The Upper Tribunal (Administrative Appeals Chamber) has found that Southern Water Services Ltd, Yorkshire Water Services Ltd and United Utilities Water plc (and thus water and sewage companies more widely) are public authorities for the purposes of the Environmental Information Regulations 2004 (the “EIR”) by virtue of their special powers.
The Tribunal held that such special powers are not unique to a particular body, sector or industry. The ruling therefore has wide and significant implications for a large number of privatised, regulated and once-publicly owned industries, which now face the prospect of being defined as public authorities. This includes companies that deliver electricity, gas, rail and telecoms services and may significantly increase the prospects of judicial review against such bodies.
The Appellants had requested information from the respondent companies, all of which denied that they were under a duty to provide the information under the EIR.
The principal question for the Upper Tribunal was whether the companies were public authorities within the meaning of Article 2(2)(b) of the Directive 2003/4/EC on public access to environmental information. Following a reference to the CJEU under Article 267 of the TFEU, the Upper Tribunal considered that the key issue was whether the respondent companies were performing “public administrative functions” within the meaning of Article 2(2)(b) of Directive 2003/4/EC.
In the first paragraph of its Order, the CJEU explained that in determining whether a person was performing “public administrative functions” consideration should be given to whether they are vested under national law with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law (the “special powers test”). In considering that test, the Tribunal concluded that the respondent companies do have special powers that confer a practical advantage relative to the rules of private law and are sufficient to satisfy the test laid down by the CJEU.
In the second paragraph of its Order, the CJEU stated that a person was under another’s ‘control’ if they do not determine in a genuinely autonomous manner the way in they provide services since a public authority is in a position to exert decisive influence on their action (the “control test”). The Upper Tribunal found that although the companies are subject to stringent regulation and oversight, they nevertheless operate in a genuinely autonomous manner in the provision of services that relate to the environment.
James Maurici QC appeared for the Secretary of State for the Environment, Food and Rural Affairs in the CJEU.
Jacqueline Lean appeared as junior counsel for United Utilities plc, Yorkshire Water Services Ltd and Southern Water Services Ltd before the Upper Tribunal.
Fish Legal and Emily Shirley v. Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd, Southern Water Services Ltd and the Secretary of State for the Environment, Food and Rural Affairs  UKUT 0052 (AAC)