Sunday Business Post 100 Hot Start-ups

The Sunday Business Post has published its list of 100 Hot Start-ups showcasing a cross section of the vibrant startup scene in Ireland. Aside from a curious inclusion of a Five Guys franchise as an Irish start-up, the publication is excellent and highlights innovative entrepreneurs and companies across a wide range of industry sectors.

Something that immediately strikes us as IP lawyers is the range of creative brand names for these ventures. No doubt some have put a huge amount of time and effort into ideating the brand names, and believe that they own them…

However, the only way for a start-up or emerging business to legally own a brand name is to register it as a trademark. Moreover, trademark registrations are territorial, meaning rights only extend to the geographical markets covered by any registrations. While company name registration, business name registration and domain name registration are all very important, none actually grants exclusive rights in the name. The only way to get exclusive legal rights in a brand name is to register it as a trademark.

A quick search on trademark registers for a representative sample of the brand names in the publication shows that a surprising number have not yet been protected as trademarks. In Europe registered trademark rights are obtained on a “first to file” basis. It’s important for start-ups and emerging companies to get this sorted early, and to secure legal ownership of the brand name by trademark registration, before someone else gets there first and causes a problem… At the very least get advice on it so you know where you stand. Any start-ups with questions about how to protect a brand name as a registered trademark efficiently and cost-effectively, do get in touch with us to discuss.

Information law: Privacy constraints on access to information seized under warrant

A recent judgment of the Irish High Court illustrates the fine balance that must be struck between privacy rights and the right of investigators to access information seized under warrant.

Opening his judgment like a whodunit, judge Max Barrett of the Irish High Court sets the scene for a thriller concerning the rights of the Irish Competition regulator (the CCPC) to access information seized during a dawn raid and exposes the dangers of not privacy-proofing search and seizure laws.

For those who want to skip to the end, let’s just say it doesn’t end well for the CCPC which had ventured into Terra Incognita to find that the only discernible feature in the otherwise desolate landscape consists of a rock and a hard place.

The facts are simple – in May 2015 the CCPC obtained a warrant to search the premises of Irish Cement Limited (ICL) at its factory North of Dublin. During the raid, the CCPC took copies of large amounts of electronic information including the entirety of the email box of a senior ICL executive. It transpired that the seized information included both personal and private information that was not covered by the CCPC warrant. Recognizing this, the CCPC indicated that it would review all of the seized information and that it would decide which information came within the scope of the warrant. Naturally ICL objected and proposed a procedure whereby an independent party would conduct the review and only hand over relevant information to the CCPC. The parties were unable to reach agreement and so ICL issued proceedings asking the court to determine the scope of CCPC’s right to access private and personal information falling outside of the scope of the search warrant.

Barrett J sets the scene:

One has arrived at a place that seems largely, if not entirely, ungoverned by law. The [CCPC] maintains, not that this provided anywhere in the 2014 Act, that the proper thing to be done is that it should go through of the materials it now possess … weeding out the wheat to which it is entitled from the chaff.

For its part ICL contended that such a process is a violation of the European Convention on Human Rights, the Charter of Fundamental Rights, the Data Protection Acts and the Irish Constitution.

Barrett J agreed firstly observing that while there was no illegality in the seizure of the information, the accessing of it by the CCPC would constitute a breach of the ECHR and Constitutional rights to privacy and while there were statutory protections for legally privileged information, no such protections were provided for private or personal information. The CCPC could not assume that it had carte blanche in respect of such information and, according to the court, that the only way to access any of the seized information was through negotiation and agreement with ICL.

This undoubtedly makes it difficult, if not impossible, for the CCPC to continue its investigation.

While the judgment may be appealed the law as it stands makes it virtually impossible for the CCPC to conduct an investigations since, with electronic information in particular, there is almost always an intermingling of personal and irrelevant private information in any seizure. Without a statutory framework for accessing seized information it is difficult to see how the CCPC can confidently gather evidence if it has to rely solely on the cooperation of the undertaking which is subject to investigation.

The case highlights the importance of privacy-proofing legislation. While the legislature saw fit to provide safeguards for legally privileged information, it doesn’t seem to have considered the possibility that a seizure would “hoover up” mixed information and didn’t provide similar protections for the privacy rights of individuals and corporates.

The judgment may be appealed but until a final decision is issued it seems that the CCPC is stymied and ultimately there may be a need for a statutory amendment to resolve the issue.

Thanks to TJ McIntyre for posting a copy of the judgment online.

Chief EU data protection regulator launches blog ushering in a new era of global data protection

April fool’s day is not the best day to launch a blog, but Giovanni Buttarelli, the European Data Protection Supervisor decided to put his digital pen to paper to launch a blog heralding the advent of a new era of data protection where European standards will be the “digital gold standard”

Buttarelli is referring to the General Data Protection Regulation which is expected to become law before the Summer.

Mr Buttarelli sees the two major strategic consequences of the GDPR which he describes as a “game changer” and at the core of our human dignity setting the standard for a generation:

The first consequence is that the GDPR sets up a genuine platform for global partnerships. This reflects the global nature of data flows, enabled by technologies and driven by creative, disruptive business models.Over half the countries in the world now have a data protection and/or privacy law, and most are strongly influenced by the European approach, a trend towards the ‘global ubiquity’ of data privacy. The regulation promises a wider scope for cooperation between authorities and data controllers both within the EU and internationally. It should galvanise efforts for a more consistent standard contractual clauses, speed up the validation process for binding corporate rules, and help them dovetail with similar arrangements elsewhere in the world. I hope that the new provisions for codes of conduct, seals, certification and accreditation processes will incentivise controllers inside and outside the EU to take the initiative in devising standards which are both business friendly and in the interests of individuals.

The second consequence is that data protection is no longer an optional extra. The Court of Justice of the European Union applies these rules strictly, interpreting them in the light of the EU Charter of Fundamental Rights, and favouring the rights and interests of the individual above corporate or business aims, however reasonable and legitimate. The EU cannot retreat from these core values. Data protection authorities will have to be vigilant in monitoring implementation of the GDPR, and applying the newly- amplified range of possible sanctions in case of violation.

 

 

Trunki decision: What Irish businesses need to know

Rob Law, inventor of the Trunki children’s ride-on suitcase was interviewed on RTE Radio 1 yesterday (Podcast: Successful Rejects – Trunki – 31st March) and told the story of the successful brand.

Trunki has been in the media recently for other reasons as it failed to enforce its EU registered design in the UK against the discount rival Kiddee case – even though the rival product was intended as a discount version of the Trunki product.

An EU registered design is an IP right that protects the appearance of the whole or part of a product, to the extent that the design is new and has individual character. In considering the scope of protection what matters is the overall impression produced by the design.

Trunki’s EU registered design consists of six CAD drawings with greyscale shading and grey/black colour contrasts. See below, alongside a sample view of the rival product.

CaptureTT2

On 9 March the UK Supreme Court dismissed Trunki’s appeal against a finding that its EU registered design was not infringed by the rival product. The Kiddee case did not infringe Trunki’s registered design because it made a different overall impression, namely an insect with antennae or an animal with ears. This was significantly different from the overall impression given by Trunki’s registered design, namely a horned animal. Furthermore, Trunki’s registered design was not a claim for the shape alone, but a shape in contrasting colours (appearing in black and grey in the drawings). While the Court sympathised with Trunki, noting the concept was original and clever, it said that design rights are there to protect designs and not ideas or inventions.

This decision against Trunki is a reality check about how far registered design protection goes in practice. It also underscores the importance of getting the graphic representation of the design right. In fact, it may be that the outcome for Trunki might have been different if simpler line drawings were used, instead of CAD drawings with shading and grey/black  colour contrasts which appear to have restricted the scope of protection.

While this decision is based on its own facts, there are a number of important takeaway points from the decision that all design-led businesses need to know:

  • Registered designs remain an important IP right, however the scope of protection can be fairly narrow, especially for mass market products or in crowded design space.
  • Registered designs only protect visual appearance of a product, not the idea or concept underlying a product.
  • Contrary to media reports, registered design infringement is not about comparing two products in the marketplace. It involves comparing the overall impression of the rival product with that of the design as registered. In other words, the registered design determines scope of protection, not the product itself or how it appears in the marketplace.
  • Utmost care is now required when filing a registered design application, in particular how the graphic representation is prepared, to maximise scope of protection while maintaining validity. Applicants have choices about how to depict a design using line drawings, CAD drawings or photographs. Getting the graphic representation right is crucially important as this will define the scope of protection. Applicants also have choices about filing a multiple design application to maximise protection across graphical formats or visual appearances.
  • It is likely that the scope of many existing EU registered designs is more restricted now than previously thought, particularly where graphic representation is based on CAD drawings with unnecessary tonal contrasts or based on photographs.
  • Although this is a UK decision it relates to EU registered design law and has relevance for Ireland.
  • Businesses and designers should take an overall approach and consider best options for IP protection to fit budget and commercial objectives. This means getting professional advice and considering all options whether based on trade marks, patents and copyright, as well as registered designs.

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The Supreme Court judgement (PMS International Ltd v Magmatic Ltd [2016 ] UKSC 12) is here

High Court rules that broad interpretation of “environmental information” is required

In breaking news the High Court has this morning delivered judgment in Stephen Minch -v- Commissioner for Environmental Information & Anor , a case which concerned the scope of access to environmental information.

This is the first opportunity the Irish courts have had to review the correct test as to whether information falls within the scope of Directive 2003/4/EC on public access to environmental information. The directive gives effect in the EU to provisions of the Aarhus Convention on access to information.

In her judgment, Baker J held that the Commissioner for Environmental Information failed to adopt a purposive interpretation that is required to give effect to the provisions of the Aarhus Convention and its implementation under EU law and that he imposed an overly narrow test of remoteness when characterising the information requested by Mr Minch and the context in which it was created:

I consider in the circumstances that the Commissioner’s approach was too narrow, he failed to adopt the teleological approach that is required to the interpretation and implementation of the Regulations, and imposed an overly narrow test of remoteness in seeking to characterise both the N.B.P. and any report or information within the framework that might inform the Government on the implementation of that plan.

With this judgment the Irish courts have affirmed that laws which give effect to the Aarhus Convention must be interpreted in light of the purpose of the Convention and in the case of access to environmental information a broad approach must be taken to allow for public participation in decisions which affect or may affect the environment.

A copy of the judgment is available here.

FP Logue Solicitors, acted for the Applicant.

Are Tweeted AIE requests possible? Commissioner says yes with some conditions

Can a request for access to environmental information be validly sent from an anonymous Twitter account?

That is the question the Commissioner for Environmental Information answered in a recent decision on a request from the Twitter account @windnoiseinfo to Wexford County Council (@wexfordcoco).

In making his decision the Commissioner ruled that he has the jurisdiction to formally review a request which is refused on the basis that a valid request has not been made. He further applied the Aarhus Convention directly in his interpretation of the scope of those formalities under the Irish AIE Regulations finding that unincorporated associations may make requests and that as long as a contact person is identified requests can in principle be initiated via social media and that a social media handle can constitute the address for the purposes of the AIE Regulations.

In September 2014 the applicant @windnoiseinfo published a public tweet mentioning @wexfordcoco and including an image file setting out the nature of the request.

There then followed several exchanges on Twitter with the public authority requesting that contact be made with it via email. The requester persisted and again via Twitter requested an internal review on the basis of a deemed refusal.

Following this request the public authority emailed the general email address of the requester refusing to carry out an internal review on the basis that a valid request had not been made.

On appeal the Commissioner first decided that he had the jurisdiction to make a decision. He reviewed the Irish AIE Regulations, Directive 2003/4/EC and the Aarhus Convention and found that under the access to justice provisions of the Directive the concept of “request” must be given a broader meaning than only those requests validly made under Article 6 of the regulations.

Relying on the Interpretation Act 2005 and the Electronic Commerce Act 2000, the Commissioner furthermore had no difficulty finding that electronic communications including communications containing information included by reference has legal effect and meets all the necessary conditions for a request to be “in writing”.

The public authority had argued that since the name, address and contact details of the requester had not been provided it could not establish whether the request was made by a natural or legal person and therefore it could not establish if the requester was entitled to make a request. The Commissioner observed that while both the Directive and the Regulations state that requests may only be made by natural or legal persons the Aarhus Convention defines the public as “one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups”. The Commissioner found that the AIE Regulations provide an exception to the common law rule that unincorporated associations do not have legal personality distinct form their members and that no purpose would be served by restricting the right of request to natural and legal persons only.

Turning to the meaning of “address” in the Regulations the Commissioner held that the purpose of providing an address was to facilitate a channel of communication between the requester and the public authority and that there is no requirement for the address to include a physical address since this could exclude those unable to provide a physical address or those who wished to communicate electronically. The Commissioner held that once a contact person has been identified any electronic means including social media accounts are valid communications channels for AIE requests.

The Commissioner, however found that the public authority was justified in refusing to process the request since no contact person had been identified and he therefore affirmed the decision of the public authority but varied the grounds.

Nevertheless this is an important decision for AIE in Ireland.

It provides for requests to be dealt with entirely electronically with no need for postal communications. This will facilitate services such as whatdotheyknow.com and asktheeu.org which are based on the open-source Alataveli platform.

It emphasises that not only is the right of request a broad right but equally the Commissioner’s jurisdiction is also broad since access to justice is an essential element of the AIE regime and the right to an administrative review of a decision by an independent body is part and parcel of the broad access right.

Finally this decision clearly shows the influence of the Supreme Court decision in National Asset Management Agency -v- Commissioner for Environmental Information [2015] IESC 51 where the Court held that the AIE Regulations must be interpreted purposefully in light of the Aarhus Convention.

The text of the decision is not yet on the OCEI website but may be downloaded here.

Liquidators as data controllers

A recent judgment of the High Court considered the issue of exactly who is the data controller under Irish law of personal data held by a company in liquidation. This issue arose, possibly for the first time in this jurisdiction in the recent judgment of Keane J In the Matter of Mount Carmel Medical Group (South Dublin) Limited (In Liquidation) [2015] IEHC 450.

This case concerned the liquidation of a private hospital where for cost reasons the liquidator had agreed to outsource the ongoing management of patient records to St James Hospital, an operating hospital. Under the contract the liquidator would have benefited from an indemnity in relation to amongst other things breaches of  the Data Protection Acts. Under normal circumstances such a contract would be considered to be a controller-processor arrangement with the service provider (in this case St James Hospital) merely acting as a data processor on the instructions of the controller. However, in this case the liquidator sought declarations from the Court that the contract transferred full control over the personal data to St James thereby making it the data controller and absolving the company (and the liquidator) from any further obligations as data controller. In fact the liquidator made it clear to the court in its submissions that the purpose of the outsourcing contract was in large part to transfer data protection liabilities to St James Hospital.

The court considered the UK case of Southern Pacific Personal Loans Limited [2013] EWHC 2485 (Ch) where a liquidator was held not to be a data controller since it merely acted as an agent for the insolvent company which had possession of the personal data at issue. Keane J pointed to several factual similarities between Mount Carmel and Southern Pacific but in the end did not find it necessary to make a finding based on Irish insolvency law as to whether a liquidator is a data controller in its own right over personal data contained in records that it has a statutory obligation to retain.

Having considered the matter in detail and having ordered the Data Protection Commissioner to make submissions, the Court declined to grant the declarations sought. Even though the Commissioner supported an amended declaration the court felt that to do so would transgress on the jurisdiction of the Data Protection Commissioner to make determinations concerning the rights of data subjects. The Court was of the view that such matters as the identity of the data controller and the question of each party’s compliance with the Data Protection Acts were properly matters for the Commissioner to decide and that the Court should not interfere with that jurisdiction.

106. In this case, faced with that authority, the DPC, through her Counsel, disavows any suggestion that the ‘enforcement of data protection’ functions allocated to her by the Oireachtas under s. 9 of the DPA – broadly comprising a power to investigate any alleged contravention of the DPA; a power to render decisions in writing in that regard (subject to a right of appeal to the Circuit Court, and a further right of appeal to this Court on a point of law); and a power to issue enforcement notices – should be viewed as conferring upon her an exclusive jurisdiction to make decisions concerning any alleged contravention of the DPA. In adopting that position, the DPC points to the provisions of s. 7 of the DPA whereby a duty of care owed by a data controller or data processor to a data subject is expressly recognised for the purpose of the law of torts, to the extent that it is not already provided for under the common law.

107. S. 7 removes any doubt that there might otherwise have been that there is a right to claim damages in proceedings before the courts for breach of a duty of care owed to a data subject by a data controller or data processor. To that extent, it is plain that the jurisdiction conferred upon the DPC by the Oireachtas to determine certain issues under the DPA is not an exclusive one.

108. However, the fact that this Court has jurisdiction to deal with actions in tort alleging the breach of a duty of care recognised under the DPA does not mean that it should not be alert to the potential problems that the exercise of its discretion to make declaratory orders might create in that context. There seems to me to be a clear danger of overlapping and unworkable jurisdictions, were I to consider making orders determining the future rights of data subjects in proceedings to which those persons are not party, thereby depriving them of any meaningful right to make a complaint to the DPC concerning the company’s processing of their personal data; to have that complaint investigated by the DPC; to have a decision made upon it, subject to a right of appeal to the Circuit Court and, on a point of law, to this Court; or to have any decision in their favour ultimately enforced by the DPC. Indeed, were I to make the declarations now sought, they would have the further obvious effect of adversely predetermining any claim in tort that might later be brought by any data subject against the company, as data controller, for breach of the duty of care recognised by s. 7.

This is a sensible judgment given the statutory obligations which data controllers should meet, it probably would not be in the interests of data subjects for the role of data controller to be decided in advance merely so that liability can be assigned as between parties to a contract concerning personal data.

Department of Finance publishes KDB consultation feedback

The Irish Department of Finance has published the results of its consultation into the implementation of a “Knowledge Development Box” in Ireland. One of the key issues that arose during the consultation was the definition of “qualifying assets” i.e. those intellectual property rights for which a lower corporation tax rate applies to the associated profits. This definition is controversial since the OECD has mandated that favourable tax treatment of intellectual property related profits can only apply where there is a nexus with real research and development activity.

The proposal from the Department of Finance limits the qualifying assets to patents, software copyright, supplementary protection certificates and plant breeders’ rights that result from research and development activities. Marketing related intellectual property is specifically excluded. The document states further that “The scope of patents and copyrighted software that may be included in the definition of qualifying assets is under active consideration.

The document details a possible approach as follows:

One possible approach is that the following definitions could determine what is a qualifying asset:

‘qualifying asset’ means an asset which is intellectual property, other than marketing related intellectual property, which is the result of research and development activities;

‘intellectual property, other than for the purposes of the definition of acquisition costs,’ means:

(a) a patent granted under the laws of the State or under any corresponding provisions of any territory outside the State,

(b) any copyright or related right within the meaning of the Copyright and Related Rights Act 2000, or any corresponding provision of law of any other territory outside the State, in relation to computer software,

(c) any supplementary protection certificate issued under Council Regulation (EC) No 469/2009 of 6 May 2009 (OJ L152, 16.6.2009, p 1) concerning the supplementary protection certificate for medicinal products,

(d) any supplementary protection certificate issued under Regulation (EC) No. 1610/96 of the European Parliament and of the Council of 23 July 1996 (OJ L198, 8.8.1996, p 30) concerning the creation of a supplementary protection certificate for plant protection products, or

(e) any plant breeders’ rights within the meaning of section 4 of the Plant Varieties (Proprietary Rights) Act 1980, as amended by the Plant Varieties (Proprietary Rights) Amendment Act 1998;

‘marketing related intellectual property’ includes trademarks, brands, image rights and other intellectual property used to market a qualifying asset; ‘research and development activities’ means systematic, investigation or experimental activities in a field of science or technology, being one or more of the following—

(i) experimental or theoretical work undertaken primarily to acquire new scientific or technical knowledge, with a specific practical application in view,

(ii) applied research, namely, work undertaken in order to gain scientific or technical knowledge and directed towards a specific practical application, or

(iii) experimental development, namely, work undertaken which draws on scientific or technical knowledge or practical experience for the purposes of achieving technological advancement and which is directed at producing new, or improving existing, materials, products, devices, processes, systems or services including incremental improvements thereto;

It doesn’t look like there will be any further formal consultations at this point. The Department has said that it will continue to consider the issues until the end of August at which point it presumably will begin to finalise a proposal for inclusion in October’s budget.

Major study of intellectual property use by Irish business published

The Department of Jobs Enterprise and Innovation (DJEI) today announced the publication of a major study into the use of the intellectual property by Irish enterprises. The study which followed on from an earlier in-depth analysis of IP usage by Irish business has made several recommendations in respect of the various public bodies which have responsibility for enterprise policy development and delivery. The key recommendations call for the drafting of a National IP Statement and the appointment of a National IP Champion as well as various measures to strengthen supports and education in IP matters.

According to the consultants engaged by DJEI:

The creation of a national IP Statement and assignment of an IP Champion are key recommendations, and implementation will need to be driven by DJEI. Given the focus on IP as a platform for increased innovation and growth we would recommend DJEI be responsible for the establishment and implementation of the IP Statement. As part of the development of the IP Statement, further consideration of the remit, resourcing and hosting of the IP Champion function would be required. The IP Champion needs to be an experienced, high-calibre individual with the authority and political skill to drive change and will need to be supported with communications, tool development and operational activities. The IP Champion will have a key role in promoting IP management capability amongst the firm base in Ireland, and should work through appropriate agencies and offices of DJEI.

The launch of a national IP Statement and the creation of an IP Champion would improve visibility around IP and IP inter-service coordination immediately, and provide a focal point for IP information and tool development. This will in turn provide the platform for strengthening the IP commitment and capacity of key public sector actors in the innovation system in Ireland and will also provide the wherewithal for those actors to bake-in IP advice to their wider service offer.

Fred Logue represented the intellectual property law committee of the Law Society of Ireland on the expert IP advisory group which worked with the consultants and DJEI staff to produce the report.

The reports may be downloaded from here.

Lessons for everyone from NAMA v. Commissioner for Environmental Information

“This is a long drawn out and contentious dispute conducted between two public bodies at public expense, which is one further illustration of the truth that some disputes are so bitter because the stakes are so low. The increased public availability of information held by official bodies in relation to the environment is part of the international trend towards both greater sensitivity to, and protection of, the environment and greater disclosure of information, transparency if you will, in relation to public bodies. In Ireland, this development can be traced to international roots, and in some cases to specific provisions of European law. It is important therefore, in seeking to understand the provisions of Irish law, to set them in their European and international context.”

Thus opens the judgment of O’Donnell J giving the unanimous judgment of a five-person Supreme Court in National Asset Management Agency v. Commissioner for Environmental Information which concerned the issues as to whether NAMA was a public authority and therefore subject to the European Communities (Access to Information on the Environment) Regulations 2007. Readers will recall that this regulation gives effect to Directive 2003/4/EC on access to environmental information, a right of access mandated by the Aarhus Convention which has been ratified both by the EU and Ireland.

While the opening paragraph perhaps does not do justice to the importance of access to information as a tool of environmental protection it clearly expresses the Court’s dissatisfaction with many aspects of this case which comes five years after journalist Gavin Sheridan asked NAMA to grant access to environmental information. A less than satisfactory transposition, the Commissioner’s long and unsatisfactory procedure and undue narrowing of the issues by the parties in court all came in for criticism by judge O’Donnell. Too many rules of thumb, incorrect application of domestic statutory interpretation rules to EU law and poor litigation tactics combined to make life difficult for the Court forcing it in the end to decide the issue on an interpretation that was by agreement not argued by the parties.

The Court emphatically held that domestic rules of statutory interpretation do not apply in the case of the transposition of laws arising under international treaties such as the Aarhus Convention since these laws necessarily involve concepts and rules which must apply in a harmonized way over a broad range of legal systems and traditions and in the case of the Aarhus Convention extending beyond Europe itself. In such cases, the Court said, the domestic implementation must be interpreted in the context of the directive and treaty in order to achieve the purpose of the international instrument.

“10. While it will be necessary to address the specific questions of interpretation arising here in some detail, it is necessary to make some general observations at this stage on the approach to interpretation of a statutory instrument introduced in to Irish law pursuant to the State’s obligations to implement in national law the provisions of a directive of the EU which itself was adopted in compliance with an obligation undertaken by the EU (and Ireland) under an international agreement. It does not seem to me to be possible, and if possible, would not be correct, to approach the question of interpretation solely through the prism of national law, and the sometimes elaborate approach to statutory interpretation in Irish law in particular. There are rules for the interpretation of legislation introduced implementing an international treaty. In particular, this specific obligation undertaken by Ireland as a member of the EU requires that the courts approach the interpretation of legislation in implementing a directive, so far as possible, teleologically, in order to achieve the purpose of the directive. But furthermore, the language used in this statutory instrument, and in particular subparagraphs (a) to (c) is derived directly from Directive 2003/4/EC addressed to member states and intended to take effect in different national legal systems. That language is in turn derived from an international treaty negotiated between and agreed upon by a large number of international states with different legal systems.
11. In this particular context, it is important to bear in mind that the concepts of administrative law and public law can differ substantially between countries, and in particular between common law systems and civil law systems. It does not appear possible, or indeed lawful, therefore to address the meaning of this statutory instrument in isolation from that context. In particular, even the provisions of subparagraphs (i) to (vi), while clearly terms introduced by the Irish legislator, must nevertheless be understood as implementing the provisions of Directive 2003/4/EC (and indirectly the Convention) and for the reasons touched on above, ought not to go further (but not fall short of) the terms of that Directive. If even as a matter of purely domestic interpretation, the provisions of those subparagraphs might appear to either fall short of what is required by the Directive, or go further, an Irish court might be required to adopt another interpretation which is consistent with the provisions of the Directive, if that is possible. Accordingly, in order to understand what the statutory instrument means and does in this case, it is necessary, perhaps first, to understand exactly what the Directive does and means, which in this case may also mean interpreting the provisions of the Convention. I propose therefore to outline the essential facts of this case before addressing the specific issue of interpretation which has arisen.”

In the end the majority of the judgment is concerned with the correct interpretation of laws which derive from EU and international law and in particular the pitfalls that arise if such laws are not implemented through primary legislation. The judgment also sets down clear indications that where there is uncertainty as to fundamental concepts an early CJEU reference should be made by a lower court or tribunal (including in this case the Commissioner) rather than waiting for a lengthy domestic court process to conclude at appeal stage that such a reference is necessary. The court also found that an agreement by the parties to narrow the issues was particularly unhelpful to the Court and would likely have lead to a narrow judgment with little precedential value and the possibility of further lengthy and expensive litigation between two publicly funded bodies.

The Court observed that but for the decision of the CJEU in Fish Legal which was delivered during the Supreme Court hearing it would have referred questions to the CJEU for a preliminary reference concerning the correct definition of public authority under EU law.

In the end the issue was decided in a mere paragraph (2% of the judgment) where the Court had no difficulty applying Fish Legal to the issue. The Court said the issue was clear since NAMA was a creature of public law and had been granted significant special powers in the context of the state response to the recent financial crisis.

“50. If the law stood as it was at the time of the High Court decision I would have considered it necessary to refer a question to the ECJ as to whether a body such as NAMA was a public body for the purpose of the Directive which exercised public administrative functions. The definition section of the Directive is unclear, and it is also necessary to consider the Aarhus Convention. However the decision in Fish Legal provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system. Applying that test it is clear that NAMA is indeed a public authority exercising public administrative functions. Although like the water companies in Fish Legal, it is obliged to act commercially, it is undoubtedly vested with special powers well beyond those which result from the normal rules applicable in relations between persons governed by private law. If anything, the case is clearer here. The water companies in Fish Legal were companies established in private law whereas NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The Act also restricts or excludes certain remedies against NAMA. The establishment and operation of NAMA is a significant part of the executive and legislative response to an unprecedented financial crisis. The scope and scale of the body created is exceptional. Indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the financial crisis. Accordingly, for the reasons set out above, I would dismiss the appeal.”

FP Logue Solicitors acted for the requester