The Grand Chamber of the Court of Justice of the European Union today heard argument in the reference in Case C-279/12 Fish Legal, Emily Shirley v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water.
This is a reference from the Upper Tribunal (Administrative Appeals Chambers) concerning whether privatised water companies and water & sewerage companies are public authorities for the purposes 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. (This was an issue previously considered by the Upper Tribunal in Smartsource v Information Commissioner  UKUT 415 (AAC)).
Directive 2003/4/EC in Article 2.2 provides the following definition of “public authority”:
“‘… (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).”
The questions referred were:
“Article 2.2(b) of Directive 2003/4/ EC
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?
If it is not, what EU law criteria may or may not be used to determine whether: the function in question is in substance a ‘public administrative one; national law has in substance vested such function in that person?
Article 2.2(c) of Directive 2003 /4 / EC
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?
Is an ’emanation of the State’ (under paragraph 20 of the judgment in Foster v British Gas plc (Case C-188189) necessarily a person caught by Article 2.2(c)?
Article 2.2(b) and (c)
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?
The Advocate-General’s opinion will be delivered on 5 September 2013.
James Maurici QC appeared for the United Kingdom Government.