1.

In 2000 the European Union took a radical and innovative step by adopting Directive 2000/60/EC ( 2 ) (‘the WFD’). For the first time, an act of EU law defines a framework for the management and common protection of water based not on national borders or policies but on hydrological formations, that is to say by river basin, with a view to sustainable development. Furthermore, the WFD was also innovatory by virtue of its integration of economic considerations into water policy, which can be seen not only in the application of the ‘polluter pays’ principle but also in the obligation to conduct an economic analysis of certain costs or uses of water ( 3 ) and the use of instruments such as water-pricing policies.

2.

By its action, the European Commission claims that the Court should declare that ‘the Federal Republic of Germany has failed to fulfil its obligations under the WFD, and in particular under Article 2(38) ( 4 ) and Article 9 ( 5 ) thereof, by excluding certain services (for example, impoundment for the purposes of hydroelectric power generation, navigation and flood protection, abstraction for the purposes of irrigation and for industrial purposes, as well as personal consumption) from the concept of ‘water services’. ( 6 ) By the Commission’s own admission, the present action ‘essentially concerns the interpretation of the concept of “water services” laid down in Article 2(38) of the WFD’. In the view of the Commission, the interpretation of that concept has ‘fundamental consequences for the scope of Article 9 of the WFD’. ( 7 )

3.

I would point out from the outset that this case is of importance in several respects. First of all, it marks the first occasion on which the Court has been called upon to clarify the scope of the pricing principle for water services within the context of the WFD. Such clarification is likewise of considerable significance for the purposes of the implementation of the WFD as a whole. Furthermore, as the Commission confirmed at the hearing, this case is a ‘test case’ inasmuch as a significant number of actions could be brought by the Commission depending on the interpretation given by the Court in the present case. ( 8 )

4.

In the view of the Federal Republic of Germany, which is supported in this regard by several Member States, the WFD establishes an overall system of water management under which the environmental objectives must be achieved primarily by means of the programmes of measures and management plans mentioned in the WFD. Thus, the obligation to recover the costs of water services is not the central and definitive instrument for addressing the problems facing Europe in terms of water resources, but rather a specific measure which should be applied in connection with the supply of water and the collection and treatment of waste water.

5.

Whilst acknowledging that the Commission’s action presents serious procedural failings, I intend in this Opinion to advocate the interpretation that, in the WFD, the legislature of the European Union provided for the pricing of two main types of activity: first that relating to the supply of water as defined in Article 2(38)(a) of the WFD, the wording of which reflects the intention to identify each of the individual stages which must be included in the price paid by the end user, and second that relating to waste-water collection and treatment within the meaning of Article 2(38)(b) of the WFD. The water service must be offered by a service provider to a consumer or to another user, either private or public, representing a branch of industry or the agricultural sector. This interpretation, which appears to me to be the only reasonable approach, is supported both by the wording and the scheme of the WFD and by its legislative background, its legal basis and its primary purpose, namely the protection of water as a common heritage.

6.

In August 2006, the Commission received a complaint to the effect that the Federal Republic of Germany was interpreting the definition of ‘water services’ contained in Article 2(38) of the WFD as meaning that the services in question are restricted to the supply of water and the collection, treatment and elimination of waste water, with the result that it is restricting the scope of Article 9 of the WFD.

7.

On 7 November 2007, the Commission sent the Federal Republic of Germany a letter of formal notice in which the Commission made clear that the German legislation was not compatible with several provisions of the WFD and that the Member State was incorrectly applying the concept of ‘water services’.

8.

The Federal Republic of Germany replied to the letter of formal notice on 6 March 2008 and 24 September 2009.

9.

On 30 September 2010, the Commission sent a supplementary letter of formal notice, to which the Federal Republic of Germany replied on 18 November 2010. On 27 July 2011, the Member State sent to the Commission the regulation on the protection of surface waters of 20 July 2011 which transposes Article 5 of the WFD.

10.

On 30 September 2011, the Commission sent the Federal Republic of Germany a reasoned opinion. The Federal Republic of Germany replied to the reasoned opinion on 31 January 2012, that is to say within the time-limit fixed, which had been extended at the Member State’s request. In July 2012, the Federal Republic of Germany notified the Commission of the transposition of Article 2(38) and (39) and Article 9 of the WFD.

11.

The transposition of the provisions in question notwithstanding, the Commission took the view that the issue of the differing interpretation of the definition of water services and, therefore, of the — in its view — incomplete application of Article 9 of the WFD persisted. Accordingly, on 11 November 2012 it brought the present action.

12.

By orders of the President of the Court of 2, 5, 8, 11 and 15 April 2013, respectively, the Republic of Austria, the Kingdom of Sweden, the Republic of Finland, Hungary, the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark were granted leave to intervene in support of the form of order sought by the Federal Republic of Germany.

13.

The Federal Republic of Germany, Hungary, the Republic of Finland, the Kingdom of Sweden and the Commission were heard at the hearing held on 5 March 2014.

14.

By its action, the Commission essentially claims that, by interpreting the concept of ‘water services’ contained in Article 2(38) of the WFD restrictively, and therefore, in its view, incorrectly, the Federal Republic of Germany has failed to comply with the requirements under Article 9 of the WFD. The Federal Republic of Germany contests the admissibility of the action, which — in its view — seeks to clarify purely theoretical questions, lacks precision and is not consistent with the subject-matter of the reasoned opinion. The Finnish and Swedish Governments likewise claim that the action should be found to be inadmissible.

15.

From a procedural perspective, the difficulty raised by the present action therefore relates, first and foremost, to the clear determination of the subject-matter and nature of the alleged failure to fulfil obligations, since the action brought by the Commission is fundamentally inconsistent in this regard. That determination is, however, a pre-requisite for the examination of the application by the Court. Indeed, to allow an action to be brought which is concerned solely with the misinterpretation of a directive without the Commission being required to set out the nature of the alleged shortcoming would be tantamount to allowing the Commission to bring an action for failure to fulfil proceedings ‘which seeks an interpretation’, the purpose of which would be to obtain the confirmation by the Court of an interpretation of EU law. This is not, however, consistent with the scheme and purpose of the procedure laid down in Article 258 TFEU, which concerns the finding that a Member State has failed to fulfil its obligations. Where such a failure to fulfil obligations is found to exist, the Member State in question is required, under Article 260(1) TFEU, to take the necessary measures to comply with the judgment of the Court of Justice. ( 9 )

16.

In this regard, I note that, in paragraph 1 of the application, ( 10 ) the Commission states that its action ‘is essentially concerned with the interpretation of the concept of “water services” laid down in Article 2(38) of the WFD’. The Commission does, however, acknowledge that, in the course of the pre-litigation procedure, the provisions of Articles 2(38) and 9 of the WFD were transposed by means of a government bill of 18 July 2012, which provides for their literal transposition. The Commission does, however, take the view that the interpretation advocated ‘by the defendant is not compatible with the precise content of the provisions’. ( 11 ) In the view of the Commission, what remains, as a result, is the issue of the differing interpretation of the definition of water services, and therefore ‘the incomplete application of Article 9 of the WFD’. It is for this reason that the Commission thus decided to ‘restrict its action to the incorrect transposition of Article 2(38) and Article 9 of the WFD’. ( 12 )

17.

In the reply, the Commission defends the admissibility of its action by claiming that ‘the core of the infringement relates to the defendant’s interpretation of Article 2(38) of the Directive’. In the view of the Commission, the non-uniform and incorrect application of Article 9 of the WFD on German territory is contrary to recitals 14 and 18 in the preamble to the WFD. ( 13 ) Finally, in the form of order sought in the application, the Commission claims that the Court should declare that the Federal Republic of Germany has failed to fulfil its obligations under the WFD ‘by excluding certain services … from the concept of “water services”’. ( 14 )

18.

It is therefore unclear whether the Commission complains that the Federal Republic of Germany:

19.

It is, however, established that the application initiating proceedings must state the subject-matter of the dispute and a summary of the pleas in law and that statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a claim. ( 15 )

20.

Firstly, with regard to the question whether the Commission is criticising the incorrect transposition or an erroneous application of the WFD, I would point out that the Commission attaches great importance to presenting and analysing numerous examples of services which it regards as water services without, however, establishing a link to the application of the WFD in the territory of the defendant Member State. Only in the final paragraphs of the application is the failure to fulfil obligations clarified by a complaint alleging that the legislation of certain Länder ( 16 ) does not provide for an abstraction charge, and that such a charge has been introduced only recently in other Länder. ( 17 ) The Commission also criticises derogations in connection with the abstraction of water and raises the issue of the abstraction of water for underground and open-cast mining purposes, which certainly appears questionable in the light of the WFD. ( 18 ) The reply does not appear to be much more illuminating.

21.

This structure of the action could prompt the view to be taken that the Commission criticises primarily shortcomings relating to the application of national rules adopted for the purposes of transposing the provisions of Article 9 of the WFD, read in conjunction with Article 2(38) thereof. However, since the examples of such deficient application are drawn from the legislation adopted by a number of Länder, this supports the theory of a failure to fulfil obligations arising from an incorrect transposition. Furthermore, the Commission simply lists the Länder concerned using links to websites providing access, at least in part, to the contested acts, without the operative parts of those acts being specified. ( 19 )

22.

However, in accordance with case-law, it must be clear from the Commission’s application whether the action relates to the manner in which the directive is transposed into the national legal order, or whether it rather criticises the actual outcome of the application of the implementing legislation. As the Court has made clear, it is only in that first scenario that, in order to prove that the transposition of the directive is insufficient or inadequate, it is not necessary to establish the actual effects of the national legislation transposing that directive. Indeed, it is sufficient to compare the provisions themselves with a view to establishing the insufficiencies or defects in transposition. ( 20 )

23.

It is true that, in certain cases, transposition requires the Member States not only to adopt a complete legislative framework, but also to implement actual and specific measures which enable the required outcome to be achieved. This is the case, for example, with Directive 92/43/EEC, ( 21 ) the ‘Habitats Directive’, in the context of which the establishment of a system of strict protection presupposes the adoption of coherent and coordinated measures of a preventive nature which enable the avoidance of deterioration or destruction of breeding sites or resting places of animal species. ( 22 ) However, in such circumstances, the Commission is required to adduce evidence of the failure to fulfil obligations using specific examples which prove that an effective system of protection does not exist. ( 23 ) For the reasons set out above, this is not the case with the present action.

24.

In any event, if the present action were regarded as complaining of an incorrect transposition, the Court does not appear to me to be in a position to determine the status of the acts adopted by the Länder to which the Commission refers on 30 January 2012, the date on which the time-limit fixed in the reasoned opinion expired. ( 24 ) It is established that the reasoned opinion and the action must set out the complaints coherently and precisely in order that the Court may appreciate exactly the extent of the alleged infringement of EU law, a condition which is necessary in order to enable the Court to determine whether there has been a breach of obligations as alleged. ( 25 )

25.

In this regard, it should be pointed out that, with a view to illustrating the status of the legislation in the Länder of Bavaria, Hesse and Thuringia, the Commission makes an imprecise reference in its application to the explanatory memorandum to the draft law of the Government of the Land of Rhineland-Palatinate and to an article from legal literature. ( 26 ) Furthermore, I note that the Law of the Land of Rhineland-Palatinate on the abstraction charge, cited in a footnote to the application, ( 27 ) was adopted on 3 July 2012. The Commission should therefore have made clear to what extent any draft of that law formed the subject-matter of the pre-litigation procedure. Only the legislation of the Land of North-Rhine Westphalia (Nordrhein-Westfalen) ( 28 ) and that of the Land of Brandenburg ( 29 ) are mentioned in the reasoned opinion.

26.

Secondly, having regard to the wording of the action, I note that the Commission does not claim that the Court should find there to be one or more specific failures to fulfil obligations for which it holds certain Länder responsible, even though it would be lawful for it to criticise such ‘individual’ failures to fulfil obligations relating to a specific situation ( 30 ) since the de minimis rule does not apply in the context of Article 258 TFEU. ( 31 ) Indeed, rather than criticising specific infringements resulting either from Federal legislation or from that of the Länder, in the form of order sought the Commission simply refers in general terms to the exclusion of certain water services within the meaning of the WFD.

27.

Thirdly, with regard to the case of a structural failure to fulfil obligations, it is established that an administrative practice can be the subject-matter of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature. ( 32 ) This requires that the Commission establish the horizontal nature of the failure to fulfil obligations. The Court has found to be admissible actions brought by the Commission which rely specifically on a structured and general infringement of the provisions of environmental law by a Member State. ( 33 ) Case-law acknowledges that, to that end, the Commission bases its action on an ‘overall approach’. ( 34 )

28.

Where the action relates to the actual application of a national provision, the evidential material required to establish a failure by a Member State to fulfil its obligations is of a different nature from that which is normally taken into account in the context of an action for failure to fulfil obligations relating solely to the meaning of a national provision. Where the subject-matter of an action for failure to fulfil obligations concerns the application of a national provision, the failure can be established only as a result of sufficiently documented and detailed proof of the alleged practice, for which the Member State concerned is answerable. ( 35 ) The application does not satisfy those requirements in the present case.

29.

In any event, I can rule out the Commission having failed to satisfy the requirements laid down in case-law regarding the scope of the dispute. ( 36 ) Indeed, since the subject-matter of the failure to fulfil obligations at issue here is uncertain, the question of its extension is not even raised.

30.

In the light of all the foregoing considerations, I am of the view that, since the present action does not manifestly satisfy the requirements of precision and coherence for the purposes of the case-law of the Court, it appears to be impossible to define its subject-matter. I therefore propose, primarily, that the action be regarded as inadmissible. The analysis of the substance of the action is therefore presented in the alternative.

31.

In the view of the Commission, Article 2(38) of the WFD must be interpreted as meaning that each of the water services to which it refers must be subject to the principle of the recovery of costs and to measures to encourage the efficient use of resources, as required by Article 9 of the WFD. The Commission points out that, in the context of the application of the WFD in Germany, certain water services do not give rise to the recovery of costs, even though they have an impact on the body of water, contrary to Article 9 of the WFD. The Commission refers to the European Environment Agency’s report, ( 37 ) from which it is clear that the contested interpretation would mean that only 21% of the abstractions of water in Europe would be regarded as a water service, with the result that around 80% of all water abstraction in Europe would thus fall outside the scope of Article 9 of the WFD; this would be seriously prejudicial to the effectiveness of the WFD. Whilst making clear that the Member States enjoy a degree of discretion to exclude certain water services from the recovery of costs under Article 9, the Commission takes the view that the exclusion of water services covering a vast range of activities, as is the practice of the defendant, goes beyond the limits of that discretion.

32.

For the purposes of clarifying the definition of the concept of ‘water services’, the Commission proposes that reference be made to Directive 2004/35/EC ( 38 ) and argues that, under environmental law, the services do not require either the involvement of a human being as a service provider or recipient, or the existence of a contractual relationship, as is the case with ‘ecosystem services’. ( 39 ) Thus, the abstraction of water for self-supply must also be regarded as a water service.

33.

In its statement in defence, the Federal Republic of Germany submits that the pricing of water uses is not the only measure capable, in accordance with the WFD, of encouraging greater economy and prudence in the field of water management. The Commission fails to take account of the various management tools provided for by the legislature for reasons both of subsidiarity and of efficiency.

34.

Furthermore, the Member State relies on the structure of the definition of water services contained in Article 2(38)(a) of the WFD. That definition contains a list of activities, which are linked by the conjunction ‘and’, meaning that all stages of the supply of water are taken into account in the calculation of the costs. The concept of ‘water services’ thus includes the supply of water as a whole and not just a defined number of activities, since this would otherwise give rise to an unlawful extension of the definition.

35.

In addition, in order to define the concept of ‘services’ within the meaning of Article 2(38) of the WFD, the Federal Republic of Germany proposes that reference be made to Article 57 TFEU and takes the view that that concept requires a bilateral relationship, a relationship which is absent — for example — in the case of the use of water for navigation or flood protection measures, but which is established in the activities consisting in the supply of water and the treatment of waste water. The defendant Member State disputes the relevance of Directive 2004/35 and the reference to the concept of ‘ecosystem services’.

36.

In their statements in intervention, the Danish, Hungarian, Austrian, Finnish, Swedish and UK Governments support in essence the reading of Article 2(38) of the WFD advocated by the Federal Republic of Germany.

37.

The Danish Government adds that, unlike the water distribution and waste-water treatment activities, the financial instruments do not have the same regulatory effect on the consequences of activities such as the development of waterways for navigation or flood protection. For its part, the Hungarian Government points out that the meaning accepted by the Commission removes the dividing line between the concepts of ‘water use’ and ‘water services’. It states that, in the course of the legislative work which led to the adoption of the WFD, the Commission’s view that the principle of cost recovery extended to all water-related activities was expressly ruled out. The Austrian Government makes clear that the programmes of measures and the management plans are key instruments for the purposes of achieving the objectives of the WFD. The objective of encouraging, through water-pricing policies, the economic use of water makes sense only in relation to the supply of water to consumers and not, for example, in connection with hydroelectric energy, since this would result in an increase in the cost of renewable electricity from that source.

38.

The Finnish Government challenges the overly broad interpretation that the Commission advocates with regard to the concept of water services. That interpretation upsets the balance struck between the instruments under the WFD relating to the management of water resources, even though that directive has the status only of ‘framework’ legislation which affords broad discretion to the national legislature in the choice of the means of implementation. ( 40 ) In the view of the Swedish Government, it is clear that the definition proposed by the Commission fails to take any account of specific natural and geographical conditions of the different Member States. The United Kingdom also challenges the Commission’s view.

39.

In the field of water policy, Community legislation during the 1970s focussed primarily on the uses of water (drinking water, bathing, fish farming, shellfish farming), before turning to the reduction of pollution (waste water, nitrates of agricultural origin). ( 41 ) European legislation was therefore comprised of several sector-specific directives relating to water. This piecemeal approach was deemed to be out-dated, inconsistent and difficult to adapt to the progress attributable to scientific expertise.

40.

Regarded as a Copernican revolution in the field of water policy, ( 42 ) the WFD established a common framework with a view to coordinating and replacing in part the mosaic of Community and national legislation in force. ( 43 )

41.

The WFD marks a decisive step in the evolution of water policy because it governs the management of water quality, with issues relating to quantitative management being addressed by that directive on a supplementary basis only. ( 44 ) Besides, this reflects the legal basis of the WFD, which was adopted on the basis of Article 175 EC (now Article 192 TFEU) relating to the former co-decision procedure. However, it should be noted in this regard that it follows from Article 175(2) EC that matters relating to the quantitative management of water resources or affecting, directly or indirectly, the availability of those resources would have required unanimity in the context of the legislative procedure.

42.

The aim of the WFD is in fact to maintain and improve the environment in the European Union. In addition, there is a direct link between that objective and the quality of the waters concerned, whereas quantitative management is merely an ancillary element of that objective which is able to contribute to securing good water quality. It is with this in mind that the WFD also includes measures on quantity, serving the objective of ensuring good quality. ( 45 )

43.

It is necessary to point out in this context that the challenge presented by the present action relates to the fact that, as water is an element essential to human activities, water policy — which, furthermore, concerns a common asset — forms the subject-matter of legislation at several levels of EU law, thus requiring the adoption of a conciliatory approach. Thus, on the one hand, attention must be drawn to the link between the WFD and a series of supplementary directives such as the Groundwater Directive, ( 46 ) the Waste-Water Treatment Directive, ( 47 ) the Nitrates Directive, ( 48 ) the Directive on environmental quality standards in the field of water policy, ( 49 ) the Floods Directive ( 50 ) and the Directive on technical specifications for the chemical analysis and monitoring of waters. ( 51 )

44.

On the other hand, it is important not to lose sight of the inter-sectoral perspective in the context of the sustainable management of water resources, by taking due account, inter alia, of the instruments falling under the common agricultural policy, those concerned with regional policy, the acts adopted in relation to renewable energies or even inland water transport as well as the rules relating to land use, without neglecting their necessary adaptation to climate change. ( 52 )

45.

In addition, even though surface waters and groundwater are renewable natural resources, ( 53 ) the uneven distribution of water within the European Union makes the adoption and application of a legislative framework on water protection highly complex. ( 54 ) Freshwater resources per inhabitant are twenty times higher in the countries of Northern Europe than in the countries of Southern Europe. ( 55 ) For this reason, the river basin management plans are the main tools for implementing the WFD. ( 56 ) Indeed, recital 13 in the preamble to the WFD points out in this regard that ‘[t]here are diverse conditions and needs in the Community which require different specific solutions. This diversity should be taken into account in the planning and execution of measures to ensure protection and sustainable use of water in the framework of the river basin. Decisions should be taken as close as possible to the locations where water is affected or used. Priority should be given to action within the responsibility of Member States through the drawing-up of programmes of measures adjusted to regional and local conditions’ (emphasis added).

46.

Finally, it is important to point out that the complexity which characterises the WFD has prompted the Commission to adopt a plethora of explanatory documents and reports relating to the implementation of the WFD, ( 57 ) and has fed into the Blueprint to Safeguard Europe’s Water Resources. ( 58 )

47.

It is in the light of the foregoing general observations that the contested provisions should be examined.

48.

As the Commission points out, ‘the core of this dispute’ concerns the interpretation of Article 2(38) of the WFD. In addition, in determining the scope of a provision of Community law, its wording, context and objectives must all be taken into account. ( 59 ) The origin of a provision of EU law may also contain factors relevant to its interpretation. ( 60 )

49.

I note from the outset that the principle of pricing to recover the costs of water services laid down in Article 9 of the WFD is an innovative instrument which seeks to guarantee a more effective application of the ‘polluter pays’ rule in the area of water use. ( 61 ) The WFD is therefore one of the initiatives which seek to strengthen the role of economic instruments in environmental policy areas.

50.

Accordingly, Article 9 of the WFD provides that Member States are to take account of the principle of recovery of the costs of water services. More specifically, Member States are to ensure that water-pricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental objectives of the WFD. They are also to ensure an adequate contribution of the different water uses, amongst which the WFD identifies industry, households and agriculture, to the recovery of the costs of water services, based on the economic analysis conducted according to Annex III and taking account of the polluter pays principle.

51.

Article 2(38) of the WFD defines water services as all services which ‘provide’, on the one hand, ‘abstraction, impoundment, storage, treatment and distribution of surface water or groundwater’ and, on the other hand, ‘waste-water collection and treatment facilities which subsequently discharge into surface water’.

52.

The view may therefore be legitimately taken that the EU legislature defined water services from the perspective of two main activities that are essential to water use, namely, ‘upstream’, the supply of water and, ‘downstream’, the treatment of waste water.

53.

The definition reproduced above necessarily entails the existence of a service provider. In addition, it also follows from that definition that the activities in question are deemed to be supplies of water services only to the extent that they are made in the context of the supply of water or the treatment of waste water. Furthermore, the activities listed in Article 2(38)(a) of the WFD are specified solely for the purposes of their being taken into account as part of the pricing process. Indeed, as the agent for the Finnish Government pointed out at the hearing, the legislature deemed it necessary to ensure that all the individual components in the context of water distribution are taken into account when calculating the costs referred to in Article 9 of the WFD. If point 38 contained only the term ‘supply’, that provision could be interpreted as relating solely to the last link in the chain, namely the distribution of water to an end user.

54.

I therefore share the view of the Federal Republic of Germany that the objective of Article 2(38) of the WFD is to encompass all aspects of the supply of water and to give rise to a system of pricing which enables the costs to be recovered under Article 9 of the WFD. ( 62 ) In my opinion, that principle must apply regardless of the composition of the supply chain. In other words, the cost paid by the consumer or any other user of drinking water must include all the services, irrespective of the number of services providers involved.

55.

This interpretation of Article 2(38) of the WFD is confirmed by a reading of the usual meaning of its wording, as well as by its origin, the scheme of the WFD and a teleological interpretation of that provision.

56.

It is established that Article 2 of the WFD contains definitions for the purposes of the application of the directive. Accordingly, the interpretation of that provision must be based primarily on the denominator common to all the Member States, that is to say the usual meaning of its wording. This appears to me to be all the more imperative since the WFD is a framework directive.

57.

In this regard, I would point out that the Court has already rejected a line of argument advanced by the Commission in the context of an action for failure to fulfil obligations in the field of taxation by which the Commission complained that a Member State had not adopted an interpretation effectively correcting a provision of the relevant directive, despite its content being reproduced verbatim in the national legal order. The Commission appears to me to be following a similar approach in the present case on the basis of the regulation on the protection of surface waters. In its judgment, the Court referred to the principle of legal certainty, which requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. ( 63 ) In addition, the Court has held that, where the wording of provisions is clear and unambiguous, as confirmed by the scheme of those provisions, a concept contained therein cannot be interpreted in a way which seeks to extend the obligations of the Member States relating to it. ( 64 )

58.

In the light of the wealth of discussions preceding the adoption of the WFD and in view of its wholly innovative nature from the standpoint of an understanding of environmental protection determined by natural geographical and hydrological formations and not political borders, I am of the view that, at the very least, it serves little useful purpose to look for clarifications of the wording of the WFD in other acts of secondary law such as the Services Directive or the Environmental Liability Directive, as per the analysis proposed by the Commission and the Federal Republic of Germany. I note, furthermore, that the WFD contains such explicit references where the legislature deemed this to be appropriate, in particular as regards the definition of the expression ‘water intended for human consumption’ contained in Article 2(37) of the WFD, which refers to the definition given in Directive 80/778/EEC. ( 65 )

59.

Indeed, in accordance first of all with its usual meaning, the term ‘service’ must be understood to refer to an activity offered by a service provider to any kind of recipient of services, whether households, public institutions, agriculture or industry. By contrast, regarding self-supply as a service is not consistent with the usual meaning of that term. Although it is true that there are cases in which a specific provision states that, for legal purposes, an agent is regarded as having supplied a service to himself, the fact remains that such a meaning is not in common usage and must be clear from the wording of the provision in question. ( 66 )

60.

It is true that the various language versions of Article 2(38) of the WFD are inconsistent. Indeed, the French version of the directive contains the expression services which ‘provide’ the activities listed in point 38(a) and (b), and does not therefore refer directly to a service carried out for the benefit of a recipient.

61.

However, I would point out that the need for a uniform interpretation of the provisions of EU law makes it impossible for the text of a provision to be considered in isolation, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages. Where there is divergence between the various language versions of a European Union text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. ( 67 )

62.

In addition, in most of the other language versions, the emphasis is placed on the act of offering or of making available to a user the activities listed in Article 2(38)(a) and (b) of the WFD. ( 68 ) This supports the view that the legislature clearly intended to require a bilateral relationship involving an act carried out by one party for the benefit of the other party.

63.

By contrast, it seems to me to be pointless to attach great importance to analysis of the structure of the provision at issue, and in particular to the conjunctions and commas used. Indeed, where a provision of EU law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness. ( 69 ) In addition, for the reasons set out below, an interpretation of Article 2(38) of the WFD such as that proposed by the Commission has the effect of erasing the difference between, on the one hand, the concept of water services and, on the other hand, that of water use, and, ultimately, of throwing off balance the relationship desired by the legislature between several instruments with a view to preserving the effectiveness of the WFD.

64.

Finally, the question whether it must be a service which is paid for does not appear to me to be particularly relevant in this regard, since the purpose of the provisions of the WFD relating to pricing is to require that any water service gives rise to invoices which are to be settled by the user. ( 70 )

65.

Unlike the Commission, I am convinced that the origin of a legal act is a reliable and particularly abundant source of information which makes it possible to chart the discussions surrounding the adoption of the act and, to some extent, to retrace the intention of the legislature. This is a fortiori the case, in my opinion, in a sensitive area such as that of water policy, which is regarded as a heritage which requires particular protection.

66.

In the legislative proposal, the Commission pointed out that the WFD seeks to establish a Community framework for the protection of waters following a common approach, with common objectives and based on common principles and measures. ( 71 )

67.

Accordingly, in that proposal, it advocated an approach based on a full recovery of the costs, such that all costs of all water services should be fully recovered, taking account of all users in each economic sector. ( 72 )

68.

However, by rejecting such an approach in the common position, the Council of the European Union made clear that it is for the Member States to determine, on the basis of an economic analysis, the measures to be adopted for the purposes of the application of the principle of recovery. ( 73 )

69.

The WFD therefore promotes pricing to recover costs without the principle of full recovery being mandatory, with the exception of the case of water services understood to be services which include the supply of water and the treatment of waste water. This interpretation is also confirmed by the report on the joint text of the Conciliation Committee, from which it is clear that it was indeed pricing in relation to those two forms of water use which was at the heart of the negotiations. ( 74 )

70.

In addition, as is clear from analysis of the legislative work, one of the main points of disagreement between the Member States related to the difference between an approach focussed on water quality as opposed to one based on quantity. In the light of the final text of the WFD, it must be held that the issue of quantitative management, as such, was excluded from the scope of the directive — which is, moreover, consistent with the legal basis chosen — ( 75 ) even though certain quantitative aspects are covered on an incidental basis.

71.

In reality, it seems to me that the purpose of the present action brought by the Commission is to establish a broadened interpretation of the pricing obligation in relation to water uses which is liable to extend the scope of the WFD with a view to including within that scope the legislation, the quantitative water management or, at the very least, to affecting, ‘directly or indirectly, the availability’ of water resources. In addition, the economic analysis provided for in Annex III to the WFD must include, inter alia, estimates of the volume, prices and costs associated with water services, which confirms that, within the scheme of the WFD, pricing relates to a quantitative and, as such, subsidiary aspect of water management. As a result, the approach advocated by the Commission could conflict with the legal basis of the WFD, inasmuch as that approach seeks to circumvent the requirement under ex Article 175(2) EC.

72.

It should be borne in mind that the major principles of the WFD are as follows: river basin management; the setting of objectives per ‘body of water’; plans and programmes with a specific working method and deadlines; an economic analysis of the detailed arrangements governing water pricing; the integration of environmental costs; and public consultation with a view to increasing the transparency of water policy.

73.

The WFD also lays down a working method which is common to the Member States and based on four key documents, namely: the status report, on the basis of which the issues to be addressed may be identified; the management plan, which specifies the environmental objectives; the programme of measures, which defines the actions which will enable the objectives to be achieved; and the monitoring programme, which tracks the achievement of the objectives specified. The status report, the management plan and the programme of measures are to be updated every six years.

74.

With the above in mind, Article 9 of the WFD, in which the principle of the recovery of costs is enshrined, cannot be analysed in isolation. It is, in reality, a mechanism which is intrinsically linked to Article 11 of the WFD on the obligation on the part of Member States to draw up a programme of measures, which represents one of the main instruments of water quality management. Under Article 11(3)(b) of the WFD, the basic requirements of each programme include measures deemed appropriate for the purposes of Article 9. Thus, the measures relating to the recovery of the costs of water services form an integral part of the programmes of measures. It is therefore through this prism that the Commission should have examined whether a Member State is complying with its obligations under the WFD.

75.

Article 9 of the WFD must also be interpreted in conjunction with Article 4 thereof, since water-pricing policies are capable of providing incentives for users to use water resources efficiently and contribute to the environmental objectives set out in Article 4 of the WFD.

76.

It therefore seems to me to be accepted that water pricing is not an independent instrument of the WFD, but must rather be applied in close conjunction with a multitude of other instruments provided for in that same directive.

77.

In addition, I would point out that Article 2 of the WFD draws a distinction between, on the one hand, ‘water services’ in point 38 of that article and, on the other hand, ‘water use’ in point 39 of the article. In accordance with that latter point, ‘water use’ covers water services together with any other activity capable of having a significant impact on the status of water. It is therefore indisputable that the scope of the definition of water use covers the category of services defined in Article 2(38) of the WFD. This is, furthermore, confirmed by the Commission itself in a reference document relating to the transposition of the WFD by the Member States. ( 76 )

78.

Water uses are activities which have a significant impact on the status of water. Furthermore, it goes without saying that water services also have such an impact. However, it is difficult to regard the examples of water use mentioned by the Commission, such as bathing and competitive fishing, as capable of having a significant impact on the status of water. If that were the case, the interpretation proposed by the Commission would render the scope of Article 2(39) of the WFD meaningless.

79.

In the light of those considerations, it must be held that, in its action, the Commission criticises a certain number of practices which may appear questionable from an ecological point of view as well as from the perspective of sustainable water management, in particular in the mining sector, which constitute water uses. None the less, it seems to me that, in so doing, the Commission fails to have regard to the instruments at the disposal of the Member States in relation to the concept of bodies of water, which represents the unit of evaluation and control under the WFD.

80.

Indeed, since the status of bodies of water is monitored in each basin, a monitoring programme is established with a view to evaluating the status of bodies of water and to guaranteeing the achievement of objectives. It therefore appears to me that the Commission should have taken such an approach in order to demonstrate a failure to fulfil obligations.

81.

In this regard, I note that Article 4(3) of the WFD allows Member States, on an exceptional basis, to designate a body of water as heavily modified. That classification provided for in the WFD applies to bodies of water on which one or more ‘specified’ activities are carried out, activities which substantially alter the original hydromorphological characteristics of the body of water, such that it would be impossible to achieve a good ecological status without significant adverse effects on the activity in question. In order to be designated as heavily modified bodies of water or artificial bodies of water, the bodies of water must satisfy a certain number of criteria listed in the WFD. This designation must be explicitly stated in the management plan (see Article 4(3)(b) of the WFD).

82.

Furthermore, some of the Commission’s complaints appear to me to relate in fact to Directive 2006/118 on the protection of groundwater. Indeed, that directive lays down criteria to evaluate the chemical status of waters, criteria to identify and reverse significant and sustained upward trends in the concentration of pollutants as well as measures to prevent and limit inputs of pollutants into groundwater.

83.

The interpretation of the principle of pricing as an instrument at the disposal of the Member States also appears in a certain number of documents published by the Commission regarding the WFD. In the first communication relating to the application of the WFD, ( 77 ) the Commission stated that the lack of internalisation of environmental costs may be an additional reason why water use has not been sustainable so far. The WFD introduces a scheme whereby environmental and resource costs need to be taken into account when determining the contribution of the different uses to the recovery of costs of water services. ( 78 ) This makes clear the supplementary nature of water pricing.

84.

I would add that, under the national systems, there are also other means of internalising the environmental costs of water uses. For example, significant uses of bodies of water may be subject to a duty to provide compensation for any damage arising from those uses, in particular for the population concerned, other users of the waters and interested parties. Furthermore, the conclusions of the ‘Environment’ Council meeting of 2012 mentioned other instruments and tools, apart from the economic ones, that can improve water efficiency, such as education and awareness raising. ( 79 )

85.

In the light of all the foregoing, the interpretation advocated by the Commission cannot succeed.

86.

It is established that the WFD pursues several objectives, such as the prevention and reduction of pollution, the promotion of sustainable water use, environmental protection, the enhancement of the status of aquatic ecosystems and the mitigation of the effects of floods and drought. The WFD lays down objectives for the preservation and restoration of the status of surface water (freshwater and coastal waters) and for groundwater. The general objective is to achieve a ‘good’ ecological and chemical status for all water on the European territory by 2015.

87.

The water policy enshrined in the WFD constitutes a transparent, effective and coherent legislative framework which provides common principles and the overall framework for action and coordinates and integrates, and, in a longer perspective, further develops the overall principles and structures for protection and sustainable use of water in the European Union in accordance with the principle of subsidiarity. ( 80 )

88.

Although the Court has not yet had occasion to interpret the WFD as a whole, it has ruled on certain aspects which are fundamental to the present case. The Court has thus held that the WFD is a framework directive which establishes the common principles and an overall framework for action in relation to water protection and coordinates, integrates and, in a longer perspective, develops the overall principles and structures for protection and sustainable use of water in the European Community. The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States, which are to adopt a series of individual measures in accordance with the timescales laid down in the directive. However, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water. ( 81 )

89.

The WFD is therefore one of a type of act which provides that the Member States are to take the necessary measures to ensure that certain objectives formulated in general and unquantifiable terms are attained, whilst leaving the Member States some discretion as to the nature of the measures to be taken. ( 82 )

90.

In the light of the foregoing considerations in points 86 to 89 and the characteristics of the WFD set out in points 39 to 50 and 72 to 74 of this Opinion, it therefore seems clear to me that, in the pursuit of the objectives of the WFD, the Member States should adopt measures primarily from the point of view of efficiency as compared with their national system, and thus take into account the specific regional, social, environmental and economic factors. They therefore enjoy a broad discretion which cannot be standardised for the purposes of the application of an economic approach, such as that advocated by the Commission, which, moreover, seems to be based on the incorrect assumption that, in all Member States, water resources are always in the public domain, which would allow the State to impose the price in relation to water uses such as self-supply and abstraction for the production of hydroelectricity.

91.

Furthermore, specialist studies reveal that the main challenge appears to lie in the structure of the pricing and not just in its introduction. ( 83 ) I would also point out that a system of prior authorisation for measures capable of affecting bodies of water or groundwater supplies, such as abstraction and impoundment, or, in certain cases, the total prohibition of such measures, is often an instrument more appropriate to guaranteeing the good status of waters and their ecologically viable use.

92.

In any event, a homogeneous application of the principle of pricing based — wrongly — on an extensive interpretation of the definition of water services within the meaning of Article 2(38) of the WFD cannot be successful, given not only the significant differences existing between the Member States in terms of water supply on account of geographical and climate-related conditions but also the existence of several water management models in the Member States. ( 84 )

93.

I would point out, moreover, that — as the German and Austrian Governments rightly state — the interpretation proposed by the Commission may create economic incentives which are indefensible from an ecological standpoint. For example, a universal pricing obligation may discourage the production of renewable hydroelectric energy, inland water transport and flood protection. In reality, such an obligation would compel Member States to establish an economic incentive in favour of hydroelectric power plants so as to encourage flooding upstream of the barrier and a water shortage downstream of it.

94.

More generally, it is true that there are, in all Member States, overriding ecological reasons which justify encouraging parsimonious use of freshwater in the context of water supply. Nevertheless, such a purely quantitative approach is scarcely relevant in Member States with significant water resources as far as uses such as the generation of energy or flood protection are concerned. In those Member States, the primary objective is to protect water quality and to ensure the balanced management of annual water flow in order to avoid excessively high fluctuations of the water level in the bodies of water forming an integrated hydrological system. That last aspect may be of fundamental importance for the ecological viability of particular habitats and threatened species. It is for precisely this reason that the WFD adopted a holistic approach to water management, which precludes an instrument such as pricing from being universally applicable in all Member States, irrespective of their particular ecological and hydrological circumstances.

95.

For all the reasons set out above, I propose that the action brought by the Commission be dismissed as unfounded.

96.

If, in spite of the deficiencies indicated vis-à-vis the determination of the subject-matter and the scope of the dispute, as well as the nature of the alleged failure to fulfil obligations, the Court were nevertheless to find the present action to be admissible and to endorse the interpretation proposed by the Commission, the insufficient nature of the evidence adduced would still be glaringly obvious. Indeed, it is settled case-law that it falls to the Commission to prove that the obligation has not been fulfilled. Thus, it is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled and in so doing the Commission may not rely on any presumptions. ( 85 )

97.

In addition, as I have already observed in point 20 et seq. of this Opinion, the Commission based its action around the interpretation to be given, in its view, to a provision of the WFD, without at the same time providing the Court with the evidence to allow the alleged failure to fulfil obligations to be established. Furthermore, the only examples provided by the Commission regarding the allegedly heterogeneous application of the concept of water services to water use by the defendant Member State are lost amongst the general submissions relating to the interpretation of the WFD. For example, with a view to illustrating the risks to the status of waters, the Commission refers in particular on multiple occasions to examples of seemingly questionable relevance (for instance, the mention of Lake Geneva or the claim that 44% of the water abstracted in the European Union is used for the generation of energy), without — however — it being possible on the basis of those references to establish a failure to fulfil obligations on the part of the Federal Republic of Germany.

98.

In my view, the action is therefore also unfounded by reason of a lack of evidence.

99.

I therefore propose that the Court should: