Paying for our water

money-water

Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 (the “Water Directive”), had as its aim the development of an integrated EU policy on water. The EU recognised that “waters in the Community are under increasing pressure from the continuous growth in demand for sufficient quantities of good quality water for all purposes” and that there was a “need for action to protect Community waters in qualitative as well as in quantitative terms.”

Many commentators glibly say that “EU Directives are binding”, without really explaining what this means. Whilst the essence of that statement is true, it must be noted that Directives are not immediately and automatically binding in the sense that as soon as they are passed by the EU Parliament they become Irish law. This is not the case. EU Directives are “transposed” into Irish law.

The obligation of Member States to comply with EU law is set out in Article 10 and Article 249 of the EU Treaty. Article 10 says that:

“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the Institutions of the Community. They shall facilitate the achievement of the Community’s tasks.”

Article 249 defines the different forms of EU legislation and describes the legal obligation they impose. Regulations are “binding in their entirety” and “directly applicable” on all Member States. Directives, however, are defined as legislation that is binding “as the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” Member States therefore have a circumscribed choice. Whilst they can decide what is the most appropriate means of implementing EU Directives into domestic law, they are obliged to ensure that the objectives of the Directive are attained and the Directive is implemented into domestic law within the required timescale.

The nature of this circumscription has been elaborated on by the Court of Justice of the European Communities which has made it clear that although EU Directives do not require any particular form of implementation, it is crucial that the form adopted does not have the effect of impeding the effectiveness of EU Law.

In other words, Ireland had to implement the Water Directive into our domestic law in such a form that the aims and policies of the Directive were fulfilled, namely that there was clean and adequate drinking water for its citizens and that industry must pay for polluting or contaminating water sources.

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The very first stated principle in the Preamble of the Directive is one which the Irish Government needs to read very carefully:

(1) Water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such.

Whilst the main thrust of the Directive is to prevent pollution or contamination of water sources, it does contain a provision for payment for water. However, it is clear that payment is to be used primarily as a device to punish polluters, and secondly as a device to stop wastage, rather than as a vehicle for commercial profit. Article 9 of the Water Directive is titled “Recovery of costs for water services “, as opposed to ‘purchase price’ or ‘commercialisation of water services”, and 9(1) speaks of:

“an adequate contribution of the different water uses, disaggregated into at least industry, households and agriculture, to the recovery of the costs of water services, based on the economic analysis conducted according to Annex III and taking account of the polluter pays principle.”

However, Article 9(4) states that:

“Member States shall not be in breach of this Directive if they decide in accordance with established practices not to apply the provisions of paragraph 1, second sentence, and for that purpose the relevant provisions of paragraph 2, for a given water-use activity, where this does not compromise the purposes and the achievement of the objectives of this Directive. Member States shall report the reasons for not fully applying paragraph 1, second sentence, in the river basin management plans.”

The legend at the time, no doubt put about by Bertie, was that the Irish government had refused to make their citizens pay for water on account that there was just so much of the stuff in this rather damp country of ours and that a deal was done whereby Article 9(4) would allow Ireland to avoid charging its citizens for water. When you read it you realise that this is utter nonsense as the provision is wide enough to allow any EU country to refrain from charging its citizens for water.

This Water Directive was adopted into Irish law in 2000 as a single piece of legislation covering rivers, lakes, groundwater and transitional (estuarine) and coastal waters and includes heavily modified and artificial waterbodies. Its stated objectives were to prevent further deterioration of and to protect, enhance and restore the status of all bodies of water with the aim of achieving at least good status by 2015.

The Water Policy Regulations (S.I. No. 722 of 2003), Surface Waters Regulations (S.I. No. 272 of 2009) and Groundwater Regulations (S.I. No. 9 of 2010) further implements the Directive’s through the monitoring of different water categories, determining the quality elements and undertaking the characterisation and classification assessments.

The Surface Waters Regulations instituted a wide-ranging set of environmental standards for Irish surface waters. The Groundwater Regulations established environmental objectives to be achieved in groundwater bodies and included groundwater quality standards and threshold values for the classification of groundwater and the protection of groundwater against pollution and deterioration in groundwater quality.

In addition, and of importance to the Irish Water controversy, is the European Communities (Water Policy) Regulations, 2003 (S.I. No. 722 of 2003) and the European Communities (Drinking Water) (No. 2) Regulations, 2007 (S.I. No. 278 of 2007).

Contrary to the legend, the former does provide for payment for water.

Section 11 of the Water Policy Regulations states:

(1) The relevant local authorities shall —

(a) in accordance with Article 9 of the Directive, take account of the principle of recovery of the costs of water services including environmental and resource costs, having regard to the economic analysis carried out according to article 7, and in accordance in particular with the polluter pays principle,
(b) ensure that water-pricing policies and practices are in place in compliance with Article 9 of the Directive, not later that 31 December 2009, and
(c) comply with any direction or guidance which may be given by the Minister for the purposes of this article.
(2) For the purposes of this article, “established practices” referred to in Article 9.4 of the Directive shall include the provisions of section 12 of the Local Government (Financial Provisions) Act 1997 (No. 29 of 1997).

However, subsection 2 is of some importance. It talks about the “established practice” implemented by section 12 of the Local Government (Financial Provisions) Act of 1997, which in turn amended section 65A of the Public Health (Ireland) Act, 1878 by inserting the following:

“(1) A sanitary authority may make charges for water supplied, whether within or outside their functional area, by them, but after the 31st day of December, 1996, a sanitary authority may not make a charge for a supply by them of water for domestic purposes.

On 17th April 2008, Minister John Gormley stated in the Dáil that:

“The only exemption available to Ireland, and availed of, is contained in article 9.4 and relates to dwelling houses using water for ordinary household purposes”.

So what changed? The law changed – and it was changed by the current government. Section 29 of the Water Services Act of 2013 removed the exemption on “water for domestic purposes”, thus allowing the charging for a domestic water supply.

But let it be made clear that they changed the law because they wanted to, not because they had to. Ireland was not obligated by any EU Directive to charge for water. The government chose to do so when it entered into a lucrative arrangement with the suppliers of water meters, and whatever other deals were done. This is a scheme motivated by profit, and that is clearly in contravention of the Water Directive.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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2 Responses to Paying for our water

  1. Reblogged this on The Law is my Oyster and commented:

    It might be a good idea for people to read this again.

  2. An excellent insight which shows that this nonsense of having a “Derogation” as being nothing more than a political trophy to be held aloft.

    A prize to bring home under their arm after “tough” European negotiations.

    This “Derogation” never existed, because there cannot be a derogation from something that was never required to begin with.

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