The Court of Justice of the European Union (“CJEU”) is considering how the English courts should decide who has obligations of disclosure under the Environmental Information Regulations 2004 (“EIR”). The CJEU’s approach will have direct implications for privatised water and sewerage companies, but will also affect others working closely with the State to deliver formerly publicly owned services (e.g. electricity, gas, rail and telecoms). The recent opinion of Advocate General Cruz Villalón indicates the approach the CJEU might take.

Key Points

  • The Advocate General argues that the meaning of “public administrative” functions in the test for a public authority should be a matter of EU law with national law then being responsible for determining who actually performs those functions in each EU Member State.
  • If the Advocate General's opinion is adopted, those performing such functions would be expected to have powers that put them in a position substantially equivalent to that of the administrative authorities of the State.
  • To be “under the control” of government or those performing “public administrative” functions would mean being in a position of such dependence or subordination that one's actions are in reality those of the public authority.
  • Those performing “public administrative” functions would have the same obligations of disclosure under EIR as government agencies. Those “under the control” of the State would only be obliged to disclose environmental information in relation to their State controlled activities.

The EIR regime and past decisions

The EIR implement in domestic law both the international law obligations imposed on the UK as a party to the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“Aarhus Convention”) and the EU law requirements inspired by the Aarhus Convention and set out in the Environmental Information Directive 2003/4/EC (the “Directive”). These arrangements aim to enable the public to obtain information on matters with environmental implications in order to safeguard the environment for future generations.

Under the Aarhus Convention and the Directive, those required to disclose environmental information are called “public authorities”, defined widely as:

  1. all forms of government agencies;
  2. anyone performing “public administrative” functions under national law in relation to the environment; and
  3. anyone else with public responsibilities or functions, or providing public services, in relation to the environment who is “under the control” of one of the above.

The EIR are intended to implement these rules. They define a “public authority” in similar terms.

The obvious purpose of this definition is to ensure that if a government privatises public services it has traditionally performed, this cannot exempt those now delivering such services from being obliged to provide environmental information to the public. However, the question has since arisen in a number of cases as to exactly how far into the private sector the definition of “public authority” extends. Following Information Tribunal decisions that the Port of London Authority was bound by the EIR but that Network Rail was not, the Upper Tribunal (Administrative Appeals Chamber) decided in Smartsource Drainage & Water Reports Ltd v Information Commissioner [2010] UKUT 415 (AAC) that privatised water companies were outside the EIR regime.

This outcome was then revisited in Fish Legal v Information Commissioner [2012] UKUT 177 (ACC), brought by the legal arm of the Angling Trust which is concerned about water quality in relation to fishing. The claimants and their supporters argued that the State’s supervision and regulation of water and sewerage companies is considerable and that the courts should give due weight when interpreting the “public authority” test to this context and to the public interest in openness enshrined in the Aarhus Convention. For these reasons, they consider that water and sewerage companies should be brought within the EIR regime (at least in relation to their regulated functions).

The CJEU reference and Advocate General’s opinion

The Upper Tribunal in the case of Fish Legal referred these questions of interpretation to the CJEU for a preliminary ruling (Case C-279/12). Whatever the CJEU decides will determine the principles that the Upper Tribunal has to apply in deciding whether water and sewerage companies are subject to the EIR. On 5 September 2013, the opinion of Advocate General Cruz Villalón was published. The CJEU will take this opinion into account when making its decision and such opinions are often good indicators of the approach the CJEU might adopt.

The Advocate General has indicated that the CJEU must ensure that the concept of performing “public administrative” functions is “uniformly construed” across the EU to fulfil the obligations under the Aarhus Convention. The Advocate General therefore concludes that the functions in question must be established exclusively through EU law, with national law then being responsible for determining who actually performs those functions in each Member State. The proposed interpretation of “public administrative” functions is that they are likely to involve powers that can impose obligations on individuals immediately and without consent (such as powers of expropriation, access to private property, the imposition of penalties and enforcement), “with the result that [those so empowered] are in a position substantially equivalent to that of the administrative authorities of the State”.

On the “under the control” test, the Advocate General considers that control means more than ordinary regulation imposed by the State to delimit a person’s freedom of action. It should be understood as: “a relationship of specific dependence or subordination, the result of which is not simply that the individual is under an obligation to act within the framework of conditions laid down by the public authorities, but rather that … In reality, it is the public authority itself which acts and manifests itself through the person acting under its control”.

Those expressly empowered to exercise public authority (i.e. covered by limb (b) of the definition of “public authorities” set out above) must, the Advocate General considers, be subject to the same duties of disclosure as the State itself – extending to all environmental information they hold in any capacity. Those “under the control” of the State (i.e. covered by limb (c) above), may also be engaged in activities completely unconnected with their relationship with the State. They therefore “do not warrant the same treatment” and should only be obliged to disclose environmental information in relation to their State controlled activities and not environmental information they obtain in relation to any completely separate autonomous activities. Any ambiguity should, however, be resolved in favour of disclosure of the information.

Comment

The Advocate General has noted that the CJEU’s decision may have “importance across the board” because of the widespread use of the concepts of “public authority” and “control” in EU law. It will have particular significance in the UK, where widespread privatisation has occurred, because whatever criteria the CJEU lays down for interpreting the definition of “public authority” are likely to apply equally to water and sewerage companies and other privatised entities such as providers of electricity, gas, rail and telecoms services.

If the Advocate General’s approach is followed, it appears that the result will be favourable for privatised companies. The proposed interpretation of “public administrative” functions in limb (b) appears to require relatively draconian powers to have been granted to the company in question before it becomes effectively part of the State and subject to the EIR. Similarly, the proposal, in interpreting limb (c), to distinguish mere regulation from “control” by the State will be welcomed, as will the fall-back position that, even if a privatised company is under State control in relation to certain of its activities, it will only be obliged to disclose information in connection with those elements of its business. If the Advocate General’s proposals are adopted, there appears to be scope for the English courts to continue to hold, as they did in Smartsource, that private water and sewerage companies and the like fall outside the EIR.

However, there is a potential disadvantage for such privatised companies in the Advocate General’s proposals. It appears more likely that, if they are found to be “public authorities” at all under the proposed approach, such companies will be held to satisfy limb (b) rather than the particularly difficult “under the control” test in limb (c), where a loss of autonomy must be shown. If so, there is a risk that all their environmental information, not merely that which relates to their State functions, will be subject to disclosure under EIR because they will be treated as equivalent to government agencies.