Did Alan Kelly mislead the Irish People about Article 9.4 of the Water Framework Directive?

Alan Kelly, Labour Party TD is unrepentant about the position he took regarding the Water Framework Directive 2000 and in particular Article 9.4 while Minister for the Environment in the former Fine Gael/Labour Government.  As Minister he was head of the Department responsible for the introduction and implementation of the controversial 'Water Charges. 

Alan Kelly, Labour Party, former Minister responsible for 'Water Charges'

Alan Kelly, Labour Party, former Minister responsible for 'Water Charges'

In his personal web page on June 29, 2016 he wrote "Personally, I believe there is a strong possibility that this Bill is contrary to EU law, which has constitutional primacy over acts of the Oireachtas. I have repeated numerous times the fact that we no longer have an EU derogation from Water Charges and this has been confirmed by Commissioner Vella this week. There is no legal basis whatsoever for scrapping water charges. So given how clear this fact now is how can Minister Coveney bring forward legislation knowing full well that we don’t have a derogation on having water charges and therefore we can’t stop charging for them? I was always advised that legally we had no choice but to have water charges as our derogation was gone since 2010 so how could this advice have changed?"  http://www.alankelly.ie.

Alan Kelly a few short years ago was told different

Only a few short years ago,  Alan Kelly, while an MEP at the time and member of the Labour Party which opposed water charges (thejournal.ie, Mar,2015), received a different explanation on Article 9.4 from the European Commission.


In a written question to the Commission E3366/10, May 12, 2010, Alan Kelly asked

"The Water Framework Directive 2000/60/EC(1), Article 9.4, indicates that a Member State will not be in breach of the directive for non-implementation of the provision of 9.1, second sentence, on water-pricing policies ‘where this does not compromise the purposes and the achievement of this directive.’ Can the Commission provide some further clarification on the meaning of this point? Can the Commission confirm whether Article 9.4 effectively means that water-pricing policies could be avoided if the principles of the directive can be achieved through other resources and the principle of the ‘polluter pays’ is adhered to?

Article 9.1 outlines that in relation to the recovery of the costs of water services, Member States may have regard to ‘the social, environmental and economic effects of the recovery.’ In the Commission's opinion, does the application of a flat rate charge for water services sufficiently take into account the social and economic effects of the recovery on households with varying income levels?"


Answer given by Mr Potočnik on behalf of the Commission, June 21, 2010

"Article 9(1) of the Water Framework Directive 2000/60/EC(1), requires Member States to ensure, by 2010, that a water pricing policy is established based on the principles of cost recovery and polluter pays. The water pricing policy shall also provide adequate incentives for users to use water resources efficiently and therefore contribute to achieving the objectives of the directive. The purpose of the Water Framework Directive specified in Article 1 includes the promotion of the sustainable water use based on the long-term protection of available water resources. The environmental objectives are set out in Article 4 and include the prevention of deterioration of water bodies and the achievement of good status by 2015. The provision in Article 9(4) relating to the need to ensure that the purposes and the achievement of the objectives of the directive is not compromised relates to those objectives in Articles 1 and 4.

Article 9(4) provides 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 and where this does not compromise the purposes and the achievement of the objectives of the directive. The use of Article 9(4) is therefore subject to strict conditions.

The economic and social effects of a particular form of water pricing on households will depend on the type of water pricing and the socioeconomic profile of the households. It is for the Member States to decide whether they have regard to these aspects on the basis of an assessment of the effects of the water pricing policy on water users. However, as regards Article 9(1), Member States who wished to implement a flat rate would need to justify that it fulfills the requirements in Article 9(1), in particular with respect to whether it provides an adequate incentive for users to use water efficiently."


Kathy Sinnott, Irish Times, Nov 21, 2014'Why the Irish Government is not required to implements water charges on ouseholds'

Colette Browne, Irish Independent, Aug 4, 2015, Eu rules did not compel Ireland to bring in water charges - our politicians chose to do it.

The Journal.ie Mar 15, 2015, 'How Labour considered water charges, meters and an 'ESB for water' five years ago'