UK accused over EU drinking water law

Legal procedures for addressing quality standard failures too lax, says European Court advisor

The UK is not complying with a central requirement of the EU's 1980 directive on drinking water quality, a European Court of Justice advocate general (advisor) said today. The case, which was brought by the European Commission, will now go to a panel of judges for a final ruling.

Unusually for EU environmental law infringement proceedings, the case concerns neither alleged failure to implement the directive nor failure to achieve required quality standards. Both sides accept that the UK has implemented the directive, and that nevertheless not all quality standards are being achieved.

Instead, the Commission argues that the UK legal process applied where quality standards are breached does not impose strict enough demands on water companies to ensure conformity with the directive.

The legal process in question was created under the UK's 1991 Water Industry act. This gives the government powers to serve an "enforcement order" on any water company failing to meet a quality standard. A company served an enforcement order is required to deal with the problem and can face legal sanctions if it does not.

However, the law also sets out a system known as "undertakings," under which companies can respond to breaches in standards with a commitment to take measures to solve the problem. At the nub of the Commission's complaint is far wider use of the second option - in 1997, for example, 71 undertakings were made by companies while the government served just one enforcement order.

Companies giving undertakings under the law "are not obliged to achieve particular results, but only to undertake certain works," it says. They can ask for either more time or modifications to the technical specifications of works to be carried out. In sum, it says, the UK government is using undertakings as an alternative to enforcement orders and this is a cause of continued breaches of quality standards.

The UK hotly contests the Commission's interpretation. It argues that, since quality improvements are not achievable immediately, the only reasonable way forward is to ask water companies to put forward a plan on how they will deal with an observed problem. It also says that 99.75% of three million tests carried out in 1997 complied with the EU directive's standards.

Though siding with the Commission on the purely legal question, advocate general Jean Mischo does appear to sympathise with this view, describing the system of undertakings in his conclusion as "far from being ineffective in practice".

Follow Up:
European Court of Justice, tel: +352 43031. References: Case C-340/96; the full text is available on the European Court website (in French only).

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