Fish Legal and Emily Shirley v Information Commissioner and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2013:539
• Docket Number: C-279/12
• Date: 05 September 2013
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 5 September 2013 ( 1 )

Case C‑279/12

Fish Legal,

Emily Shirley

v

The Information Commissioner,

United Utilities, Yorkshire Water and Southern Water

(Request for a preliminary ruling from the Upper Tribunal (Administrative Appeals Chamber) (United Kingdom))

‛Access to environmental information — Obligation incumbent upon public authorities — ‘Natural or legal person performing public administrative functions under national law’ — Natural or legal person ‘under the control’ of the State or of a body performing public functions — Autonomous concept of European Union law’

1. The present request for a preliminary ruling raises again the issue of the conditions governing access on the part of private individuals to environmental information held by the public authorities, the disclosure of which is governed by Directive 2003/4, ( 2 ) and it raises specifically the issue concerning the ‘public authority’ status of the body to which the request for information is to be addressed for the purposes of that directive. That issue is the subject of debate as the present case concerns private companies which manage a public service relating to the environment and the dispute centres on whether, in the circumstances of the case, the management of that service is of such a nature that, even though the companies concerned are private, they have to be regarded as ‘public authorities’ for the purposes of Directive 2003/4 and, in consequence, must comply with the request for information addressed to them by two private individuals.

2. In that context, the Court is called upon to clarify its case-law on two very specific subjects. The first, clearly, is the right of access to information itself. The second is the definition of the concept of ‘public authority’, an issue of importance across the board, in numerous fields of European Union (‘EU’) law and the resolution of which, in the present case, will require an examination of ‘dependence’ and ‘control’, concepts which commonly feature, for example, in the case-law on companies set up to provide certain services.

I – Legislative framework

A – International law

3. Article 2(2) of the Convention on Access to Information, Public Participation in Decision‑making and Access to Justice in Environmental Matters, signed on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 ( 3 ) (‘the Aarhus Convention’), provides: ‘“Public authority” means: (a) Government at national, regional and other level; (b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; (c) Any other natural or legal persons having public responsibilities or functions, or providing public services relating to the environment, under the control of a body or person falling within [points] (a) or (b) above; (d) The institutions of any regional economic integration organisation referred to in Article 17 which is a Party to this Convention. This definition does not include bodies or institutions acting in a judicial or legislative capacity.’

4. Under the terms of Article 4(1) of the Aarhus Convention, the parties must, subject to certain reservations and conditions, ensure that, in response to a request for environmental information, public authorities make such information available to the public, in accordance with their national legislation.

B – EU law

5. Of interest are the following recitals in the preamble to Directive 2003/4: Recital 1: ‘Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.’ Recital 5: ‘... Provisions of Community law must be consistent with [the Aarhus Convention] with a view to its conclusion by the European Community.’ Recital 8: ‘It is necessary to ensure that any natural [or] legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.’ Recital 11: ‘To take account of the principle in Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.’

6. The objectives of Directive 2003/4 are defined in Article 1 of that directive: ‘(a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and (b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.’

7. For its part, Article 2(2) of Directive 2003/4 defines the concept of ‘public authority’ in the following terms: ‘(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 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). Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.’

8. Under Article 3(1) of Directive 2003/4, ‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.’

C – National law

9. In accordance with the information provided by the referring tribunal, the following national legislation is of interest:

1. Legislation on access to environmental information

10. The relevant national legislation is to be found in the Environmental Information Regulations 2004 (SI No. 3391) (‘EIR 2004’), which transposed Directive 2003/4 into national law and Regulation 2(2) of which defines the concept of ‘public authority’ as follows: ‘Subject to paragraph (3), “public authority” means— (a) government departments; (b) any other public authority as defined in section 3(1) of the [Freedom of Information Act 2000 (‘FIA 2000’)] ... (c) any other body or other person, that carries out functions of public administration; or (d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and— (i) has public responsibilities relating to the environment; (ii) exercises functions of a public nature relating to the environment; or (iii) provides public services relating to the environment.’

11. Under Regulations 5 and 7 of the EIR 2004, environmental information must, if it has been requested, be made available within 20 working days, a period which the authority concerned may extend to 40 days in certain circumstances.

12. Under section 50(1) of the FIA 2000, as amended by Regulation 18 of the EIR 2004, a person who has requested information may apply to the Information Commissioner for a decision as to whether the public authority concerned has dealt with his request in accordance with the requirements of the EIR 2004.

2. Legislation on the structure of the water industry in England and Wales

a) Background

13. In the middle of the 20th century, most water and sewerage services were in public ownership and were provided by local government authorities under the Public Health Act 1936.

14. The Water Act 1973 (‘WA 1973’) transferred, in general, responsibility for those services to regional water authorities. Some services were provided by statutory companies acting on behalf of those authorities.

15. The Water Act 1989 (‘WA 1989’) privatised the water industry in England and Wales, introducing largely the structure which applies today. The functions, powers...