Phase One: Preventing Regime Competition on Water Quality

Community legislation targeting the water sector started to appear in the 1970s, with specific directives on quality standards (Directive 75/440/EEC, Directive 79/869/EEC). Taking a more comprehensive approach, in 1980 the Council adopted Directive 80/778/EEC on the quality of water intended for human consumption, commonly known as the Drinking Water Directive (DWD). As their basis, the directives invoked Art. 2 of the Treaty establishing the European Economic Community (EEC Treaty), which outlined the Community’s central aims.Footnote ¹ These directives stated that the approximation of laws across member states was needed, as the differences in national legislation might create differences in the ‘conditions of competition and, as a result, directly affect the operation of the common market’ (Directive 80/778/EEC, Preamble). The directives aimed to tackle the disparities in quality standards across member states, which could have been exploited as unfair competitive advantage. Despite the directives’ semantic links to the common market project, they pointed in a decommodifying policy direction, as they took water quality out of regulatory competition.

The DWD was first updated in 1998, catching up with some of the new developments in the sector since 1980, including quality standards for bottled water. Nevertheless, some of the more ambitious quality goals, such as odour, taste, or colour, were dropped from the final text of the directive because of objections by water suppliers. For these reasons, the cost implications of the Water Framework Directive (WFD) were relatively modest and were spread out over a long timeframe (Hall et al., Reference Hall, Lanz, Lobina and de la Motte2004: 11–12).

Phase Two: Towards the Commodification of Public Water Services

By contrast to the DWD case discussed above, the implementation of the Urban Waste-Water Treatment Directive (91/271/EEC) entailed much higher costs, transforming the financing models of water investment and also strengthening the position of the private sector. The infrastructural developments needed to comply with the waste-water directive amounted to ‘arguably the largest common infrastructure project undertaken by the EU in its history’ (Hall and Lobina, Reference Hall and Lobina2007: 65). This strained the budgets of municipalities and national governments that were under pressure to fulfil the Maastricht deficit and debt targets in the run-up to the introduction of the Euro (see Chapter 7). Implementing the directive was also challenging financially in Central and Eastern European countries that joined the EU in the 2000s. Subsequently, a large share of European regional and cohesion funds was used to meet this challenge. Overall, the financing needs of waste-water investment combined with EU-wide austerity contributed to strengthening the role of water TNCs, especially in Central and Eastern Europe, including one of our country cases, Romania (Hall et al., Reference Hall, Lanz, Lobina and de la Motte2004: 13; Hall and Lobina, Reference Hall and Lobina2007: 66). Private companies usually undertook these projects in public–private partnership (PPP) and concessions arrangements (Ménard, Reference Ménard, Ménard and Ghertman2009).

EU-level legislation in water services obtained a much more explicit legal base with the Treaty of Maastricht in 1992. Art. 130s TEC (now Art. 192 TFEU) established the EU’s competence for setting environmental standards in the area, thereby enabling EU legislators to adopt EU laws concerning the management of water resources. Building on these new powers, in 2000 the EU adopted the WFD as the main and most comprehensive piece of European legislation in water services. The directive has the ambition to cover all relevant aspects of water management in Europe, the protection of drinking water being only one objective. Unlike the DWD or the Waste-Water Treatment Directive, the WFD contains few direct technical targets but operates at a more general level, setting guidelines and principles for a variety of connected stakeholders.

The WFD embodies the contradictions of the Europeanisation of the water sector. The preamble to the directive declares that water ‘is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such’ (Directive 2000/60/EC, Recital 1). The above decommodification principle stands in contradiction to the directive’s embrace of the idea that market mechanisms, in particular pricing, can be used effectively to achieve the goal of sustainable water management. The WFD is couched in market-based terminology, such as supply and demand, and requires member states to prepare economic analyses of water use in their areas.

A significant element of the directive is the cost recovery principle, which demands an adequate financial contribution from water users and polluters to cover the costs of the environmental protection of water. Art. 9 of the directive (titled Recovery of costs for water services) prescribes that ‘Member States shall ensure by 2010 that water-pricing policies provide adequate incentives for users to use water resources efficiently, and thereby contribute to the environmental objectives of this Directive’ (Directive 2000/60/EC, Art. 9). Art. 9 also includes a derogation from the adequate water-pricing principle on the basis of ‘established practices’ that allowed Ireland to continue financing water services from general taxation.

To sum up, our review of the relevant documents suggests that EU environmental legislation in the field of water management has assumed an increasingly commodifying character over time, even though this happened gradually and has not flipped the balance of policymaking, which is still dominated overall by ideas of regulating rather than expanding the market. Two mechanisms propelled the limited commodification of environmental rules.

First, private actors dominated the infrastructural investment projects needed to achieve the standards set out in the Waste-Water Treatment Directive. Second, the WFD introduced an overarching theme into water-related EU legislation that considers the market mechanism as an effective way of solving environmental problems. Even though this formulation is vague in the text of the directive, the Commission and the European Environment Agency recurrently interpreted the provision in their communications and reports in a commodifying way, for example by emphasising the responsibility of individual households to protect water resources by paying the market price for drinking water (Page and Kaika, Reference Page and Kaika2003: 339–340; Kirhensteine et al., Reference Kirhensteine, Clarke, Oosterhuis and Munk Sorensen2010; European Commission, 2012; European Environment Agency, 2013).

Phase Three: Frontal but Unsuccessful Attempts to Commodify Water

The shift towards more commodification in environmental legislation in the early 2000s was matched by the first direct attempts in European economic governance to liberalise water provision. Until in the 2000s, sector-specific liberalising directives did not target drinking water and sanitation services, although other network industries (such as electricity, gas, transport, and telecommunication) were made part of the EU internal market (see Chapters 7 and 8; Bieling and Deckwirth, Reference Bieling and Deckwirth2008: 242; Crespy, Reference Crespy2016: 43).

With the appointment of the neoliberal Dutchman Frits Bolkestein as Commissioner for Internal Market and Taxation in 1999, pro-commodification actors started to show more interest in the water sector. Bolkestein championed an outspoken, radical, and comprehensive agenda of service liberalisation, stating explicitly that such an agenda should include water. This view on water is documented not only in the Commissioner’s speeches but also in Commission-sponsored policy studies and a Commission communication (Bolkestein, Reference Bolkestein2002; Gordon-Walker and Marr, Reference Gordon-Walker and Marr2002; European Commission, 2003).

Bolkestein advocated the commodification of the water sector as ‘a practical instrument for establishing the correct relationship between price, quality and the standard of the service provided’ (Bolkestein, Reference Bolkestein2002: 6). Following up on this, the Commission’s Communication on Internal Market Strategy Priorities 2003–2006 stated that the Commission would launch a comprehensive review of the sector and consider ‘all options’, including legislative proposals in the area of competition law, while respecting neutrality of ownership and public service obligations (European Commission, 2003: 13–14).

Despite the radically pro-commodification attitude of the Commissioner and the ambitious tone in the reviewed policy documents, the text of the directive proposed by the Commission on the Services in the Internal Market eventually treated the water sector as an exception. The Commission’s proposal, published in March 2004, allowed for derogations for non-economic services of general interest (including water) from the country-of-origin principle, the most controversial part of the directive (see Chapter 7). The scope of the Services Directive in its final form (2006/123/EC) is even more restrictive, excluding not only ‘water distribution’ but also ‘water distribution and supply services and wastewater services’. EU legislators finally excluded water services from the final directive as a result of transnational protests in favour of people’s access to water as a human right – a claim that found support in the European Parliament and among central member state governments (Crespy, Reference Crespy2016). We discuss the development of vital countermovements in more detail in section 9.4.

Prescriptions on Users’ Access to Water Services

Cost-coverage mechanisms: Among the four countries under study here, Ireland received the most detailed and explicit NEG prescriptions to commodify its water sector through the introduction of household water charges. The primary goal of the charges was to make user access conditional upon payment; therefore, these prescriptions fall under the category of access to services in general and cost-coverage mechanisms in particular. The establishment of a commercial relationship between service providers and users had links to the categories of resources for providers and provider-level governance. The original MoU of 2010 and its updates until 2013 repeated two general goals for Irish governments to follow: the transfer of responsibilities from local authorities to a national water utility (later to be named Irish Water; now Uisce Éireann) and the introduction of water charges.Footnote ³ The introduction of water charges is a clear example of how the NEG regime interpreted environmental principles in a commodifying way and how it used fiscal policy tools to promote marketising structural reforms.

The MoU signed in December 2010 committed the Irish government ‘to move towards full cost-recovery in the provision of water services’ (MoU, Ireland, 16 December 2010: Memorandum of Economic and Financial Policies, 8, paragraph 24), despite Ireland having received a derogation from the cost recovery principle in the EU WFD in 2000 to protect its system of financing water provision for domestic users from general taxation. The introduction of water charges in the bailout programme would have put an end to this derogation recognised in EU law.

The sixth update of the MoU committed the Irish authorities to ‘consider and provide an update on the general government debt and deficit treatment implications of establishment of Irish Water’ (MoU, Ireland, 6th update, 13 September 2012). The seventh and eighth updates demanded that, over time, the Irish government’s budget plans should ‘be based on Irish Water becoming substantially self-funded’ (MoU, Ireland, 7th update, 25 January 2013; 8th update, 12 April 2013).

The discussion of water charges in the context of cost recovery and government deficit would suggest that the main purpose of the introduction of the charges was related to the curtailment of public spending. Given the small share of the sector in government spending however, revenues expected from the introduction of domestic water charges would have provided only a small contribution to fiscal adjustment (European Commission, 2014c: 30). The primary goal of charging for water was therefore not to ensure the environmental protection of water, and not even to balance budgets, but to marketise access to water and introduce the cash nexus into the relationship between users and providers.

Updates to Ireland’s MoUs between 2011 and 2013 prescribed ever more detailed measures towards the introduction of water charges, including the collection of precise data on the progress of water meter installation. The ninth and tenth updates of the 2013 MoUs contain numerical annexes on ‘the quantum of pre-installation surveys completed, and water meters installed by geographical area’ (MoU, Ireland, 9th update, 3 June 2013; MoU, Ireland, 10th update, 11 September 2013). Nevertheless, the Troika left Ireland before the introduction of water charges and even before the installation of water meters had finished. The introduction of water charges triggered a long wave of social-movement and union protests in Ireland in 2014 and 2015, including a water bill boycott campaign supported by large sections of the Irish population, which eventually forced the government to suspend the charging system in 2016 (Hilliard, Reference Hilliard2018; Bieler, Reference Bieler2021; Moore, Reference Moore2023). After 2013, the EU’s NEG prescriptions no longer mentioned water charges, even though the Commission’s Country Reports continued to monitor Irish governments’ attempts to introduce them. By contrast, EU executives issued no prescriptions to Germany, Italy, and Romania on user access, as their water systems were already financed mainly by user charges and tariffs (Armeni, Reference Armeni2008; ver.di, 2010).

Coverage levels: Only Romania received a decommodifying prescription in the access to services category, pertaining to coverage levels. In 2016, Romania received an NEG prescription that urged the Romanian government to improve people’s access to integrated public services in disadvantaged rural areas where water and waste-water services are often simply lacking (Council Recommendation Romania 2016/C 299/18).Footnote ⁴ If one assesses this prescription in its semantic context, it appears to have been motivated by genuine concerns about social inclusion, but, compared with NEG’s countervailing commodifying prescriptions, this social prescription was much less specific. Neither the NEG prescription nor the corresponding Country Report (Commission, Country Report Romania SWD (2016) 91) outlined how such an extension of people’s access to public services could be financed. The prescription was also merely aspirational given its weak enforcement power, by contrast to those related to MoU-, excessive deficit-, or excessive macroeconomic imbalance procedures.

Prescriptions on the Provision of Water Services

Provider-level governance mechanisms: Marketising structural reforms formulated within the NEG framework did not only aim to set up new market-conforming rules for users’ access to water services. They also intervened in the ownership and internal operation structure of the public entities that provide these services. Here, we see a break with the methods of the ordinary legislative procedures that formally respected the neutrality of ownership principle laid out in Art. 345 TFEU (Golden, Szabó, and Erne, Reference Golden, Szabó and Erne2021). Breaking with this tradition, NEG prescriptions explicitly declared that governments should copy the more efficient private sector as the operating model for the water sector, even though they stopped short of calling for direct privatisation.

In Ireland, local governments provided water services until 2013, when, as part of MoU conditionality, a new law transferred water services to the newly incorporated national utility firm, Irish Water (Hilliard, Reference Hilliard2018). Although water charges were abolished in 2017 after sustained mass protest, the corporate model of service provision remained intact, with important commodifying implications for water workers who were going to lose local government employee status and the protections laid down in public sector collective agreements. To fend off this threat, in 2022, Irish unions secured an agreement at the Irish Workplace Relations Commission, whereby Irish Water and local authorities pledged that there would be no compulsory transfer of staff from local authorities to Irish Water (ICTU, 2022). This agreement, however, does not stop Irish Water from hiring new staff members on worse terms and conditions.

In Italy, NEG prescriptions outlined how the government should transform the operation of state-owned enterprises. In this area, the two most frequently repeated goals were the reform of publicly owned enterprises, on the one hand, and efficiency improvements, on the other, fitting the general principles of new public management (Kahancová and Szabó, Reference Kahancová and Szabó2015).

Sector-level governance mechanisms: Within the broader issues of sector-level governance, the introduction of market relations between providers dominated the prescriptions issued to Germany and Italy. The two countries received similar NEG prescriptions about improving market access and promoting competition between service providers. The prescriptions condemned the allegedly high share of in-house awards for the delivery of public services and promoted the opening up of these contracts to procurement procedures and concessions. Another NEG prescription, issued to Germany in 2013, called for an increase in the value of public contracts open to procurement (Council Recommendation Germany 2013/C 217/09). Although the content was similar, the tone of the 2014 prescription was less sharp, as it demanded only that the German government should ‘identify the reasons behind the low value of public contracts open to procurement under EU legislation’ (Council Recommendation Germany 2014/C 247/05). Germany continued to receive recommendations to enhance competition between 2014 and 2017 but with a specific focus on the railway sector (see Chapter 8) and, later, professional and business services. German local public services received one more commodifying prescription in 2017, when the CSRs identified planning constraints as a hindrance to investment.

The Italian case provides the most consistent example of how the NEG regime advanced commodification of the water sector through marketising reforms. Unlike in the German and the Irish CSRs, the commodifying prescriptions in the Italian CSRs were not counterbalanced by decommodifying prescriptions, and they formed a coherent theme even after the alleged social turn of the European Semester in 2014 (Zeitlin and Vanhercke, Reference Zeitlin and Vanhercke2018). Calls to open up local public services and network industries to competition appeared first in the Italian CSRs in 2012, prescribing the adoption of specific laws to achieve this goal. In particular, the 2013 Country Report for Italy picked water services as a negative example where no progress had been made in the promotion of competitiveness and efficiency, whereas it welcomed the separation of the operator from the network manager in the gas sector (Commission, Country Report Italy SWD (2013) 362). The Commission’s criticism came after Italian citizens voted in June 2011 by a more than 95 per cent majority to repeal the law that allowed the private sector to manage local public services. Incidentally, the centre-right Berlusconi government tried to invalidate this abrogative referendum in favour of public water services by calling on citizens to boycott it, but the Italian social movements and trade unions that had launched the referendum nevertheless succeeded, as it exceeded the 50 per cent participation quorum laid down in Italian law (Bieler, Reference Bieler2015). The abrogation of the law by referendum, however, did not prevent both centre-right and centre-left governments from reintroducing similar laws at national and regional level afterwards (Di Giulio and Galanti, Reference Di Giulio and Galanti2015; Erne and Blaser, Reference Erne and Blaser2018).

Resources for public water services: The decommodifying prescriptions issued for Germany, Ireland, and Romania focused on resources for providers. By contrast, Italy did not get any decommodifying prescriptions on water services. After 2015, Germany received prescriptions that tasked its government to increase investment in public infrastructure, particularly at local level. The emphasis on municipalities is crucial from the perspective of the water sector, as in Germany the provision of water services is the responsibility of municipalities, and at the same time municipalities were under severe fiscal pressure from the German debt brake (Schuldenbremse) and EU deficit rules (Bajohr, Reference Bajohr2015).

Investment in water also featured in NEG prescription issued to Ireland. Four of them directly and specifically dealt with the water sector between 2016 and 2019, tasking the Irish government to invest more in water services. Investment in water was never a stand-alone item but rather part of a broader productive, public infrastructure agenda. We labelled these prescriptions as decommodifying as seen in Table 9.2. Although the direction of NEG prescriptions on the resources for water was decommodifying, we must qualify this assessment on two counts.

First, the corresponding Irish NEG prescriptions from 2016 and 2017 used the term ‘prioritise government expenditure’ in the water sector, implying that additional public investment in the water sector must be counterbalanced by cutbacks in other areas (Council Recommendations Ireland 2016/C 299/16 and 2017/C 261/07). The same holds true in the Romanian case, where the 2016 NEG prescription on infrastructure projects in the waste-water sector called for a ‘prioritisation’ of investment in them (Council Recommendation Romania 2018/C 320/22).

Second, EU executives linked the need for increased investment to water charges as a potential source of extra funding (Commission, Country Report Ireland SWD (2016) 77: 62). The Commission’s Country Report also justified the need for more resources to compensate for the preceding ‘seven years of sharply reduced government investment’ that ‘have taken a toll on the quality and adequacy of infrastructure’ (Commission, Country Report Ireland SWD (2016) 77: 4 and 61). The report, however, is oblivious of the reasons why there was underinvestment in the first place. It did not mention that the MoUs’ cost-cutting recommendations had played their part in underinvestment.

Pursuing the Commodification of the Water Sector through NEG Prescriptions

To summarise the findings of our analysis of NEG prescriptions: we uncovered a transnational agenda of commodification in the water sector in Germany, Ireland, and Italy. We explained the absence of commodifying prescriptions for Romania by the fact that its government had already achieved the commodification of its lucrative urban water services in the run-up to EU accession. In the other three countries, NEG prescriptions continued the commodifying agenda that had its roots in the Commission’s legislative agenda preceding NEG, starting with the commodification turn of EU environmental laws and Commissioner Bolkestein’s attempts at water services liberalisation in the early 2000s. EU executives linked the introduction of water charges in Ireland explicitly to the WFD’s cost recovery principle, even though Ireland had secured an opt-out from it in EU law. NEG prescriptions targeted the Irish system of financing public water provision from general taxation, which the European Commission (2003: 14) had already denounced in 2003. EU executives also formulated the NEG prescriptions for Germany and Italy to open up local public water services to external competition in the spirit of Commissioner Bolkestein’s draft Services Directive (COM (2004) 2 final/3). The European Commission and the Council of finance ministers could do that, as the shift to the NEG regime empowered them to pursue an agenda that had been rejected by the European Parliament when it comprehensively excluded the water sector from the final Services Directive (2006/123/EC). Our analysis also revealed that commodifying prescriptions exclusively targeted qualitative characteristics of water governance through marketising structural reforms. By contrast, there were no water sector-related prescriptions that tasked member states to curtail the resources for them. We must, however, reiterate here that water services had also been affected by the prescriptions that tasked governments to cut public spending in general (see Chapter 7).

Concretely, all qualitative NEG prescriptions that targeted water services governance mechanisms, namely, those on cost-coverage mechanisms and provider-level and sector-level governance, pointed in a commodifying policy direction across all years and all countries. This means that they were informed by an overarching policy script of commodification. We also observed a few decommodifying prescriptions that called for quantitative changes, namely, more public resources for the German, Irish, and Romanian water sectors and an expansion of service coverage levels in Romania. These decommodifying prescriptions, however, were not only scarce and weaker in terms of their coercive power but also informed by a reasoning that did not contradict the overarching commodifying policy script of NEG, with one exception. All qualitative NEG prescriptions on the governance mechanisms for water services followed a common logic of commodification across countries and time, with the exception of Romania, which, as explained, had already privatised the lucrative water services in its urban areas in the run-up to its EU accession. Hence, NEG’s overarching commodification script extended to all country cases, regardless of their location in the EU’s political economy. At the same time, the coercive power of the corresponding NEG prescriptions still differed across them, ranging from very significant in the Irish case during the MoU period, to significant in the Italian case in the face of excessive economic imbalances, to weak in the German case, mirroring their different locations in the NEG enforcement regime at a given time.

Whereas all commodifying NEG prescriptions served the same overarching policy agenda, the decommodifying prescriptions received by Ireland, Germany, and Romania were semantically linked to other aims, namely, boosting competitiveness and growth, rebalancing the EU economy, social inclusion, or transition to a green economy. In the Irish case, EU executives linked several decommodifying prescriptions for more investments in the ailing water sector to investment prioritisation to boost competitiveness and growth. Hence, the aims that informed these prescriptions were compatible with further austerity in other areas that were not deemed as so critical to achieving this objective. The aim of boosting competitiveness and growth through more investments in water services also played a key role in Germany. By contrast to Ireland however, the investment turn in German NEG prescriptions was unqualified, as it extended to the entire public sector and to all levels of government. This echoes the presence of another objective in the German case, namely, NEG’s rebalancing of the European economy agenda. As increased public investments would boost domestic demand in Germany, they would also contribute to a reduction of the trade imbalance between Germany and other countries located in more peripheral positions of the EU economy (see Chapters 6 and 7). At the same time, EU executives continued to issue commodifying prescriptions that urged the German government to reform the mechanisms governing the water sector in a market-conforming way. In turn, the German government added a greater involvement of private capital and know-how in municipal infrastructure projects as a priority in its 2017 national reform programme (Bundesministerium für Wirtschaft und Energie, 2017: 17). Hence, the decommodification prescriptions that aimed to boost competitiveness and growth and/or to rebalance the EU economy did not go against NEG’s overarching commodification script (Chapter 11).

Romania and Ireland also received decommodifying prescriptions, which did not contradict NEG’s overarching commodification script. In 2018 and 2019, the Irish prescriptions on the prioritisation of public investment mentioned the role of ‘improved infrastructure’ as a ‘critical enabler’ for the ‘enhancement of private investment and productivity growth’ and not just for ‘balanced regional economic development’ and Ireland’s ‘transition towards a low-carbon and environmentally resilient economy’ (Council Recommendation Ireland 2018/C 320/07: Recital 12). The policy rationale of enhanced social inclusion, which clearly goes against NEG’s overarching commodification script, guided NEG water prescriptions only once, namely, in the case of the 2016 prescription that tasked the Romanian government to extend basic infrastructure ‘in particular in rural areas’ (Council Recommendation Romania 2016/C 299/18) to reduce Romania’s key development disparities ‘between urban and rural areas’ (2016: Recital 17). When EU executives repeated this 2016 prescription in 2018 however, they stressed the benefits of quality infrastructure for economic growth rather than social inclusion (Council Recommendation Romania 2018/C 320/22: Recital 19), even though large parts of Romania’s rural population still had no access to safe drinking water, by contrast to all EU countries and even many developing countries (see footnote 4). If we consider the scarcity and the weak coercive power of the prescriptions that were at least partially informed by social concerns, we can hardly speak about a social turn of the NEG regime (Zeitlin and Vanhercke, Reference Zeitlin and Vanhercke2018). Likewise, the equivocal semantic links between the weak 2018 and 2019 prescriptions on the prioritisation of public investment in water services for Ireland and the transition to a green economy hardly warrant speaking about an ecological shift in the NEG regime either. Whereas these semantic links prefigured the growing importance of a green agenda in the post-Covid NEG regime (Chapter 12), our preceding analysis of the market terminology in the WFD indicates that the growing salience of green concerns does not necessarily lead to a policy shift in a decommodifying direction.

EU Governance of Water Services by Law after the Shift to NEG

EU executives pursued a water services commodification agenda already before 2009, but their NEG prescriptions went further, as the scope of NEG interventions was much more ambitious. NEG prescriptions in the water sector targeted areas that were considered taboo during earlier phases of EU integration, such as directly prescribing a change in the legal status or operating principles of public services. We should add, however, that the interaction between ordinary legislative procedures and NEG went in both directions. NEG has not replaced the traditional sources of EU authority. The EU’s ordinary legislative processes run parallel with NEG mechanisms, including in the water sector. There have been four prominent cases of intervention or intervention attempts by ordinary EU laws in the water sector since the shift to NEG after the financial crisis: namely, the Concessions Directive (2014/23/EU), the revised Procurement Directives (2014/24/EU, 2014/25/EU), and the recast of the Drinking Water Directive (2020/2184).

A concession is a long-term contractual relationship between a contractor and a service provider, a step beyond the short-term (one-off) and unidirectional relationship of procurement. As the contractor is typically a public body and the provider is a private firm in these relationships, the legal form of the concession is closely linked with the increased use of PPPs (Porcher and Saussier, Reference Porcher and Saussier2018). In 2011, the Commission proposed a stand-alone directive on concessions, which would have facilitated the use of the concession model in water services across the EU. The Concessions Directive would have benefitted French water TNCs, as concessions law was the legal framework that contributed to their successful long-term operation in France (Guérin-Schneider, Breuil, and Lupton, Reference Guérin-Schneider, Breuil, Lupton and Schneier-Madanes2014). The spread of the concession model to other parts of the EU would have vested these companies with a competitive advantage over other service providers that were used to a different legal regime. In reaction to the success of the Right2Water ECI, however, the Commission excluded water from the final scope of the directive (see section 9.4). The parallel development of the NEG regime and policymaking by ordinary EU laws is also shown by the fact that Germany received NEG prescriptions to increase the value of contracts open to public procurement in 2013 and 2014, that is, the same years when EU legislators revised the Procurement and Concessions Directives.

Whereas the draft Concessions Directive attempted to commodify water services through ordinary EU laws, the recasting of the Procurement Directives and the DWD also included potentially decommodifying policy features. The legislative procedure for the Concession Directive ran in parallel with the recasting of the Procurement Directives. Pressure from unions and social movements, including the European Federation of Public Service Unions (EPSU), forced the inclusion in the Procurement Directives of stipulations about social and environmental clauses in procurement calls (see Chapter 7; Fischbach-Pyttel, Reference Fischbach-Pyttel2017). Likewise, the recast DWD dealt with a social question in detail, namely, that of people’s access to drinking water. Art. 16 of the directive advances the decommodification of water by obliging member states to improve or maintain access to safe drinking water for all, with a focus on the most vulnerable social groups. The non-binding Pillar of Social Rights adopted by all EU institutions in 2017 included water as an essential service with access rights for everybody, but the new DWD gave a more tangible expression to this principle (EPSU, 2021).

Both the exemption of water from the Concessions Directive and the inclusion of water access rights in the DWD were prompted by the pressure that social movements exerted on EU policymakers, namely, through the Right2Water ECI coordinated by EPSU. The transnational countermovements fighting for the right to water at European level, however, started much earlier. They are the subject of section 9.4.