Decision
Right to Know and Celtic Roads Group (Dundalk) DAC (CRGDAC)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0025
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0025
Published on
Whether CRGDAC is a public authority within the meaning of article 3 of the AIE Regulations
Note: This decision was appealed to the High Court in May 2019. It was subsequently agreed between the parties that the decision be set aside and remitted back to the Commissioner for a fresh determination. The Commissioner made a fresh determination on the matter in OCE-93421-T8F8W7.
According to its website, Celtic Roads Group is an international consortium of companies who came together to bid for road construction projects under the Irish Government’s National Development Plan (NDP), 2000-2006. The NDP allowed for a Public Private Partnership (PPP) Programme to fund the construction of several infrastructure projects, three of which were won under tender by Celtic Roads Group, namely the Dundalk Western By-pass PPP Project, Waterford By-Pass PPP Project and Portlaoise By-Pass PPP Project. Transport Infrastructure Ireland (TII) (formerly National Roads Authority) and the relevant Local Authorities are the Public Sector partners who awarded the contracts under tender competition and who oversee all elements of the construction and operation of the roads.
In 2005, the Dundalk Western By-pass (DWB) motorway was officially opened. CRGDAC operates the M1 motorway from Gormanston (Meath) to just short of Balymascanlan (Louth) and is responsible for this 53km section of motorway until 2034. The project is fully funded through the collection of tolls near Drogheda. Northlink M1 Ltd carry out the operation and maintenance services on behalf of CRGDAC.
On 4 May 2017, the appellant requested from CRGDAC a full set of data from the traffic counters installed in the vicinity of the M1 toll to cover the period from when the road opened to the date of the AIE request.
The appellant did not receive a reply within one month in accordance with article 7(2)(a) of the AIE regulations and on 6 June 2017, it requested an internal review of this deemed refusal. Later that morning CRGDAC replied to the appellant stating that CRGDAC is not a public authority. Later that day the matter was appealed to my Office.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant, CRGDAC and TII. I also have had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention—An Implementation Guide (Second edition, June 2014). In conducting a review, I am bound by the requirements of fair procedures. I am satisfied that both the appellant and CRGDAC were afforded an opportunity to comment on material issues raised in their respective submissions. While I sought and received a submission from TII, I did not invite the appellant or CRGDAC to respond to the comments made therein as they raised no new material issues for consideration.
Article 12(3) of the AIE Regulations provides a right of appeal to my Office where a decision by a public authority has been affirmed under article 11. Article 11 deals with internal reviews by public authorities of their decisions on AIE requests. Article 11(5)(a) provides that I may review refusal decisions made "on the grounds that the body or person concerned contends that the body or person is not a public authority". CRGDAC contends that it is not a public authority within the meaning of the Regulations. This review is therefore limited to the question of whether CRGDAC is or is not a public authority within the meaning of the AIE Regulations.
Definition of “public authority ”
Article 3(1) of the AIE Regulations provides that “public authority” means, subject to sub-article (2)—
(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—
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(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;
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA), O’Donnell J. interpreted the structure of the definition of "public authority" as "reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them.” Accordingly, sub-articles (i) to (vii) do not extend the primary elements of the definition contained at (a) to (c), which correspond to the definition of "public authority" as set out in Articles 2(2)(a) to (c) of the Directive. As per the Supreme Court in NAMA the AIE Regulations should be interpreted in light of the AIE Directive, which in turn, should be interpreted in light of the Aarhus Convention.
Article 2(2) of the Aarhus Convention provides that “‘Public authority’ means:
This definition does not include bodies or institutions acting in a judicial or legislative capacity”.
Article 2(2) of the AIE Directive provides that “‘public authority’ shall mean:
Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”
Guidance on the meaning of the term "public authority" under Article 2(2) of the Directive, and thus article 3(1) of the Regulations, is provided by the judgment of the Court of Justice of the European Union (CJEU) in C-279/12 Fish Legal and Emily Shirley v Information Commissioner and Others (Fish Legal EU), available at Fish Legal EU. At paragraph 67 of Fish Legal EU, the CJEU summarised the definition as follows:
Regarding the meaning of “public authority” as defined in Article 2(2)(a) of the AIE Directive (the equivalent provision of article 3(1)(a) of the AIE Regulations), the CJEU stated at paragraph 51 that:
The CJEU considered in detail the meaning of Article 2(2)(b) of the AIE Directive (the equivalent provision to article 3(1)(b) of the AIE Regulations). The CJEU stated at paragraph 48 that:
Thus, it clarified that the terms “public administrative functions” must be examined in the light of EU law and that a body, in order for it to be a public authority under Article 2(1)(b), must be empowered to perform those functions by national law.
The CJEU went on to adopt a functional approach to assessing whether a body is performing public administrative functions. It stated at paragraph 52 that:
The CJEU went on to explain at paragraph 56 that:
Therefore, in assessing whether the functions being performed by a body are public administrative functions, one should examine whether the body is tasked by national law with the performance of services of public interest, and is, for that purpose, vested by national law with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
In addressing the issue of whether a body is “under the control of” a public authority within the meaning of Article 2(2)(c) of the AIE Directive (the equivalent provision to article 3(1)(c) of the AIE Regulations), the CJEU stated at paragraph 73 that:
The CJEU provided illustrative examples of decisive influence at paragraph 69:
The Appellant’s position
The appellant stated that the majority of national roads in Ireland are operated by TII and non-national roads are operated by local authorities. It pointed out that both TII and the local authorities are undisputedly public authorities under the AIE Regulations. The appellant argued that given that the same public functions are being performed, it would be inconsistent if there was a small number of public roads in Ireland outside the scope of the AIE Regulations merely because those roads are operated as PPPs or that environmental information relating to the toll roads operated by TII was accessible while environmental information on PPP toll roads was not. It referred to the teleological approach to statutory interpretation taken by the Supreme Court in NAMA in its consideration of the interpretation of what constituted a public authority in light of the purpose of the AIE Directive and the Aarhus Convention. It argued that I should apply the same approach in this case.
The appellant submitted that all PPP partners are public authorities as they are performing public administrative functions, including exercising the powers of the relevant public authority, under national law as per article 3(1)(b) of the AIE Regulations. It argued that as CRGDAC is a “partner” under section 3 of the State Authorities (Public Private Partnership Arrangements) Act, 2002(State Authorities Act, 2002), it is tasked with the performance of TII's functions in respect to the operation and maintenance of the DWB. It highlighted the definition of 'functions' within the act which includes 'powers and duties' and the 'exercise of powers'. It argued that the State Authorities Act 2002 clearly provides for a State authority functions to be carried out by PPP companies.
It also submitted that CRGDAC has ‘special powers’ as a result of the Roads Acts 1993 to 2018 (Roads Acts) and the M1 Bye-laws. It argued that CRGDAC is entrusted with the performance of services of public interest and for this purpose have been vested with special powers as a “road undertaking” under Part V of the Roads Acts and therefore is a public authority as per the CJEU's decision in Fish Legal EU. It submitted that the M1 Toll Bye-laws designate CRGDAC as the Toll Company and give it the power to have tolls levied on vehicles using the M1 Motorway. It argued that as a result of these and sections of the Roads Acts, CRGDAC is vested with special powers enabling it as a road undertaking to:
The appellant also appears to argue that CRGDAC is a public authority under article 3(1)(c). It said that as the right to make bye-laws rests with TII, this indicates that CRGDAC does not enjoy autonomy over how it operates. Therefore, according to the appellant, it is under the direct or indirect control of a State authority because:
The appellant also submitted that as an operator of a public toll road, CRGDAC, following the CJEU's judgment in Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs- AG (Asfinag), (C-157-02) (Rieser), is an emanation of the State. It submitted that an emanation of the State in this context is, by definition, a public authority under the AIE Regulations. The appellant argued that, as a result of the CJEU judgment in Farrell v Whitty and Ors, Case C- 413/15 (Farrell), it is sufficient that a private body concerned has special powers beyond those which result from the normal rules applicable to relations between individuals; it need not, additionally, be a body under control of the State.
CRGDAC’s position
CRGDAC submitted that it is a private limited company and is most accurately described as having been contracted by the State to design, build, operate and maintain the DWB in accordance with the terms of its Contract with TII. It stated that it is not performing public administrative functions under national law nor is it carrying out specific duties, activities or services in relation to the environment.
In response to the appellant’s arguments referencing the State Authorities Act 2002, CRGDAC submitted that under a private partnership, the functions of the State authority remain the functions of the State authority. The PPP arrangement is in furtherance of those functions. A PPP Contract does not transfer, delegate or devolve a State authority’s functions to the relevant private sector party. It does require the private sector party to perform functions which are consistent with the State authority’s but, according to CRGDAC, this is on a contractual basis only.
CRGDAC denied that it is vested with special powers and submitted it does not have power that confers on it a practical advantage relative to the rules of private law. It submitted that any rights and obligations available to CRGDAC are derived solely from the Contract and not under statute. It argued that it does not have any independent statutory powers to collect tolls or carry out operation and maintenance of the road. It stated that without those contractual rights and obligations, it would not be able to carry out its functions. It argued that the special powers identified in Fish Legal EU were truly in the nature of special powers enjoyed pursuant to legislation and not contract.
In relation to the powers of a road undertaking identified by the appellant under section V of the Roads Acts, it argued that:
It submitted that the right to make bye-laws rests exclusively with the road authority (TII) under the Roads Acts and CRGDAC has no input in relation to the regulatory environment in which the road currently operates or was designed and constructed. It stated that all regulatory requirements in relation to the establishment of the DWB as a motorway scheme were dealt with by TII, which TII procured the land and planning permission for the project.
CRGDAC argued that subject to contractual requirements, it operates in a genuinely autonomous manner and is not under the direction or control of TII. In its submission, it cited the Advocate General's Opinion in Fish Legal EU stating that an individual is under the control of a body or a person falling within Article 2(2) (a) or (b) of the AIE directive if its actions are subject to a degree of control exercised by that body or person which prevents him from acting with real autonomy in private affairs thereby “reducing him to the status of an instrument of the will of the State.”
Article 3(1)(a)
The appellant does not argue that CRGDAC is a public authority within the meaning of article 3(1)(a) of the Regulations. Nevertheless, having regard to Fish Legal EU and NAMA, I find that, as a private limited company governed by private law, CRGDAC is correct in stating that it is not public authority within the meaning of article 3(1)(a).
Article 3(1)(b)
In accordance with Fish Legal EU, a body is a public authority under Article 2(2)(b) of the Directive and, thus, article 3(1)(b) of the Regulations, where it is a natural or legal person which:
It is not disputed that CRGDAC is a legal person.
The appellant’s primary argument is that all PPP companies are public authorities and it cites the State Authorities Act 2002 in support of this. Having considered this Act, I take the view that its purpose is to give State authorities the power to enter into PPPs. The State Authorities Act 2002 itself does not confer on or transfer powers to CRGDAC or any other private company that enters into a PPP arrangement. I doubt that it was the intention of the legislature to make all private entities that enter into PPP arrangements public authorities and I do not consider that the State Authorities Act achieves this. I take the view that CRGDAC performs functions which are consistent with TII’s functions as set out in the Contract in that it operates and maintains the motorway in accordance with the provisions of the Contract.
I do not accept that CRGDAC has been vested with special powers under Irish law. It seems clear to me from that, in relation to the M1 motorway, TII is the relevant road authority and CRGDAC through the Contract with TII is a road undertaking. Therefore, neither the Roads Acts nor the M1 bye-laws confer directly any powers on CRGDAC. The duties and obligations conferred upon it are derived from the Contract. It is my opinion that special powers cannot be conferred on a private company through contract law. The “powers” vested in the Contract merely allow CRGDAC to operate and maintain the motorway on behalf of TII. Nothing that I have seen during the course of my review would enable me to find otherwise.
In any event, I consider that the “powers” identified by the appellant would stretch the definition of special powers laid down by both the Court in Fish Legal EU and referred to by the Supreme Court in NAMA. CRGDAC cannot purchase land by way of compulsory purchase order; require access to and use of private property or create bye-laws. It simply does not have those type of powers. As I am not persuaded that CRGDAC enjoys any special power, I find that it is not a public authority under article 3(1)(b).
Article 3(1)(c)
There are three elements to consider when determining whether a body is a public authority within the meaning of the definition at article 3(1)(c) of the AIE Regulations. They are:
1. Does the body have public responsibilities or functions or provide public services?
2. Do those public responsibilities, functions or services relate to the environment ; and
3. Is the body under the control of a public authority falling under paragraphs (a) and (b) of the definition i.e. government or other public administration body or any natural or legal person performing public administrative functions under national law?
All three elements must be met for a body to be a type (c) public authority. I will first consider whether CRGDAC is under the control of TII. If I decide that it is, I will only then consider the other two elements.
From the information available to me, I am satisfied that CRGDAC is a privately owned company. Neither TII nor any other State body has a shareholding in it, the relationship is a commercial one governed by private law. However, even though CRGDAC is a private company, this does not automatically exclude it from being a public authority.
I have already concluded that CRGDAC’s obligations and duties in relation to the motorway are derived solely from the Contract. It is now necessary for me to apply the “decisive influence” test as set out in paragraph 73 of Fish Legal EU in order to determine whether decisive influence can be exerted though a contractual arrangement. I consider that the examples of decisive influence in paragraph 69 of Fish Legal EU are not ones that can achieved through contract law. I also would find it surprising that, upon entering a contract, a private company would be willing to give up autonomy in its private affairs. It seems clear to me that CRGDAC has the autonomy to decide its own position in relation to its dealings with TII. Its obligations and duties are delivered on the basis of agreement between the parties. I consider that CRGDAC is able to act with a measure of substantive autonomy in its affairs.
In this regard, I also note that TII took an action to the High Court against CRGDAC in the case of National Roads Authority -v- Celtic Roads Group (Dundalk) Limited [2011] IEHC 71, which arose out of a dispute regarding the correct interpretation of the Toll Bye-Laws for the M1 motorway. To me this further emphasises the independence of CRGDAC from TII. If TII had a decisive influence over CRGDAC, it would seem unnecessary for it to go to the Commercial Courts to resolve a dispute with CRGDAC.
I am satisfied that CRGDAC is not under the control of TII and therefore is not a public authority under article 3(1)(c).
The appellant submitted that concept of emanation of the State is closely aligned to the concept of public authority under the AIE Regulations and that CRDDAC is an emanation of the State. Whether a body is an emanation of the State is not an issue which arises in my review. However, having considered both CJEU cases cited by the appellant, Rieser and Farrell, I am satisfied that the arguments put forward by the appellant do not apply to CRGDAC. In reading both judgments it seems clear to me that they do not go so far as to state that a private company not under State control and/or not given any powers by statute must be treated as “the State” and by extension fall within one of the three categories of public authority for the purpose of the AIE Regulations.
Having carried out a review under article 12(5) of the AIE Regulations, I find that CRGDAC is not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations. Accordingly, it was not obliged to process the appellant’s request for access to information under the AIE Regulations and I have no further jurisdiction in relation to this matter.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information