Relevant bodies for water protection and management in Greece.
The Central Water Agency established within the Environment, Energy and Climate Change Ministry is responsible for establishing national water policy and drafting national programmes for the protection and management of water resources. These programmes are separated between long-term plans (with a duration of over six years) and medium-term plans (with a duration of two to six years).
The National Water Committee is responsible for approving national programmes for water resource protection and management and for cooperation with other EU members or third countries in case of river basin districts extending into their territory. River basin management plans are issued by decision of the General Secretary of the relevant Decentralised Administration (Apokentromeni Dioikisi).
Permits for the use of water resources and the execution of water works are also issued by decision of the General Secretary of the relevant Decentralised Administration.
Additional permits may be required, depending on the work or activity to be undertaken (e.g. in cases of hydroelectric works, transfer of water, drillings etc.)
Have river basin management plans provided for in L. 3199/2003 been issued? How does the absence of river basin management plans affect the issuing of permits?
According to L. 3199/2003 the first river basin management plan should have been drafted and approved by 22.12.2009. However, none of the river basin management plans have been issued yet. At the time the present article was written, some of the plans were under public consultation, whereas others are expected to enter into consultation in the next few months. Consultation shall last 6 months. The Hellenic Council of State (Symvoulio tis Epikrateias), that is the Greek Supreme Administrative Court, has ruled that, since management plans had not yet been issued, permits to use water resources and execute water works may not be granted.
The Hellenic Council of State has also ruled that while management plans are pending, permits could be granted in line with the programmes for water resource development, stipulated in previous Law No 1739/1987, but again provided that such programmes had been approved (see inter alia Decisions 1987/2010, 1125/2008 of the Hellenic Council of State). For the above reasons the Hellenic Council of State has been annulling issued permits.
At the same time, the Hellenic Council of State, has ruled that in cases of existing infrastructure (where water works had also been undertaken) which need to be modernised, it shall be deemed acceptable to draft and plan modernisation works (even where river basin management plans are not issued beforehand), so long as such works do not entail a significant increase in water consumption (see Decision 2639/2009 of the Plenary Session of the Hellenic Council of State).
On 13.07.2011 the Environment, Energy and Climate Change Ministry issued Circular no. 150673. According to this Circular, when an application for a permit is filed but the relevant river basin management plan has not yet been issued, the permit shall be granted on the condition that the work or activity to be undertaken is deemed to be compatible with the policy of rational water management and environmental protection applicable to the specific region. The Greek National Registry of Protected Areas must also be taken into consideration.
Administrative and criminal penalties applicable to breaches of the provisions of L. 3199/2003.
L. 3199/2003 provides for administrative and criminal penalties for the following cases: pollution or other deterioration of the water status, breach of the law or of any other acts issued in fulfillment of this law, breach of the terms and provisions laid down in the permits:
- A fine of 200 to 600,000 euros is imposed according to the significance, frequency and relapse of the breach, independently of any criminal or civil liability or administrative penalties set by other provisions.
- In case of extremely significant pollution or deterioration of the water status and especially in the cases where the type or the amount of pollution or the extent or the significance of the deterioration constitute a threat of death or severe bodily harm or ecological perturbation or destruction, the fine may reach the amount of 1,500,000 euros.
- If a business or activity causes pollution or other deterioration of the water status, its operation may be temporarily prohibited until the adequate measures are adopted in order to permanently stop the pollution or the deterioration. Permanent interruption of its operation may be imposed if the party at fault does not comply with the imposed measures or if it is impossible to adopt adequate measures. A fine of 500 to 50,000 euros may also be imposed for each day such prohibition is violated.
- Criminal penalties shall also be imposed, in the above cases, according to L. 1650/1986.
According to the following provisions of civil law, any natural or legal person or other entity (acting as representative of the rights and interests of its members), with legal interest therein, may appeal before the competent courts for the protection of their rights and for damages for the pollution or deterioration of water resources:
- Art. 29 of L. 1650/1986:“any natural or legal person who pollutes or otherwise causes deterioration of the environment is liable to damages, unless that person proves that the harm caused is due to force majeure or to a third party’s intentional fault”. This provision provides for the polluter’s objective liability.
- Art. 6 of L. 2251/1994: This provision provides for objective liability of producers in case of damage to the environment caused by a defective product.
- Art. 57 of the Greek Civil Code: The right to water use (water being a public resource) as well as the profit gained from this use constitutes part of the right to personality. For the right to personality to be considered offended, it must be established a) that the right to use water has been impeded in such a way that its public use is distorted or annulled or a person’s health (physical or mental) is damaged and b) that the offence is illegal; in order to establish illegality, it is sufficient to show that by impeding the right to use water or by damaging a person’s health, the party at fault has acted in a way which is contrary to what law and order require or prohibit; there is no requirement for a specific provision of the law to be breached. This means that even if the party at fault has the right to perform a specific act or omission (e.g. in case an operator has been granted a permit to conduct a specific activity), if it is established that the right to use water is more important or that the act of the offending party is performed in an abusive way, then the party who suffers the offence is protected through the lawsuits for cessation of the offence, non-recurrence in the future (in case there is an imminent threat of recurrence), compensation [see below under (d)] and reparation of moral damages according to Αrt. 59 of the Greek Civil Code (See inter alia Decision 1158/2010 of Halkida Court of First Instance granting Interim Measures, Decision 77/2000 of Messologgi Court of First Instance etc.).
- Art. 914 of the Greek Civil Code:“Anyone who in violation of the law causes damage to another through his fault is liable to compensate them.”
Specific cases: water transfers and hydroelectric works
a) Transfer of water from one river basin to another
In view of the fact that river basin management plans had not been issued, L. 3199/2003 was later amended (in 2006 and in 2007). Its new provisions provided for the abstraction of water from a specific river basin and its transfer to another.This may be done in accordance with an approved management plan for the specific river basin district(s) (not be issued by the aforementioned Decentralised Administrations, but by a different authority) for the purposes of:
- Water supply to cities and villages, to satisfy imminent needs.
- The protection and improvement, both at quantitative and qualitative level, of surface water and groundwater bodies.
- The environmental enhancement of the various regions, taking into consideration the protection of habitats.
- Hydroelectric power production.
The relevant management plan should establish the availability and sufficiency of water resources after the transfer, as well as the sustainable use of transferred resources in the receiving water basin, taking into consideration the need for a long-term protection of available water resources.
The above provision was challenged before the Hellenic Council of State, which ruled that it was not in conformity with Directive 200/60/EC. The Court also ruled that the transfer of water from one river basin to a neighboring one may be permitted as an exception in order to cover water supply needs, only if the receiving river basin cannot in any way cover its needs with its own water resources. The Hellenic Council of State has postponed the issue of a definite decision and referred the case to the Court of Justice for the issue of a preliminary ruling (Decision 3053/2009 of the Plenary Session of the Hellenic Council of State). At the time of writing the present article, no decision has been issued (C-43/10; on 13.10.2011 the Advocate General issued an opinion).
b) Small hydroelectric works
According to the jurisprudence of the Hellenic Council of State, permits for small hydroelectric works were also annulled in the same way as other permits for water resource use and execution of water resource exploitation works, because of the absence of management plans (or programmes stipulated in previous L. 1739/1978). For this reason L. 3199/2003 was further amended in 2009 to facilitate the issue of permits to use water and carry out water works prior to the issue of river basin management plans or programmes stipulated in previous L. 1739/1987, for cases of small hydroelectric works undertaken under specific conditions. According to the amended law, plans at sub-basin level shall suffice for the issue of such permits.