An interesting decision was handed down by Peter Tyndall, the Commissioner for Environmental Information, as to whether a private wind farm (“Wexwind”) fell within the definition of “public authority” for the purposes of the AIE Regulations, and was therefore bound to respond to AIE requests. This was the question posed in the matter of Francis Clauson and Wexwind Limited (CEI/16/0007).
Francis Clauson (“The applicant”) relied on paragraph (c) of the definition of “public authority” found in Article 3(1) of the Regulations:
“(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),
(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 subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information”.
The applicant argued that as the wind farm is in the business of wind energy generation, that this activity relates to the environment. Moreover, the applicant argued that this activity is a public service as it was dependent on state subsidies. Finally, the applicant argued that Wexwind did not have genuine autonomy in the way it provided a public service relating to the environment, as decisive control was exercised by state regulators (the CSE) and market operators (EirGrid and ESB).
Accordingly the applicant argued that Wexwind’s activities meant it fell squarely within the definition (c) of a “public authority”.
Strong arguments on the face of it, but the Commissioner did not agree, relying heavily on the Fish Legal decision and adopting a particularly narrow view of the mechanisms of the REFIT scheme.
Fish Legal and Emily Shirley v Information Commissioner and Others (C-279/12)
Here the Court of Justice of the European Union considered the meaning of “public authority” under article 2(2)(c) of Directive 2003/4 (equivalent to paragraph (c) of the definition of “public authority” contained in the AIE Regulations). The Court set out the standard of control under article 2(2)(c), ruling that:
“Undertakings… which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’ by virtue of Article 2(2)(c) of that directive, 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.”
The European Court of Justice provided illustrative examples of decisive influence, stating at paragraph 69:
“The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence.”
Fish Legal also describes the type of legal framework that would govern the public functions of a sub-article (c) body, stating at paragraph 71:
“If the system concerned involves a particularly precise legal framework which lays down a set of rules determining the way in which such companies must perform the public functions related to environmental management with which they are entrusted, and which, as the case may be, includes administrative supervision intended to ensure that those rules are in fact complied with, where appropriate by means of the issuing of orders or the imposition of fines, it may follow that those entities do not have genuine autonomy vis-à-vis the State, even if the latter is no longer in a position, following privatisation of the sector in question, to determine their day-to-day management.”
The judgment in Fish Legal must be criticised for this interpretation in an economy and commercial market that is not heavily regulated, being a capitalist economy still reliant on laissez-faire principles. The exception to this is where public monies are involved. Here stricter controls are exercised and these should be recognised as an exception to the norm, and not the norm itself. To say that everybody in business is subject to various forms of control is an oversimplification and has no logical basis when it is used to prevent members of the public accessing information from enterprises that rely on public monies, often for their very existence.
The Commissioner also relied on the judgment of the United Kingdom Upper Tribunal in Fish Legal v Information Commissioner  UKUT 0052 (AAC), which found that “autonomy has to be judged not by reference to absolute liberty, but against the normal background radiation of the constraints that limit the freedom of action for every business”.
Again, a repeat of an oversimplification of our very complex economy. Although it does consist of regulated industry, it is completely dominated by large multinationals who don’t give a jot for controls, as they have no dependence on public monies, and are therefore effectively unregulated. Accordingly, to say that “every business” is limited in the way that public utility companies are limited is just nonsense.
Accordingly, as he relied heavily on the Fish Legal judgment, the Commissioner decided that despite Wexwind operating in a regulated environment subject to licensing (the CER) and a controlled market (SEMO), these were constraints that limit the freedom of action for every business and were not sufficient to classify Wexwind as a public authority.
The REFIT Scheme
Possibly the applicant’s strongest argument was the fact that Wexwind, like all wind farms, was reliant on the subsidy scheme and therefore on public money, and this should be enough to include it under paragraph (c) of the definition.
The Commissioner had an answer to that. Wexwind and other farms like it did not directly receive the subsidy, but rather ‘indirectly benefitted’ from it:
“Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources creates targets for renewable energy usage for European Union member states. In order to meet these targets, the Department of Communications, Energy and Natural Resources operates a number of REFIT schemes. The REFIT schemes employ a price support mechanism, whereby electricity suppliers are paid a guaranteed price for qualifying renewable energy purchases from electricity generators. REFIT is funded by the public service obligation (PSO) levy paid by electricity consumers. Under the REFIT scheme, renewable energy generators do not receive payments, but can benefit indirectly from the availability of REFIT support, as the purchase of renewable energy by suppliers can be contracted on more favourable terms as a result of the subsidy.”
In receipt of public monies
Again, this is where the Commissioner and I part ways. If the Commissioner applied a purposive approach to interpreting the definition, the fact that Wexwind benefitted from public monies should be enough to bring it within the definition, as without the REFIT scheme the wind farms would not have bothered to even go into business – they are there to make profit, not save the planet.
However, on a strict literal reading of the definition, the Commissioner is correct – there is no mention of benefitting from public monies, and the emphasis of the definition is on the control aspect. The Fish Legal judgment has likewise given a very narrow interpretation of the concept of control, despite the fact that utility and other such companies rely for their very existence on subsidies which are provided by taxes and levies, not just what the customer pays on the monthly bill.
An opportunity missed. It would not be worthwhile to take the Commissioner on review because his reasoning is perfectly correct and logical, albeit narrow. Unfortunately, narrow-mindedness is not a ground for review, as it does not “plainly and unambiguously flies in the face of fundamental reason and common sense.”
A good try, Francis. You can‘t win em all!