The Role of Guidance Documents in European Water and Environmental Law

The Water Framework Directive (WFD) is a complicated directive. In order to help the Member States in the implementation process, a Common Implementation Strategy (CIS) was developed. Part of the CIS is a list of guidance documents. This list consists of no less than 29 guidance documents. This raises questions concerning the role and status of these guidance documents.

This paper explores the role of guidance documents from a legal point of view. Main questions concern the legal basis and competence to create guidance documents, the legal status of these documents and the role of these documents in practice. The possible democratic deficit of these documents will be discussed, since these informal documents may be drafted without involvement of the European Parliament or the Council. Another element to be discussed is the role of guidance documents in decisions of the European Commission on possible infringements of EU law. Attention will be paid to the way in which (national and European) courts deal with these documents and the relationship between comitology and guidance documents will be discussed.

The main focus will be on the guidance documents of the Water Framework Directive, but a comparison will be made with the use of such documents in other fields of European law.