Raidió Teilifís Éireann v The Commissioner for Environmental Information (No. 2)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 21 March 2025
• Neutral Citation: [2025] IEHC 160
• Docket Number: [H.MCA.2024.0000054]

In the Matter of An Appeal Pursuant to Article 13 of the European Communities (Access to Information on the Environment) Regulations 2007–2014

Between

Raidió Teilifís Éireann

Appellant

and

The Commissioner for Environmental Information

Respondent

and

Right to Know CLG, The European Broadcasting Union (By Order), Ireland, The Attorney General, The Minister for the Environment, Climate and Communications and The Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (By Order) (No. 2)

Notice Parties

[2025] IEHC 160

[H.MCA.2024.0000054]

THE HIGH COURT

PLANNING & ENVIRONMENT

Request for information – EU law – Preliminary ruling – Court referring questions to Court of Justice for preliminary ruling – Whether questions were relevant

Facts: The first notice party, Right to Know CLG, made a request to the respondent, the Commissioner for Environmental Information, for access to what was said to be environmental information from the appellant, Raidió Teilifís Éireann. The High Court decided that the main proceedings involved questions of the interpretation of European law which were necessary to enable it to make a decision on the matter, and that it was appropriate in the circumstances to refer them to the CJEU.

Held by Humphreys J that the questions were as follows: (1) Does the definition of “public authority” in Article 2(2)(a) of Directive 2003/4 have the effect that a legal person governed by public law and amenable to judicial review which has been set up by the State through statute law, which the State alone can dissolve, but having as its primary purpose broadcasting, journalism, editorial processes and decision-making and/or the pursuit of the right of free expression, and which is publicly appointed and accountable but is independent in its functions and funded by both commercial revenue and public monies (a) is to be treated as a public authority in respect of all of its functions, (b) is to be treated as a public authority in respect of its functions other than privileged journalistic activity such as interaction with sources and functions capable of affecting the privilege associated with such activity such as internal editorial communications concerning sources, (c) is to be treated as a public authority in respect of its functions other than those concerning broadcasting, journalism, editorial processes and decision-making and/or the pursuit of the right of free expression, or (d) is not to be treated as a public authority? (2) If the answer to the first question is in a sense equivalent to (a) or (b) in that question, does the definition of “environmental information” in Article 2(1) of Directive 2003/4 and in particular the term “material form” have the effect that where a request is made seeking information as to the number of records of a particular type, the public body concerned is required to count the number of such records and create a record of that number embodying the requested information in material form, if the information does not otherwise exist in material form apart from the extent to which it is capable of being extrapolated by counting the records concerned? (3) Does Article 6(1) and/or (2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights insofar as the foregoing relate to the requirement that remedies be timely and/or expeditious and/or effective have the effect that a court acting under Article 6(2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights is entitled or required to interpret national law to the maximum extent possible so as to enable the court to make a final decision on the request to which the review procedure or judicial procedure relates, including by coming to findings of fact and evaluative judgments after making a full and ex nunc examination of all the relevant elements of fact and law submitted by the parties, in circumstances where remittal of the matter to the public body or to a subordinate review body for further fact-finding or evaluative judgments or a fresh decision would be likely in the view of the court to occasion further delay which could jeopardise the timely and/or expeditious finalisation of the outcome of the request for information?

Humphreys J referred the questions to the CJEU for a preliminary ruling.

Reference to CJEU.

JUDGMENT of Humphreys J. delivered on Friday the 21st day of March 2025

Subject-matter of the dispute

1 . This request for a preliminary ruling concerns the interpretation of Articles 2 and 6 of Directive 2003/4.

2 . The request is being made in proceedings concerning a request to the Commissioner for Environmental Information by the first named notice party, Right to Know CLG, for access to what is said to be environmental information from Raidió Teilifís Éireann ( RTÉ), the Irish national public broadcaster.

European Union law

3 . Article 47 of the EU Charter of Human Rights provides:

“Article 47 — Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

4 . The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (done at Aarhus on 25 June 1998, entered into force 30 October 2001), 2161 UNTS 447 (the Aarhus Convention) was adopted on behalf of the EU by Decision 2005/370. It inter alia provides for access to information as one of the three pillars of the convention alongside public participation and access to justice.

5 . Article 9 provides:

“Article 9

ACCESS TO JUSTICE

1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.

Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.

2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative

procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene

provisions of its national law relating to the environment.

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance...