European Commission’s infringement procedure against the Netherlands: review and evaluation of water permits required under the WFD

Infringement procedures against several Member States

In July 2024, it was announced that the European Commission had decided to launch infringement procedures against the Netherlands, Austria and Slovenia for non-compliance with the WFD. What are those infringement procedure based on?

As addressed in an earlier blog, the Netherlands must meet WFD targets by 22 December 2027 to achieve good water quality in water bodies. By July 2024, more than 75 percent of the total WFD targets in all water bodies in the Netherlands had been met (see here). At the same time, it was indicated that the pace was too slow and that it was questionable whether the current approach sufficed to meet all the WFD targets by 2027.

In this regard, the WFD requires Member States to prepare a river basin management plan and an associated programme of measures for each river basin district to ensure that a good status of water bodies, such as rivers and lakes, is achieved to meet the 2027 targets (Article 4 and Article 13 WFD). The river basin management plan covers several water bodies. A example is the Stroomgebiedbeheerplan Rijn, Maas, Schelde en Eems 2022-2027. This management plan provides an overview of the status, problems, goals and measures for improving water quality. The programmes of measures, which contain concrete measures to achieve the WFD objectives, form part of it. Member States must use analysis and research to determine the status of waters, such as the ecological and chemical characteristics of the water (Article 5 WFD and 11 WFD). 

Programmes of measures and river basin management plans must be reviewed every six years and, if necessary, updated (see in this context Article 11(8) WFD and Article 13(7) WFD). Waters may be subject to change. This may also require new measures. New or revised measures taken under a revised programme must be operational within three years (Article 11(8) WFD). In addition, the following section from the WFD is particularly relevant (Article 11 (5) WFD) (underlining added):

"Where monitoring or other data indicate that the objectives set under Article 4 for the body of water are unlikely to be achieved, Member States shall ensure that: (...) relevant permits and authorisations are examined and reviewed as appropriate;"

The European Commission notes in the letter of formal notice that any programme of measures must include basic measures to control various types of water abstraction, impoundment, point source discharges, diffuse sources that can cause pollution, and any other significant adverse impacts on water quality. Among other things, Member States must periodically review and update permits granted for these purposes. 

The letter of formal notice states that permits for abstractions or discharges can be granted for an unlimited duration in the Netherlands. Periodic review is not required. Where authorisations are given on general rules, there is no periodic review. 

The Netherlands has had two months since July 2024 to respond to the letter of formal notice. In the absence of a satisfactory response, the European Commission may send a reasoned opinion. This is the administrative phase of the infringement procedure. If the Netherlands still fails to comply after the administrative phase, the European Commission can start judicial proceedings (the judicial phase) before the Court of Justice of the European Union in Luxembourg.

What has been the Dutch legislature’s response to the formal notice?

On 23 September 2024, Infrastructure and Water Management Minister Madlener sent a letter to the Lower House (de Tweede Kamer) about the infringement proceedings that had been started. This letter stated that it was being considered how the wishes of the European Commission could be met and whether the European Commission's wishes give rise to changes in laws and regulations. The correspondence between the Netherlands and the European Commission is strictly confidential and not publicly available. 

There have previously been discussions in the Netherlands about the possibility of periodic evaluation of discharge permits. A letter from former Infrastructure and Water Management Minister Harbers dated 27 June 2024 (see here), for example, states that the Council for the Environment and Infrastructure (Raad voor de leefomgeving en infrastructuur) recommends only granting permits that are valid for a specified period of time. This may prevent permits from not getting an update. 

In the Netherlands, it is currently already mandatory to update and possible to amend water permits (Article 5.38 of the Environment and Planning Act (Omgevingswet) in combination with Articles 8.98 and 8.99 of the Environmental Quality Decree (Besluit kwaliteit leefomgeving). This obligation to update is not linked to a specific deadline. 

Significance and implications for issued permits

Rijkswaterstaat is currently busy reviewing and revising discharge permits (see here). A complete picture of the permits requiring revision is therefore not yet available. In checking permits, it should be considered whether a discharge permit needs to be revised. This is not always necessary. At the end of 2023, for example, 200 permits had been reviewed, 40 of which were eventually revised. Not every revision is done to get closer to the WFD targets. Sometimes revision is needed because of substances covered by other directives or for administrative reasons.

Rijkswaterstaat is currently facing a lack of capacity to review and consider discharge permits (see here). It is therefore currently prioritising discharge permits that are most relevant to achieving the WFD targets in 2027. Thus, permits that may impede timely target attainment will be reviewed and revised where necessary before 2027. These particularly include discharge permits of IPPC companies and permits of small waste processors. The remaining permits will be reviewed by the end of 2029 and, where necessary, revised by 2033. 

It is clear that the competent authorities in the Netherlands are busy updating water permits. The 2027 deadline to achieve good status of water bodies is getting closer. Companies may have to deal with the revision of water permits in the coming period to bring the permits in line with the requirements of the WFD. The question is whether, and to what extent, Dutch legislation will be amended in the future to adopt a more fixed periodic approach to permit review. 

This is a contribution in the series 'Water goals in the Netherlands'. An overview of all the blogs in this series can be found here. Sign up for the newsletter here if you don't want to miss a single post in the series.