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

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