Posts Tagged EU law
I reported on Sharpston AG’s Opinion in C-413/15 Farrell just before the summer break. The case considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’, for Directives to potentially have direct effect in individuals’ relations with that body. The CJEU held last week, in Grand Chamber, and decided the criteria apply disjunctively, not conjunctively. It is sufficient that the private body concerned have 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.
The Irish legislature conferred on the MIBI (Motor Insurance Bureau of Ireland) special powers beyond those which result from the normal rules applicable to relations between individuals, in that, on the basis of that statutory provision, that private organisation has the power to require all those insurers to become members of it and to contribute funds for the performance of the task conferred on it by the Irish State.
A further and important piece in the jigsaw that is direct effect. Next up no doubt: what exactly are the boundaries of ‘special powers’. Conflicts lawyers may recognise some of the discussions surrounding ‘civil and commercial’.
Perhaps it’s the warm weather or the balmy number of exams I am having to compile this term, but my imagination was running dry. One more exam to compose and it is for my American University summer law school students. A course on EU integration. Scratching my head on trying to find yet another variation on the direct effect theme, Advocate General Sharpston came to the rescue. So far I have only seen the press release (the Opinion itself is not on Curia yet) in C-413/15 Farrell which considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’. From the press release:
‘Ever since the Court developed the doctrine of the direct effect of directives and rendered it applicable to ‘vertical’ disputes between the individual and the State, but declined to extend that doctrine ‘horizontally’ to cover disputes between private parties, it has been essential to know what are the boundaries of ‘the State’ for the purposes of applying that doctrine. In its judgment in Foster, the Court set out a series of tests for determining the types of bodies that might be treated as ‘the State’ or, although it did not use that expression in its judgment, ‘an emanation of the State’ in that context. It did so by reference to existing case-law, which included a reference to the body in question having ‘special powers’.’
The focus of the Opinion is on those ‘special powers’.
In C-365/05, the Court had already held that Ireland had not properly implemented Directive 90/232. the question now before the court si whether the Motor Insurers’ Bureau of Ireland (MIBI) is an emanation of the State, engaging therefore vertical direct effect. The Irish High Court held it does. The Irish Supreme Court now asks whether the Foster criteria need to be applied cumulatively. Sharpston AG clearly suggests they do not, indeed that they are not limitative either: see the text for more detail of the criteria examined by Ms Sharpston.
Now, once the full text is out, one can of course chew over this a bit more. But for an introductory course, the press release suffices.
Leuven Law is recruiting 2 full-time chairs, at professorial level (the actual grade in which the chair will be appointed will depend on candidates’ experience) in both EU institutional and constitutional law, and public international law. The latter is a joint appointment with Open University of The Netherlands.
Questions on the chairs can be put to the dean (see the chair notice) however as Head of the Department of International and EU law, I am happy to entertain queries, too: preferably after the Christmas break for there is no rush. Deadline for applications is 10 March, 2016.
‘Public administrative functions’ – CRUZ VILLALÓN AG gives an EU definition in Fish Legal and jumpstarts European administrative law
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.