Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

Yes, absolutely. It read: "On the basis of the information reported to the Commission, Ireland has not made use of Article 9(4)" in its first river basin management plan, as we know. It went on to state that should Ireland wish to rely on the provisions of Article 9.4 in its second river basin management plan, a justification would need to be provided in that plan, including drafts, in order that the public could effectively comment thereon. Like all member states, if Ireland invokes Article 9.4, the Commission "shall carefully consider whether the conditions of this flexibility provision are met at that stage". Let us fast-forward to 2016, bearing in mind that this had been the position of the Commission in all correspondence with MEPs who had asked the question between 2014 and 2016. In 2016 the Commission started to insert a new argument. In a reply to Ms Marian Harkin, MEP, it stated, as the representatives present have outlined, that if Ireland did not invoke Article 9.4 in its first river basin management plan, it could not do so in the second. These were three Commission responses, in the first two of which it was very clear that established practice was whatever it was when the water framework directive was enacted and that member states could apply to invoke the provisions of Article 9.4, although there was no guarantee that its request would be granted because it would have to be assessed in the context of the second river basin management plan. Why did the Commission change its position in 2016 from that adopted between 2010 to 2014, as outlined in the documents referenced?

I will pose my other two questions now to save time. The second issue concerns the new position of the Commission. It does not involve invoking established practice but talks about a "clear commitment" to introduce water charges in the river basin management plan of 2009. I am interested in knowing, from a legal point of view, whether established practice is the same as a "clear commitment" to introduce water charges. Clearly, if this matter ends up in the European Court of Justice, that will be a relevant question and the answer to it will be one this committee will need to assess.

My third question relates to the other part of Article 9.4 which refers to the objectives of Article 1 of the directive. The directive is really about these core objectives. That is part of the point Mr. Bradley was making. If a member state, in its river basin management plan and its accompanying investment plan for water infrastructure, is demonstrating that it is meeting the objectives set out in Article 1 of the directive, how could it be in breach of the directive and how could enforcement proceedings be taken against it? That is why the German case is so important. If I understood the ruling of the European Court of Justice correctly, it stated that, notwithstanding the fact that there was not full-cost recovery or adherence to the polluter pays principle in that particular water use case, because there was no evidence that the non-charging for water use was having any negative impact in achieving the objectives of Article 1, there was no case to be heard. As Mr. Bradley said, that decision has been upheld in subsequent judgments. I would like to hear the views of the delegates in that regard.

There are two jurisdictions that do not have in place the type of domestic funding regime the Commission clearly prefers, one of which is Scotland. Representatives from that country outlined their rationale to the committee. As we know, the other jurisdiction is Northern Ireland. Are there infringement proceedings pending against either of these jurisdictions for not having the cost-recovery and polluter pays model that the delegates have outlined? Does the Commission have any intention of bringing proceedings against them? If not, how can it state they can do it but Ireland cannot?