A Grand Chambers of the Court of Justice of the European Community today gave judgment 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 CJEU has ruled that:
“In order to determine whether entities such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd 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/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, 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.
2. Undertakings, such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, 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, 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.
3. Article 2(2)(b) of Directive 2003/4 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. Commercial companies, such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, which are capable of being a public authority by virtue of Article 2(2)(c) of the directive 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.”
James Maurici QC appeared for the UK Government before the Grand Chamber.
The judgment is available here.