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Neutral Citation Number:	2012 UKUT 177 AAC
Reported Number:
File Number:	GIA 979 2011
Appellant:	Fish Legal
Respondent:	Information Commissioner
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	21/05/2012
Date Added:	25/07/2012
Main Category:	Information rights
Main Subcategory:	Environmental information - general
Secondary Category:
Secondary Subcategory:
Notes:	Decision of the Court of Justice of the European Union reported as [2014] AACR 11. European Law – access to environmental information – Directive 2003/4 Article 2(2) –whether companies “public authorities” within Article 2(2) – whether performing “public administrative functions” under national law – whether “under the control” of a body or person falling within Article 2(2)(a) or (b) – whether public authorities only in respect of environmental information held in context of certain functions, responsibilities and services The appellant was an organisation for the protection of angling and anglers. It requested information from various water companies but received no reply. The Information Commissioner decided that he was unable to adjudicate upon the complaint on the basis that water companies were not public authorities for the purposes of the Environmental Information Regulations 2004. The appellant’s appeal was rejected by the First-tier Tribunal (F-tT) which followed the Upper Tribunal’s (UT) decision in Smartsource v The Information Commissioner [2010] UKUT 415 (AAC); [2014] AACR 10. The UT stayed the subsequent appeal and asked the European Court of Justice for a preliminary ruling on the following questions: (1) what the criteria were for determining whether entities which performed “public administrative functions” under national law could be classified as legal persons within the meaning of Article 2(2)(b) of Directive 2003/4/EC; (2) what criteria were to be used for determining whether entities were under the control of a body or person falling within Article 2(2)(a) or (b) and should therefore be classified as “public authorities” by virtue of Article 2(2)(c); and (3) whether Article 2(2)(b) and (c) should be interpreted as meaning that a person falling within that provision in respect of some of its functions, responsibilities or services constituted a public authority in respect of the environmental information which it held in the context of those functions, responsibilities and services. Held, that: 1. to determine whether entities, such as the water companies, could be classified as legal persons who performed “public administrative functions” under national law, within the meaning of Article 2(2)(b) of the Directive, required examination of whether those entities had been vested, under the national law applicable to them, with special powers beyond those which resulted from the normal rules applicable in relations between persons governed by private law (paragraph 56); 2. undertakings, such as the water companies, which provided public services relating to the environment and were under the control of a body or person falling within Article 2(2)(a) or (b), should be classified as “public authorities”, by virtue of Article 2(2)(c), if they did not determine in a genuinely autonomous manner the way in which they provided those services, because a public authority, covered by Article 2(2)(a) or (b), was in a position to exert decisive influence on their action in the environmental field (paragraphs 57 to 73); 3. Article 2(2)(b) meant that a person falling within that provision constituted a public authority in respect of all the environmental information which it held. Commercial companies, which are capable of being a public authority by virtue of Article 2(2)(c) only in so far as, when they provided public services in the environmental field, they are under the control of a body or person falling within Article 2(2)(a) or (b), were not required to provide environmental information if it was not disputed that the information did not relate to the provision of such services (paragraph 83).
Decision(s) to Download:	GIA 0979 2011-00.doc [2014] AACR 11bv.doc