An Taoiseach v Commissioner for Environmental Information & Fitzgerald
| Jurisdiction | Ireland |
| Judge | O Neill J. |
| Judgment Date | 04 June 2010 |
| Neutral Citation | [2010] IEHC 241 |
| Court | High Court |
| Docket Number | [2008 No. 183 MCA] |
| Date | 04 June 2010 |
[2010] IEHC 241
THE HIGH COURT
And
And
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 13
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 8(A)(iv)
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 8(B)
EEC DIR 2003/4 ART 6
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 7(1)
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 10
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 8
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 9
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 13
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 12(9)
CONSTITUTION ART 28.4.3
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 11
FREEDOM OF INFORMATION ACT 1997 S19
FREEDOM OF INFORMATION ACT 1997 S19(1)(A)
IRISH PRESS PUBLICATIONS LTD & ORS v MIN FOR ENTERPRISE & ORS 2002 4 IR 110 2002/13/3234
CONSTITUTION ART 28
COSTA v ENTE NAZIONALE PER L'ENERGIA ELETTRICA (ENEL) 1964 ECR 585 1964 CMLR 425
INTERNATIONALE HANDELSGESELLSCHAFT MBH v EINFUHR 1970 ECR 1125 1972 CMLR 255
VAN DUYN v HOME OFFICE 1975 CH 358 1975 2 WLR 760 1975 3 AER 190 1974 ECR 1337 1975 1 CMLR 1
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 10(2)
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 10(1)
LARSY v INSTITUT NATIONAL D'ASSURANCES SOCIALES POUR TRAVAILLEURS INDEPENDANTS (INASTI) 2001 ECR I-5063
VON COLSON & KAMANN v LAND NORDRHEIN-WESTFAHLEN 1984 ECR 1891 1986 2 CMLR 430
HENKEL KGAA v DEUTSCHES PATENT-UND MARKENAMT 2004 ECR I-1725 2005 ETMR 45
MURPHY & ORS v BORD TELECOM EIREANN 1989 ILRM 53 1988/6/1551
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 9(2)(D)
TREATY OF ROME ART 234
MIN FOR JUSTICE & CMSR OF GARDA SIOCHANA v DIRECTOR OF THE EQUALITY TRIBUNAL UNREP CHARLETON 17.2.2009 2009/40/9884 2009 IEHC 72
AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SIMMENTHAL SPA 1978 ECR 629 1978 3 CMLR 263
FRATELLI COSTANZO SPA v COMUNE DI MILANO & ANOR 1989 ECR 1839 1990 3 CMLR 239
UNIBET (LONDON) LTD & ANOR v JUSTITIEKANSLERN 2008 AER (EC) 453 2007 ECR I-2271 2007 2 CMLR 30
IMPACT v MIN FOR AGRICULTURE & ORS 2009 AER (EC) 306 2008 ECR I-2483 2008 2 CMLR 47
VAN SCHIJNDEL & VAN VEEN v STICHTING PENSIOENFONDS VOOR FYSIOTHERAPEUTEN 1996 AER (EC) 259 1995 ECR I-4705 1996 1 CMLR 801
MINISTERO DELLE FINANZE v IN CO GE '90 SRL & ORS 1998 ECR I-6307 2001 1 CMLR 31
TATE & ORS v MIN FOR SOCIAL WELFARE & ORS 1995 1 IR 418 1995 1 ILRM 507 1995/5/1535
COOPERATIVA AGRICOLA ZOOTECNICA S ANTONIO & ORS v AMMINISTRAZIONE DELLE FINANZE DELLO STATO 1996 ECR I-4373 1997 1 CMLR 1112
CONSORZIO INDUSTRIE FIAMMIFERI v AUTORITA GARANTE DELLA CONCORRENZA E DEL MERCATO 2004 AER (EC) 380 2003 ECR I-8055 2003 5 CMLR 16
EEC DIR 71/305 ART 29(5)
TREATY OF ROME ART 10
TREATY OF ROME ART 81
TREATY OF ROME ART 49
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ARTS 6-13
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 7
EEC DIR 2003/4 ART 6.2
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 12(9)(A)
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 3
EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGS 2007 SI 133/2007 REG 3
EEC DIR 2003/4 ART 2.2
CONSTITUTION ART 29
EEC DIR 2003/4 ART 4.1
CONSTITUTION ART 28.4.2
CONSTITUTION
Cabinet confidentiality
Meetings of Government - Environmental information - Public access to information - Exceptions to rights of access - Information on emissions into environment - Whether meetings of Government internal communication of public authorities - Whether meetings of Government proceedings of public authorities - Whether discussions at Government meetings governed separately - Van Schijndel and van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (Cases C-430 and 431/93) [1995] ECR I-04705 considered - European Communities (Access to Information on the Environment) Regulations 2007 (SI 133/2007), articles 7, 8, 9, 10 and 13 - Constitution of Ireland, 1937, Article 28 - Appeal allowed (2008/183MCA- O'Neill J - 4/6/2010) [2010] IEHC 241
An Taoiseach v Commissioner for Environmental Information
EUROPEAN UNION
Environment
Access to information - Commissioner for Environment Information - Jurisdiction of Commissioner - Whether jurisdiction to consider whether regulations inconsistent with directive - Whether entitlement to disapply national law - National procedural autonomy - Correct procedure for securing supremacy of Community law over domestic law - Appropriate forum for considering compliance with directive - Regulations - Whether directive correctly transposed - Whether regulations in compliance with directive - European Communities (Access to Information on the Environment) Regulations 2007 (SI 133/2007), articles 7, 8, 9, 10 and 13 - Council Directive 2003/4/EC - Appeal allowed (2008/183MCA- O'Neill J - 4/6/2010) [2010] IEHC 241
An Taoiseach v Commissioner for Environmental Information
Facts: The notice party had sought by way of freedom of information a Cabinet discussion from 2002-2007 on greenhouse emissions. The Ombudsman, acting as Commissioner for Environmental Information, had ordered disclosure of the document. She found that Directive 2003/4/EC on Public Access to Environmental Information, implemented into Irish law by EC (Access to Information on the Environment) Regulations 2007, was specifically framed to exclude the refusal of a request on confidentiality-based grounds, if that request related to information on emissions. The Regulations specifically excluded Cabinet Confidentiality from the ambit of the legislation, deriving this from Article 28 of the Constitution, while the Directive provided for a narrower range of discretionary grounds to refuse access to information on the basis of confidentiality of the proceedings of public authorities. The Irish Regulations instead were found by her to make provision for a blanket prohibition. She thus found that the Directive was directly effective but that it had not been correctly transposed into Irish law and the proceedings were appealed to the High Court.
Held by O'Neill J. that the particular problem in the case was not securing supremacy or piracy of Community law over domestic law but discerning the correct procedural means for doing this. The judicial architecture of the State could not permit a vast array of administrative bodies to determine all questions of law and fact as to the application and enforcement of EC law rights. National systems of law would be undermined otherwise and the principle of equivalent would be "turned on its head". He held that the Commissioner had no jurisdiction to decide the effect of regulations in national law. He thus held that disclosure of the constitutionally protected communications would undermine the discharge of collective responsibility by the government and he refused a preliminary reference to the Court of Justice to decide the question arising in the proceedings.
Reporter: E.F.
Judgment of O Neill J. delivered the 4th day of June 2010
2 1.1 These proceedings come before this Court by way of statutory appeal under Article 13 of the E.C. (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 207) ("the regulations") against a decision of the respondent made on the 10 th October, 2008, wherein she directed the appellant to disclose to the notice party a record, in the form of a hand-written note, of discussions and the outcome of those discussions at a meeting of the Government on the 24 th June, 2003.
3 1.2 The appellant seeks an order setting aside the impugned decision. He also seeks a declaration that the record is exempt from disclosure pursuant to the provisions of the regulations and, in particular, regulation 8(a) (iv) and/or regulation 8 (b). He seeks a further order remitting the notice party's request for access to the record to the respondent for further consideration or determination by her, should this Court consider it necessary or appropriate.
2 2.1 Directive 2003/4/EC of the European Parliament and of the Council of the 28 th January 2003 on Public Access to Environmental Information ("the directive") was adopted to guarantee a right of access by the public to environmental information held by or for public authorities and to set out "the basic terms and conditions of, and practical arrangements for" the exercise of this right, as stated in Article 1. In addition, it is designed to ensure that "as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest...
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