Water Law in Circular Economy: Ultra Vires Actions in Environmental Sector, or when Union Ambition Far Exceed its Abilities
| Author | Antonio Di Marco |
| DOI | 10.1177/1023263X221076394 |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| Subject Matter | Articles |
Water Law in Circular
Economy: Ultra Vires
Actions in Environmental
Sector, or when Union Ambition
Far Exceed its Abilities
Antonio Di Marco
Abstract
Water management has an important role to play in the circular economy transition, through the
water treatment and reuse. Its optimal and coherent regulation is also of vital common interest,
since water knows no borders or lines artificially set out by the States and the dramatic overcon-
sumption and pollution of freshwater are threatening irreparable damage to the world’s ecosys-
tems. However, States are reluctant to common regulations, which would have important
economic impacts. International and regional organizations face with the fundamental principle
of permanent sovereignty of States over natural resources. By analysing the European environ-
mental competence, this study examines the role of Union water law in green economic transi-
tion. By investigating the interdependent relationships between the several elements of the
water management, the essay suggests that territory use and economic town and country planning
would be drawn into the scope of Treaties because of the integrated nature of water services. The
case of water reuse illustrates limits and perspectives of the European objective to promote
rational utilization of natural resources and combat climate change, introducing the idea according
to which freshwater is a European res communis on which the sovereign right of European Union
Member States over their own natural resources could be lawfully limited.
Keywords
Water treatment, water reuse, water services, environmental competence, circular economy
Teaching professor at the University of Strasbourg, Strasbourg, France
Corresponding author:
Antonio Di Marco, Teaching professor at the University of Strasbourg, France.
E-mail: a.dimarco@unistra.fr
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(2) 182–200
© The Author(s) 2022
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DOI: 10.1177/1023263X221076394
maastrichtjournal.sagepub.com
1. Introduction: Water in circular economy and national sovereignty
over natural resources
There is only one planet Earth, yet by 2050, the world will be consuming as if there were three
1
European Union (EU) institutions point to the transition to a ‘circular economy’as the main solu-
tion to the current and growing environmental degradation. Over the last few years, it has been
argued that ‘our prosperity and healthy environment stem from an innovative, circular economy
where nothing is wasted and where natural resources are managed sustainably, and biodiversity
is protected, valued and restored in ways that enhance our society’s resilience’.
2
Circular economy has been namely defined as a new economic model ‘where the value of pro-
ducts, materials and resources is maintained in the economy for as long as possible, and the gener-
ation of waste minimized’.
3
Within the transition towards this ‘new economic model’, a significant
role is attributed to the regulatory framework of water treatment and reuse,
4
as well emphasized by
the EU action plan for the Circular Economy,
5
the European Green Deal
6
and the Circular Economy
Action Plan.
7
As argued by the European Commission (EC), the wastewater treatment
has a role to play in steering the EU towards the zero pollution ambition proclaimed in the European
Green Deal […]. [It] plays a key role in protecting human health and sustaining the overall resilience
of aquatic ecosystems. It also has an important role to play in the circular economy, through the
reuse of treated wastewater and sewage sludge, the production of renewable energy, and the recycling
of nutrients.
8
Wastewater treatment and reuse ‘is also a step on the way to achieving the United Nations’
Sustainable Development Goals, particularly SDG 6, ensuring access to water and s anitation for all’.
9
The United Nations (UN) has namely encouraged ‘to approach the sanitation issue in a much
broader context and to encompass all its aspects, including hygiene promotion, the provision of
basic sanitation services, sewerage and wastewater treatment and reuse in the context of integrated
1. European Commission (EC), Circular Economy Action Plan. For a cleaner and more competitive Europe, COM(2020)
98 final, p. 2.
2. Decision 1386/2013 of the European Parliament and the Council of 20 November 2013 on a General Union Environment
Action Programme to 2020 ‘Living well, within the limits of our planet’, [2013] OJ L354/171, para. 1.
3. EC, Closing the Loop –An EU Action Plan for the Circular Economy, COM (2015) 614 final, p. 2.
4. Treatment of water is indicated as a fundamental element of any efficient water policy: it aims to improve the quality of
water to be safely returned to the environment after its human use. On this point see, for instance: D.A. Caponera, Les
principes du droit et de l’administration des eaux. Droit international et droit interne (Johanet, 2007); J.-L. Gazzaniga,
X. Larrouy-Castéra and J.-P. Ourliac, Le droit de l’eau (Litec, 2011); C.B. Bourné, International Water Law. Selected
Writing (Kluwer Law International, 1997); G.J. Cano, A Legal and Institutional Framework for Natural Resources
Managements (FAO Publications, 1975).
5. EC, Closing the loop –An EU action plan for the Circular Economy, point 4, 12.
6. EC, The European Green Deal, COM(2019) 640 final, points 2.1.3, 2.1.6, 2.1.7, 2.1.8.
7. EC, Circular Economy Action Plan. For a cleaner and more competitive Europe, point 3.7, 12.
8. EC, Tenth report on the implementation status and programmes for implementation (as required by Article 17 of Council
Directive 91/271/EEC, concerning urban wastewater treatment), 10 September 2020, COM/2020/492 final, p. 3, (Tenth
report on urban waste water treatment).
9. Ibid. On this point see, see Sustainable Development Goals: Goal 6, United Nations, www.un.org/
sustainabledevelopment/water-and-sanitation and SDG 6, Eurostat, https://ec.europa.eu/eurostat/web/sdi/clean-water-
and-sanitation.
Di Marco 183
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