Suppliers to public sector may be subject to environmental information disclosure rules

Advocate General (AG) Cruz Villalón has recommended to the Court of Justice of the European Union (CJEU) that it issue a ruling that would make it possible, subject to certain conditions being met, to hold businesses under contract from a public authority subject to the EU's Directive on public access to environmental information.

An Information Rights Tribunal in England has asked the CJEU to help it determine whether utilities companies are subject to the Environmental Information Regulations (EIRs), which implement the EU Directive in England and Wales. The Information Commissioner ruled that they were not, although the companies have since disclosed the information sought by the requesters despite believing they were not obliged to do so.

The AG said that despite the disclosure, the questions that the Tribunal has sought answers from the CJEU for should still be provided.

Whether the companies are subject to the EIRs depends on how the definition of 'public authority' is to be interpreted. Cruz Villalón said that it should be possible, if certain criteria are met, to hold businesses subject to the regime.

According to the EU's Directive on public access to environmental information, the term 'public authorities' refers to "government or other public administration, including public advisory bodies, at national, regional or local level" and businesses that perform "public administrative functions under national law, including specific duties, activities or services in relation to the environment".

The term also covers organisations "having public responsibilities or functions, or providing public services relating to the environment" that are under the control of either a government or public administrative body or a business performing public administrative functions.

The Directive is implemented in the UK by the EIRS which perform a similar function to more general 'freedom of information' laws, only they specifically provide the public with a general right of access to "environmental information" held by public authorities, subject to exceptions.

'Environmental information' relates to "written, visual, aural, electronic or any other material form" of information about environmental elements such as air, water and landscape. It also includes information detailing factors such as energy, emissions and noise as well as legislative measures and reports that affect those elements or factors, amongst other things.

Cruz Villalón said that it is wrong to assume that all businesses acting on behalf of the state are not subject to the EIR disclosure rules. Companies acting "under the control" of a public authority should, in certain circumstances, be considered to be 'public authority' itself for the purposes of the regime, he said.

"A body will be ‘under the control’ of the State where that body itself is a creation of the public authorities to enable the State to participate in private affairs in a private capacity or where, since it is formally a body independent of the public authorities, it is required to participate in private affairs subject to conditions imposed by the public authorities which make it impossible for it to act with substantive autonomy in relation to fundamental aspects of its corporate activities," the AG said.

He said it is for national courts to determine whether companies should be considered to be operating under such conditions.

"In my view, it is perfectly possible ... to establish cases in which a contracting authority exercises over a legally distinct successful tenderer control similar to that exercised over its own departments," Cruz Villalón said. "In that connection, the Court considers that ‘there is 'similar control' where the entity in question is subject to control enabling the contracting authority to influence that entity’s decisions’, specifying that ‘[t]he power exercised must be a power of decisive influence over both the strategic objectives and the significant decisions of that entity ... In other words, the contracting authority must be able to exercise a structural[,] ... functional [and effective] control over that entity’."

"Accordingly ... I propose that the Court should state ... that a person is ‘under the control of a

[government or other public administration, or businesses performing public administrative functions under national law] ... if his actions are subject to a degree of control by that body or person which prevents him from acting with real autonomy in private affairs, so that he is reduced to the status of an instrument of the body or person’s will, a matter which it is for the referring tribunal to determine," the AG said.

Cruz Villalón said that businesses that are to be subject to the EIR rules should not be required to disclose environmental information that it stored when performing duties unconnected with any role they perform under the control of public authorities.