Case C‑279/12

Fish Legal andEmily Shirley

v

Information Commissioner andOthers

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

‛Reference for a preliminary ruling — Aarhus Convention — Directive 2003/4/EC — Public access to environmental information — Scope — Concept of ‘public authority’ — Water and sewerage undertakers — Privatisation of the water industry in England and Wales’

Summary — Judgment of the Court (Grand Chamber), 19 December 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions, hypothetical questions put in a context not permitting a useful answer and questions bearing no relation to the purpose of the main action — Scope — Question objectively needed in order to resolve the dispute — Not included within that scope

   (Art. 267 TFEU)

2. Environment — Freedom of access to information — Directive 2003/4 — Interpretation — Account taken of the wording and aim of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention)

   (Aarhus Convention; European Parliament and Council Directive 2003/4, recital 5)

3. International agreements — Agreements concluded by the Community — Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) — Aarhus Convention Implementation Guide — No binding force

   (Aarhus Convention; Council Decision 2005/370)

4. Environment — Freedom of access to information — Directive 2003/4 — Public authority — Definition — Government or other public administration — Criteria for assessment

   (European Parliament and Council Directive 2003/4, Art. 2(2)(a))

5. Environment — Freedom of access to information — Directive 2003/4 — Public authority — Definition — Person performing public administrative functions under national law — Criteria for assessment

   (European Parliament and Council Directive 2003/4, Art. 2(2)(b))

6. Environment — Freedom of access to information — Directive 2003/4 — Public authority — Definition — Person providing public services relating to the environment under the control of a public authority — Criteria for assessment — Subjection to a specific system of regulation — No effect

   (European Parliament and Council Directive 2003/4, Art. 2(2)(a), (b) and (c))

7. Environment — Freedom of access to information — Directive 2003/4 — Public authority — Definition — Person performing public administrative functions under national law — Scope as regards the environmental information held

   (Aarhus Convention, Art. 4(1); European Parliament and Council Directive 2003/4, Arts 2(1) and (2)(a), (b) and (c), 3(1) and 4)

8. Environment — Freedom of access to information — Directive 2003/4 — Public authority — Definition — Person providing public services relating to the environment under the control of a public authority — Scope as regards the environmental information held

   (European Parliament and Council Directive 2003/4, Art. 2(2)(a), (b) and (c))

1.  See the text of the decision.

   (see paras 30, 32-34)

2.  For the purposes of interpreting Directive 2003/4 on public access to environmental information and repealing Directive 90/313, account is to be taken of the wording and aim of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, which that directive is designed to implement in European Union law.

   By becoming a party to the Aarhus Convention, the European Union undertook to ensure, within the scope of European Union law, a general principle of access to environmental information held by or for public authorities.

   As recital 5 in the preamble to Directive 2003/4 confirms, in adopting that directive the European Union legislature intended to ensure the consistency of European Union law with the Aarhus Convention with a view to its conclusion by the Community, by providing for a general scheme to ensure that any natural or legal person in a Member State has a right of access to environmental information held by or on behalf of public authorities, without that person having to state an interest.

   (see paras 35-37)

3.  See the text of the decision.

   (see para. 38)

4.  Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4 on public access to environmental information and repealing Directive 90/313. This category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.

   (see para. 51)

5.  In order to determine whether entities such as water companies can be classified as legal persons which perform public administrative functions under national law, within the meaning of Article 2(2)(b) of Directive 2003/4 on public access to environmental information and repealing Directive 90/313, it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.

   (see para. 56, operative part 1)

6.  Undertakings, such as water companies, which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4 on public access to environmental information and repealing Directive 90/313, and should therefore be classified as public authorities by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field.

   The mere fact that the entity is a commercial company subject to a specific system of regulation for the sector in question cannot exclude control within the meaning of Article 2(2)(c) of Directive 2003/4 since it may follow from the system concerned that the entity does not have genuine autonomy vis-à-vis the State, even if the latter is no longer in a position, following privatisation of the sector in question, to determine the entity’s day-to-day management.

   (see paras 68, 70, 71, 73, operative part 2)

7.  Article 2(2)(b) of Directive 2003/4 on public access to environmental information and repealing Directive 90/313 must be interpreted as meaning that a person falling within that provision constitutes a public authority in respect of all the environmental information which it holds.

   As is clear from Article 3(1) of Directive 2003/4, the directive’s central provision which is essentially identical to Article 4(1) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, if an entity is classified as a public authority for the purposes of one of the three categories referred to in Article 2(2) of that directive, it is obliged to disclose to any applicant all the environmental information falling within one of the six categories of information set out in Article 2(1) of the directive that is held by or for it, except where the application is covered by one of the exceptions provided for in Article 4 of the directive.

   (see paras 78, 83, operative part 3)

8.  Commercial companies which are capable of being a public authority by virtue of Article 2(2)(c) of Directive 2003/4 on public access to environmental information and repealing Directive 90/313 only in so far as, when they provide public services in the environmental field, they are under the control of a body or person falling within Article 2(2)(a) or (b) of the directive are not required to provide environmental information if it is not disputed that the information does not relate to the provision of such services.

   If it remains uncertain that that is the case, the information in question must be provided.

   (see paras 82, 83, operative part 3)