Public Authorities under the EIR – Fishing for an Answer from the AG

Panopticon is fairly sure that it can imagine the breakfast table dialogue in most right-thinking households this morning. Namely:

“Who owes obligations under the Environmental Information Regulations 2004? Public authorities: regulation 2.

Who is a public authority? Erm, well, not water companies: Smartsource v IC and a Group of 19 additional water companies [2010] UKUT 415 (AAC).

Are we sure? No and it has been necessary to refer the question to the Court of Justice of the EU to find out: Fish Legal v IC [2012] UKUT 177 (AAC) (again about water companies).

What have the CJEU got to do with the price of fish (legal)? Because the EIR implements Directive 2003/4/EC and so the correct interpretation is a matter on which definitive guidance can be sought from Luxembourg.

And what does the CJEU think? We don’t know yet, but we are a bit closer after Advocate General Villalon delivered the AG’s Opinion in the case yesterday: see Case C-279/12 Fish Legal v Information Commissioner, Opinion of 5 September 2013.

So what does the AG say? The test is posed along the following lines. It is for the national court to establish whether the water companies concerned may impose on individuals obligations for which they did not require the consent of those individuals, with the result that the companies concerned were in a position substantially equivalent to that of the administrative authorities. An individual was under the control of a body if his actions were subject to a degree of control exercised by that body or person which prevented him from acting with real autonomy in private affairs, thereby reducing him to the status of an instrument of the will of the State. Bodies or persons who also performed other, completely separate, non-public activities were not under an obligation to provide the information which they obtained in relation to those activities. [This sounds a bit like hybrid public authorities under s.6 of the Human Rights Act 1998, which has caused no difficulties in application at all. Ahem.] If in doubt, they should have to disclose the information.

And will the CJEU adopt this test? Wait and see. But usually the AG’s Opinion forms a key part of the Court’s analysis. So it is a good pointer, even if not the definitive answer.

And will the judgment, when it comes, tell us whether privatised water companies are public authorities? Probably not. That will almost certainly be left to the Upper Tribunal to decide in the light of the CJEU’s Delphic pronouncements.”

Doubtless there will be plenty more litigation to come, not to mention the cases stayed pending Fish Legal, and Panopticon will bring you the CJEU judgment when it appears.

11KBW’s Anya Proops appeared for the Commissioner in the CJEU, and Rachel Kamm did the same before the Upper Tribunal.

Christopher Knight