Posts Tagged Aarhus
Access to information ironically is subject to a myriad of rules and regulations at the EU level: some of a general nature (particularly: Regulation 1049/2001), some lex specialis (such as Directive 2003/35 and Regulation 1367/2006), but with a complex relationship between lex generalis and lex specialis. Add to the mix in the environmental field, public international law in the form of the Aarhus Convention and, well, what you get is an awful lot of regulatory intransparency. Leonie and I have made an attempt succinctly to summarise same in Chapter 5 of our Handbook on EU environmental law.
In C‑57/16 P Client Earth v EC, the CJEU’s Grand Chamber set aside a General Court judgment which had earlier sided largely with the EC viz two requests of information: the first of those requests sought access to the impact assessment report drawn up by the Commission on the implementation of the ‘access to justice’ pillar of the Aarhus Convention, while the second sought access to the impact assessment carried out by the Commission on the revision of the EU legal framework on environmental inspections and surveillance at national and EU level. Both were refused on the ground for exception provided in Regulation 1049/2001, that ‘access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’
The Grand Chamber essentially held that access should be granted: core of its reasoning is at para 92: ‘Although the submission of a legislative proposal by the Commission is, at the impact assessment stage, uncertain, the disclosure of those documents is likely to increase the transparency and openness of the legislative process as a whole, in particular the preparatory steps of that process, and, thus, to enhance the democratic nature of the European Union by enabling its citizens to scrutinise that information and to attempt to influence that process. As is asserted, in essence, by Client Earth, such a disclosure, at a time when the Commission’s decision-making process is still ongoing, enables citizens to understand the options envisaged and the choices made by that institution and, thus, to be aware of the considerations underlying the legislative action of the European Union. In addition, that disclosure puts those citizens in a position effectively to make their views known regarding those choices before those choices have been definitively adopted, so far as both the Commission’s decision to submit a legislative proposal and the content of that proposal, on which the legislative action of the European Union depends, are concerned.‘
Essentially: a true transparent policy process requires citisens to be able to impact the flow of the water before it disappears under the bridge.
EC Institutions continue to fight rearguard actions against transparency, which subsequently have to be addressed by the likes of Client Earth. The CJEU could not be clearer in highlighting the patch access to EU policy should continue to follow.
(Handbook of) EU Environmental Law, first ed.2017, Chapter 5. (With Leonie Reins).
Perhaps it has been studied already. Perhaps it is more of a PhD chapter, short paper or indeed a case for public interest litigation. Stephanie Bijlmakers and I had a good moan about the lack of access to ISO standards when we wrote on ISO 26000. I now have encountered again how extraordinary it is that the public do not have free access to industry standards with such high societal relevance. The trigger this time round is one of our PhD students enquiring with me about recyclable content in packaging. This has sent me on a goose chase to gain access to a copy without having to fork out £170 each for 5 relevant CEN standards.
So here’s my research starter for ten: could and if so under what circumstances can privately developed yet publicly approved standards be considered environmental information under relevant EU and international rules, access to which needs to be granted without charge?
Thank you to both Patrick Wauthelet and Arie van Hoe for forwarding a copy of the judgment of the Brussels commercial court in Parfip. Please pop me an e-mail should you like a copy. The judgment is textbook application of CJEU precedent, including of course Eurofood and Interedil. Fully respecting the presumption of individual COMI in the case of a group of companies, the judgment refers to ia German and French precedent in rebuking the presumption. Not only were the companies effectively run from Brussels, notwithstanding non-Belgian seat for some of them; to third parties it was also clear that this was the case.
The judgment also confirms a narrow interpretation of the exception for ‘credit institutions’.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 22.214.171.124.Heading 126.96.36.199.4.
Aarhus, Access to Environmental Information Directive. Review of Henney  EWCA Civ 844 .
Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney  EWCA Civ 844 , 29 June 2017 – read judgment
As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.
The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.
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Not the Muppet show. FREP, FREP, FREP and Frogmore. Determination of COMI for groups and SPVs. The High Court pushes head office approach.
In  EWHC 25 (Ch) the Frogmore Group, there are three relevant companies: FREP (Knowle) Limited. FREP (Ellesmere Port) Limited and FREP (Belle Vale) Limited all of which were incorporated in and have their registered office in Jersey. The Companies form part of Frogmore group (of which the ultimate parent is Frogmore Property Company Limited). The Frogmore group specialises in real estate investment and management in the UK and each of the Companies owns a shopping centre located at Ellesmere Port in Cheshire, Belle Vale in Liverpool and Knowle in Bristol respectively. Each of these shopping centres is managed by Frogmore Real Estate Investment Managers Limited (“FREPIM”), a company formed in England and Wales with its registered office and base for operations at London.
The Nationwide seeking enforcement of security, the group sought a declaration that COMI was at Jersey.
Marshall DJ held with reference to the familiar precedents of Eurofood and Interedil, both featuring heavily in my earlier postings on COMI, but also to Northsea Base Investments in which Birss J paid particular attention to the largest shareholders. Of note is that this reference to the largest shareholders does not entail (and indeed is not so constructed in either Northsea Base or Frogmore) that these get the pick of what COMI might entail. Rather, that the dealings with and experience of one place as being the place where the company’s interest are being managed from, is of particular interest for the Interedil emphasis on ascertainability by third parties. Marshall DJ also rekindles the discussion on whether Interedil’s emphasis is on identifying the ‘Head office’ of the companies: a conclusion which one needs to treat with caution for even in Interedil’s tacit support for the head office approach, the emphasis continues to lie with the combination of factors, all leading to transparency and publicity.
The High Court in the end held with reference to the following: (at 39; all wording as the judgment but with one or two words left out)
(1) Day- to-day conduct of the business and activities of the Companies has been in the hands of an agent appointed in England, namely FREPIM. Under the Advisory Agreement (which was itself governed by English law and had an English exclusive jurisdiction clause) FREPIM was to take on full responsibility for providing a very large range of services to the Companies, including day-to-day management of the Shopping Centres and dealing with their financing, accounting, marketing and formulation of their business strategy. FREPIM itself acknowledged that it worked on investment strategy and business plans for the Companies; instructed lawyers, surveyors and consultants for them; negotiated the purchase and sale of properties on their behalf; dealt with their borrowing requirements; and attended to the provision of accounting systems and the preparation of management and annual accounts. These actions were not just limited commercial activities but included the types of function that one would expect a head office to discharge.
(2) Day-to-day dealings with third parties are carried out from the offices of FREPIM at London. This is confirmed by the evidence of the activity of FREPIM described above but it is also supported by, for example, the Companies’ VAT returns where their business address is stated to be those offices. In their day-to-day dealings with third parties regarding expenditure these offices are given as the address for invoices.
(3) If one has regard to the point of view of the largest creditor, Nationwide, the Facility Agreement and the Nationwide Debentures are governed by English law and have an English jurisdiction clause. Under the Facility Agreement the Shareholder is the service agent for the Companies. In the case of the Nationwide Debentures, they have express reference to the power to appoint administrators under the 1986 Act. FREPIM took over the day-to-day contact with Nationwide as well as providing Nationwide with various pieces of information (such as quarterly compliance packs and accounts for borrowers) and did so from London. FREPIM also accepted that the management of the relationship between the Companies and Nationwide had been carried out by [the group treasurer] and the Chairman of the Frogmore group, who was also based in London.
(4) I also note that under the terms of the debentures securing the advances made by the Shareholder that the governing law is English, there is an English exclusive jurisdiction clause, that FREPIM is appointed the service agent of the Companies and there is express provision for the appointment of administrators under the 1986 Act.
The case is a good reminder that even intricate SPV structures should not detract from COMI finding on well-established principles. And that COMI determination always depends on a basket of criteria.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 188.8.131.52., Heading 184.108.40.206.4.
As a practising lawyer registered to the Belgian Bar I had more than a passing interest in C‑543/14 Orde van Vlaamse Balies v Ministerraad. The case was held on 28 July. At issue is the reversal of the Belgian exemption of legal services from value-added tax (VAT). Of interest for this blog was the Bar Council’s argument that making legal services subject to VAT endangers access to court for individuals. Corporations recover said VAT from the tax their own sales incur. For them, making legal services subject to VAT has zero impact on their books.
The Bar Council sought support among others in the Aarhus Convention, particularly Article 9(4) and (5) on access to court:
‘3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’
Perhaps taking inspiration from the Grand Chamber’s approach in Vereniging Milieudefensie, and consistent with the suggestion of Sharpston AG, the five judges Chamber dismissed direct effect for Articles 9(4) and (5) of Aarhus, mostly because of the Conventions deference in Article 9(3) to ‘national law’.
Given the increasing (but as noted recently qualified; see also here) cloud the CJEU’s Grand Chamber had been given Aarhus, this finding by a five judge chamber that Aarhus Articles 9(4) and (5) do not have direct effect is a little awkward. It also puts the Grand Chamber itself in a challenging position. There are quite a number of Aarhus-related cases pending. Will this chamber’s view on 9(4) and (5) be followed by the assembled top dogs? And if it is not, can the Grand Chamber overrule or distinguish without embarrassment?
On ‘reasonable amounts’, Aarhus, and the price of environmental information. Sharpston AG in East Sussex County Council.
In East Sussex County Council Case C-71/14, the question under consideration is the application of Directive 2003/4 ‘s reasonableness test. Article 5 of the Directive provides that in situ access to information to for example public registers has to be free of charge. Further, that charges for supplying any environmental information must be ‘reasonable’.
In particular, how ‘objective’ must a reasonable cost be, seen against the light of English statutory law which allows local authorities to specify access (and other) fees providing that the amount ‘shall not exceed an amount which the public authority is satisfied is a reasonable amount’. Application in that case is made by a property search group with a view to commercial conveyancing. Sharpston AG on 16 April 2015 opined that even for commercial applicants, authorities’ hands are quite tied. In particular,
- that Article 5(2) of Directive 2003/4 does not authorise a public authority to recover, through a charge for supplying information, all or part of the costs of establishing and maintaining a database in which it has organised the environmental information it holds and which it uses to answer requests for information of the type listed in a questionnaire such as that at issue in the main proceedings.
- that a charge which does not exceed a reasonable amount within the meaning of Article 5(2) of Directive 2003/4 is a charge which: (i) is set on the basis of objective factors that are known and capable of review by a third party; (ii) is calculated regardless of who is asking for the information and for what purpose; (iii) is set at a level that guarantees the objectives of the right of access to environmental information upon request and thus does not dissuade people from seeking access or restrict their right of access; and (iv) is no greater than an amount that is appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information) and directly correlated to the act of supplying that information; that
- In particular, a charge of a ‘reasonable amount’ under Article 5(2) of Directive 2003/4 is to be based on the costs actually incurred in connection with the act of supplying environmental information in response to a specific request. That will include the costs of staff time spent on searching for and producing the information requested and the cost of producing it in the form requested (which may vary). However, it is not permissible for such a charge also to seek to recover overheads such as heating, lighting or internal services. And that
- Article 5(2) of Directive 2003/4 requires public authorities to ensure that their charges do not exceed a reasonable amount, judged by the yardstick of what a ‘reasonable amount’ means objectively under EU law. That does not, as such, preclude a rule of national law according to which a public authority must satisfy itself that a charge levied meets that standard, however, Member State to ensure that there is (first) administrative and (then) judicial review of whether a public authority’s decision on what constitutes a reasonable charge is in conformity with the autonomous EU law meaning of what is ‘reasonable’ under Article 5(2) of Directive 2003/4.
In other words: the current wording in the relevant English statute, in the view of the AG, does not infringe the Directive. (It does in my view at least however add a layer of complication: for the authority’s subjective finding of reasonableness subsequently has to be checked, in two tiers of appeal (administrative cq judicial), against the Directive’s objective standard).