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European Court gives judgment in property search charging case

On 6th October the Court of Justice of the European Union (Fifth Chamber) handed down judgment in Case C-71/14 East Sussex County Council v Information Commissioner & Others.

The case concerns the ability under Directive 2003/4, the Environmental Information Directive, of local authorities to charge for the supply of information relevant to a property purchase via CON29 searches.

The case was referred by the First-tier Tribunal (Information Rights). It asked the following questions: 

‘(1) What is the meaning to be attributed to Article 5(2) of Directive 2003/4 and in particular can a charge of a reasonable amount for supplying a particular type of environmental information include: 

(a) part of the cost of maintaining a database used by the public authority to answer requests for information of that type; 

(b) overhead costs attributable to staff time properly taken into account in fixing the charge? 

(2) Is it consistent with Articles 5(2) and 6 of [Directive 2003/4] for a Member State to provide in its regulations that a public authority may charge an amount for supplying environmental information which does "… not exceed an amount which the public authority is satisfied is a reasonable amount" if the decision of the public authority as to what is a "reasonable amount" is subject to administrative and judicial review as provided under English law?’

The Court answered these questions in this way: 

“1. Article 5(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted as meaning that the charge for supplying a particular type of environmental information may not include any part of the cost of maintaining a database, such as that at issue in the main proceedings, used for that purpose by the public authority, but may include the overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount.

2. Article 6 of Directive 2003/4 must be interpreted as not precluding national legislation under which the reasonableness of a charge for supplying a particular type of environmental information is the subject only of limited administrative and judicial review as provided for in English law, provided that the review is carried out on the basis of objective elements and, in accordance with the principles of equivalence and effectiveness, relates to the question whether the public authority making the charge has complied with the conditions in Article5(2) of that directive, which is for the referring tribunal to ascertain.’ 

James Maurici QC and Sasha Blackmore acted for the United Kingdom Government which made written observations to the European Court. 

Click here for a copy of the judgment.