Postscript 12 November 2015 see for similarish cosniderations under Human Rights law (rejection of Facebook as a hybrid public authority)Richardson v Facebook.
In Case C-279/12 Fish Legal, CRUZ VILLALÓN AG opined on 5 September last.
The case concerns private companies which manage a public service relating to the environment (water and sewage services) and the dispute centres on whether, in the circumstances of the case, the management of that service is of such a nature that, even though the companies concerned are private, they have to be regarded as ‘public authorities’ for the purposes of Directive 2003/4 and, in consequence, must comply with the request for information addressed to them by two private individuals.
In England and Wales, water and sewerage services may be provided only by companies which have been appointed by the Secretary of State or (now) by OFWAT (the economic regulator of the water industry in England and Wales) as water supply and/or sewerage undertaker for a particular area of England or Wales. Only a limited company may be appointed as a water or sewerage undertaker (Section 6(5)). The companies are run by boards of directors, accountable to the shareholders. The companies are run in accordance with normal commercial principles, as set out in their memoranda and articles of association, with the aim of generating profits for distribution to shareholders as dividends and for reinvestment in the business. The companies are subject to the rules binding upon all other public limited companies or limited companies. They receive no public subsidy. Neither borrowing nor investment decisions are directly dictated by government or any other public body. Nor is any borrowing by the companies backed by the State. Accordingly, each company’s funds are generated by charges to customers, the sale of shares and other rights issues, borrowing through the capital markets at normal commercial rates, and other commercial activities such as the sale of land and other assets.
In the case before the referring tribunal, access was sought by a non-profit-making organisation and by a natural person to information held by companies which the national authority did not regard as ‘public authorities’ for the purposes of Directive 2003/4.
Article 2(2) of directive 2003/4 reads
2. “Public authority” shall mean:
(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 (a) or (b).
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.’
That EU law generally requires autonomous interpretations is not in doubt; within the specific context of access to information, the ECJ had already also confirmed that in Flachglas Torgau.
As an aside, of note here is the AG’s view that ‘Admittedly, the concept in question is not relevant solely in the context of EU law; on the contrary, it comes within the ambit of an international convention – the Aarhus Convention – which is binding on the European Union and in the light of which Directive 2003/4 must be construed. Obviously, that directive is not decisive when it comes to the interpretation of the Aarhus Convention but it is decisive for the purposes of ensuring that the European Union meets its obligations in relation to that convention, since it can only do justice to them if it is able to ensure that, in the context of the European Union, the concept of ‘[n]atural or legal persons performing public administrative functions under national law’, as used in Article 2(2)(b) of the Aarhus Convention, is uniformly construed in all the Member States.’ I am not sure I agree but I am not an external relations expert and perhaps the extract just needed slightly more precise language: the Aarhus convention is a ‘mixed agreement’: both the EU and its Member States are a Party to it, for their respective spheres of competence. Does the EU have a calling (duty or even right to meddle) in the application of the Convention in the Member States?
Coming back to the issue under consideration: despite the need for autonomous interpretation, the specific EU provision under consideration itself refers to national law: Article 2(2)(b): ‘any natural or legal person performing public administrative functions under national law, …‘ (emphasis added). The AG suggests that this provision should be read purely in a factual sense: EU law cannot determine which persons or institutions actually perform those functions in each Member State, that is for the Member State to decide. However it is for EU law alone, to establish what those functions are and in what they consist. Put differently, ‘since certain functions are defined under EU law as ‘public administrative functions’, it will then be necessary to determine, in accordance with national law, which bodies – in addition to the public authorities in the strict sense – may perform such functions and are therefore covered by Article 2(2)(b) of Directive 2003/4.’ (emphasis in the original)
The AG then defines ‘‘public administrative functions’, within the context of the provision, as ‘functions by virtue of which individuals have imposed on them a will the immediate effectiveness of which, albeit subject to review, does not require their consent.‘ The AG suggests that ‘Article 2(2)(b) refers to individuals who, by virtue of a formal, express delegation of authority, exercise with some degree of autonomy certain official powers, whereas Article 2(2)(c) encompasses individuals who, without substantive autonomy, are instruments of the State for the purposes of the latter’s actions in the sphere of private relationships as a mere individual. Accordingly, both cases involve the State, either because an individual exercises public authority which is the monopoly of the State or because an individual allows the State (directly or via an intermediary) to act through him as an individual governed by private law.’ (at 103)
Finally the AG reviews how far the duty of information (and transparency) goes, and distinguishes two possible situations (at 117 ff – footnotes omitted)):
‘ (i) the situation of bodies or persons whose activities are limited to the management of a service under conditions which mean that they must be regarded as public authorities for the purposes of Directive 2003/4; and (ii) the situation of bodies or persons who, in addition to managing a service under such conditions, also perform other, completely unconnected, activities, an example being bodies or persons who also manage a service relating to the environment in another territory but under free competition conditions and without it being possible to classify them as ‘public authorities’ for the purposes of Directive 2003/4.
As far as the persons or bodies in situation (i) are concerned, the question is answered by Directive 2003/4 itself, Article 3(1) of which provides that ‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant …’ In short, Directive 2003/4 imposes on the State – both the State stricto sensu and a ‘public authority’ in the broader sense of Article 2(2)(b) of Directive 2003/4 – the obligation to permit access to environmental information held by it, regardless of the capacity in which it obtained that information: in other words, both where that information is the result of exercising its imperium and where it is the result of its activities as a body governed by private law.
As far as the persons or bodies in situation (ii) are concerned, it is my view that they do not warrant the same treatment. They may be regarded as public authorities only to the extent that they perform activities relating to the environment in circumstances which may be classified as ‘control’ within the meaning of Article 2(2)(c) of Directive 2003/4; in other words, in so far as they act ‘under the control’ of the public authorities. Aside from that, they are merely individuals and, as such, are not subject to the requirement laid down in Article 3(1) of the directive.
I accept that, as the parties have observed, the foregoing may, in certain circumstances, give rise to a ‘hybrid’ situation which is difficult to handle in practice. In so far as that is the case, it is my opinion that, in the light of the spirit of Directive 2003/4 and its objective of promoting access to information held by the public authorities in the broadest sense of the term, situations of uncertainty should always be resolved in favour of the person requesting information.’
For EU law, the Court’s judgment will be of tremendous importance. ‘Public authorities’ is a concept which is used extensively in EU law. While formally opined vis-a-vis the environmental information Directive, it is clear that the analysis of the AG may be of general use for EU law and consequently will have an impact on the ever-increasing trend of privitisation and outsourcing of public functions.