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Advocate-General gives opinion on whether privatised water companies are public authorities for the purposes of Directive 2003/4

DATE: 17 Sep 2013

On 5 September 2013 Advocate-General Cruz Villalon gave his opinion in Case C 279/12 Fish Legal & Emily Shirley v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water on a request for a preliminary ruling from the Upper Tribunal (Administrative Appeals Chamber).

The questions referred were:

‘Article 2.2 (b) of Directive 2003/4/EC

(1) In considering whether a natural or legal person is one “performing public administrative functions under national law”, is the applicable law and analysis purely a national one?

(2) If it is not, what EU law criteria may or may not be used to determine whether:

(i) the function in question is in substance a “public administrative” one;

(ii) national law has in substance vested such function in that person?

Article 2.2 (c) of Directive 2003/4/EC

(3) What is meant by a person being “under the control of a body or person falling within Article 2.2(a) or (b)”? In particular, what is the nature, form and degree of control required and what criteria may or may not be used to identify such control?

(4) Is an “emanation of the State” (under paragraph 20 of the judgment in Foster v British Gas plc (Case C 188/89)) necessarily a person caught by Article 2.2(c)?

Article 2.2 (b) and (c)

(5) Where a person falls within either provision in respect of some of its functions, responsibilities or services, are its obligations to provide environmental information confined to the information relevant to those functions, responsibilities or services or do they extend to all environmental information held for any purpose?’

Article 2(2) of the Directive 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.”

The Advocate-General proposes these answers:

“1. In considering whether a natural or legal person is a person ‘performing public administrative functions’ for the purposes of Article 2(2)(b) of Directive 2003/4/EC, regard must be had exclusively to European Union law so far as the definition of the concept of “public administrative functions” is concerned, while it is for the laws of the Member States to determine, as appropriate, which natural and legal persons are authorised to perform such functions.

2. It is for the referring tribunal to establish whether the water companies concerned may impose on individuals obligations for which they do not require the consent of those individuals, with the result that the companies concerned are in a position substantially equivalent to that of the administrative authorities, pursuant to a formal, express legal act granting official powers.

3. An individual is “under the control of a body or person falling within [point] (a) or (b)” of Article 2(2) of Directive 2003/4 if his actions are subject to a degree of control exercised by that body or person which prevents him from acting with real autonomy in private affairs, thereby reducing him to the status of an instrument of the will of the State, a matter which it is for the referring tribunal to determine.

4. Bodies or persons falling within Article 2(2)(b) of Directive 2003/4 must be subject to the obligation to disclose information on the same terms as the public authorities in the strict sense. The same obligation applies to the bodies and persons referred to in Article 2(2)(c), where their activities are limited to the management of a service under conditions which mean that they must be regarded as ‘public authorities’ for the purposes of Directive 2003/4. However, bodies or persons who, in addition to managing a service of that kind, also perform other, completely separate, activities are not under an obligation to provide the information which they obtain in relation to those activities. Where there is doubt, the obligation of disclosure must prevail.”

The opinion can be found at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62012CC0279:EN:HTML

James Maurici QC appeared for the United Kingdom Government.