Just Dipping a Toe in the Water? On the Reconciliation of the European Institutions with Article 9 of the Water Framework Directive

In 2000, a provision requiring the full recovery of the costs of water services— Article 9 of the Water Framework Directive—was hailed by many as a notable innovation in the environmental policy of the European Union (“EU”) and a major advance in water management. Almost twenty years later however, it is apparent that Article 9 has not triggered a real change in the behavior of Member States. This article investigates the causes of Article 9’s underwhelming impact, finding them in the many legal problems affecting the provision (in particular, the existence of a variety of goals underlying the principle of full cost re-covery), as well as in the approaches taken by the two institutions mainly responsible for its implementation: the European Commission and the European Court of Justice. The Commission takes the execution of Article 9 seriously, but its commitment to its State aid policy has undermined Article 9’s impact. At the same time, the court has thus far advanced a rather stripped-back interpretation of the provision. A careful analysis of these issues may help the EU reconcile Article 9’s goals with those of other important continental policies—and, at the same time, further a better understanding of central questions in environmental law and policy. The intertwining of multiple, uncoordinated actors, multiple policies with only partially different objectives, multiple competing objectives within the same policy, and multiple means to the same end, makes Article 9 of the Water Framework Directive a wonderful case study for those interested in both EU and environmental law.