Updated: 3.08 pm, Friday
THE EUROPEAN COMMISSION has expanded on its view that Ireland would be in breach of European law if we were to step back from the current system of water charges.
In response to a detailed query from TheJournal.ie, a spokesperson for the commission confirmed in a statement:
The Directive does not allow Member States that have introduced water charges to apply article 9(4) and revert to any previous practice not entailing the recovery of costs and the application of the polluter pays principle.
This confirms explicitly, and for the first time in a public statement, that the EC’s view is that an exemption from water charges once available to Ireland, ended with the introduction of water charges.
However, Sinn Féin MEP Lynn Boylan has said the commission can only make a definitive ruling on water charges after the government has submitted its forthcoming proposals.
In a statement on Friday afternoon, she said any other views expressed by EC officials were “purely speculative and of no legal standing.”
A dispute earlier this week had revolved around the question of whether water charges were the “established practice” for paying for water in Ireland.
In response to a European parliamentary question from Boylan, the commission this week stated:
If the established practice is to have a system in place implementing the recovery of the costs of water services, in accordance with the polluter pays principle, the Commission considers that the flexibility afforded to Member States as outlined in Article 9 paragraph 4 would not apply.
What that’s referring to is Article 9.4 of the Water Framework Directive (WFD), which was agreed upon in 2000.
The directive gave all member states until 2010 to put in place a system of paying for water which incentivises preservation, and discourages pollution.
However, Article 9.4 included a loophole known as the “Irish exemption”, which allowed countries to opt out of that requirement, on two conditions:
The commission’s reply earlier this week was first reported by RTÉ, and set off a dispute among Irish politicians, with Boylan and Fianna Fáil TD Barry Cowen claiming that water charges were not the established practice in Ireland.
Cowen, in particular, highlighted a 2010 commission response to a question from then MEP Alan Kelly, which appeared to suggest that the system considered the “established practice” was the one in place when the WFD was adopted, in 2003.
On RTE’s Drivetime on Tuesday, Cowen effectively argued that in 2003 Ireland paid for its water system through general taxation, and therefore the subsequent implementation of water charges in 2014 could not be regarded as “established practice.”
However, we put this question to the European Commission, and their response was clear: once a country has introduced water charges, the WFD does not allow them to “revert” to their previous system of paying for water.
We asked the commission whether they regarded the de facto introduction of water charges in Ireland to have happened in 2010, when the Fianna Fáil-led government submitted to the EC their plan to bring in water charges, or in 2014, when the Fine Gael/Labour coalition government implemented legislation to that effect.
In a statement, the spokesperson told us:
The Irish authorities recognised as far back as 2010 that reforms to the water sector were needed in order to improve the management of the resource and strengthen poor infrastructure. Ireland subsequently introduced water charges.
The government plans to suspend water charges for nine months and establish a commission to explore alternatives to the current arrangement involving Irish Water.
However, the EC’s now explicit public stance on the expiration of our exemption could put additional pressure on that commission to produce a proposal that fully conforms with European law.
The expert commission is expected to forward its final recommendation to a special Oireachtas committee in 2017, after which the Dáil and Seanad will vote on it.
In a statement, a spokesperson for Minister Simon Coveney told TheJournal.ie:
The advice of the Attorney General has been sought in relation to the Water Framework Directive and water charges and this issue is under examination by that Office.
As would be normal with the drafting of legislation, the Office of the Attorney General will provide advice on the proposed legislation…
If the EC deems that the temporary suspension of charges, or the new system emerging from the expert commission are in breach of the WFD, it could begin a lengthy, multi-stage legal process, potentially including hefty fines, against the Irish state.
It would then be up to the government of the day to decide whether or not to challenge the EC, a process that could ultimately see the question of water charges resolved in the European Court of Justice.
Originally published: 6.22 pm, Thursday
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