‘TO PAY OR NOT TO PAY', THERE IS NO QUESTION

 

           Liz Harkin MEP

“There is no question as to whether Ireland will be in breach of EU regulations if we decide not to apply water charges”. This was stated by Marian Harkin MEP, having analysed EU Commission responses and a recent judgment from the European Court of Justice.

 

 

“The first and most obvious reason is that the Water Framework Directive contains Article 9(4) which says that Member States do not have to take account of the principle of recovery of the costs of water services where there is an established practice otherwise. The question now arises as to what is ‘established practice’.

“I have a response from the Environment Commissioner sent to then MEP Alan Kelly in 2010 which states ‘Article 9 (4) provides that the possibility for Member States not to apply the provisions of Article 9 (1) to a given water-use activity, where this is an established practice at the time of adoption of the directive’.

“The crucial words here are ‘at the time of adoption of the directive’. Given that Ireland adopted this directive in 2003, there is no argument as to what was ‘established practice at that time’- we clearly did not have any water charges.

“Furthermore this response is backed up by a statement on the Commission´s website which again states that if Member States decide not to apply pricing for water, they must provide sufficient justification under Article 9 (4) with the number one justification being “the existence of an established practice at the time of the entry into force of the Water Framework Directive in 2003”.  There can be no further argument therefore as to when the term “established practice” applies- in Ireland it’s 2003.

“Perhaps the most important reason for saying we will not be in breach of EU legislation is established EU case law where the EU Commission unsuccessfully tried to prosecute Germany for excluding certain water services including ‘personal consumption’ from water charging. The European Court of Justice is clear in its judgment that ‘the EU legislature intended to allow Member States to determine the measures to be adopted for the purposes of the application of the principle of recovery of costs without extending it to all services associated with water use, as practices in the Member States varied widely’. This clearly gives Member States the discretion not to extend it to ‘all services.’ Further in the judgment it goes on to say that the Directive ‘does not per se impose a generalised pricing obligation in respect of all activities relating to water use.’

“However, crucially, in order for Ireland to activate the derogation contained in Article 9 (4) it must submit its proposal in its second cycle River Basin Management plans. It did not do so in its first proposal but in a Commission Communication from 2012, the Commission accepts that Ireland will be amending certain national measures in its second proposal. It is vital that we include the flexibility under Article 9 (4) in this proposal - it’s a question of ‘use it or lose it’.

“It is therefore essential that Ireland applies to activate Article 9 (4) in its second River Basin Management Plans proposal so that the decision on water charges remains a decision for the Irish Government and the Irish people. In two or three years’ time, I do not want to hear some Irish official or minister give the usual excuse ‘Brussels made us do it’. In this instance we have the choice, in fact the choice was put there to satisfy Irish requirements in the first place- all we now have to do is exercise that choice.

“Finally, none of this means Ireland can escape its obligations under the Water Framework Directive. We still must achieve the objectives of the Directive and that will require very significant investment on our part. How we pay for it and who pays for it will however be our decision. Yes, there may be a number of very eager officials in the EU Commission who believe everybody should pay for water but the directive as written has given Member States flexibility as to how they fund it and the European Court of Justice has confirmed this” Marian Harkin concluded.

Original article; marianharkin.com, June 2, 2016

Section 57 of the Findings of the Court

"57      In that regard, Article 9(4) of Directive 2000/60 provides that the Member States may, subject to certain conditions, opt not to proceed with the recovery of costs for a given water-use activity, where this does not compromise the purposes and the achievement of the objectives of that directive."

Confirmed: European Commission says we are no longer exempt from water charges

The “Irish exemption” ended when we introduced water charges, the European Commission has told TheJournal.ie.

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.

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 Sinn Féin MEP Lynn 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.

Source: European Commission

However, Article 9.4 included a loophole known as the “Irish exemption”, which allowed countries to opt out of that requirement, on two conditions:

  • If their “established practices” for water did not involve water charges
  • If the system they implement doesn’t violate the environmental and water preservation aims of the directive.

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.

Simon Coveney

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.

Original article: TheJournal.ie June 2, 2016

Jobstown accused to be tried in separate groups

A judge has ruled that Anti-Austerity Alliance TD Paul Murphy and 18 other people should have separate trials on charges of false imprisonment of former tánaiste Joan Burton and other offences following a water charges protest in Jobstown in Tallaght in Dublin two years ago.

AAA-PBP TD Paul Murphy is among those facing charges

Mr Murphy, 32, with an address of The Copse, Woodpark, Ballinteer, appeared at Dublin Circuit Criminal Court along with 18 others, some facing charges of false imprisonment and violent disorder.

Among the group of accused are 38-year-old Dublin Councillor Kieran Mahon, of Bolbrook Grove, Tallaght, and Anti-Austerity Alliance Councillor Michael Murphy, 50, of Whitechurch Way, Ballyboden.

Judge Melanie Greally said that to try all the accused together would place unrealistic demands on jurors, who may be robust but were "not superhuman".

She made her ruling following legal argument from both the State and the defence earlier this month.

Tony McGillicuddy BL, prosecuting, told the court at that hearing that there were 45 counts on the indictment including false imprisonment, violent disorder and criminal damage.

He said it was the prosecution's position that there was "a case to have the case tried in manageable blocks" of four separate trials.

The defence argued that Judge Greally did not have jurisdiction to deal with an application for severance in the first instance as it should be dealt with the judge who will ultimately be hearing the trial.

Colman Fitzgerald SC, defending Antoinette Kane, 23, of Cloonmore Park, Jobstown, Tallaght, submitted that there was no logic to the State's application.

He said they were in charge of drafting the indictment, the document outlining the offences each accused is charged with, and it was the Director of Public Prosecutions' decision to put all 19 defendants on it in the first instance.

Judge Greally today said she had interpreted the relevant legislation and concluded that she did have jurisdiction to sever the indictment.

However, she said, as she has since been nominated the trial judge this argument was no longer relevant.

She had considered the law in relation to the court's power to change an indictment.

She said she was satisfied that, on her interpretation of the legislation, the court did have the authority to alter it.

"In my view the interest of justice would not be best served by trying them all together. It would place wholly unrealistic demands on both the judge and jury," Judge Greally said,

She accepted previous argument from the defence that juries have proven to be robust but she added they are "not superhuman".

Judge Greally said also in practical terms the Criminal Courts of Justice complex would not be able to accommodate a trial of 19 accused people, a potentially three-person defence team for each and the State's barristers and solicitors.

She ruled that the accused should be separated into more manageable groups but said those groups should "not be considered in a vacuum" rather instead divided in such a way that was relevant to the proposed evidence in relation to each accused.

Sean Gillane SC, prosecuting, said the defence teams have already received letters from the DPP outlining the proposed groupings and suggested that if they see a potential prejudice with what is proposed, a date should be set for legal argument to deal with it.

Judge Greally adjourned the case to 22 July to allow for any argument and to set trial dates. She remanded each accused on bail until that date.

Ms Burton and her entourage had left a graduation event at An Cosán Education Centre at Jobstown, Tallaght when a demonstration was held which delayed her for about two hours on 15 November 2014.

She and her team had been attempting to travel by car to St Thomas' Church for the rest of the ceremony when it is alleged violence broke out.

The three public representatives are charged with false imprisonment of Ms Burton and of Karen O'Connell at Fortunestown Road, Jobstown.

Thirteen others are charged with false imprisonment while nine people are charged with violent disorder.

Original article: RTE News May 11, 2016

Paul Murphy comments after the court case in the  Special Criminal Court Dublin, May 11, 2016

Jobstown protesters before their court casein the Special Criminal Court, Dublin, May 11, 2016 

‪#‎JobstownNotGuilty‬ was up in court again today. The judge made a ruling today in various aspects of our case. Without going into all the legal details, the essential things are this:

1. The case will be 'severed' - i.e. the group of 19 is going to be broken up into smaller groups for separate trials.
2. The judge who has been dealing with us so far will be the trial judge.
3. We are back up on Wednesday 22 June, where there may be an argument about what groups we are broken into.

Many thanks to all those who turned up to support us - it means a lot! See you on 22 June.