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.

Background

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
29 Oct 2019, Workshop, Dublin, Ireland

Our second in-depth training session of 2019 for Company Directors will take place on Tuesday 29 October in our offices on Barrow Street.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions