“There is no question as to whether Ireland will be in breach of EU regulations if we decide not to apply water charges”. This was stated by Marian Harkin MEP, having analysed EU Commission responses and a recent judgment from the European Court of Justice.
“The first and most obvious reason is that the Water Framework Directive contains Article 9(4) which says that Member States do not have to take account of the principle of recovery of the costs of water services where there is an established practice otherwise. The question now arises as to what is ‘established practice’.
“I have a response from the Environment Commissioner sent to then MEP Alan Kelly in 2010 which states ‘Article 9 (4) provides that the possibility for Member States not to apply the provisions of Article 9 (1) to a given water-use activity, where this is an established practice at the time of adoption of the directive’.
“The crucial words here are ‘at the time of adoption of the directive’. Given that Ireland adopted this directive in 2003, there is no argument as to what was ‘established practice at that time’- we clearly did not have any water charges.
“Furthermore this response is backed up by a statement on the Commission´s website which again states that if Member States decide not to apply pricing for water, they must provide sufficient justification under Article 9 (4) with the number one justification being “the existence of an established practice at the time of the entry into force of the Water Framework Directive in 2003”. There can be no further argument therefore as to when the term “established practice” applies- in Ireland it’s 2003.
“Perhaps the most important reason for saying we will not be in breach of EU legislation is established EU case law where the EU Commission unsuccessfully tried to prosecute Germany for excluding certain water services including ‘personal consumption’ from water charging. The European Court of Justice is clear in its judgment that ‘the EU legislature intended to allow Member States to determine the measures to be adopted for the purposes of the application of the principle of recovery of costs without extending it to all services associated with water use, as practices in the Member States varied widely’. This clearly gives Member States the discretion not to extend it to ‘all services.’ Further in the judgment it goes on to say that the Directive ‘does not per se impose a generalised pricing obligation in respect of all activities relating to water use.’
“However, crucially, in order for Ireland to activate the derogation contained in Article 9 (4) it must submit its proposal in its second cycle River Basin Management plans. It did not do so in its first proposal but in a Commission Communication from 2012, the Commission accepts that Ireland will be amending certain national measures in its second proposal. It is vital that we include the flexibility under Article 9 (4) in this proposal - it’s a question of ‘use it or lose it’.
“It is therefore essential that Ireland applies to activate Article 9 (4) in its second River Basin Management Plans proposal so that the decision on water charges remains a decision for the Irish Government and the Irish people. In two or three years’ time, I do not want to hear some Irish official or minister give the usual excuse ‘Brussels made us do it’. In this instance we have the choice, in fact the choice was put there to satisfy Irish requirements in the first place- all we now have to do is exercise that choice.
“Finally, none of this means Ireland can escape its obligations under the Water Framework Directive. We still must achieve the objectives of the Directive and that will require very significant investment on our part. How we pay for it and who pays for it will however be our decision. Yes, there may be a number of very eager officials in the EU Commission who believe everybody should pay for water but the directive as written has given Member States flexibility as to how they fund it and the European Court of Justice has confirmed this” Marian Harkin concluded.