What is a “public authority” for the purposes of environmental information?

17 September 2013 by

water_tapFish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon

In this most recent case concerning access by private individuals to environmental information held by public authorities,  the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had  been addressed to private companies which manage a public service relating to the environment.  The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).

Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law.

Legal background

We start with the Aarhus Convention, the fons et origo of the legal right of access to environmental information. Here “public authority” means government, obviously; “natural or legal persons” having public responsibilities or functions under national law and natural or legal persons having public responsibilities or functions “under the control of government” or bodies with public responsibilities.

The Directive , which implements Aarhus for the purposes of EU law, defines the concept of “public authority” thus:

(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 (a) or (b).

At the national level, the environmental information Directive is implemented by the Environmental Regulations 2004. These define “public authority”, broadly, as any body or person that carries out functions of public administration or a person or body that acts under control of such a public authority or government department.

Until relatively recently, this would not have been such a legal quagmire, the source of much forensic and academic debate, not to speak of the countless articles and textbooks it has inspired. As the AG observes, until the middle of the last century, most water and sewerage services were unambiguously in public ownership. But in 1989 the Water Act privatised the water industry in this country, with the result that the functions and assets of regional water authorities are now divided between the Environment Agency and various privatised water and sewerage companies. These carry out their functions under the auspices of the economic regulator OFWAT. But that is the limit of their “public” character;  they are otherwise run in accordance with normal commercial principles,

as set out in their memoranda and articles of association, with the aim of generating profits for distribution to shareholders as dividends and for reinvestment in the business. [18]

On the other hand, these companies are effectively monopoly suppliers to most users of their services, and the undertakers of water and sewerage services “are given a range of powers – some of which are shared with others – which far exceed those normally enjoyed by private companies.”

The legislation governing general access to information is the Freedom of Information Act 2000. It does not purport to transpose the European Directive on access to environmental information into domestic law, and, unlike that Directive, information requested under FOIA may be refused on grounds of commercial confidentiality.  It is therefore important that the scope of the Directive be clarified, since FOIA cannot redress the inadequacies of local access to environmental information.

The request for a preliminary ruling

An individual, Mrs Shirley, and an NGO had sought access to environmental information from the water companies concerned. They conceded access, but they did not consider themselves “public authorities” for the purposes of Directive 2003/4, and therefore the Upper Tribunal made a request for a preliminary ruling on the following questions:

In considering whether a natural legal person is one “performing public administrative functions under national law”, is the applicable law and analysis a purely national one?

If not, what EU law criteria may be used to determine whether the function in question is a “public administrative one”, and has national law actually invested such a function in that person?

Is an “emanation of the State” (under paragraph 20 of the judgment in Foster v British Gas plc ) necessarily a person caught by the Directive?

These questions are relevant not only to water companies, but to all privatised, regulated industries that deliver a once publicly owned service.

Naturally the applicants argued for a broad application for the concept of “public administrative functions” in the Directive, since this is the only way of ensuring attainment of its objectives, in other words, widespread, systematic dissemination of environmental information. The Information Commissioner and the companies concerned contended that the question should be answered not uniformly across the EU, but in accordance with the domestic law of each member state. They argued that there are a number of factors which render water companies beyond the reach of the definition of public authorities, such as their profit-making nature. The fact that water services used to be supplied by the government was, in their view, irrelevant to this question. For such bodies to be put on the same footing as public authorities, the “nature, form and degree of control exercised over that person must go further than the functions associated with the regulation”; since water companies remain independent as to the form in which they assume their responsibilities and supply their service, there is no relationship of control and therefore they are outwith the definition. In essence, the water companies and the Information Commissioner took the position that the concept of “emanation of the state” was not relevant to the interpretation of the Directive, since that provision uses a more restrictive concept, forming a kind of lex specialis which specifies the bodies “under control”  which must be treated as if they were part of the State.

Mrs Shirley argued that it would be incompatible with the Directive to exclude companies which the national court has already held to be “emanations of the state” within the meaning of  Foster.  That case, it will be remembered, defined a pubic authority as

a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.

The AG’s opinion

AG Cruz Villalón focussed on two aspects of the question, one relating to the concept of “public administrative functions”, and the other relating to the identification of the persons or bodies authorised to perform those functions. As far as the concept was concerned, he was of the view that the need for uniform application of EU law meant that the definition should be given a uniform interpretation throughout the European Union, particularly as the Directive makes no reference to the law of member states for the purpose of determining its meaning.

Article 2(2)(b) of Directive 2003/4 is based on a concept of public administrative functions which … cannot but be a common, shared concept and, accordingly, an EU concept.[70]

As for the identification question – who performs public administrative functions other than the “public authorities” in the formal sense of the term, this must be for each member state to determine, in accordance with the principle of institutional autonomy.  Accordingly, the AG’s conclusion was that the Court should state in reply to Question 1 that

the concept of a natural or legal person ‘performing public administrative functions under national law’ must be established by reference exclusively to EU law so far as the definition of the concept of ‘public administrative functions’ is concerned, while it is for the laws of the Member States to determine which natural and legal persons are authorised to perform such functions, in the event that provision is made to that effect. [71]

Having determined that the definition of “public function” was a matter of EU law, the AG’s view was that the concept of “public administrative functions” in the Directive was, “quite simply”, equivalent to that of “public authority”. Whilst this may sound somewhat circuitous, he goes on to explain that the concept must refer to the full panoply of state powers, otherwise the exclusion of bodies acting in a “judicial or legislative capacity” would make no sense. He acknowledges that this conclusion doesn’t get us completely home on this “thorny and controversial” issue. More detail is needed in separating the concepts of private and public function. The AG therefore proposes that the referring tribunal should establish whether the water companies may, by virtue of a formal legal act conferring official powers on them, impose on individuals obligations for which they do not require consent of those individuals. If they can, they are in a position “substantially equivalent” to that of the administrative authorities of the State.  A regulatory authority such as a water company “simply delimits the ambit within which free and autonomous will can be exercised, that is to say, the scope of what is possible for an individual in the strict sense, namely someone who freely engages in an activity within a framework defined by the public authorities”[97].

This sounds somewhat philosophical but by placing the definition on such a simple footing – the difference between a private individual exercising private will, and those bodies which have been vested with public authority – the AG has added a useful gloss to the definition of public authority, one perhaps more appropriate to modern society with its many hybrid institutions yielding considerable economical and official power. This is all the more important in the context of access to environmental information since it removes the difficulties arising from the fact that directives are not enforceable as between individuals:

 In other words, it is a question of identifying public authority where it exists in substance and making it genuinely subject to the requirements laid down in Directive 2003/4.

Even though an apparently private body such as a water company may be classified as an “emanation of the State”, such a body covered by Article 2(2)(c) of the Directive continues to be an individual for all intents of purposes, in contrast with the State in the strict sense, or bodies performing public administrative functions under national law (such as the Environment Agency). Such a person, says the AG

does not exercise public authority, in the sense that he is not able to impose his will unilaterally on other individuals. However, in so far as the State acts through him, he is of necessity covered by the concept of public authority laid down in Directive 2003/4. [100]

These bodies, such as the water companies, become an instrument of state action over other individuals even though they act only as individuals, simply because, ultimately, “their actions can be traced back to the will of the State itself”. The Directive embraces both individuals who, by virtue of an express delegation of authority, exercise some powers with a certain degree of autonomy (Article 2(2)(b)), whereas Article 2(2)(c) “encompasses individuals who, without substantive autonomy, are instruments of the State for the purposes of the latter’s actions in the sphere of private relationships as a mere individual.” Such bodies, whilst apparently independent or private, must operate in a context “defined to the last detail” by the public authorities, for example

through the establishment of public prices, the imposition of management plans or the obligation to comply with detailed guidelines for the operation of the service. [106]

Such control “renders illusory” the apparent autonomy of the body concerned. Whilst it is for the national courts to determine the extent to which factors of this kind are present in each case, they should rely on the CJEU’s case law relating to companies set up to provide certain services. So his recommendation is for the CJEU to reply to the question referred in the following way:

that a person is ‘under the control of a body or person falling within (a) or (b)’ of Article 2(2) of Directive 2003/4 if his actions are subject to a degree of control by that body or person which prevents him from acting with real autonomy in private affairs, so that he is reduced to the status of an instrument of the body or person’s will, a matter which it is for the referring tribunal to determine. [111]

As far as the obligation to provide access to environmental information is concerned, the AG was of the view that the duty should apply in its full extent, whether it is the State in its strict sense or a public authority in the broader sense under Article 2(2)(b) of the Directive.

the obligation to permit access to environmental information held by it, regardless of the capacity in which it obtained that information: in other words, both where that information is the result of exercising its imperium and where it is the result of its activities as a body governed by private law. [117]

The situation is different when it comes to bodies performing services that used to be the function of the state, but also perform other, completely unconnected activities, such as a service relating to the environment in another area, but under free competition conditions such that it is not possible to classify them as “public authorities” for the purposes of the Directive. These are “merely individuals”, and, as such, are not subject to the Directive’s requirement on public authorities to make environmental information available.

In answer to any objection that this recommendation creates difficulties in practice by giving rise to a “hybrid” situation, the AG is unambiguously in favour of transparency:

 in the light of the spirit of Directive 2003/4 and its objective of promoting access to information held by the public authorities in the broadest sense of the term, situations of uncertainty should always be resolved in favour of the person requesting information. [120]

In other words, if there is any doubt, the obligation of disclosure must prevail.

Should the CJEU follow the AG’s recommendations in this Opinion, there will be all to play for when domestic courts come to apply the redefined notion of “public authority” – and not just in environmental cases.

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1 comment;

  1. John D says:

    It seems to me that utility companies such as water and energy (gas and electricity) are unique.
    They were all established by the local state (in the case of my local authority, they established the local water company, gas company and electricity company).
    They were – many would argue – wrongly sold off to subsidise lower tax demands during the 1980s – to quote the immortal Macmillan phrase “selling off the family silver”.
    More importantly, they are not treated by police and local authorities as just another business.
    I believe they continue to be referred to as ‘statutory undertakers’. This means that they may dig up roads to access water, sewage, gas and electricity pipes at virtually any time of the day.
    In the case of the water companies, they have the legal power to issue water rationing orders and impose hosepipe bans with the powers to take errant individuals to court. How can they be perceived as being just another company?
    What other company is legally allowed to restrict sale and distribution of their products?
    These companies supply socially necessary services. If they were to fail to deliver, our society would be negatively affected in a very short space of time.
    They clearly have to be treated differently from other companies in the commercial sector.

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