1.

The request for a preliminary ruling has been made by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) in an action brought by T GmbH (‘the applicant’) following the rejection of its application for permission to construct a boathouse on a lake in the Land of Carinthia (Austria), on the ground that the water status of that lake did not appear to satisfy the conditions imposed by EU law, on account of poor management of the fish population.

2.

The present case will lead me to determine whether, for the purposes of defining the ecological status of a lake in accordance with the criteria set out in Table 1.2.2 of Annex V to Directive 2000/60/EC, ( 2 ) account should be taken exclusively of ‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’, to the exclusion of other anthropogenic impacts.

3.

Article 1 of Directive 2000/60, entitled ‘Purpose’, provides:

‘The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:

…’

4.

Article 2 of that directive, entitled ‘Definitions’, provides:

‘For the purposes of this Directive the following definitions shall apply:

…

…

…

…’

5.

Article 4 of that directive, entitled ‘Environmental objectives’, provides:

‘1.   In making operational the programmes of measures specified in the river basin management plans:

…’

6.

Point 1.2 of Annex V to that directive, entitled ‘Normative definitions of ecological status classifications’, states:

‘Table 1.2. General definition for rivers, lakes, transitional waters and coastal waters

The following text provides a general definition of ecological quality. For the purposes of classification the values for the quality elements of ecological status for each surface water category are those given in tables 1.2.1 to 1.2.4 below.

Waters achieving a status below moderate shall be classified as poor or bad.

Waters showing evidence of major alterations to the values of the biological quality elements for the surface water body type and in which the relevant biological communities deviate substantially from those normally associated with the surface water body type under undisturbed conditions, shall be classified as poor.

Waters showing evidence of severe alterations to the values of the biological quality elements for the surface water body type and in which large portions of the relevant biological communities normally associated with the surface water body type under undisturbed conditions are absent, shall be classified as bad.’

7.

That general definition, set out in point 1.2 of Directive 2000/60, is followed by specific definitions for ‘ecological status in rivers’ (point 1.2.1), in ‘lakes’ (point 1.2.2), in ‘transitional waters’ (point 1.2.3) and in ‘coastal waters’ (point 1.2.4). ( 3 ) In each of those four categories, the assessment of ecological status is based on three elements, namely biological quality elements, hydromorphological quality elements and physico-chemical quality elements, each of those quality elements comprising a long list of parameters.

8.

As regards lakes in particular, table 1.2.2 of Annex V to that directive, entitled ‘Definitions for high, good and moderate ecological status in lakes’, states:

‘Biological quality elements

Hydromorphological quality elements

Physico-chemical quality elements

…’

9.

Paragraph 30a(1) of the Wasserrechtsgesetz 1959 (Law relating to the protection of water of 1959) of 16 October 1959, ( 4 ) in the version of 22 November 2018, ( 5 ) provides, in essence, that surface waters must be protected, enhanced and restored in order to prevent deterioration of their status. The target status for surface water is achieved when the body of surface water has an ecological status and a chemical status which are at least good.

10.

Paragraph 104a(1)(1)(b) of the WRG provides, in essence, that projects in which, due to changes in (i) the hydromorphological characteristics of a body of surface water or (ii) the water level of groundwater bodies, deterioration of the status of a surface water or groundwater body is probable are in any event projects likely to have impacts on public policy considerations.

11.

Paragraph 105(1) of the WRG provides, in essence, that an application for authorisation of a project may be rejected in the public interest, in particular where a significant deterioration of the ecological status of the water bodies could result or where there is a significant detriment to the objectives arising from other provisions of EU legislation.

12.

On 7 November 2013, the applicant lodged an application with the Bezirkshauptmannschaft Spittal an der Drau (District Authority of Spittal an der Drau, Austria) for permission to construct a boathouse (‘the project’) on Lake Weißensee, which is a naturally occurring standing water body with a surface area of 6.53 km2, located in the Land of Carinthia (Austria) (‘the lake’).

13.

That application having been rejected by decision of 25 May 2016, the applicant brought an appeal before the Landesverwaltungsgericht Kärnten (Regional Administrative Court, Carinthia, Austria), which, by judgment of 21 February 2020, upheld the rejection decision. According to that court, the quality of the fish fauna and, consequently, the general status of the lake’s surface waters was ‘poor’, on account of poor management of the fish population. ( 6 ) Accordingly, the project ought to be prohibited, in the light of the obligations of the Member State concerned, under Directive 2000/60, to adopt measures to achieve ‘good status’ of surface waters and to prohibit any measure likely to prevent or not intended to help bring about improvement in the quality of those waters. ( 7 )

14.

The applicant brought an action before the Verwaltungsgerichtshof (Supreme Administrative Court), the referring court, which considers that Directive 2000/60 does not require authorisation to be refused for ‘neutral’ projects – that is to say projects which do not help bring about the achievement of good surface water status, while they do not lead to a deterioration of the status of bodies of water – but requires authorisation to be refused only for a project with non-negligible effects on the status of the bodies of water concerned.

15.

According to the referring court, it is therefore necessary to assess whether the project significantly undermines measures provided for or required to achieve good surface water status, ( 8 ) which raises the question whether the ecological status of the lake must be classified below ‘good’, which would trigger the obligation to enhance for the purposes of Directive 2000/60. In that regard, the referring court has doubts as to whether, in essence, a disturbance to the fish fauna attributable solely to fisheries management measures and not to anthropogenic impacts on physico-chemical or hydromorphological quality elements has any effect on the classification of the biological quality status of ‘fish fauna’, in point 1.2.2 of Annex V to Directive 2000/60, as ‘high’, on the one hand, and as ‘good’ or ‘moderate’, on the other.

16.

In that context, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

If Question 1 is answered in the negative:

17.

Written observations were submitted to the Court by the applicant, Ireland, the Austrian Government and the European Commission.

18.

By the two questions referred, which are to be considered together, the referring court asks, in essence, whether, for the purposes of defining the ecological status of a lake (as ‘high’, ‘good’ and ‘moderate’) as regards the ‘fish fauna’ biological quality element set out in Table 1.2.2 of Annex V to Directive 2000/60 (‘the definition of the ecological status of fish fauna’), account should be taken exclusively of ‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’, to the exclusion of other anthropogenic impacts, such as those caused by measures for the management of fish populations. ( 9 )

19.

The referring court’s doubts arise from the fact that, in the definition of the ecological status of fish fauna as ‘high’, that table refers, inter alia, simply to the absence of anthropogenic disturbance, whereas, in the definition of the ecological status of fish fauna as ‘good’ and ‘moderate’, that table refers, inter alia, to the presence, to a greater or lesser extent, of signs of disturbance attributable to anthropogenic impacts on physico-chemical or hydromorphological quality elements.

20.

In the following points, after a few preliminary remarks on the relevance of the questions referred, I shall examine the scope of the provisions at issue, taking into account, in accordance with the Court’s settled case-law, both the wording of those provisions and their context, as well as the objectives pursued by the legislation of which they form part and, in the present case, the origin of that legislation. ( 10 )

21.

There is no doubt that the impacts of measures for the management of fish populations, such as restocking a lake with non-native fish species, are ‘anthropogenic impacts’, that is to say impacts caused by human activities. ( 11 )

22.

However, the referring court considers that the measures for the management of fish populations in question, while being measures having anthropogenic impacts, do not constitute measures having such impacts on physico-chemical or hydromorphological quality elements. ( 12 ) That approach is endorsed by the applicant and by Ireland and the Austrian Government, ( 13 ) whereas, according to the Commission, measures for the management of fish populations may have anthropogenic impacts on physico-chemical and hydromorphological quality elements. ( 14 )

23.

I share the view of the Commission. I consider that it is apparent from the very etymology of the term ‘hydromorphological’ that it includes any measure designed to affect water status, including measures for the management of fish populations. ( 15 ) In particular, I am of the view that disturbance to fish fauna by definition causes impacts which disturb the physico-chemical and hydromorphological elements of a body of water. ( 16 )

24.

If the Court were to adopt that interpretation, the questions referred would be irrelevant since the measures for the management of fish populations at issue in the main proceedings would constitute, in any event, measures having anthropogenic impacts on physico-chemical and hydromorphological quality elements and ought be taken into account for the purposes of defining the ecological status of the lake’s fish fauna.

25.

That said, it should be recalled that, according to the settled case-law of the Court, in the context of the procedure provided for in Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, questions on the interpretation of EU law referred by a national court, in the factual and legislative context which that court is itself responsible for defining ( 17 ) and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. ( 18 )

26.

Therefore, in the following points, I shall propose an answer to the questions raised by the referring court, which concern, in essence, whether anthropogenic impacts on elements other than physico-chemical and hydromorphological quality elements are also relevant for the purposes of classifying the ecological status of a lake with regard to the biological quality element ‘fish fauna’, in accordance with the definition of the ecological status of fish fauna.

27.

The definition of the ecological status of fish fauna includes three categories (‘high’, ‘good’ and ‘moderate’), the criteria of which are worded in a complex or even inconsistent way.

28.

On the one hand, the ecological status classification of fish fauna as ‘high’ requires the following three conditions to be fulfilled:

29.

On the other hand, the ecological status classification of fish fauna as ‘good’ and ‘moderate’ refers to two conditions, which coincide with the first and third in respect of ‘high status’, but are defined in an entirely different way, that is to say:

30.

Therefore, according to the wording of the relevant provisions, the two questions referred for a preliminary ruling should be answered to the effect, first, that the ecological status classification of fish fauna as ‘high’ does not concern only disturbances attributable to ‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’ and, second, that the ecological status classifications of fish fauna as ‘good’ and ‘moderate’ refer only to disturbances attributable to ‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’. ( 22 )

31.

However, the complex, imprecise and contradictory wording of the definitions under consideration makes it extremely difficult to apply those provisions and entails the need to remedy those difficulties by means of a contextual and teleological interpretation, having regard also to the origin of those provisions.

32.

The definition of the ecological status of fish fauna is contained in point 1.2 of Annex V to Directive 2000/60, entitled ‘Normative definitions of ecological status classifications’.

33.

Table 1.2 of that annex, entitled ‘General definitions for rivers, lakes, transitional waters and coastal waters’ (‘the general definition of ecological quality’), sets out inter alia a general definition of ecological quality for rivers, lakes, transitional waters and coastal waters, followed by specific definitions of ecological status for rivers (point 1.2.1), lakes (point 1.2.2), transitional waters (point 1.2.3) and coastal waters (point 1.2.4). ( 23 ) For each of those categories of surface water, Member States must base the assessment of ecological status on three categories of quality elements, namely biological quality elements, physico-chemical quality elements and hydromorphological quality elements, each of those quality elements comprising specific parameters. ( 24 )

34.

Theoretically, therefore, the ecological status of those three quality elements is defined independently, fish fauna being analysed in the context of the biological quality element and not in the context of the hydromorphological and physico-chemical quality elements. However, the definition of the ecological status of fish fauna, while falling within the scope of biological quality elements, itself refers, as regards the ‘good status’ and ‘moderate status’ categories (but not the ‘high status’ category), to physico-chemical and hydromorphological quality elements. ( 25 )

35.

In that context, I consider it appropriate to interpret the definition of the ecological status of fish fauna in the light of the general definition of ecological quality for surface waters.

36.

In that regard, on the one hand, so far as concerns the ‘high status’ category, the general definition of ecological quality refers to the fact that ‘… the values of the biological quality elements for the surface water body reflect those normally associated with that type under undisturbed conditions, and show no, or only very minor, evidence of distortion’ and specifies that ‘these are the type-specific conditions and communities’. ( 26 ) Consequently, so far as concerns biological quality elements, that definition makes no reference to anthropogenic alterations to the values of the physico-chemical and hydromorphological quality elements.

37.

On the other hand, with regard to the ‘good status’ and ‘moderate status’ categories, that definition requires, respectively, that ‘the values of the biological quality elements for the surface water body type show low levels of distortion resulting from human activity, but deviate only slightly from those normally associated with the surface water body type under undisturbed conditions’ (‘good status’ category), and that those values ‘deviate moderately from those normally associated with the surface water body type under undisturbed conditions’ and ‘show moderate signs of distortion resulting from human activity and are significantly more disturbed than under conditions of good status’ (‘moderate status’ category).

38.

Therefore, the general definition of the ecological quality of surface waters does not refer to disturbances linked to specific causes, such as anthropogenic alterations to the values of the physico-chemical and hydromorphological quality elements. ( 27 )

39.

In those circumstances, with regard, in the first place, to the ‘high status’ category, it seems to me that the terms used both in the general definition of ecological quality and in the definition of the ecological status of fish fauna do not make it possible to limit the assessment to physico-chemical and hydromorphological disturbances or distortions. ( 28 )

40.

As regards, in the second place, the ‘good status’ and ‘moderate status’ categories, I would point out first of all that the general definition of ecological quality and the definition of the ecological status of fish fauna refer, in my view without distinction and accidentally, either to the existence of ‘anthropogenic impacts’ or ‘distortions resulting from human activity’ or to the existence of ‘disturbance’ or simple ‘distortions’ (in principle, not linked to human activity). While bearing in mind the difficulty of interpreting that imprecise and inconsistent wording, it appears to me, first of all, that, while all those references (expressly or implicitly) relate to human intervention, ( 29 ) that is because the disturbances in question are usually caused by human activity and not because the EU legislature intended to limit that assessment to human interventions. Next, I consider that the references to anthropogenic impacts on physico-chemical or hydromorphological quality elements are used, in a non-exhaustive way, so as to include any human intervention, since it is normally such (physico-chemical and hydromorphological) impacts which give rise to changes in biological quality elements and therefore in fish fauna. ( 30 ) Finally, given that ‘good’ and ‘moderate’ status are defined on the basis of the same indicators as ‘high’ status (by reference to the discrepancy identified), it would be contradictory, in my view, to take into account any disturbance when assessing ‘high’ status and not to take into account some of those disturbances when the difference between ‘high’ status and ‘good’ and ‘moderate’ status must be measured.

41.

In the light of those considerations, the questions referred should be answered to the effect that, for the purposes of the definition of the ecological status of fish fauna, account must be taken of any anthropogenic disturbance or alteration.

42.

As regards the origin of the relevant provisions, I would note that the drafting of Directive 2000/60, and more specifically that of Annex V thereto, provoked a great deal of discussion.

43.

The Commission’s first proposals for a directive ( 31 ) based the definitions of ecological status on descriptive elements, without requiring specific impacts. ( 32 ) References to ‘anthropogenic impacts’ and, more specifically, to ‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’ were introduced during the legislative procedure. ( 33 ) However, since the rationale for those changes is not explained, it appears to me that no particular inferences can be drawn from that fact. ( 34 )

44.

Accordingly, in my view, a study of the origin of the relevant provisions provides no information of use in answering the questions raised by the referring court.

45.

Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC (now Article 192(1) TFEU). It establishes common principles and an overall framework for action in relation to water protection and coordinates, integrates and, in a longer perspective, develops the general principles and the structures for protection and sustainable water use in the European Union. The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States by means of the adoption of individual measures in accordance with the timescales laid down in the directive. However, that directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water. ( 35 )

46.

According to Article 1(a) thereof, the purpose of that directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems. ( 36 )

47.

The environmental objectives which the Member States are required to achieve as regards surface waters are set out in Article 4(1)(a) of that directive, a provision which, as the case-law of the Court has made clear, imposes two distinct, albeit intrinsically linked, objectives. First, in accordance with Article 4(1)(a)(i) of that directive, Member States are to implement the necessary measures to prevent deterioration of the status of all bodies of surface water (obligation to prevent deterioration). Second, pursuant to Article 4(1)(a)(ii) and (iii) of Directive 2000/60, Member States are to protect, enhance and restore all bodies of surface water with the aim of achieving ‘good status’ by the end of 2015 at the latest (obligation to enhance). ( 37 ) Both the obligation to enhance and the obligation to prevent deterioration of the status of bodies of water are designed to attain the qualitative objectives pursued by the EU legislature, namely the preservation or restoration of good status, good ecological potential and good chemical status of surface waters. ( 38 )

48.

In that context, Article 4(1)(a) of Directive 2000/60 does not simply set out, in programmatic terms, mere management-planning objectives, but has binding effects, once the ecological status of the body of water concerned has been determined, at each stage of the procedure prescribed by that directive. That provision does not therefore contain solely basic obligations, but also concerns individual projects. ( 39 )

49.

During the procedure for authorisation of a project, and therefore before the decision is taken, the competent national authorities are required, under Article 4(1) of Directive 2000/60, to ascertain whether that project may have adverse effects on water which would be contrary to the requirements to prevent deterioration and to improve the status of bodies of surface water and groundwater. ( 40 )

50.

In those circumstances, it seems to me that, as the Commission argues, it would be difficult, at the very least, to ensure the complete protection (preservation and enhancement) of the status of aquatic ecosystems if, when assessing the status of the fish fauna of lakes, anthropogenic disturbances (in the composition and abundance of fish or other species) which were not caused by an alteration to the physico-chemical and hydromorphological quality elements were to be disregarded. ( 41 )

51.

In addition, as the Austrian Government argues, a strict interpretation, according to which the definition of ‘high’ status applied to the ecological status of fish fauna should not take account of certain anthropogenic alterations, seems to render the ‘fish fauna’ element itself irrelevant. ( 42 ) In the light of the objectives of Directive 2000/60, it is difficult to accept that some deteriorations of fish fauna (such as, in some circumstances, deteriorations of fish stocks) would not affect the classification of the quality of fish fauna according to the relevant provisions of Annex V to that directive.

52.

It therefore seems to me that a teleological interpretation of the relevant provisions confirms that, for the purposes of the definition of the ecological status of fish fauna, account should be taken of all disturbances in the composition and abundance of fish species and in the age structures of those communities.

53.

I reiterate my view that measures for the management of fish populations ought to be regarded as having anthropogenic impacts on physico-chemical and hydromorphological quality elements. That interpretation would render the questions referred irrelevant, in that those measures for the management of fish populations would in any event fall within the definition of‘anthropogenic impacts on physico-chemical or hydromorphological quality elements’ and would have to be taken into account for the purposes of each of the definitions of the ecological status of fish fauna.

54.

That said, and while leaving it to the referring court to define the relevant factual framework, I have addressed the more general question of whether the definition of the ecological status of fish fauna requires account to be taken of any measure having anthropogenic impacts, since reference to physico-chemical and hydromorphological quality elements does not have to be interpreted as limiting the relevance of any other measure having anthropogenic impacts.

55.

In that regard, in the light of the foregoing, I propose that the questions posed by the referring court be answered to the effect that the definition of the ecological status of fish fauna as ‘high status’, ‘good status’ and ‘moderate status’ must be interpreted as meaning that the expression ‘anthropogenic disturbance’ should be understood as referring to any disturbance caused by human activity, including any change capable of affecting the composition and abundance of fish species.

56.

In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:

The definition of the ecological status of the biological quality element ‘fish fauna’ as ‘high status’, ‘good status’ and ‘moderate status’ found in Table 1.2.2 of Annex V to 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

must be interpreted as meaning that the expression ‘anthropogenic disturbance’ should be understood as referring to any disturbance caused by human activity, including any change capable of affecting the composition and abundance of fish species.