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Court of Appeal decision on access to information and the meaning of a public authority under the AIE Directive

On 21 September 2022, the Court of Appeal (COA) delivered judgment in Right to Know CLG -v- Commissioner for Environmental Information [2022] IECA 210, overturning an earlier decision of the High Court. The COA held that Raheenleagh Power DAC ("RPD") was not a public authority within the meaning of Directive 2003/4/EC on public access to environmental information (the AIE Directive) and the European Communities (Access to Information on the Environment) Regulations 2007 as amended (the AIE Regulations).

Background and High Court decision

In a judgment delivered on 25 January 2021, the High Court held that RPD, which jointly operates a wind farm in Wicklow with the ESB, was a public authority for the purposes of the AIE Directive. Therefore it was required to disclose requested information in relation to noise monitoring carried out for that wind farm. Our previous article on the High Court judgment can be accessed here. RPD appealed the decision to the Court of Appeal.

Court of Appeal decision

Ms Justice Costello, giving judgment for the COA (with which Mr Justice Noonan and Ms Justice Faherty agreed), before considering the issues in detail set out the context and purpose of the AIE Directive noting that "the public has a right to information about the environment held by public authorities within the meaning of the Article 2(2)".

The judgment also sets out the Article 2(2) definition of public authority in full. Article 2(2) states that a public authority means:

(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

(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).

COA consideration of the Fish Legal decision of the Court of Justice of the European Union

Further, the COA considered the Fish Legal decision of the Court of Justice of the European Union (the CJEU) which established a dual test for determining whether an entity comes within Article 2(2)(b) of the AIE Directive (or is a "category (b) type" public authority as stated by the COA). The COA summarised the dual test in the following terms:

  • "The entity must be entrusted with the performance of services of public interest, inter alia, in the environmental field under the applicable legal regime and,
  • For the purpose of performing those public services, the entity must be vested with special powers: that is, powers beyond those which result from the normal rules applicable in relations between persons governed by private law."

With regard to Article 2(2)(c) of the AIE Directive i.e. 'control', the COA summarised the CJEU decision and stated that:

"the crucial test is whether or not the entity acts in a genuinely autonomous manner when performing functions vested in it in the environmental field and whether a public authority within the meaning of Article 2(2) (a) or (b) is in a position to exert decisive influence upon its action in the environmental field."

Issues for determination by the COA

The COA noted that it was submitted that the appeal raised five issues for determining whether RPD was a public authority within the meaning of Article 2(2) of the AIE Directive as follows:

1. Was RPD entrusted with the provision of services of public interest?

2. Did RPD enjoy special powers?

3. Was RPD controlled by a public authority?

4. When is the question of control to be assessed?

5. 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.

The COA answered the above five questions and we have summarised them in turn as follows:

1. Was RPD entrusted with the provision of services of public interest?

In line with the Fish Legal decision, the COA stated that there are two elements to this question and both must be answered affirmatively before RPD could come within the scope of Article 2(2)(b) (as summarised above). The COA stated that RPD did have a licence to generate electricity and to sell it on the wholesale market and was authorised to construct an electricity generator pursuant to the Electricity Supply Act 1999 (the 1999 Act). However, RPD had no responsibility for the generation of electricity; it merely has a permission to do so. The COA stated:

"Such a situation is inconsistent, in my view, with the performance of a public function or the provision of a service of public interest. I therefore do not accept that it has been entrusted by national legislation with the generation of electricity and its sale to the integrated single electricity market".

COA Decision: The COA concluded on this issue that RPD was not a public authority within the meaning of Article 2(2)(b) of the AIE Directive as it is not entrusted with the provision of services of public interest by reason of the fact that it has an authorisation to construct a generator and is licensed to generate electricity in the State

2. Did RPD enjoy special powers?

The COA noted that the test in Fish Legal is whether the entity is vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law. The COA was of the view that the High Court correctly summarised the position as follows:

"The role of the regulator in controlling the exercise of the powers under Part VIII does not alter their character as “special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”. The functional effect of Part VIII of the 1999 Act is that RP[D] can use public law compulsion to buy in or interfere with property rights of others. Those who operate exclusively within private law are not given rights to apply to any public body to permit compulsory acquisitions.”

COA Decision: The COA rejected this ground of appeal. However, it ultimately held that whilst RPD is vested with special powers under national law that is not sufficient to bring it within the scope of Article 2(2)(b) of the AIE Directive.  

3. Was RPD controlled by a public authority?

In its consideration of this issue, the COA again noted that it was clear from the Fish Legal decision that "control" of an entity in Category (c­) has "an autonomous meaning" (and is set out above).

On the facts of the case, the COA noted that it is not sufficient to show that a public authority within the meaning of Article 2(2)(a) or (b) is in a position to exert decisive influence on the entity’s action in the environmental field in order to establish that an entity is under the control of such public authority and thus is within the scope of category (c). In addition, it must be shown that the entity 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. The COA was of the view that the High Court had failed to do this and "ought not to have positively determined that RPD was under the control of ESB Wind as there were no findings of fact to underpin the conclusion".

Further, the COA noted that:

  • It was a joint venture with no majority shareholder. Therefore, as a matter of law neither shareholder could exert a decisive influence on RPD.
  • There were no findings which would support the conclusion that RPD did not act in a genuinely autonomous manner. In fact, there was evidence to the contrary.
  • The trial judge erred when he positively determined that RPD was under the control of a public authority within the meaning of Article 2(2)(a) or (b) and therefore came within category (c) of the definition of a public authority. The issue was one of fact and the factual issues had not been determined by the commissioner.  It was open to the High Court to determine the matter negatively, i.e. that RPD could not be under the control of a public authority in the manner set out in the Fish Legal judgment but it did not.

COA Decision: The COA concluded that RPD is not and was not controlled by a public authority within the meaning of Article 2(2)(a) or (b) as it has not been shown that it did not perform its function in a genuinely autonomous manner. It is therefore not a public authority within the meaning of Article 2(2)(c) of the AIE Directive.

4. When is the question of control assessed?

On the facts of the case, the question of when control of the entity is to be assessed did not arise.

5. 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

The COA said it was not 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.

Conclusion

For the above reasons, the COA allowed RPD's appeal and held that RPD is not a public authority within the meaning of the AIE Directive and accordingly is not required to provide the information sought.

For more information please contact Alan Roberts, Partner, Síofra Heffernan, Solicitor or any member of ALG's Environmental & Planning team.

Date published: 7 November 2022