European Union: National Asset Management Agency v Commissioner For Environmental Information

Last Updated: 5 March 2013
Article by Catherine Allen

The High Court has found that the National Asset Management Agency (NAMA) is subject to the European Communities (Access to Environmental Information) Regulations 2007.

On 27th February 2013, Mr Justice Mac Eochaidh delivered his decision in the appeal by NAMA against a decision of the Commissioner for Environmental Information under the Regulations, which implement EU Directive 2003/4/EC on public access to environmental information. The Regulations give legal rights to those seeking access to information on the environment from “public authorities”.

NAMA is not (currently) subject to the Freedom of Information regime, which makes its being subject to the 2007 Regulations even more significant.


A journalist, Gavin Sheridan, made a request to NAMA under the 2007 Regulations. NAMA refused the request, both at first instance and internal review stage, on the basis that it was not a “public authority” within the meaning of the Regulations. Mr Sheridan appealed this decision to the Commissioner. The Commissioner declared NAMA to be a public authority under the Regulations.

Although lengthy, it is worthwhile repeating most of the definition of ‘public authority’ as set out in the Regulations here, as it is central to this case. It states that a public authority means:

(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 …

(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 subparagraph (I) or (II) applies,
having public administrative functions and responsibilities,
and possessing environmental information.

NAMA then challenged this decision; however, yesterday the High Court upheld the Commissioner’s decision.

Decision of the Court

The judgment of the Court is over 50 pages long and a copy can be found here - Part I and Part II. The judge’s conclusions are clearly set out from paragraphs 67 onwards. The judge stated that, in interpreting a law, the court’s first duty is to “discern” the legislator’s intention and this is derived from the “ordinary and natural meaning of the words used” and noted that if the words are plain and unambiguous, they must be applied as they stand.

The judge went on to say that, in trying to identify the legislative intention, he did not need to look any further than the opening recitals in the 2007 Regulations, where the Minister stated that the Regulations were made under section 3 of the European Communities Act 1972 and for the purpose of giving effect to the relevant EU Directive.

He noted that the Minister could not lawfully deem a body or person to be a public authority unless such a body or person conformed to the definition of public authority in the Directive. He noted that, due to the presumption of faithful transposition, i.e. that one must assume that the legislative purpose of the wording of the 2007 Regulations was no more and no less than “to give full and accurate effect to the provisions of the Community measure”, he must presume that the bodies or persons listed in the definition in Article 3(1) of the Regulations are public authorities within the meaning of the Directive. The judge noted that it was up to NAMA to rebut the presumption that it did not come within the definition of public authority in the Directive, but that no such argument had been made to him. The judge also stated that he took full account of the clearly stated objective of the Directive when interpreting its terms and when interpreting domestic implementing measures. In particular, he notes that Preamble 11 of the Directive provided that “the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment”.

On this basis, the judge interpreted the words of Article 3 as saying that ‘public authority’ means any person or body conforming to the descriptions at Article 3(1)(a) – (c) and ‘public authority’ also means any person or body or category listed in Article 3(1)(i) – (vii) or conforming to a description of a category of persons or bodies therein. On this basis, he accepted the case made by the Commissioner that the effect of listing the natural or legal persons at Article 3(1)(i) – (vii) is to deem those persons or bodies to comprise public authorities for the purposes of the 2007 Regulations.

It remains to be seen if NAMA will appeal the decision to the Supreme Court.

What does this mean for me?

Aside from the obvious impact on NAMA, the judgment will also help other bodies to decide whether they fall under the scope of the 2007 Regulations. In particular, there may be bodies set up under statute, or certain companies, which did not previously believe themselves to be subject to the 2007 Regulations, but it is now clear that they do so. As well as being required to deal with requests for environmental information, there are also certain other responsibilities placed on public authorities by the 2007 Regulations, which would require consideration.

It should be noted that there is currently a stay on the implementation of the judge’s decision until 13 March, when the matter is next before the Court. After that date, unless a further stay is granted, for example, pending the hearing of an appeal, many public bodies and companies may find themselves being required to give some detailed consideration to the impact of the 2007 Regulations.

The judgment is also useful because it reminds those who have to apply the 2007 Regulations that they implement an EU measure. This means, if there is a question about the interpretation of other provisions of the Regulations, it would be useful to look back at the wording of the Directive, including the preamble (the introductory paragraphs) for guidance. As the 2007 Regulations are secondary, rather than primary, legislation, they can go no further than implementing the principles and policies of the EU Directive and any incidental, consequential or supplemental matters. Anything more than this would be unconstitutional.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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