Judicial Review Concerning Access to Information
In Fish Legal and Shirley (C-279/12), the CJEU concluded that a water and sewerage contractor is considered a public authority. Although it is a commercial company which is, moreover, subject to a special regulatory regime for the sector concerned, its control within the meaning of Directive 2003/4 is not excluded: “…it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law. Undertakings, such as United Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd, which provide public services relating to the environment are under the control of a body or person, and should therefore be classified as ‘public authorities’, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field.”
There have been several cases before the Aarhus Convention Compliance Committee concerning similar entities. For example:
- Kazakhstan ACCC/C/2004/1: The State-owned Kazatomprom performing administrative functions under national law, including activities in relation to the environment, and performing public functions under the control of a public authority.
- Hungary ACCC/C/2004/4: A special state-owned company for construction of expressways established by law would fall under the definition of the public authority.
- Belarus ACCC/C/2009/37: National legislation delegates some functions related to maintenance and distribution of environmental information to private entities. These should be treated as falling under the definition of a “public authority”.
The CJEU also made clear that the requirements to provide information do not apply to bodies or institutions acting in a legislative capacity; ministries to the extent that they participate in the legislative process, in particular by tabling draft laws or giving opinions (Flachglas Torgau, C-204/09). On the other hand, ministries when they prepare and adopt normative regulations which are of a lower rank than a law are required to provide information (Deutsche Umwelthilfe, C-515/11). The Directive does not govern access to environmental information contained in court files, where neither the courts nor the bodies or institutions under their control, which thus have close links with those courts, constitute ‘public authorities’ (Friends of the Irish Environment, C-470/19).
As regards locus standi, the definition of “applicant” in Article 2(5) of the Directive includes any natural or legal person requesting environmental information. There are no standing requirements linked to citizenship, residence, centre of activities or sufficient interest in the information in question.
As regards required scope of review, the CJEU held that national review procedures in relation to applications for access to environmental information must allow the competent court or tribunal “to apply effectively the relevant principles and rules of EU law” (East Sussex, C-71/14). According to Article 6 of Directive 2003/4/EC, applicants must have access to a review procedure to challenge public authorities on the following grounds: The public authority ignored the request for access to “environmental information”; The request was wrongly refused, whether in part or in full; The request was inadequately answered, or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5 of the Directive. These grounds cover both the substantive legality of the public authority’s decision or omission (i.e. what information was refused and on what grounds) as well as the procedural legality (i.e. whether the decision fulfilled the requirements relating to the procedure by which the decision was taken, or how the information is disclosed).