Dr Edward Fahy and Irish Fish Producers' Organisation Limited

• Case Number: CEI/15/0011
• Decision Date: 30 November 2015
• Issuer: Irish Fish Producers' Organisation Limited
• Applied Rules: Art.3(1) Art.11(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Dr Edward Fahy and Irish Fish Producers' Organisation Limited

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0011

Published on 30 November 2015

Appeal to the Commissioner for Environmental Information Case CEI/15/0011

European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (The AIE Regulations)

Appellant: Dr Edward Fahy

Body: Irish Fish Producers' Organisation Limited (the IFPO)

Issue: Whether the IFPO is a public authority within the meaning of the AIE Regulations

Summary of Commissioner's Decision: In accordance with Article 12(5) and Article 11(5)(a) of the Regulations, the Commissioner reviewed the contention by the IFPO that it was not a public authority for the purposes of the Regulations. Having considered the jurisprudence of the Court of Justice of the European Union and the specific rules applicable to the IFPO, the Commissioner found that the IFPO is not a public authority for the purposes of the AIE Regulations as it does not constitute government or public administration, nor does it have public administrative functions, nor is it under the control of a public authority.

Background

On 28 January 2015, the appellant wrote to the IFPO requesting "a list of the registration numbers of vessels" of IFPO members. On 10 February 2015 the IFPO's solicitors replied to the appellant refusing the request on three grounds: that it was not a public authority under the Regulations; that the requested information was not "environmental information" as defined by the Regulations; and that disclosure of the information was prevented by the Data Protection Acts 1988 to 2003. The appellant's request for an internal review was refused on the same grounds, and he appealed to my Office on 8 April 2015.

Producer organisations (POs) are legally recognised bodies under Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 (the Regulation), which provides for the common organisation of the markets for fishery and aquaculture products in the Union (the CMO). This decision concerns whether the IFPO, a recognised Irish fishery producer organisation, is a public authority for the purposes of the Regulations.

Recital 7 to Regulation 1379/2013 identifies the strategic role of recognised POs under the EU Common Fisheries Policy (CFP):

"Fishery producer organisations and aquaculture producer organisations ("producer organisations") are the key to achieving the objectives of the CFP and of the CMO. It is therefore necessary to enhance their responsibilities and to provide the necessary financial support to allow them to play a more meaningful role in the day-to-day management of fisheries, whilst respecting the framework defined by objectives of the CFP."

In the course of this appeal, I considered the extent of the enhanced responsibilities of POs under the CMO, and in particular, whether these responsibilities give rise to obligations under the AIE Regulations.

Scope of Review

Article 12(3) of the Regulations provides a right of appeal to my Office where a request for environmental information has been refused. Article 11(5)(a) of the Regulations specifies that I may review refusals made "on the grounds that the body or person concerned contends that the body or person is not a public authority". In letters sent to the appellant on 10 February 2015 and 10 March 2015, the IFPO contended that it is not a public authority under the Regulations. Consequently, a question of threshold jurisdiction arises which I must review. In line with my decision in the case of Mr. Gavin Sheridan and Dublin City Council (CEI/12/0004),available online at www.ocei.ie, the scope of this review is restricted to the issue of whether the IFPO is a "public authority" for the purposes of the AIE Regulations.

Relevant Legal Provisions

The AIE Regulations

Directive 2003/4/EC implements the first pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention"). The Directive is transposed into Irish law by the AIE Regulations, which apply to 'environmental information' held by 'public authorities'.

Article 3(1) of the Regulations provides the following definition of 'public authority':

"'public authority' means, subject to sub-article (2)-

(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 paragraph (a) or (b),

and includes-

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held-

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".

The three categories of public authorities contained in Sub-Articles (a) to (c) reproduce the definition of "public authority" contained in the Aarhus Convention and the Directive. However, Sub-Articles (i) to (vii) are unique to the AIE Regulations. The Supreme Court addressed the meaning of the above definition in the case of National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51(the Nama case). In his judgment, O'Donnell J. states at paragraph 34 that the most natural interpretation of the definition is "to see it as reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them." Accordingly, Sub-Articles (i) to (vii) do not extend the primary definitions of "public authority" contained at (a) to (c).

Court of Justice of the European Union Jurisprudence

In his decision in the NAMA case, Judge O'Donnell applied the judgment of the Court of Justice of the European Union in Fish Legal and Emily Shirley v Information Commissioner and Others (C-279/12), which considers the meaning of "public authority" under Article 2(2)(b) and Article 2(2)(c) of Directive 2003/4 (equivalent to Sub-Articles (b) and (c) of the definition of "public authority" contained in the AIE Regulations).

With regard to the meaning of "public administrative function" in Article 2(2)(b), the CJEU proposed the "special powers" test in the following terms:

"In order to determine whether entities...can be classified as legal persons which perform 'public administrative functions' under national law...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."

The Court also clarified the legal test to be applied when assessing whether a body is a public authority under Article 2(2)(c), ruling that:

"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."

European Union Law

Aspects of this case relate to the interface between the EU rules on competition as contained in Part III, Title VII of the Treaty on the Functioning of the European Union (TFEU), and provisions relating to agriculture and fisheries under Part III, Title III of the TFEU.

Article 42 of the Treaty on the Functioning of the European Union states:

"The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 43(2) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 39."

Article 43(2) of the TFEU provides:

"The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article...