Regularising the status of illegal irrigation in the Doñana National Park

Subject: Regularising the status of illegal irrigation in the Doñana National Park

The parliamentary groups in the Andalusian Parliament that support Andalusia’s regional government have tabled two proposals for legislation to regularise the status of some 1 400 hectares of irrigated land that had been left out of the 2014 plan (PEOCFD) drafted for the northern area of the Doñana National Park.

With that in mind:

1. In June 2021, the Court of Justice of the European Union condemned Spain for the illegal abstraction of groundwater for the purposes of irrigation in the Doñana National Park. The Court ruled that Spain was breaching EU law by destroying biodiversity in the park. Would the approval of the initiative to make irrigation legal over hundreds of hectares of farmland contravene the CJEU’s ruling?

2. The procedure for amending the PEOCFD will in effect entail the adoption of a new special land- use plan via the tabling of legislative proposals in the Andalusian Parliament, and not via the correct administrative procedure involving public consultations and environmental assessments. With that in mind, does the Commission take the view that the procedure is consistent with the Strategic Environmental Assessment Directive and the Aarhus Convention?

3. Would such amendment require an exemption to be made under Article 4(7) of the Water Framework Directive, which would have an adverse impact on bodies of water in the Tinto-Odiel- Piedras river basin district?

Answer given by Mr Sinkevičius on behalf of the European Commission (23 March 2022)

The Commission is very concerned about the possible repercussions that the proposed legislation could have, if passed, on compliance with the judgment (1) of the Court of Justice of the EU.

Accordingly, the Commission is currently seeking clarifications from the Spanish authorities on this proposal and has already warned that it is ready to use all the means at its disposal as guardian of the Treaties in order to ensure the full implementation of the judgment.

In particular, Spain should address the causes of the deterioration of the natural habitats in the Doñana area, and ensure full compliance with the Water Framework Directive (2), including Article 4(7) thereof, and the Habitats Directive (3).

The Strategic Environmental Assessment Directive (4) applies to public plans and programmes that are prepared or adopted by a public authority and required by legislative, regulatory or administrative provisions.

The definition of public authority under the Aarhus Convention (5) does not include bodies or institutions acting in a judicial or legislative capacity. Consequently, the provisions of this directive may not apply in this situation.

Notwithstanding, it is necessary that a body acting in a legislative capacity have sufficient information at its disposal when adopting a plan, a project or a series of projects by the use of legislative procedures, in order not to circumvent the environmental assessment requirements and other safeguards under EC law (6).

Nevertheless, irrespective of the procedural choice by the Spanish authorities, they are obliged to comply with the above judgment and the available information at this point indicates that the proposed legislation may go in the opposite direction.

⋅1∙ Case C-559/19.

⋅2∙ Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water

policy — OJ L 327, 22.12.2000, p. 1‐73.

⋅3∙ Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992, p. 7‐50.

⋅4∙ Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the

environment — OJ L 197, 21.7.2001, p. 30‐37.

⋅5∙ United Nations Economic Commission for Europe — Convention on Access to Information, Public Participation in Decision-making and Access to Justice in

Environmental Matters.

⋅6∙ Environmental Impact Assessment Directive (Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the

effects of certain public and private projects on the environment, OJ L 26, 28.1.2012, p. 1‐21, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, OJ L 124, 25.4.2014, p. 1‐18), Habitats Directive and Aarhus Convention.