Mr. L and Wexwind Limited

• Case Number: CEI/16/0007
• Decision Date: 20 October 2016
• Issuer: Wexwind
• Applied Rules: Art.3(1) Art.11(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. L and Wexwind Limited

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0007

Published on 19 October 2016

1. Background
2. Scope of Review
3. Relevant Legal Provisions
4. Decision
5. Appeal to the High Court

Background

Wexwind is a private limited company engaged in renewable energy generation through a wind farm development at Gibbet Hill, County Wexford.

In an email to the directors of Wexwind of 9 December 2015, the appellant made an AIE request for information concerning Gibbet Hill wind farm. Wexwind did not respond to the request, nor did it reply to the appellant's subsequent request for an internal review. The appellant appealed the deemed refusal of his request to my office on 26 February 2016.

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 submissions to my office, Wexwind contended that it is not a public authority under the Regulations. Consequently, a question of threshold jurisdiction arises which I must review.

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 (the Directive) 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. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

Relevant Legal Provisions

The AIE Regulations

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".

In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 5,1 O’Donnell J. interpreted the structure of the definition of "public authority" 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).

The appellant's submission

The appellant submitted that Wexwind is a public authority under paragraph (c) of the definition, as a legal person providing public services relating to the environment under the control of a higher public authority. The appellant's submission did not address paragraphs (a) or (b) of the definition, neither did he suggest that Wexwind has public responsibilities or functions under paragraph (c).

The appellant stated that the activity of wind energy generation relates to the environment, and that this activity is a public service where it is carried out in the context of a system of state subsidies. The appellant cited two illustrative examples of control of Wexwind by the Commission for Energy Regulation and EirGrid, and contended that Wexwind did not have genuine autonomy in the way it provided a public service relating to the environment, as decisive control was exercised by state regulators and market operators.

The appellant submitted that certain decisions on wind farm developers by planning authorities supported the contention that wind farm undertakings were "emanations of the state".

Wexwind's submission

Wexwind submitted that the company does not have any public responsibilities or functions, and that it was not engaged in the provision of a public service. Wexwind categorised its generation activity as a private commercial matter negotiated between private companies. Wexwind contended that, although it operates in a regulated industry, its activities are not under the control of a public authority in the manner envisaged by the AIE Regulations. Wexwind outlined the operation of the REFIT price support mechanism, and emphasised that electricity generators do not receive direct subsidies under the schemes.

Wexwind submitted that, while it is subject to regulation, such regulation forms the normal background to the activity of wind energy generation, and is not attended by the additional elements of control considered necessary in law to render Wexwind subject to the AIE regulations.

Is Wexwind under the control of a public authority?

Jurisprudence

In Fish Legal and Emily Shirley v Information Commissioner and Others (C-279/12) (Fish Legal) the Court of Justice of the European Union considered the meaning of “public authority” under article 2(2)(c) of Directive 2003/4 (equivalent to paragraph (c) of the definition of "public authority" contained in the AIE Regulations). The Court set out the standard of control under article 2(2)(c), ruling that:

"Undertakings... 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."

Following Fish Legal, paragraph (c) of the definition of public authority applies where a body does not determine in a genuinely autonomous manner the way in which it provides public services, or carries out its functions or responsibilities, because the State, or an entity empowered by the State, is in a position to exert decisive influence on the body's actions in the environmental field.

The European Court of Justice provided illustrative examples of decisive influence, stating at paragraph 69:

"The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence."

Fish Legal also describes the type of legal framework that would govern the public functions of a sub-article (c) body, stating at paragraph 71:

"If the system concerned involves a particularly precise legal framework which lays down a set of rules determining the way in which such companies must perform the public functions related to environmental management with which they are entrusted, and which, as the case may be, includes administrative supervision intended to ensure that those rules are in fact complied with, where appropriate by means of the issuing of orders or the imposition of fines, it may follow that those entities do not have genuine autonomy vis-à-vis the State, even if the latter is no longer in a position, following privatisation of the sector in question, to determine their day-to-day management."

I have also had regard to the judgment of the United Kingdom Upper Tribunal in Fish Legal v Information Commissioner [2015] UKUT 0052 (AAC), which applies the judgment of the CJEU in Fish Legal. Although I am not bound to follow the Upper Tribunal's judgment, some aspects of the Upper Tribunal's approach to the question of genuine autonomy...