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Court of Appeal reverse High Court decision in case of Right to Know CLG v Commissioner for Environmental Information and Raheenleagh Power DAC – [2022] IECA 210

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In our previous article (found here), we considered the High Court's decision (overturning the Commissioner for Environmental Information) that Raheenleagh Power DAC (“RPD”) came within the definition of "public authority" in article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007 ("the AIE Regulations"). The AIE Regulations transpose Directive 2003/4/EC ("the Directive") on public access to environmental information into Irish law.
 

The High Court decision was appealed to Court of Appeal ("the Court"), which recently overturned the High Court, finding that RPD failed to satisfy the test for a public authority that was subject to information disclosures in respect of public access to environmental information as contained in the Directive.

Grounds of Appeal:

The appeal raised five issues for determining whether RPD was a public authority within the meaning of Article 2(2) of the Directive:

(a) Was RPD entrusted with the provision of services of public interest?
(b) Did RPD enjoy special powers?
(c) Was RPD controlled by a public authority?
(d) When is the question of control to be assessed?
(e) Depending on the court’s conclusions on these issues, whether
     (i) it should remit any part of the case back to the commissioner for determination or
     (ii) refer any questions of law to the Court of Justice of the European Union. 

Reliance on NAMA and FISH Legal decisions:

The Court (Costello J) relied upon the previous decisions of NAMA[1] and Fish Legal in which it was emphasised that the concepts of “public administrative functions” and “control” under Article 2(2) of the Directive must be given autonomous and uniform interpretation. It was said that in adopting the Directive, the EU intended to ensure that its laws were consistent with the Aarhus Convention and as such, the Court was bound by that interpretation.

Article 2(2) of the Directive establishes three categories of public authority to which the Directive applies, as follows:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under the national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Category (a) was not in question in this case. However, the Court considered categories (b) and (c) as follows. In Fish Legal[2] the CJEU held at paragraph 52 that “only entities which, by virtue of a legal basis specifically defined in the national legislation which is applicable to them, are empowered to perform public administrative functions are capable of falling within” category (b). As such, the entity must be empowered to perform public administrative functions and the source of that power must be legislative and determined by national law.

Further, the CJEU held at para. 68 that  "Those factors lead to the adoption of an interpretation of ‘control’, within the meaning of Article 2(2)(c) of Directive 2003/4, under which this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field". The Court laid emphasis on the genuine autonomous nature of the functions of the entity and the nature of the actual "control" that was exerted.

Findings:

The Court held that RPD was vested with special powers within the meaning of para. 52 of Fish Legal on foot of its licence to generate electricity (such as being able to cut trees, shrubs, hedges, lay electric lines, create wayleaves, and so on, on private land) beyond those which result from the normal rules applicable in relations between persons governed by private law. The Court upheld the High Court's decision and reasoning in respect of this and said that the trial judge had correctly summarised the position. However,  the Court found that this was not sufficient to bring it within the scope of category (b). RPD did not acquire public responsibilities or functions or provide the public services of a public authority within the meaning of category (b), simply by reason of being the holder of a licence to generate electricity.

Furthermore, the Court held that RPD was not under the control of a State body within the meaning of categories (b) or (c). There was insufficient evidence before the High Court to determine that RPD did not act in a genuinely autonomous manner. Ms Justice Costello said that the control test required evidence that a public authority has had an actual impact on the entity’s decision-making and the control test could not be satisfied by a mere potential for influence. said the Court found that the trial judge had erred in its judgment by having adopted a form rather than a substance based test; the appropriate test being functional in nature. RPD was therefore held not to be a public authority within the meaning of category (c).

Outcome:

For these reasons, the appeal was allowed and accordingly RPD is not required to provide RTK with the information sought.

The Court did not consider it necessary to remit any part of the case back to the commissioner for determination or to refer any question of law to the Court of Justice of the European Union. The matter is to be listed for a short hearing in October 2022 on the issue of costs.  

Written by Zoe Richardson, Jonathan Moore and Alice Normoyle. 

[1] The National Asset Management Agency (NAMA) v. The Commissioner for Environmental Information [2015] 4 IR 626
[2] Case C-279/12, Fish Legal and Shirley v. Information Commissioner

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