A SPOKESMAN for the European Commission, Mr Peter Joergensen, yesterday made it clear that it has no intention of facilitating Ireland by amending its proposed water directive in the short term. But he acknowledged that in the course of negotiations with member states it was unlikely to remain in its present form.
He stressed, however, that the Commission has no desire to act as umpire in an Irish domestic political row.
Mr Joergensen could hardly have been expected to say anything else. The Commission tabled its proposals only on March 3rd and could scarcely be expected to undermine its negotiating position by rowing back on it yet.
Unofficial Commission sources did, however, wonder aloud whether it would be politic in Ireland's long term interests to draw the attention of the large net contributors to the EU budget, like Germany or the Netherlands, to the fact that Ireland gives its water away free.
The EU is contributing up to half of all the current investment in its water and waste treatment systems. In the current budget that's up to £500 million.
While Ireland is alone in the EU in not charging for water in some form, it is not alone in opposing the directive's provisions on charges. Spain, Finland and Portugal all have put down markers against the idea of consumers paying the full economic cost.
So the argument on the proposal is far from over and Irish diplomats here remain confident the directive will be amended to give Ireland an opt out on the charges.
Mr Joergensen admitted that ratification of the directive could take up to two years. It must first be amended and agreed by ministers. A common position is then sent to MEPs for their view before it returns finally for decision by ministers.
Article 12 of the Commission's proposed directive would require member states by 2010 to "ensure full cost recovery for all costs for services provided for water users".
But governments would be allowed to distinguish in their approach between domestic users and both industry and agriculture.
They would also be allowed to ensure "a basic level of water use for domestic purposes at an affordable price".
Thus the proposal requires the application of some form of water charging, although not necessarily metering. Some degree of subsidy is also possible.
After the Environment Commissioner, Ms Ritt Bjerregaard, presented the proposals to ministers on April 3rd, the Minister for the Environment, Mr Howlin, made it clear both to fellow ministers and to journalists that he could not accept this part of the directive, although he welcomed most of its other provisions. He was reported in the Irish press as having said so the next day.
The directive as a whole is an attempt to address the issue of water quality on a sustainable basis. To do so it proposes to raise standards of groundwater and surface water by developing transparent and co ordinated management plans and the monitoring of river basins. It also proposes the designation of "protected areas" with special requirements.
The proposals to ensure recovery of costs stem from long standing Commission environmental policies, enshrined in the Maastricht Treaty, that "the polluter should pay" and on the internalisation of costs.
Decisions on environmental issues are taken by ministers under two different voting systems, unanimity and qualified majority voting (QMV). The Commission is proposing that the water directive should be taken under QMV, raising the possibility that Ireland could be outvoted and forced to introduce the measures against its will. But to do so, the Commission must show that the issue is covered by an enabling treaty clause, know a as a "legal base".
The Commission, which always has an interest in putting through proposals under QMV because it makes them easier to get passed, gas been advised by its legal services who suggest that the appropriate legal base in this case is Article 130 (s) 1 which provides for QMV in environmental matters relating to "prudent and rational utilisation of natural resources".
But Article 130 (s) 2 allows exemptions to the latter in the case of both "provisions primarily of a fiscal nature" and, more pertinently, measures relating to "management of water resources". In such cases unanimity is required.
The distinction is between water quality measures and quantitative controls.
The legal service is understood to have argued that, because the water directive is primarily concerned with the former, the latter clause does not apply, but informed legal sources suggest this is a moot joint which could certainly be tested by the Irish in the European Court of Justice.
Although there are proposals before the Inter Governmental Conference to extend QMV to other environmental areas, generally supported by Ireland, Dublin is unlikely to concede this on fiscal matters or, given its political sensitivity, on water management.
Irish diplomats will also deploy other arguments, not least the principle of subsidiarity under which decisions should be taken at national level wherever possible. While other member states may be sympathetic to the case for charges, they may well be receptive to the idea that the Union should not force such charges on one reluctant member.
Diplomats will also make the case that the requirements of the directive are unreasonably severe in a country where water is so abundant.
Commission sources point, however, to figures which suggest that Irish domestic use, running at an average of 250 litres a day per household, is so far out of line with the EU average of 150 litres that measures to discourage use are clearly justifiable.
If, at the end of the day, the directive is introduced in its current form and Ireland then refuses to transpose it into Irish law, it can be taken by the Commission to the European Court of Justice and fined.
