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Before and After the Weser Case: Legal Application of the Water Framework Directive Environmental Objectives in Sweden
Luleå University of Technology, Department of Business Administration, Technology and Social Sciences, Social Sciences.ORCID iD: 0000-0001-7617-4208
Luleå University of Technology, Department of Business Administration, Technology and Social Sciences, Social Sciences.ORCID iD: 0000-0003-0767-4908
2019 (English)In: Journal of environmental law, ISSN 0952-8873, E-ISSN 1464-374X, Vol. 31, no 2, p. 265-290Article in journal (Refereed) Published
Abstract [en]

The EU Water Framework Directive (WFD) prescribes environmental objectives and an adaptive water governance system. This article analyses the Swedish implementation of the WFD through a review of high-profile Swedish court cases regarding the application of the WFD environmental objectives in individual authorisation processes for water operations. The selection of court cases represents both the time before and after the Court of Justice of the European Union’s Weser case in 2015. The results indicate an inertial tendency in the legal application of the WFD environmental objectives in Swedish courts, including a reluctance to fully apply EU law as interpreted by the CJEU. The overall conclusion is that traditional legal certainty aspects often trump flexibility and a high level of environmental protection as desired in the adaptive water governance system of the WFD. This raises questions about judicial preconceptions and the procedural autonomy of the Member States vis-à-vis the ‘effet utile’ of EU law through judicial implementation.

Place, publisher, year, edition, pages
Oxford University Press, 2019. Vol. 31, no 2, p. 265-290
Keywords [en]
water framework directive, environmental objectives, environmental quality standards, legal application, loyal interpretation, judicial implementation
National Category
Law Law (excluding Law and Society)
Research subject
Law
Identifiers
URN: urn:nbn:se:ltu:diva-71156DOI: 10.1093/jel/eqz003ISI: 000493048500004OAI: oai:DiVA.org:ltu-71156DiVA, id: diva2:1254506
Funder
Luleå University of Technology
Note

Validerad;2019;Nivå 2;2019-07-11 (johcin)

Available from: 2018-10-09 Created: 2018-10-09 Last updated: 2019-11-22Bibliographically approved
In thesis
1. Law in Integrated and Adaptive Governance of Freshwaters: A Study of the Swedish Implementation of the EU Water Framework Directive
Open this publication in new window or tab >>Law in Integrated and Adaptive Governance of Freshwaters: A Study of the Swedish Implementation of the EU Water Framework Directive
2018 (English)Doctoral thesis, comprehensive summary (Other academic)
Abstract [en]

Water is essential for sustaining life and providing ecosystem services for different human needs. In 2000, the European Union Water Framework Directive (WFD) was adopted against the background of increasing pressure on the waters of Europe. With the WFD, a new approach to governing freshwater resources within the Union was introduced, aimed at facilitating a shift from fragmented and sectoral water policies to a more holistic, integrated and adaptive governance system at the hydrological scale of river basins. This thesis has examined the Swedish implementation of the directive, with a primary aim to determine whether the Swedish formal institutional framework and water administration are sufficient to fully implement the freshwater governance model provided by the WFD and achieve the environmental results prescribed. The thesis consists of two main parts, where the first provides the contextual framework for the thesis, and the second part consists of four appended papers, which all in different ways contribute to achieving the overall purpose of the thesis. The thesis is founded on legal analysis and qualitative text interpretation of various sources of law, with emphasis on the analysis of national law in light of the WFD as well as EU legal principles and case law developed by the CJEU.

The results show that the Swedish freshwater governance system and formal institutional framework encompasses opportunities as well as barriers for implementing the WFD. The governance arrangements reflect the hydrological requirement of the directive, and the Swedish system holds good opportunities for participation in decision-making procedures as well as adaptive potential, as the general legal framework for environmental and water law contains a relatively high degree of flexibility or adaptable rules.However, when analysing the Swedish freshwater governance system in light of four key functions (objectives and direction; administrative structure; adaptive capacity; and control and enforcement) identified in this study as crucial for the formal institutional framework to deliver in such integrated, adaptive and multi-level governance systems the WFD represents, the results reveal that central aspects of all four key functions are missing in the Swedish system. Due to these shortcomings, the overall conclusion is that no full regime shift towards the hydrological, adaptive and integrated system of the WFD has occurred in Sweden; the system for water planning and governance is not clearly reflected in the formal institutional framework nor sufficiently underpinned by the administrative structure at national level. Ten different proposals are presented to remedy the shortcomings.

Place, publisher, year, edition, pages
Luleå: Luleå University of Technology, 2018
Series
Doctoral thesis / Luleå University of Technology 1 jan 1997 → …, ISSN 1402-1544
Keywords
water framework directive, integrated, adaptive governance, adaptive management, law, environmental law, freshwater
National Category
Law and Society Law (excluding Law and Society)
Research subject
Law
Identifiers
urn:nbn:se:ltu:diva-71158 (URN)978-91-7790-226-3 (ISBN)978-91-7790-227-0 (ISBN)
Public defence
2018-12-07, A109, Universitetsområdet Porsön, Luleå, 13:00 (Swedish)
Opponent
Supervisors
Funder
Luleå University of Technology
Available from: 2018-10-10 Created: 2018-10-09 Last updated: 2018-12-28Bibliographically approved

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Söderasp, JohannaPettersson, Maria

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