Mr. Matthias Kelly:

The purpose of the water directive can be seen in the recital to it. It begins, "Water is not a commercial product like any other", and goes on to refer to "diverse conditions". It continues:

This Directive aims at maintaining and improving the aquatic environment in the Community. This purpose is primarily concerned with the quality of the waters concerned ... The ultimate aim of this Directive is to achieve the elimination of priority hazardous substances and contribute to achieving concentrations in the marine environment near background values for naturally occurring substances.

The directive recognises that member states can and should look at diverse national considerations. When the derogation in Article 9.4 of the directive was introduced, it was known colloquially as the "Irish derogation". It was introduced specifically to meet conditions in Ireland where water had not historically been charged for in this way. When the Commission first proposed the derogation, it also proposed full cost recovery, but that was dropped during the conciliation process. That was recognised in the German case as significant. It is. It is not about cost recovery. The purpose of the directive is to improve the quality of water and deliver high quality water services. It is not about cost recovery. It is up to Ireland or any other country to demonstrate that it has an established practice to which large numbers of people are continuing to adhere. That should be relatively easy in the case of Ireland because it has had this established practice. In my view as a lawyer, a country does not cease to have an established practice. Despite some of the comments made, I am not a member of any political party here or anywhere else. I gave independent legal advice. The established practice in a country will remain in place until it can successfully put something else in place. Under the Irish system, it is subsidised from general taxation. That is how it is seen from the point of view of the public. People are not reaching into their pockets to pay for water. If that is to be changed, something else has to be put in place, but nothing else has successfully been put in place. That is why it is quite clear that the use of the derogation continues to be available to Ireland.

As I set out in the note I was asked to prepare for the committee, an unsuccessful attempt to change an established practice means the practice in question has not been changed. By definition and as a matter of logic, it continues. While it is true that the Commission may do A, B, C and D, we live in a system of democracy governed by the rule of law. The Commission does not have its way. If, for example, the Commission says "no" and means "no", we have a legal system to test this under which certain procedures must be gone through. I know from my experience of litigating before the court that it does not always agree - far from it - with the Commission. The Commission regularly loses cases before the court. The mere fact that the Commission is taking a particular view should not influence this committee to believe this view will prevail - far from it - because it is a long process. The Commission has to come back, set out its position fully, notify Ireland of it, hear what Ireland has to say, take account of it and be satisfied that it impedes or compromises the purpose of the directive. The Commission will have an uphill task on the latter consideration alone. It is going to be rather difficult. It would then have to satisfy the court that Ireland was in breach of the directive. As I said, this needs to be considered in the context of basic principles and established practice. As a lawyer, I would find it very difficult to understand how it could be said the established practice was not still in operation, given what had happened. It is still in operation in Ireland.