Article 9 of the Water Framework Directive requires Member States to take account of the cost recovery principle with regard to “water services” and to provide, by water pricing policies, adequate economic incentives for an efficient and environmentally sound water usage. This contribution exposes the interpretation and implementation of Article 9 WFD in Germany. It shows that a stringent cost recovery approach is applied to classic water supply and that an incentivizing pricing instrument is implemented by most German States in the form of a water abstraction levy. However, this levy is not applied in all Stats and those applying it are making considerable exemptions for important water using industries. It is concluded that this is barely in line with Article 9 WFD.
For years, there has been criticism that there are substantial ambiguities in European waste law and that, in particular, crucial legal terms, such as waste, disposal and recovery, have not yet been defined sufficiently clearly. Such ambiguities hamper transposition into national law, complicate implementation by the national authorities and thus give rise to considerable economic and environmental problems in the waste management sector. Prompted by the Sixth Environmental Action Programme, the European Commission has finally initiated a revision of the general legal framework for European waste management. Amendments to the Waste Shipment Regulation have already been approved at a political level and are likely to be adopted this year. Revision of the basic terms, principles and provisions of the Waste Framework Directive (WFD), however, is still at a rather early stage. Against this background, we hope to show by the following that the ambiguities in EC waste law are not just a consequence of a lack of definitions but also the result of uncertainty surrounding basic regulatory and strategic issues which must be addressed first (Part I). We will therefore submit recommendations as to how these strategic questions should be answered in the light of both the environmental risks currently faced by the waste sector and the specific potential of waste-law approaches to reduce these risks (Part II). Finally, we will show how these strategic solutions could be converted into specific provisions and amendments to the WFD (Parts III and IV). The recommendations and suggestions presented below have been generated by a study conducted by the authors at the request of the German Ministry of the Environment1.
A matter of current dispute in the German waste-management sector is the extent to which it is permissible under EU law to restrict the market for the recovery of household waste in favour of public providers of disposal services, as is common practice in many member states. This dispute raises fundamental questions as to the relationship between the public provision of services of general interest and European competition and so concerns, in particular, the relevant rules under Article 106 TFEU. In adopting this article, the parties to the Treaty have—as will be shown below—reserved considerable freedom to exempt public services of general interest from competition and the free movement of goods. Whilst their freedom to do so may be limited under secondary legislation providing for an EU-wide competition solution, such legislation must take the form of a targeted liberalisation measure which also lays down the accompanying rules needed to guarantee a universal, reliable and affordable provision of services. The secondary EU waste legislation does not meet this requirement.