Water Law in Circular Economy: Ultra Vires Actions in Environmental Sector, or when Union Ambition Far Exceed its Abilities (original) (raw)
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Maastricht Journal of European and Comparative Law, 2022
Water management has an important role to play in the circular economy transition, through the water treatment and reuse. Its optimal and coherent regulation is also of vital common interest, since water knows no borders or lines artificially set out by the States and the dramatic overconsumption and pollution of freshwater are threatening irreparable damage to the world’s ecosystems. However, States are reluctant to common regulations, which would have important economic impacts. International and regional organizations face with the fundamental principle of permanent sovereignty of States over natural resources. By analysing the European environmental competence, this study examines the role of Union water law in green economic transition. By investigating the interdependent relationships between the several elements of the water management, the essay suggests that territory use and economic town and country planning would be drawn into the scope of Treaties because of the integrated nature of water services. The case of water reuse illustrates limits and perspectives of the European objective to promote rational utilization of natural resources and combat climate change, introducing the idea according to which freshwater is a European res communis on which the sovereign right of European Union Member States over their own natural resources could be lawfully limited.
The paper examines the intricate process of developing the European Union’s Water Framework Directive. It sees the Directive as a response to recent economic, political and social changes related to water management, including the shift from government to governance, the liberalisation of water markets and the emergence of a new set of institutions, actors, etc. and their respective relations (i.e., social capital). The paper focuses on the key points of disagreement between the Council of Ministers and the European Parliament that threatened to prevent the Directive from being materialised and interprets this controversy as the culmination of conflicting interests between different actors at the local, national and European levels. Finally, it asserts the increasingly important role of the nation state in the decision making and implementation of the Directive and sets this against recent arguments about the death of the state.
European Water Law and Hydropolitics, 2019
interpretation of EU law by the European Court of Justice upon the initiative of a national court. It cannot be excluded that a particular question submitted by the national judge to the ECJ is also subject to a water-related dispute by two (or more) EU basin states. In such a specific case the verdict of the ECJ can significantly contribute to the resolution of the problem. Nevertheless, such an eventuality is likely to remain extremely rare. As outlined above, the range of EU provisions that directly relate to the most contentious transboundary water problems is inherently narrow. Thus, in the first place, apart from certain water quality issues, it is difficult to find a question that would make an adequate subject of preliminary ruling. Second, even if such a question can be isolated, the national judge can only engage the 855 As information on individual infringement cases in the prejudicial phase of the procedure are disclosed by the European Commission only sporadically, this...
Maastricht Journal of European and Comparative Law, 2023
Water is generally indicated as a public good that is essential for life. Within the Union water law, this emphatic quali!cation appears as a generic political declaration linked to the uncertain recognition of the right to water. By analysing the common private and public interests, this study argues that the restricted territorial sovereignty’s theory, widely accepted for transboundary water resources, should be applied to all water resources. Water would be a shared European public good, subject to a sui generis community of property regime limiting the sovereignty of Member States over their water resources. By investigating the coherence of this community of property regime with the principle of neutrality enshrined in Article 345 TFEU, the essay suggests that the regulation of the water services would be drawn into the scope of the Treaties because of their instrumental nature in guaranteeing the exercise of fundamental rights, the social cohesion of the Union and the protection of a common public good. The idea is put forward that water services would be an emblematic case of European public services, understood as a specific development of the concept of service of general economic interest, instrumental to the implementation of the European model of society.
Water Property Models as Sovereignty Prerogatives: European Legal Perspectives in Comparison
Water resources in European legal systems have always been vested in sovereign power, regardless of their legal nature as goods vested in State property or as res communes omnium not subject to ownership. The common legal foundation of sovereign power over water resources departed once civil law jurisdictions leveled the demesne on ownership model, by introducing public ownership in the French codification of 1804, while common law jurisdiction developed a broader legal concept of property that includes even the rights to use res communes. The models led respectively to the establishment of administrative systems of water rights and markets of water rights. According to the first, public authorities’ power to manage and preserve water resources is grounded in a derogatory regime, whereby water rights, grounded on licenses or concessions, are neither transferable nor tradeable. On the contrary, environmental and social concerns in water market schemes must be enforced by means of regulation, thus limiting private property rights on water, in compliance with the constitutional and common law constraints set out to protect the minimum content of property as a fundamental human right.