Fish Legal v. Information Commissioner

Access to Information
Pollution, Water

Fish Legal v. Information Commissioner, Case C‑279/12 (December 19, 2013)
Court of Justice for the European Union

A conservation organization and a citizen submitted requests to two private water companies seeking information concerning pollution discharges, clean-up operations, and sewerage capacity.  When the water companies refused to provide the information, the petitioners appealed to the Information Commissioner, who dismissed the appeal on the ground that the water companies are not “public authorities” subject to the environmental information regulations.  Para. 17.

The water companies eventually disclosed the information, but the Court of Justice for the European Union nevertheless considered the legal question in order to resolve similar questions arising with other industries. 

Directive 2003/4 guarantees the right of access to environmental information held by or for public authorities. Article 2(2) of the Directive defines “public authority” to include “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment” and “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a [public authority.]” 

The Court noted that the water companies are entrusted with the responsibility for building and maintaining water and sewage infrastructure for the public’s benefit and that national laws confer these companies with certain powers, such as the ability to make compulsory purchases.  To determine whether an entity is considered a legal person that performs public administrative functions “it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.”  Para. 56. 

For the purposes of determining whether an entity is providing public services under the control of a public authority, the Court advised that companies should be classified as such “if they do not determine in a genuinely autonomous manner the way in which they provide those services . . . .”  Para. 73.

The case was remanded to the referring tribunal for further proceedings.  
The opinion may be viewed at this link:  (Spanish available)