
floods and periods of drought. Its ultimate purpose is the insurance of a “good
ecological and chemical state” for all European waters.
Therefore, the Member States have the obligation to draft plans for the
management of the river basin based on the natural geographical river basins, as
well as specific programs with measures for reaching the objectives. The
Framework-Directive on Water has been transposed into the national legislation by
the Law No 107/1996 on waters9.
Regarding the stage of implementation by our country in this area, in the
Country Report 2019 on the evaluation of the application of the EU’s
environmental policies, it is shown that Romania has adopted and reported the
second generation of plans for the hydrographic basins based on the
Framework-Directive on Water and that between the first and the second
generation of plans have been drafted several evaluation methods, including
methods for the evaluation of the qualitative physio-chemical elements, of the
qualitative hydro-morphological elements and of the pollutants specific to water
basins, and that the trust in the evaluations of the ecological state has been
incremented. The ecological state varies between good and even better for most
lakes and rivers (66,14%), without being the case of transitional and waters. There
are very few bodies of water whose potential/state remains unknown. All bodies
8 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a
framework for Community action in the field of water policy, published in the O.J. L 327/22 December 2000
with subsequent modifications and completions.
9 Published in the Official Gazette of Romania No 244/8 October 1996 and subjected to
numerous modifications and amendments.
50 RAMONA DUMINICĂ
of underground waters have a good quantitative state, and between the first and
second generation of plans for management of hydrographic basins has been
registered a slight incrementation of the proportion of the bodies of water in a
good chemical condition (from 93 to 98%)10.
The European Framework-Directive on Water is completed by different
specific legislative acts, namely: the Nitrates Directive (91/676/EEC), the Directive
concerning urban waste-water treatment (91/271/EEC), the Directive concerning
the management of bathing water quality (2006/7/EC), the Directive on the
quality of water intended for human consumption (98/83/EC) and the Directive
on the assessment and management of flood risks (2007/60/EC).
The Nitrates Directive (91/676/EEC)11 aims the reduction of water pollution
caused or induced by nitrates originating from agricultural sources and the
prevention of new pollutions of this type. It has been transposed into our national
legislation by Government Decision No 964/2000 on the approval of the Action
Plan for water protection against the pollution with nitrates from agricultural
sources12.
According to the Country Report 2019 on the evaluation of the application of
the EU’s environmental policies, starting with 2013, Romania has a revised action
plan for the application of the Nitrates Directive. This program applies throughout
the national territory. Also, it is shown that the revised legislation has brought
significant improvements in comparison with the previous action plan. Romanian
authorities have decided to use an “approach throughout the territory”13.
The Directive concerning urban waste-water treatment14 shall apply for the
collection, treatment and evacuation of urban waste-waters, as well as for the
treatment and evacuation of used waters originating from certain industrial areas.
It has as main objective the environment protection against the deterioration
caused by the evacuation of waste-waters and has been transposed in the national
legislation by several normative acts, starting with the Law on Waters and
continuing with different governmental decisions15 and Minister’s orders adopted
in this area16.
10 European Commission, Country Report 2019 – Environmental Implementation Review 2019
Romania, Brussels, 4.4.2019, p. 22.
11 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against
pollution caused by nitrates from agricultural sources, published in the OJ L 375, 31.12.1991.
12 Published in the Official Gazette of Romania No 526/25 October 2000.
13 European Commission, Country Report 2019 – Environmental Implementation Review 2019
Romania, Brussels, 4.4.2019, p. 23.
14 Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, publis hed in
the OJ L 135, 30.05.1991, p. 40.
15 For example: Decision for the approval of norms on the conditions of unloading in the aquatic
environment of waste waters, published in the Official Gazette of Romania No 187/2 0 March 2002 etc.
16 For example: Order of the Minister of Environment and Water Management and of the Minister of
Agriculture, Forests and Rural Development for the approval of the Technical Norms concerning the
environmental protection and especially of soil, when the sewa ge sludge is used in agriculture, published in the
Brief analysis of the European Union’s Directives… 51
Though efforts for its application have been made, Romania remained behind
other Member States. Only 2,5% of the Romania waste-waters have been collected
(8 agglomerations) in accordance with the directive, and 6 agglomerations have
fulfilled the conditions for a secondary treatment and only 1 agglomeration has
fulfilled the conditions for a more rigorous treatment, as it is mentioned by the
Country Report 2019. Given the low degree of implementation, the Commission
has decided to initiate a procedure ascertaining the non-compliance against
Romania.
In order to comply with these measures, Romania shall have to adopt
measures for the improvement of the methodology establishing the priorities
regarding the projects for water proposed for financing from the EU and to speed
up their preparation and application.
Regarding the Directive on the quality of water intended for human
consumption17, it requires the Member States to constantly monitor the quality of
water intended for human consumption by using the “sampling point” and has
been transposed in our national legislation by the Law on the quality of drinking
water18.
In this area, in our country according to the Report of the Commission on the
quality of drinking water within the Union19, 99,44% of all analysis for drinking
water (2013) have been in accordance with the Directive. On the other hand, a
significant part of the population, namely 57% is currently not connected to public
systems of water distribution20.
The Directive concerning the management of bathing water quality21 has as
purpose the improvement of public health and the environmental protection by
establishing provisions on the monitorization and classification (into 4 categories)
of the bathing water and informing the public in this meaning. This directive has
Official Gazette of Romania, No 959/19 October 2004; Order on the approval of the Procedure and
Competences to issue notices and authorizations for water management, published in the Official Gazette of
Romania No 661/1 August 2006.
17 Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human
consumption, published in the OJ L 330 5.12.1998, p.32 with subsequent modifications.
18 Published in the Official Gazette of Romania No 552/29 July 2002.
19 Report from the Commission Synthesis Report on the Quality of Drinking Water in the Union
examining Member States' reports for the 2011-2013 period, foreseen under Article 13(5) of Directive 98/83/EC;
COM (2016) 666 final.
20 European Commission, Impact Assessment SWD (2017) 449 final of 1.2.2018 accompanying the
document Proposal for a Directive of the European Parliament and of the Council on the quality of water
intended for human consumption (recast) COM (2017) 753 final.
21 Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerni ng the
management of bathing water quality and repealing Directive 76/160/EEC, published in the OJ L 64,
4.3.2006, p. 37 with latest amendments.
52 RAMONA DUMINICĂ
been transposed into the national legislation22 and a report drafted by the
Environmental European Agency23 stated that in 2017 from a total of 50 bathing
waters in Romania only 5% had an excellent quality, 48% had a good quality and
2% had a sufficient quality.
Another normative act adopted by the European Union in the area of water
protection is the Directive on the assessment and management of flood risks24. Its
purpose is to reduce and manage the risks of floods against the human health,
environment, infrastructure and property. The Directive imposes for Member
States the obligation to perform preliminary evaluations to identify the
hydrographic basins and the coastal areas exposed to such risks and to
subsequently draft maps presenting the risk of flood and management plans
focused on prevention, protection and preparation. This directive has been
transposed into the national legislation25 and according to the Country Report
2019, our state has adopted and reported the first generation of plans for the flood
risk management based on this Directive. As effect of the evaluation performed by
the European Commission it has been ascertained that Romania laid great efforts
with positive results in establishing the objectives and drafting measures focused
on prevention, protection and preparation26.
3. Marine Strategy Framework-Directive
The Marine Strategy Framework-Directive27 is considered as the main act
adopted in the area of the EU’s integrated maritime policy (IMP). The Directive
states a framework in which the Member States adopt the necessary measures for
obtaining or maintaining a good ecological state of the marine environment until
2020. For this purpose, as it is mentioned by Art 1 Para 2, marine strategies shall be
developed and implemented in order to: protect and preserve the marine
environment, prevent its deterioration or, where practicable, restore marine
22 Decision on bathing water quality published in the Official Gazette of Romania No 404/29 May
2008; Government Decision on the modification and amendment of the Government Decision No 546/2008 on
bathing water management, published in the Official Gazette of Romania No 290/26 April 2011.
23 European Environment Agency, European Bathing Water Quality in 2017, Luxembourg:
Publications Office of the European Union, 2018, pp. 20-23.
24 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the
assessment and management of flood risks, published in the OJ L 288, 6.11.2007, pp. 27-34.
25 Emergency Ordinance for the modification and amendment of the Water Law No 107/1996, published
in the Official Gazette of Romania, No 114/19/02/2010.
26 European Commission, Country Report 2019 – Environmental Implementation Review 2019
Romania, Brussels, 4.4.2019, p. 24
27 Transposed into the national legislation by the Emergency Ordinance on the stability of the strategy
for marine environment, with subsequent modifications and amendments, published in the Official
Gazette of Romania no. 452/2 July 2010.
Brief analysis of the European Union’s Directives… 53
ecosystems in areas where they have been adversely affected; prevent and reduce
inputs in the marine environment, with a view to phasing out pollution.
Also, the act states the European marine regions (the Baltic Sea, the North-east
Atlantic, the Mediterranean Sea and the Black Sea) with their subregions within the
geographical borders established by the conventions existing on the regional seas.
As effect of the leaks of hydrocarbons caused by the accident in 199928 of the
oil tanker Erika in order to consolidate the role in the area of maritime safety and
marine pollution has been established the European Maritime Safety Agency
(EMSA).
As it is mentioned by Art 1 of the Regulation (EC) No 1406/2002, the European
Maritime Safety Agency (EMSA) has been established for the purpose of ensuring
a high, uniform and effective level of maritime safety and prevention of pollution
by ships, as well as for intervention in case of marine pollution caused by oil and
gas installations29. EMSA provides information for Governments and authorities
about what happens on the sea, supporting them for a more efficient
implementation of their maritime policies. Also, it provides maritime services
answering the constantly evolving needs of European users.
Regarding the implementation by our country, we need to mention that the
Convention on the Protection of the Black Sea Against Pollution (the Bucharest
Convention) contributes in the achievement of the strategic objectives for marine
environment imposed for Romania by the Marine Strategy Framework-Directive.
The marine environment strategies mention different phases which need to be
taken in cycles of 6 years.
Conclusions
The Report of the European Commission in 201930 regarding the means in
which the Member States have applied the EU legislation on waters states that in
the past 6 years there is a clear positive tendency, but rapid improvements are still
needed to meet the agreed quality standards in time. Thus, among the actions with
priority for our country in 2019, according to the Report of the European
Commission31, we need to mention the actions supporting the qualitative
monitorization of surface waters, the quantitative and chemical monitorization of
28 See also Andrada Mihaela Truşc, The particularities of legal responsibility in environmental law,
Bucharest: Universul Juridic Publ.-house, 2012, p. 34.
29 Regulation (EC) 1406/2002 No 1406/2002 of the European Parliament and of the Council of 27 June
2002 establishing a European Maritime Safety Agency, published in the OJ L 208, 5.8.2002, p. 1.
30 Report from the Commission to the European Parliament and the Council on the implementation of the
Water Framework Directive (2000/60/EC) and the Floods Directive (2007/60/EC), Brussels, 26.2.2019 COM
(2019) 95 final, p. 10.
31 European Commission, Country Report 2019 – Environmental Implementation Review 2019
Romania, Brussels, 4.4.2019, p. 24.
54 RAMONA DUMINICĂ
underground waters, insuring evaluations and justifications for projects which
may affect the bodies of water state, as well as the intensification of the efforts to
insure the application of the Directive concerning urban waste-water treatment.
As a conclusion, given all efforts laid by the Member States, almost half of the
European hydric systems have failed to reach the legislative objectives established
by the Union. Starting from the reality that water is constantly under the threat of a
wide variety of pressures exposing the sweet water ecosystems and the associated
forms caused by humans and pollution, continuing with the fact that the use of
fields, water intake, climatic changes represent changes modifying the natural
debit of water systems, it is necessary that the fight against these factors be
continuous and pointed in the same direction as a national, communitarian and
international level, the divergencies not being justified in this area.