Saturday 16 December 2017

Scrapping bills opens us up to EU fines, warns the Attorney General

Attorney General Máire Whelan. Photo: Frank McGrath
Attorney General Máire Whelan. Photo: Frank McGrath
Niall O'Connor

Niall O'Connor

Attorney General Máire Whelan warned the Government it would prove "very difficult" to "successfully defend infringement proceedings" brought against Ireland in the event of water charges being scrapped.

In her formal advice on the future of water charges, revealed by the Irish Independent for the first time, Ms Whelan said it was "considerably more likely than not" that scrapping charges would be "non-compliant" with EU law.

She said Ireland had a "legal obligation to recover costs by use of charges upon domestic water users".

Ms Whelan confirmed that her office agrees with the European Commission that there should be "sufficient funding mechanisms in place" to ensure proper maintenance and investment in water and waste water infrastructure.

The advice clearly illustrates the AG's concern that scrapping charges, as proposed by Fianna Fáil and Sinn Féin, would open Ireland up to serious legal difficulties.

Government sources separately say such infringement proceedings could result in daily fines of €20,000, resulting in the taxpayer being lumped with a potential multi-million euro bill.

Read more: Shane Ross says householders should get water charges refunded

But Ms Whelan has also expressed reservations surrounding the Fine Gael-backed plan to introduce a charge for excessive usage, the Irish Independent has learned.

It's understood the Attorney General told the Government that water users may be able to "eliminate" usage that is deemed to be excessive, thus "contributions by households to cost recovery on a polluters pay basis would cease and no further incentive would exist to improve water efficiency".

Sources said she proposed the introduction of a regular review mechanism in the event of this proposal being adopted.

In her advice to the Government, Ms Whelan outlined her view on three separate scenarios.

The first would see a return to the water charge regime introduced by the previous government, prior to charges being scrapped.

This scenario would "clearly" be compliant with the requirements laid down by the EU Water Framework Directive.

Scenario two detailed the plan being proposed by Fianna Fáil and Sinn Féin - no return to charges.

Ms Whelan said such a move could open the State up to legal action. The last scenario detailed the proposal supported by Fine Gael, Labour and the Green Party for excessive usage.

It was also recommended by the Independent Expert Commission.

She concludes that "on balance", this scenario "likely satisfies" the requirements of the Water Directive.

Meanwhile, Fianna Fáil is to seek further legal advice in a bid to support its claim that the law in its present form already provides for penalising people who abuse water consumption.

Senior party figures took the decision today after being accused by Fine Gael of showing no regard for the need to address so-called excessive usage.

Fianna Fáil said its original legal advice stated that the 2007 Water Services Act already catered for such wastage. But this advice has not been published.

Fianna Fáil frontbench TDs Barry Cowen and Willie O'Dea said this would happen shortly.

Irish Independent

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