NIS2 for Water: Drinking Water and Waste Water — Drinking water and waste water in Annex I, word for word

In this lesson

Quote Annex I, points 6 and 7, exactly, and break each row into its elements: who, which activity, which water, which exclusion.
Trace the definitions the annex borrows from Directive (EU) 2020/2184 and Directive 91/271/EEC, and what changes when the urban wastewater recast replaces the latter.
Test the two exclusion clauses on real operator profiles, and explain why neither is a size exemption.
Identify the legal person that is the entity, and write a scope memo a supervisor can follow line by line.

Two rows in the high-criticality annex

Annex I of Directive (EU) 2022/2555, headed sectors of high criticality, contains drinking water at point 6 and waste water at point 7. Each row has three columns: sector, subsector and type of entity. For both water rows the subsector column is empty: unlike energy or transport, water has no subsectors.

When a Member State builds its list of entities, article 3(4)(c) asks the entity for “where applicable, the relevant sector and subsector referred to in Annex I or II”. A water operator declares a sector, drinking water or waste water or both, and no subsector.

The same two rows appear, word for word, as points 6 and 7 of the annex to Directive (EU) 2022/2557 on the resilience of critical entities (CER). The water operators NIS2 regulates are also the pool from which Member States identify critical entities (lesson m1l2).

Point 6, word for word

Annex I, point 6

Sector column: Drinking water. Subsector column: empty. Type of entity column:

“Suppliers and distributors of water intended for human consumption as defined in Article 2, point (1)(a), of Directive (EU) 2020/2184 of the European Parliament and of the Council (22), excluding distributors for which distribution of water for human consumption is a non-essential part of their general activity of distributing other commodities and goods”

Footnote (22) identifies Directive (EU) 2020/2184 on the quality of water intended for human consumption, the Drinking Water Directive. The row has three elements.

Two roles: supplier and distributor

Dir. 2020/2184, art. 2(3)

The Drinking Water Directive defines the first role: “‘water supplier’ means an entity supplying water intended for human consumption”. Neither directive defines a distributor. The obvious case is an operator that buys treated water in bulk and runs the network to households; the exclusion clause shows the legislator also had in mind businesses that distribute water among many other goods.

Which water: the article 2(1)(a) definition

Dir. 2020/2184, art. 2(1)(a)

The annex borrows point (a) of the definition, and only point (a): “all water, either in its original state or after treatment, intended for drinking, cooking, food preparation or other domestic purposes in both public and private premises, regardless of its origin and whether it is supplied from a distribution network, supplied from a tanker or put into bottles or containers, including spring waters”. Four consequences follow.

Treatment is irrelevant: untreated water from a protected source is covered.
The delivery mode is irrelevant: network, tanker, bottle or container.
Domestic use in public and private premises is enough: schools, hospitals and offices count.
Point (b), water used in a food business, is not referenced: a food plant does not become a drinking-water entity because it uses water in production.

One question the text leaves open. The definition names spring waters and water put into bottles, while article 3(1)(a) of the Drinking Water Directive takes natural mineral waters out of that directive's scope. NIS2 borrows the definition, not that exemption. Whether a bottler of natural mineral water is a drinking-water entity is not settled by the annex wording; if you are in that position, record the question and check the national transposition on /transposition.

The exclusion: distributors of other goods only

The clause excludes only distributors, not suppliers. It applies only where distribution of drinking water is a non-essential part of a general activity, and that general activity must be “distributing other commodities and goods”. A supermarket chain or a wholesaler that sells bottled water among thousands of products is the case the clause was written for.

The clause does not help an industrial park operator that treats drinking water for its tenants, or a resort with its own borehole. Each supplies water intended for human consumption, and neither distributes other goods as its general activity. If large enough under article 2(1), each is an Annex I entity on the wording of the row. Write that analysis down rather than assuming the exclusion covers you.

Point 7, word for word

Annex I, point 7

Sector column: Waste water. Subsector column: empty. Type of entity column:

“Undertakings collecting, disposing of or treating urban waste water, domestic waste water or industrial waste water as defined in Article 2, points (1), (2) and (3), of Council Directive 91/271/EEC (23), excluding undertakings for which collecting, disposing of or treating urban waste water, domestic waste water or industrial waste water is a non-essential part of their general activity”

Three activities, three kinds of water

Any one of the three activities is enough: an undertaking that only runs a sewer network is collecting, one that only runs a plant is treating. Any one of the three kinds of water is enough too.

The definitions move to the recast

Dir. 2024/3019, art. 2, 32

The annex refers to Directive 91/271/EEC. Directive (EU) 2024/3019, the recast of that directive, repeals it with effect from 1 August 2027 (article 32(1)), and article 32(8) provides: “References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VIII.” That table maps article 2, points 1 to 4, of the old directive to article 2, points 1 to 4, of the recast.

In the recast, point (1) defines urban wastewater as domestic wastewater or its mixture with non-domestic wastewater, urban runoff, or both. Point (2) reads: “‘domestic wastewater’ means wastewater from residential settlements, services and institutions which originates predominantly from the human metabolism or from household activities, or from both”. Point (3) no longer speaks of industrial waste water: “‘non-domestic wastewater’ means wastewater, other than domestic wastewater and urban runoff, which is discharged from premises used for the exercise of a trade or industrial or economic activities”. Read through the correlation table, the third kind of water in point 7 lands on that definition once the repeal takes effect.

A wider exclusion, with an undefined test

The waste-water exclusion covers any undertaking, not just distributors, for which the activity is a non-essential part of its general activity. One case the clause fits is a manufacturer with an on-site effluent treatment plant: it treats industrial waste water, but as an adjunct to production.

Neither annex defines non-essential. Compare Annex II, point 2, which excludes waste management undertakings for which waste management “is not their principal economic activity”. The water rows use different words: do not import that test. Where the answer is not obvious, for example a municipality that runs sewerage as one public service among many, write down the reasoning and check national guidance.

The exclusions are not a size test

Both clauses ask what the activity is to the organisation, not how big it is. A small sewerage company is of the point 7 type; a large manufacturer whose effluent plant is a non-essential part of its activity is not. Type first, then size and class (lesson m1l2).

Who is the entity?

Art. 2(1), 6(38)

Article 2(1) applies to “public or private entities of a type referred to in Annex I or II”. Public ownership does not take a water operator out of the annex. Article 6(38) defines an entity as “a natural or legal person created and recognised as such under the national law of its place of establishment, which may, acting under its own name, exercise rights and be subject to obligations”.

Water services may be run by a municipal department without legal personality, an inter-municipal company, a concession holder or an operator under contract. The obligations attach to the legal person that supplies, distributes, collects or treats; for a department, the body of which it is part. Where an operator runs assets it does not own, analyse both. Record your reasoning and check /transposition.

Operator profiles side by side

Profile	Annex I type	Exclusion?	Next step
Regional utility: abstraction, treatment, network	Point 6, supplier	No: suppliers are never excluded	Size test
Network operator buying water in bulk	Point 6, distributor	No: general activity is not distributing other goods	Size test
Supermarket chain selling bottled water	Point 6, distributor at most	Yes, on the wording	Record and close
Food plant with on-site effluent treatment	Point 7 on its face	Likely, if non-essential	Written reasoning
Combined water and sewerage company	Points 6 and 7	No	Size test, both sectors declared

In practice

A fictional regional company, here called Rivenmark Water, owned by eleven municipalities and employing 320 people in annual work units (above the medium-sized ceiling), abstracts groundwater, treats it at two works and sells it in bulk to two municipal distributors. It also runs the sewer networks and three treatment plants of the same municipalities, and owns a subsidiary that bottles spring water sold in supermarkets.

Its scope memo has one line per activity. Abstraction and treatment for bulk sale: point 6, supplier, no exclusion. Sewer networks: point 7, collecting. Treatment plants: point 7, treating. Both municipal distributors: point 6, distributors, each a separate legal person needing its own memo. The bottling subsidiary: a separate legal person supplying water put into bottles, and the definition expressly includes spring waters, so it is of the point 6 type and goes to the size test; had it bottled natural mineral water, the memo would record the open question instead. The supermarkets: outside, under the exclusion for distributors of other commodities and goods.

What a supervisor will ask

Under which Annex I row do you fall, and for which activities? A scope memo quoting point 6, point 7 or both, with each activity mapped to the words of the row.
Why does the exclusion apply, or not? The written reasoning on the exclusion clause, distinguishing supplier from distributor.
Which legal person is the entity? An organisation chart showing who supplies, distributes, collects or treats, and under which contracts.
What did you declare for the list of entities? The information submitted under article 3(4), including the sector or sectors.

Key points

Drinking water is Annex I, point 6; waste water is point 7. Neither has subsectors, and the CER annex repeats both rows word for word.
Point 6 covers suppliers and distributors of water as defined in article 2(1)(a) of Directive (EU) 2020/2184, whatever the delivery mode: network, tanker, bottle or container.
Only distributors whose general activity is distributing other commodities and goods are excluded from point 6. Suppliers never are.
Point 7 covers collecting, disposing of or treating urban, domestic or industrial waste water; the definitions move to Directive (EU) 2024/3019 through its correlation table.
Both exclusions test what the activity is to the organisation, not its size. Write down the reasoning.