Letter of complaint to RTE by Right2Water

To the Director General of RTE,

Seven weeks ago Lynn Boylan, Sinn Fein MEP, asked a very simple question of the European Commission.

Can the Commission confirm that unless the Water Framework Directive (WFD) is amended accordingly by legislative review, the flexibility provisions as set out in Article 9, paragraph 4, of said Directive remain available to Member States?”

Essentially, is the derogation from implementing water charges still available to countries in the EU?

As it was a priority question, the answer was supposed to be given within three weeks. However, seven weeks later and despite pressure from the Sinn Fein MEP, nothing. A press release was issued on Monday criticising the EU for blocking answers to Ireland’s water derogation with a concern that this was being coordinated at Cabinet level for “political reasons”. Then the answer came, vague as it was.

“Article 9(4) of the Water Framework Directive provides that Member States shall not be in breach of the Directive if they decide in accordance with established practices not to apply the provisions of Article 9(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. 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.”

The response from the EU was emailed to Lynn Boylan only. It wasn’t shared with the rest of the democratically elected members of the Parliament and wasn’t uploaded onto the EU’s website. Yet somehow, RTE ran a report, afterwards claiming they’d been in contact with the Commission directly. RTE’s interpretation was wild. Let’s deconstruct it now:

“The European Commission has declared that Ireland does not enjoy an exemption from the obligation under EU law for a system of water charges.”

The Commission said nothing of the sort. Ireland wasn’t mentioned in the answer.

RTE continues: “The confirmation is likely to severely limit the Government's discretion to scrap water charges.”

Confirmation? Where exactly are they finding confirmation from the Commission?

“Furthermore, according to informed sources, Ireland could face a procedure in the coming months that could lead to daily fines due to the Government's breach of EU law.”

Who are these ‘informed sources’? And even if they did ‘confirm’ that Ireland ‘could’ face a procedure in the coming months that could lead to fines, those same sources might say that Ireland ‘could’ win the Eurovision next year, omitting to mention that it is in fact highly unlikely.

“The commission has said that the earlier "flexibility" on water charges afforded to Ireland no longer applies.”

No, it didn’t. This is not in the Commission’s answer anywhere. It cannot be found. And in case you’re thinking maybe the ‘confirmation’ is to be found elsewhere, RTE tell us where they found this ‘confirmation’:

“The confirmation comes in the form of a written response to Sinn Féin MEP Lynn Boylan following a parliamentary question.”

It goes on.

“The commission's written response makes it clear that Ireland's de facto exemption from water charges no longer applies because the Government introduced water charges and metering in 2010.”

What? Where does it say that? We re-read the answer and cannot find a mention for 2010 in it. And if the “Government introduced water charges” in 2010, it took five years to get the first bill out. That’s a very slow process, even by Irish Water’s standards. But hold on, Irish Water, according to their own website, say they took over responsibility for public water on 1st January 2014. Were RTE staff being charged four years earlier? Look at the wording again, “Government introduced water charges…in 2010”. This is significant. It appears RTE is making the case that we have been charging for water for six years, perhaps to back up their own contention that after six years of charges, we now have an established practice?

RTE continue, “Specifically, Brussels regards the introduction of water charges as Ireland's "established practice" in ensuring that the principles of "polluter pays", and "cost recovery" are adhered to.”

Ah, great, we’re getting into specifics now. But wait, the answer does not ‘specifically’ say this. Brussels has not stated that they regard the introduction of water charges as Ireland’s ‘established practice’. The Commission may have an opinion on this, one that wasn’t expressed in their answer, but whether Ireland’s ‘established practice’ is water charges or general taxation could only be determined by the European Court of Justice (ECJ). And as Ms Boylan informed Mary Wilson on Drivetime, there is only one precedent in the ECJ on the issue of water and it found in favour of the Member State (Germany) in 2014, allowing an exemption from cost recovery.

Also, this term ‘polluter pays’ is interesting. If somebody has a shower, flushes a toilet or drinks a glass of water, is this considered pollution? Because that’s what Irish people use water for. There is absolutely no evidence that Irish people are profligate with their water. In fact, Irish Water estimates that Irish people use 54,000 litres of water per annum, whereas people in the UK use 68,000 litres. That’s 20% more, and many of those jurisdictions already have water charges in place. Bear in mind that the UN says every individual needs 36,500 litres of water per year to survive showing that we’re not overusing water unnecessarily. But then, Irish Water doesn’t give anyone any allowances because it has been established as a revenue raising mechanism, not a polluter pays principled policy.

But if we want to talk about polluters paying, as the EU themselves say, corporations and agriculture use 90% of all water, yet they are only expected to pay approximately 22% of the costs. In Dublin alone 37% of businesses are refusing to pay for the water they use. Britvic (Ballygowan), Tipperary Spring Water, Kerry Spring and Glenpatrick all use our natural spring water to make a profit, yet they have no limits on how much water they can take out of the ground and they pay nothing, absolutely nothing, for the extraction of our natural water. But a lone parent living in deprivation and experiencing food poverty is expected to pay for the water she uses to cook for her child, because what she’s doing is considered pollution?

Then there’s a reference to cost recovery. I can’t add much more to what Ms Boylan said on Drivetime when she explained that Irish Water itself is not achieving cost recovery, it is actually only covering the costs of the billing process. Let this be a warning to people about what way water bills are going to go if the policy continues. If the WFD says it needs full cost recovery, and at the moment we’re only covering the billing process with all households paying €260, how much more will the bills be when the cap is removed in 2019?

RTE at last get around to actually quoting the Commissions response in the 11th paragraph: “In its response to Ms Boylan's parliamentary question, the commission states: "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 … would not apply."

Interestingly the three dots represent ‘Article 9 paragraph 4’. This is the exemption.

More from RTE: “When the directive was introduced Ireland was the only country in the European Union that did not apply water charges.”

Hmmmmmm, is this true? Did Northern Ireland apply water charges then? Did Scotland apply water charges? The answer, you’ll be surprised to know, is absolutely not. They both continue to pay for water through rates. They don’t use meters. And that’s perfectly fine with the EU Commission.

Lynn Boylan explains: “Scotland pays for water through a rates system which is based on the ability to pay, provided for in the social provisions of the Water Framework Directive (WFD).  They do not use water metering and are not in breach of the WFD.  They have submitted their second River Basement Management Plan (RBMP) also using the ability to pay/non metering model and that has been adopted and approved by the Commission since March.  Scotland cite the fact that they are a water rich country as a justification for no fiscal incentive ie metering and that instead they roll out regular publicity campaigns on conservation.”

Wow. So according to the EU you can roll out publicity campaigns about conservation and avoid any issues with the Commission. Why didn’t RTE report that?

Just in case you hadn’t already gotten the picture, RTE were determined to hammer home their interpretation: “It is understood that the European Commission firmly believes the introduction, by the former coalition, of water charges meant that Ireland's "established practice" had changed, and that from that moment on, Ireland's derogation no longer applied.”

Today's written response appears to confirm that belief.

Eh, what? It is understood? How is it ‘understood’ and who is doing the understanding, and on what basis has that understanding been reached? Has the Commission been telling RTE something that they’re not telling an elected member of parliament? Can we please find out whether this is RTE’s interpretation of the answer published on Tuesday or whether RTE has some inside knowledge?

“Under EU law the European Commission will take action against a member state if it is in breach of a directive.”

The important word here is ‘if’. We’re not in breach, and never have been, and the ECJ precedents back us up and the experience of Scotland and Northern Ireland also back us up.

“Ireland could, therefore, face what is called a "pilot notification" in the coming months, in which the Government would be given ten weeks to explain how it is complying with the Water Framework Directive.”

The important word here is ‘could’, and the rest is wild speculation, with absolutely no evidence whatsoever.

“If the commission is not satisfied that Ireland is in compliance, then it can issue a letter of formal notice, a more serious step in the disciplinary process.”

There it is again, ‘if’. But this is where the scaremongering gets really good.

“Beyond that, if the commission believes Ireland remains in non-compliance, it could take Ireland to the European Court of Justice (ECJ).”

If Ireland is found in breach of the Water Framework Directive the court could impose daily fines.

In December 2012 the ECJ fined Ireland €12,000 per day for failure to comply with another environmental directive, this time on waste water.

In the event, Ireland paid a total of €3.5m in fines for failing to comply with a 2009 ruling that it had failed to fulfill its obligations on how waste water in septic tanks was disposed of.”

That’s it then folks. If we don’t interpret things in the way RTE do, then we’ll be fined millions of euros. So be good little boys and girls and do as you’re told.

“Confirmation that Ireland is no longer exempt from water charges will almost certainly have a bearing on the proposed Expert Commission, agreed between Fianna Fáil and Fine Gael and enshrined in the Programme for Government, which is due to examine how to fund domestic water services.

Ohhhhh, so that’s what this is all about? Influencing the Expert Commission before it even gets underway! Let’s read that again, “Confirmation that Ireland is no longer exempt from water charges will almost certainly have a bearing on the proposed Expert Commission...” There’s that word ‘confirmation’ again…when there has been no ‘confirmation’ anywhere.

“The draft terms of reference of the Expert Commission indicate that it will "take into account … Ireland's domestic and international environmental standards and obligations."

Following talks with Fianna Fáil, the Government planned to set up an independent commission to look at the issue of water charges, and refer it to a Dáil committee before it is voted on in the chamber.”

Now, let’s put this very simply. There are three ways to pay for water:

  1. Domestic water charges
  2. Rates
  3. General taxation

All three are perfectly viable with the European Commission and are being adopted by countries in the EU at this moment in time. The Expert Commission is supposed to look at which of those is most efficient in terms of the economy, the environment and in terms of our society. There is no doubt in my mind, nor in the mind of Maude Barlow, the world’s leading expert on water and one of the great conservationists of our time, that paying for water through general taxation is the most efficient in all three categories.

Right2Water is seeking to be included on that Expert Commission to put forward factual evidence of water charges and where they lead. In the meantime, we would kindly request a tiny bit of balance and factual reporting from RTE. You are not the State broadcaster, you are the national broadcaster, and there is a difference.

This latest reporting is only one of a series of incidents where RTE has not shown any balance on the issue of water, and follows on from the Claire Byrne show in 2015 where in a discussion about water charges, RTE had two panelists, Alan Farrell TD from Fine Gael and Eddie Hobbs from Renua, both in favour of water charges. Where was the ‘balance’ there?

We sincerely hope that RTE clarifies the record on the above issues and affords Right2Water an opportunity over the coming days, weeks and months to put forward an alternative, factual and balanced view about paying for our water services.


Right2Water Ireland Coordinators

Brendan Ogle & David Gibney

NOTE: since this complaint was issued, the European Commission have been in contact with another journalist stating:

"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 new information contradicts the European Commission's official on the record responses to members of the European Parliament. This type of behaviour by the EC, where they tell journalists one thing, and democratically elected public representatives another, is completely unacceptable.