Before and After the Weser Case: Legal Application of the Water Framework Directive Environmental Objectives in Sweden

Abstract

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-a-vis the 'effet utile' of EU law through judicial implementation.