Arguments of the parties
58
By its first complaint, the Commission submits that some of the definitions in Article 2 of Directive 2000/60 have not been implemented in national law. Its view is that the definitions in Article 2(19), (20), (26) and (27) thereof should be reproduced literally in the national legislation transposing that directive, in order to ensure correct application thereof in the Member State concerned.
59
As regards the definitions of the terms ‘groundwater status’, ‘good groundwater status’ and ‘quantitative status’ in Article 2(19), (20) and (26) of Directive 2000/60, the Commission observes that during the pre-litigation procedure, the Republic of Poland did not dispute the complaint about the lack of separate transposition of those definitions, stating that it ‘was doing everything in its power to remedy those infringements by inserting suitable definitions in legislative texts or their implementing provisions’.
60
Regarding more specifically the definition of the term ‘groundwater status’, the Commission submits that, although it is true that the Regulation of 23 July 2008 introduced the definition of the terms ‘good groundwater chemical status’ and ‘good quantitative status’, there is still no definition of the term ‘groundwater status’, which is indispensable for the correct transposition and application of the combined provisions of Article 8 of Directive 2000/60 and point 2.5 of Annex V thereto. The transposition of that definition is particularly important in relation to the requirement that the status of groundwater is determined by the poorer value of its quantitative status and chemical status.
61
Regarding the definition of the term ‘good groundwater status’, the Commission takes the view that Article 2(1) of the Regulation of 23 July 2008 has not transposed that definition correctly, as it provides that Class II includes waters in which: (i) the values of certain physicochemical parameters are high due to natural processes occurring in the groundwater and, (ii) the values of the physicochemical parameters do not indicate impact of human activity or indicate a very low impact.
62
Yet, according to the Commission, Article 2(20) of Directive 2000/60 provides quite clearly that ‘good groundwater status’ means the status achieved by a groundwater body when both its quantitative status and its chemical status are at least ‘good’. Consequently, the definition in the Regulation of 23 July 2008, inasmuch as it addresses only the water’s physicochemical parameters and not its quantitative status, fails to equate to the broader scope of the definition laid down in that directive.
63
The definition of ‘good groundwater status’ is, however, essential for ensuring the correct transposition and application of the obligation imposed under Article 4(1)(b)(ii) of Directive 2000/60, which provides that Member States are required to achieve good groundwater status. In the Commission’s submission, the transposition of that definition is also essential for the application of the derogations from that obligation, that is to say, the derogation enabling achievement of the less stringent environmental objectives, provided for in Article 4(5) of Directive 2000/60, or the one enabling the introduction of new modifications or alterations to the level of bodies of groundwater, as provided for in Article 4(7) of that directive. As there is no definition of the term ‘good groundwater status’, it is not possible to introduce derogations from that obligation without running the risk of falling short of attaining the environmental objectives.
64
Regarding the definition of the term ‘quantitative status’, which is, according to Article 2(26) of Directive 2000/60 ‘an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions’, the Commission submits that it has been transposed incorrectly by Article 8 of the Regulation of 23 July 2008. Article 8(2) provides that ‘the assessments of the quantitative groundwater status shall be carried out on uniform bodies of given groundwater’, whilst Article 8(3) provides that ‘the assessment of the quantitative groundwater status shall take place determining the significance of the reserves of uniform bodies of groundwater resources and interpreting the results of monitoring of the corresponding situation for groundwater’.
65
In the Commission’s submission, those provisions of Polish law do not refer to direct and indirect abstractions, or to their impact on bodies of groundwater. Yet the definition of ‘quantitative status’ is essential for ensuring the correct transposition and application of the requirements laid down in the combined provisions of Article 8 of and Annex V to Directive 2000/60, both in the area of classification of quantitative water status and that of status monitoring, in accordance with points 2.1 and 2.2 of Annex V.
66
As regards the definition of the term ‘available groundwater resource’ in Article 2(27) of Directive 2000/60, the Commission observes that, in its reply to the reasoned opinion, the Republic of Poland confirmed that those exact words do not appear in the Polish legislation. Article 2(1)(13) of the Regulation of 3 October 2005 contains the term ‘available water resource’, defined as the ‘quantity of groundwater it is possible to abstract in an area in balance in determined environmental and hydrological conditions, without indication of specific location or technical or economic conditions in water abstraction’.
67
In the Commission’s submission, it is clear from the analysis of the Polish legal order that none of the components of the definition in Article 2(27) of Directive 2000/60 exist in Polish law.
68
Nor is there any relationship between the term ‘available groundwater resource’ in Directive 2000/60 and the term ‘abstraction of water’ in the Regulation of 3 October 2005. The former refers to natural processes occurring without human involvement. That involvement, which characterises the abstraction of water, comes under Article 2(28) of that directive. The Commission adds that the definition of the term ‘available groundwater resource’ in Article 2(27) of that directive refers to the monitoring obligation referred to in point 2.2.1 of Annex V thereto, which relates to both natural processes and man-triggered processes. Although the two categories remain undifferentiated, there is a risk that the effects of human intervention are not covered. Consequently, it is difficult to determine adequately which measures should be taken to ensure good water status in accordance with Article 4 of Directive 2000/60.
69
In the Commission’s submission, however, that term in Directive 2000/60 is essential for the correct transposition and application of the combined provisions of Article 8 of and Annex V to that directive, inter alia for making a correct classification of water status, as defined in point 1.4 of Annex V to that directive, and correct monitoring of quantitative groundwater status, as provided for by point 2.2 of Annex V thereto.
70
Regarding the first complaint, the Republic of Poland recalls, first of all, the Court’s settled case-law, according to which transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner.
71
In the Republic of Poland’s submission, the Commission did not provide any reasons establishing that the Member States have an obligation to transpose textually the concepts defined in Article 2(19), (20), (26) and (27) of Directive 2000/60 and has not specified how the lack of transposition of those definitions might compromise the achievement of the objectives of that directive. Moreover, although the Commission refers to the link existing between those definitions and the material provisions of Directive 2000/60, the Commission does not in any way call into question the relevance of the transposition of those material provisions.
72
The Republic of Poland further observes that the definitions the non-transposition of which the Commission criticises are included in the draft reform of the Water Law and certain other laws.
Findings of the Court
73
With regards to the Republic of Poland’s argument that a Member State is not required to transpose literally the definitions laid down in Directive 2000/60, it should be borne in mind that, according to settled case-law, transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner (see judgment of 19 December 2013 in
Commission v Poland
, C‑281/11, EU:C:2013:855, paragraph 60
and the case-law cited).
74
In the present case, however, the Republic of Poland has not been able to state specifically which national provisions demonstrate that the substantive provisions of Directive 2000/60, which are based on the definitions at issue, have been correctly transposed. Therefore, it is not apparent from the Polish legislation that the full application of Directive 2000/60 is ensured in a sufficiently clear and precise manner.
75
Since those definitions serve to guarantee a correct transposition of the Member States’ obligations in accordance with the substantive provisions of Directive 2000/60, it is imperative that they be properly taken into consideration in the transposition of the substantive provisions employing the defined terms when the Member State does not effect a separate transposition for them.
76
As regards the term ‘groundwater status’ in Article 2(19) of Directive 2000/60, it should be noted that the Regulation of 23 July 2008 introduced the definition of the terms ‘good groundwater chemical status’ set out in Article 2(25) of that directive, and ‘good quantitative status’, found in Article 2(28) and in point 2.1.2 of Annex V to that directive, but not the definition of the term ‘groundwater status’, even though it is essential for the correct transposition and application of the combined provisions of Article 8 of Directive 2000/60 and point 2.5 of Annex V thereto, since the status of a body of groundwater is determined by the poorer value of its quantitative status and chemical status.
77
Nor is there any other piece of Polish legislation showing that that definition has been transposed in Polish law, a finding not disputed by the Republic of Poland in its written pleadings or at the hearing, during which it merely stated that, in practice, there was no doubt as to the scope of application of the definitions in question and that all material provisions had been implemented correctly.
78
It is sufficient to note in that regard that it is settled case-law that the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, inter alia, judgment of
19 December 2013 in
Commission v Poland
, C‑281/11, EU:C:2013:855, paragraph 101
and the case-law cited).
79
Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations to transpose a directive. In the same way, an interpretation, by national courts, of the provisions of national law in accordance with those of a directive cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see, inter alia, judgment of
19 December 2013 in
Commission v Poland
, C‑281/11, EU:C:2013:855, paragraph 105
and the case-law cited).
80
As to the definition of the term ‘good groundwater status’ given in Article 2(20) of Directive 2000/60, Article 2(1) of the Regulation of 23 July 2008 provides that, under Class II, good-quality water is water in which: (i) the values of certain physicochemical parameters are high due to natural processes occurring in the groundwater and, (ii) the values of the physicochemical parameters do not indicate impact of human activity or indicate a very low impact.
81
Article 2(20) of Directive 2000/60 provides explicitly that good groundwater status is the status achieved by a groundwater body when both its quantitative status and its chemical status are at least ‘good’. The definition given in the Regulation of 23 July 2008, by contrast, covers only physicochemical parameters and therefore fails to equate to the much broader scope of the definition laid down in that directive.
82
The definition of ‘good groundwater status’ is, moreover, essential in order to ensure the correct transposition and application of the fundamental obligation imposed in Article 4(1)(b)(ii) of Directive 2000/60, which requires the Member States to achieve good groundwater status. Therefore, the transposition of the definition laid down in Article 2(20) of that directive is also essential for the application of the derogations from the obligation to achieve good groundwater status, that is to say, the derogation allowing for the attainment of less stringent environmental objectives, as provided for in Article 4(5) of Directive 2000/60, or the derogation allowing for the introduction of new modifications or alterations to the level of bodies of groundwater, set out in Article 4(7) of that same directive. Without a determination of good groundwater status, it is not possible to introduce derogations without running the risk of failing to attain the environmental objectives.
83
In relation to the concept of ‘quantitative status’, laid down in Article 2(26) of Directive 2000/60, it should be observed that Article 8(2) of the Regulation of 23 July 2008 provides that ‘the assessments of the quantitative groundwater status shall be carried out on uniform bodies of given groundwater’, whilst Article 8(3) provides that ‘the assessment of the quantitative groundwater status shall take place determining the significance of the reserves of uniform bodies of groundwater resources and interpreting the results of monitoring of the corresponding situation for groundwater’.
84
Yet those national provisions fail to transpose correctly the definition of ‘quantitative status’ laid down in Directive 2000/60, as Article 2(26) thereof provides that quantitative status is an expression of the degree to which a body of groundwater is affected by direct and indirect abstractions. The Polish legislative provisions, however, do not refer to direct and indirect abstractions or to their effect on bodies of groundwater. As the definition of ‘quantitative status’ is essential in ensuring the correct transposition and application of the requirements laid down in the combined provisions of Article 8 of and Annex V to Directive 2000/60, both in the classification of quantitative water status, provided for in point 2.1 of that annex and in the monitoring of that status in accordance with point 2.2 of that annex, it follows that that definition has not been transposed correctly in Polish law.
85
In relation to the term ‘available groundwater resource’ found in Article 2(27) of Directive 2000/60, the definition of which is somewhat complex, the Republic of Poland submits that, in accordance with established practice and terminology specific to Polish law, Article 2(1)(13) of the Regulation of 3 October 2005 employs the equivalent expression ‘available water resource’ (‘zasoby dyspozycyjne wód’). That expression refers to the quantity of groundwater it is possible to abstract in an area in balance in determined environmental and hydrological conditions, without indication of specific location or technical or economic conditions in water abstraction.
86
The Republic of Poland adds that the definition in Article 8(4) of the Regulation of 23 July 2008, providing that ‘the amount of groundwater resource reserves shall be determined by comparison of the average actual abstraction over a number of years with abstractions of groundwater, expressed in m3/day, with the volume of reserves of groundwater available for use, expressed in m3/day, fixed on the basis of the available resources established for an area in balance, including a given uniform body of groundwater’, must be interpreted in accordance with Article 2(1)(13) of the Regulation of 3 October 2005. Lastly, Article 38(3) of the Water Law and Article 97(1) and (2) of the Law on protection of the environment ought to be taken into consideration.
87
In that regard, as observed above in paragraph 78, it is settled case-law that the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, inter alia, judgment of
19 December 2013 in
Commission v Poland
, C‑281/11, EU:C:2013:855, paragraph 101
and the case-law cited).
88
However, the interpretation of a national provision on water protection in accordance with a number of other provisions dispersed throughout several different pieces of legislation which do not prima facie address water protection does not meet those requirements.
89
It is also apparent from the analysis of the relevant Polish legislative provisions that none of the elements of the definition given in Article 2(27) of Directive 2000/60 exists in Polish law, as there is no reference either to the long-term annual average rate of overall recharge of the body of groundwater less the long-term annual rate of flow required, or to the requirement to achieve the ecological quality objectives for associated surface waters specified under Article 4 of that directive, or to the requirement that any significant diminution in the ecological status of such waters and any significant damage to associated terrestrial ecosystems must be avoided.
90
Lastly, as observed by the Commission, there is no connection between the terms ‘available groundwater resource’ and ‘abstraction of water’. The former refers to natural processes, the definition of which is found in Directive 2000/60, referring to a state of natural balance, namely, the overall recharge of the body of groundwater less the rate of flow, without human intervention. That intervention, which distinguishes the abstraction of water, comes within Article 2(28) of that directive. Furthermore, the definition given in Article 2(27) makes implicit reference to the monitoring obligation referred to point 2.2.1 of Annex V thereto, which concerns both natural and human-triggered processes. If those two categories remained undifferentiated, there would be a risk that the effects of the human intervention would not be covered, which would make it difficult to determine adequately which measures needed to be taken in order to guarantee good water status in accordance with Article 4 of Directive 2000/60.
91
It follows from the foregoing that the definitions set out in Article 2(19), (20), (26) and (27) of Directive 2000/60 were not in the relevant legislation in force on the date of expiry of the period laid down in the reasoned opinion and that that lack of transposition may compromise the attainment of the objectives pursued by that directive.
92
In its written pleadings, the Commission set out the consequences of the failure to transpose or transpose correctly the definitions given in Article 2(19), (20), (26) and (27) of Directive 2000/60 for the proper transposition of the substantive provisions of the Directive, including the impact on the attainment of its objectives.
93
Therefore, and contrary to the Republic of Poland’s assertions, it is not necessary for the Commission to put forward complaints about the incorrect transposition of each of the substantive provisions of Directive 2000/60 containing or referring to the definitions in dispute, in addition to the complaint about the incorrect transposition of those definitions, laid down in Article 2 thereof.
94
Lastly, it must be borne in mind that in relation to the definitions of the terms ‘groundwater status’, ‘good groundwater status’ and ‘quantitative status’, laid down in Article 2(19), (20) and (26) of Directive 2000/60, during the pre-litigation procedure the Republic of Poland did not challenge the non-transposition of those definitions and stated that it was doing everything in its power to remedy those infringements by inserting suitable definitions in legislative texts or their subsequent implementing provisions.
95
In the light of the foregoing, the first complaint, alleging a failure to implement completely or correctly the definitions set out in Article 2(19), (20), (26) and (27) of Directive 2000/60 must be held to be well founded.