The European Commission has never made any official statements asserting that Ireland abolishing direct water charges would be in breach of the water framework directive.
The water framework directive, which was adopted in 2000, states that all EU member states may derogate from the water pricing obligations contained within the directive.
In a recent response to a written question submitted by Lynn Boylan, the European Commission confirmed that this derogation still exists. Yes, the response also stated that if “established practice” was a direct water charge then the flexibility to use the derogation would not apply, but here we come to the crux of the matter – “established practice”.
The European Commission is already on record as stating that it considers “established practices” to be those practices which were “an established practice at the time of adoption of the directive”. This directive was adopted on October 23rd, 2000, and transposed into Irish law in 2003, when it is beyond doubt that Ireland used general taxation as its established practice.
Additionally, since direct water charges were introduced in Ireland only in the last year and – far more significantly – since those charges have been rejected by the people, charging directly for water is not the established practice in Ireland.
Furthermore, in a 2014 landmark case on EU water recovery rules, the European Court of Justice found in favour of Germany, after the European Commission tried unsuccessfully to take that state to court for, in its opinion, failing to fulfil its water framework directive obligations. The judgment conclusively stated that it cannot be inferred that the absence of pricing for water service activities will necessarily jeopardise the attainment of the water framework directive.
As recently as January 2016, more than one year after the establishment of Irish Water, in a response to a written question which asked if Ireland would be in breach of the water framework directive if water charges were dropped, the European Commission simply stated that the second river basin management plans would be assessed against the requirements of the directive. Anything else is simply conjecture.
The European Commission has also confirmed in emails to Lynn Boylan and Marian Harkin that if Ireland would like to avail of Article 9.4 (the derogation) then it should submit that request in its second river basin management plan with justification. This second river basin management plan is now not due to be submitted until 2017, with plenty of time for Ireland to establish that derogation.
It is beyond doubt then that if the Irish Government so wishes, it can still use the derogation and justify its use in its river basin management plans, as has been done and is still being done by so many other European regions and countries.
In light of all the above, it is clear that certain commentators and politicians have distorted the debate by misconstruing or embellishing what the European Commission has put on record regarding the derogation from water pricing in the water framework directive.
Worse, it is also clear that many of those same politicians are deliberately twisting this clear, unequivocal situation and using it as an excuse not to avail of the derogation, which gives the Irish Government the final say in deciding on water charges.
Lynn Boylan MEP
Martina Anderson MEP
Matt Carthy MEP
Liadh Ní Riada MEP
Luke Ming Flanagan MEP
Nesss Childers MEP
Marian Harkin MEP.