Since the beginning of the disclosure of the government’s intention to privatize water services, throughout the changes in leadership in EYDAP and TAIPED until a few days ago, a struggle with the use of law and logic was given against the enclosure and grabbing of the collective good of water. After almost three years, the citizens who signed the European Citizens ‘Initiative, these who were informed and passed this information to others, all those who formed a proper and documented opinion about the risks of privatization through our arthrography, argumentation and campaign, the citizens’ movements in Thessaloniki and the county, we can all, without exceptions, feel proud of the first major victory which was won by the citizens united.
Watching closely during all this time the legal proceedings of the case of the residents and associations recourse to the Council of State and thinking how could we help in this effort, we never stopped all this time to contribute voluntarily, yet with professionalism, in this “unequal” race of informing people and creating alliances in Greece and abroad, with the help of alternative media, newspapers, radio and media abroad. This campaign in favor of rationality and documented reasoning, qualities that are both missing from the public dialogue, was successful in shaping a trend against privatization formed by the beliefs of the majority of the Greek people as expressed not only in polls but also by the overwhelming 98% “NO to EYATH privatization” of the referendum of Thessaloniki. We believe that this trend is reflected in the decision of the State Council at its highest level, which is its plenary session.
The protection of our water from further commercialization and privatization is now a fact and these policies, that would be almost irreversible and turn us further away from our vision for democratic and rational management on a non-for-profit basis of our most valuable of the commons, our water, were averted. The decision of the Council of State for EYDAP is both historic and bold. However, no court decision, even with these characteristics, cannot stand politically strong if it does not express the public’s “sense of justice” and does not take into account the majority of citizens and their will, towards which their institutional representatives (mps and governments) are sometimes deaf.
We are very happy about this decision and let us hope that this “coinciding”concept of the public interest, between the citizens and the one in need to be defended by the institution of Justice, will extend beyond the water to other sectors affected by the regimes of “emergency” so as not to abandon the ideal of the Rule of Law.
Herebelow you can find a summary of the decision of the Council of State and the link where the entire decision is published .
COMMENTARY ON THE DECISION of the Council of State 1906/2014 for EYDAP
INTRODUCTION
Recently published by the State Council, the historic decision No. 1906 of 2014 holds a key content on the water management fate and more than that: It is the first time that the Council of State at its highest level (due to the importance of the issue), at the plenary session, ruled by a qualified majority as unconstitutional a privatization procedure of TAIPED, leaving the way open for other appeals as well.
Actually, this is the first victory of the citizens initiatives against the intentions of the commitments arising from the memorandum deals. The citizens won. The myth that people cannot resist against the Troika’s demands has collapsed.
The key legal considerations of the State Council were based on the following:
1. The alienation of the Greek Public Sector from the majority of the share capital of EYDAP which ensures:
• property rights and
• the possibility of electing the Management Board from the General Meeting of shareholders. The importance is that the Management Board is the supreme governing body of the company which shapes its strategical and political development and manages its assets.
In particular, the ground of the decision is that the convert of EYDAP into a private company conflicts, not only formally but also essentially, with Article 5 paragraph 5, which guarantees the right to health and Article 21 paragraph 3 of the Constitution which stipulates that the State shall ensure the citizens health. Also, the conversion of a public company into a private, operating with profit interest, makes uncertain the continuity of affordable, and in particular of high quality services which are not fully guaranteed by the governmental supervision. These services consist of water and sanitation which are necessary for the healthy living conditions, especially with regard to the provision of water, a natural resource necessary for survival that becomes rarer as time passes. Any uncertainty as to the continuation of the provision of affordable welfare services with this necessity degree is not forgiven by the article 5 of the Greek Constitution.
2.The monopolistic nature of water services, a fact also reported in the explanatory report of the Law 3985/2011. According to the State Council , the EYDAP services are provided in a monopoly mode by networks that are unique to the area and belong to the fixed assets of the company. These services are provided to a large population, living under poor housing conditions in the confined space of Attica.
3. Additionally, the State Council has also based its thoughts on the contract signed between the State and EYDAP in December 1999, which is valid for 20 years, with an extension possibility. This contract referred to in the Explanatory Memorandum of Law 3985/2011 (page 25 or 37 of the pdf, in Chapter 2, subsection 1.1.4 of the Explanatory Memorandum), that on top of EYDAP’s exclusive right to provide water services and drainage in the wider area of Attica, it is clearly stated that this right is not transferable.
4. The part of the annulment application which was finally accepted by the State Council, regards the unconstitutionality of the decision of the Interministerial Committee for Restructuring and Privatization (ICARP) No. 206/25.4.2012 (B 1363/26.4.2012) with which they are transferred without consideration of the Greek State in HRADF S.A., without even the ability to transfer them back to the previous owner or beneficiary, meaning the Greek government (in accordance with Article 2 § 7 of Law 3986/2011): 36,245,240 shares of “Company of Water Supply and Drainage Company (EYDAP) SA”, corresponding to 34.033% of the share capital Moreover, these transfers (the original of 2011 and subsequently the one which was canceled in 2012) occurred without the simultaneous foundation of a “water regulatory authority” and separation of the network “from the service to be transferred”
• According to the “Privatization Program 2011 – 2015” and
• the presentation of the Explanatory Memorandum of Law 3985/2011, and
• without being lifted the provided restriction in Article 1 § 10 of Law 2744/1999 on the proportion of EYDAP SA shares that could be allocated to private investors (Up to 49% of the share capital). (This restriction was lifted later, with Article 1 § 2 of the ratified by Law 4092/2012 (A 220/8.11.2012) from 7.9.2012 Content Legislative Act of the President (Government Gazette A 175/7.9 .2012), which established that: “Paragraph 10 of Article 1 of Law 2744/1999 (A 222) is repealed. Transfers EYDAP shares to” TAIPED “is valid even if incurred before the commencement of this Act”).
5. Other important elements of the decision regard the legitimate interest of applicants and EYDAP’s current legislative framework.
