The Upper Tribunal recently handed down judgment in the long running “Fish Legal” litigation.  The case was brought by the Angling Trust and a private individual, who had requested information from three privatised water companies concerning their operations.  The requests were made pursuant to the Environmental Information Regulations 2004 (EIR).

The companies had contended that they were not “public authorities” for the purposes of the EIR and were therefore outside the scope of the regime.  The Upper Tribunal reached its final decision on this issue following a reference to the Court of Justice of the European Union (CJEU), which had ruled on various aspects of the interpretation of the underlying Environmental Information Directive (EID). 

Applying the CJEU’s reasoning, the Upper Tribunal considered whether the companies fell within either of two limbs of the EID definition of “public authority”. Broadly speaking, this required it to consider if the companies either:

  • met the CJEU’s definition of an entity vested with “special powers”; or
  • met its definition of an entity under another public authority’s “control”.

On the facts, the Upper Tribunal held that whilst the companies did not meet the “control” test, they were nonetheless public authorities for EIR purposes as they met the “special powers” test.

The Tribunal also acknowledged that its ruling might have potential relevance to the privatised electricity, gas, rail and telecoms sectors, but observed that any decisions concerning those sectors would require further analysis of the facts.