Case number:

Whether ESBIEFML was justified in refusing the appellant's AIE request on the ground that it is not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations

 

7 February 2019

 

CEI/18/0004

Background

 
ESBIEFML is a wholly owned subsidiary of the Electricity Supply Board (ESB) and ESB Energy International Limited.  According to accounting records filed with the Company Registration Office (CRO) that were submitted by the appellant, the principal activities of the company are the provision of electrical, mechanical, civil and environmental engineering services.  On 7 December 2017, the appellant made a request to ESBIEFML under the AIE Regulations in which he referred to ESBIEFML's involvement in the development of the Clashovoon-Dunmanway 100kV line project in County Cork and the Binbane-Letterkenny 110kV line project in County Donegal.  He stated that two named staff members of ESBIEFML prepared and served statutory Wayleave Notices on landowners under section 53 of the Electricity (Supply) Act 1927 (the 1927 Act).  He sought access to the following information related to the matter:
 
  • A copy of the authorisation(s) from the ESB to the two named staff members to issue Wayleave Notices to landowners under section 53 of the 1927 Act;
  • Information on the training and/or any guidance documentation given to the two named staff members in relation to the preparation and service of statutory Wayleave Notices on landowners for the transmission lines;
  • A copy of each Wayleave Notice with the map issued by one of the named staff members in respect of the Clashovoon-Dunmanway 100kV line and by the other named staff member in respect of the Binbane-Letterkenny 110kV line;
  • Any information held by ESBIEFML in relation to incidents of 'stray voltage' from ESB lines.
 
On 5 January 2018, ESBIEFML replied to the appellant by stating that it was not a public authority within the meaning of the AIE Regulations and was therefore unable to deal with his request.  The appellant immediately requested an internal review of ESBIEFML's decision, arguing that it has been granted statutory powers by the ESB to serve Wayleave Notices under section 53 of the 1927 Act and that it is also under the control of the ESB.  On 25 January 2018, ESBIEFML refused the appellant's request for an internal review on the basis that it was not a public authority.  It added:  "[N]either ESBIEFML nor any of its employees has been granted statutory powers to serve wayleave notices under Electricity (Supply) Act 1927.  Likewise, while I understand that ESB is a public authority for purposes of the Regulations the fact that ESBIEFML is a subsidiary of ESB does not mean that ESBIEFML, as a separate legal entity to ESB, is a public authority in its own right."  
 
The appellant made his appeal to this Office the following day.  His statement of appeal was based on his claim that ESBIEFML and/or members of its staff have been authorised by the ESB to serve wayleave notices under section 53 of the 1927 Act.
 
I have now completed my review under article 12(5) of the Regulations.  In carrying out my review, I have had regard to the submissions made by ESBIEFML and the appellant.  I have also had regard to:  the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; The Aarhus Convention:  An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention; and also the text of the Aarhus Convention itself. 
 

Scope of the Review

 
Article 12(3) of the Regulations provides for a right of appeal to my Office where a decision by a public authority has been affirmed under article 11, i.e. on internal review.  Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request, which may in turn be appealed to my Office, includes a request that "has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations".  Accordingly, this review is limited to the question of whether ESBIEFML is a public authority within the meaning of the Regulations.  However, I do not accept that my consideration of this question is confined to the ground relied upon by the appellant in his statement of appeal.
 
Definition of "public authority"
 
Article 3(1) of the Regulations provides that
"'public authority' means, subject to sub-article (2)-
(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 paragraph (a) or (b),
and includes-
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held-
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".
 
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA), available at www.court.ie, O’Donnell J. interpreted the structure of the definition of "public authority" as "reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them.” Accordingly, sub-articles (i) to (vii) do not extend the primary elements of the definition contained at (a) to (c), which correspond to the definition of "public authority" as set out in Articles 2(2)(a) to (c) of the Directive. 
 

Analysis and Findings 

 
Guidance on the meaning of the term "public authority" under Article 2(2) of the Directive, and thus article 3(1) of the Regulations, is provided by the judgment of the Court of Justice of the European Union (CJEU) in C-279/12 Fish Legal and Emily Shirley v Information Commissioner and Others (Fish Legal EU), available at Fish Legal EU.  At paragraph 67 of Fish Legal EU, the CJEU summarised the definition as follows:
 
“Thus, in defining three categories of public authorities, Article 2(2) of Directive 2003/4 is intended to cover a set of entities, whatever their legal form, that must be regarded as constituting public authority, be it the State itself, an entity empowered by the State to act on its behalf or an entity controlled by the State.”
 
Regarding the meaning of “public authority” as defined in Article 2(2)(a) of the AIE Directive (the equivalent provision of article 3(1)(a) of the AIE Regulations), the CJEU stated at paragraph 51 that:
 
“Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4.  This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.”
 
The CJEU considered in detail the meaning of Article 2(2)(b) of the AIE Directive (the equivalent provision to article 3(1)(b) of the AIE Regulations).  The CJEU stated at paragraph 48 that:
 
“It follows that only entities which, by virtue of a legal basis specifically defined in the national legislation which is applicable to them, are empowered to perform public administrative functions are capable of falling within the category of public authorities that is referred to in Article 2(2)(b) of Directive 2003/4.  On the other hand, the question whether the functions vested in such entities under national law constitute ‘public administrative functions’ within the meaning of that provision must be examined in the light of EU law and of the relevant interpretative criteria provided for by the Aarhus Convention for establishing an autonomous and uniform definition of that concept.”
 
Thus, it clarified that the terms “public administrative functions” must be examined in the light of EU law and that a body, in order for it to be a public authority under Article 2(1)(b), must be empowered to perform those functions by national law. 
 
The CJEU went on to adopt a functional approach to assessing whether a body is performing public administrative functions.  It stated at paragraph 52 that:
 
“The second category of public authorities, defined in Article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.”
 
The CJEU went on to explain at paragraph 56 that:
 
“… in order to determine whether entities ... can be classified as legal persons which perform 'public administrative functions' under national law ... 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 private persons governed by private law.”
 
Therefore, in assessing whether the functions being performed by a body are public administrative functions, one should examine whether the body is tasked by national law with the performance of services of public interest, and is, for that purpose, vested by national law with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
 
In addressing the issue of whether a body is “under the control of” a public authority within the meaning of Article 2(2)(c) of the AIE Directive (the equivalent provision to article 3(1)(c) of the AIE Regulations), the CJEU stated at paragraph 73 that:
 
"undertakings, such as the water companies concerned, which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’ by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field."
 
 
The appellant's position
n his submissions, the appellant argues that ESBIEFML is controlled and directed by its parent entity, the ESB.  In support of his position, he has submitted a copy of the CRO annual accounts for 2013 in which ESBIEFML is described as having a "controlling related party relationship with its parent company and ultimate parent company".  He states that the International Financial Standards used in preparing the financial statements are those that apply where a company is controlled by a parent company.  In addition, he refers to the appointment of ESB employees as Directors of ESBIEFML and to the transfer of ESBIEFML staff to the ESB in 2017.  It is his position that "ESB exerts, or can exert, complete control over ESBIEFML in every aspect of its operations, finances and management".  
 
In addition, the appellant maintains that the ESB has given ESBIEFML statutory authority under section 9 of the 1927 Act to exercise of its certain of its powers and functions.  He has submitted documents to suggest that a number of ESBIEFML personnel have been authorised to exercise the powers and functions of the ESB under section 53(3) and section 98(2) of the 1927 Act.
 
ESBIEFML's position
In its submissions, ESBIEFML summarises its position as follows:
 
“ESBIEFM is a private company limited by shares.  It has a commercial character, and is governed by private law.  It is a separate legal entity to, with separate legal personality from, ESB (which is a 'public authority' under the AIE Regulations).  It does not perform any public administrative function, whether under national law, or otherwise, and whether in relation to the environment, or otherwise.  It does not have any public responsibilities or functions, or provide public services, relating to the environment, whether under the control of any other body, or otherwise.”
 
ESBIEFML denies that it has been authorised by EBS to serve way-leave notices under section 53 of the 1927 Act or to exercise any powers and functions under section 98(2) of the 1927 Act.  It states that the powers conferred on the ESB under the 1927 Act are at all times held and exercised by the ESB, which cannot and does not delegate them to other persons.  It acknowledges that, like any body corporate, the ESB exercises its powers through persons who are nominated and authorised on its behalf, but such duly authorised person exercise the powers on behalf of the ESB.  In support of its position, it refers to the judgment of the Supreme Court in Electricity Supply Board and Eirgrid plc v Killross Properties Limited [2018] IESC 22 (Killross), available at www.courts.ie.
 
ESBIEFML also states that it has neither sought nor obtained the consent of the Commission for the Regulation of Utilities (CRU) to exercise powers under section 53 of the 1927 Act.  According to the company, the individuals named by the appellant in his request were authorised by the ESB to serve way-leave notices on behalf of the ESB, not the ESBIEFML or any other entity.  ESBIEFML acknowledges that the documents submitted by the appellant may give rise to some confusion over the matter, but it argues that this does "not affect the substantive meaning or effect of the documents concerned, or the factual and legal reality that the notices and documents issued were issued by or on behalf of the ESB, by individual officers or servants duly authorised by the ESB in that regard".  It also acknowledges that staff members may be seconded or assigned from the ESB to other businesses within the ESB Group, but says that the exercise by such staff members of powers conferred on the ESB under section 53 is nevertheless an exercise for and on behalf of the ESB.
 
ESBIEFML argues in the alternative, though, that the authority to serve way-leave notices under section 53 "is not per se, or by itself, indicative of its having, under national law, special powers beyond those which result from the normal rules applicable in relations between persons governed by private law".  Referring to the judgment of the Supreme Court in NAMA, ESBIEFML contrasts its legal position as a commercial company established under private law with that of NAMA, a statutory body that was undoubtedly vested with special powers under national law.  It considers that there is no basis in the circumstances for finding that article 3(1)(b) applies.
 
ESBIEFML states that, "as a purely private limited company pursuing purely commercial objects in a private law context independently of the ESB, and having no public responsibilities or functions, or providing any public services relating to the environment", article 3(1)(c) of the public authority definition does not apply.  It identifies its main objective as the provision of engineering consulting services on a commercial basis.  It states that it provides its services to commercial clients in Ireland and internationally on a purely commercial basis for pecuniary interest under relevant contracts and that it does not provide any such services to "the public".  In addition, ESBIEFML notes that, while no argument has been made that it is a type (a) public authority, it is a private limited company with a commercial character, governed by private law, and thus does not qualify as "government or other public administration.
 

Conclusions

Article 3(1)(a)
The appellant does not argue that ESBIEFML is a public authority within the meaning of article 3(1)(a) of the Regulations.  Nevertheless, having regard to Fish Legal EU and NAMA, I find that, as a private limited company governed by private law, ESBIEFML is correct in stating that it is not a type (a) public authority.
 
Article 3(1)(b)
In accordance with Fish Legal EU, a body is a public authority under Article 2(2)(b) of the Directive and, thus, article 3(1)(b) of the Regulations, where it is a natural or legal person which:
 
  • national law has entrusted with the performance of a service of public interest, inter alia in the environmental field, and, for this purpose
  • national law has vested it with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
 
It is not disputed that ESBIEFML is a legal person.
 
The focus of the appellant's submission is on the question of whether ESBIEFML meets the special powers test established by the CJEU  in Fish Legal EU, but he does not expressly identify, nor do I find, any service of public interest that ESBIEFML has been entrusted with by national law.  As I recently noted in  Case CEI/18/0039 (Right to Know CLG & Raheenleagh DAC), available at www.ocei.ie, many services are provided throughout the State which are of interest to the public - and, indeed, may be seen as essential by some - but are not services of public interest in the context of public administrative functions being performed under national law.  However, it is not apparent to me that any of the services that ESBIEFML provides are even of interest to any significant portion of the public except insofar as they may be regarded as facilitating the ESB itself in the performance of its functions.
 
In any event, I do not accept that ESBIEFML has been vested with special powers under Irish law.  Distinguishing between the various ESB-related entities and units can certainly be difficult, not least of all because of the practice of seconding or assigning staff from one entity or unit to another.  The confusion that arises in relation to the operations of the ESB Group is referred to by the Supreme Court in Killross.  Nevertheless, I am satisfied that it is the ESB, and not a subsidiary company such as ESBIEFML, which has been vested with the relevant powers under the 1927 Act.
 
Moreover, while the wayleave notices submitted by the appellant include references to ESBIEFML or ESB International, examination of the documents confirms that they were issued on behalf of ESB.  They give "notice that the Electricity Supply Board, pursuant to the powers conferred on the Board by Section 53 of the Electricity (Supply) Act, 1927, as amended by subsequent Acts, intends to place an electric line . . . across your lands".  Another document submitted by the appellant is an agreement between the ESB and a landowner signed "for and on behalf of" the ESB. 
 
In any event, section 53(3) provides that, before placing an electric line across any land or attaching any fixture to any building, the ESB or an authorised undertaker must serve a written notice on the owner occupier of the land or building concerned.  If the owner or occupier does not give his or her consent within 14 days, then an authorised undertaker requires the consent of the ESB under section 53(5) of the 1927 Act before work may proceed.  In the circumstances, I do not accept that the exercise of powers under section 53(3) of the 1927 Act amounts to "special powers" for the purposes of article 3(1)(b) of the AIE Regulations.
 
Section 98(2), in turn, relates to the giving of notice before the ESB or an authorised undertaker may lop or cut any tree, shrub, or hedge which obstructs or interferes with any electric wires of the ESB or of such authorised undertaker.  The appellant has submitted evidence indicating that one of the named staff members was granted authorisation to exercise powers and functions under both section 53(3) and section 98(2) of the 1927 Act, but in that individual's capacity as an officer of ESB International.  The officer issued notices under sections 53(3) and 98(2), but as stated above, these were on behalf of ESB.  The other named officer also issued wayleave notices under sections 53(3) and 98(2), but again, on behalf of ESB and, according to the signature line, as an officer of ESB International.  No evidence has been presented to show that ESBIEFML itself has been authorised to exercise powers under section 98(2) of the 1927 Act.  In any event, I do not accept that the exercise of powers under section 98(2) amounts to a "special power" for the purposes of article 3(1)(b) of the AIE Regulations.
 
Article 3(1)(c)
As noted in previous decisions, there are three elements to consider when determining whether a body is a public authority within the meaning of article 3(1)(c).  They are:
1. Does the body have public responsibilities or functions or provide public services?
2. Do those public responsibilities, functions or services relate to the environment? 
3. Is the body under the control of a public authority falling under paragraphs (a) and (b) of the definition e.g. government or other public administration body or any natural or legal person performing public administrative functions under national law?
All three elements must be met for a body to be a public authority under article 3(1)(c).
 
In this case, the appellant has referred in passing to ESBIEFML having public responsibilities or functions, but none has been expressly identified.  It is apparent from the CRO accounts submitted by the appellant himself that ESBIEFML is a private limited company that provides electrical, mechanical, civil and environmental engineering services on a commercial basis.  I am not aware that the company is under any obligation to serve any of its clients or customers other than for commercial reasons.  In contrast, as noted by the CJEU in Fish Legal EU, the water companies whose status was under consideration in that case "must comply with a number of statutory duties relating to maintenance and improvement of infrastructure and to water supply and/or sewage treatment in their respective areas" (paragraph 14).  As I am not satisfied that ESBIEFML has any public responsibilities or functions or provides public services, I conclude that article 3(1)(c) does not apply.  In the circumstances, I consider it unnecessary to determine whether any of its responsibilities, functions or services relate to the environment or whether it is under the control of the ESB, a public authority under paragraph (b) of the definition.
 

Decision

 
Having carried out a review under article 12(5) of the AIE Regulations, I find that ESBIEFML is not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations.  Accordingly, it was not obliged to process the appellant's request for access to information under the AIE Regulations, and I have no further jurisdiction in relation to this matter.  
 
 
 
 
Appeal to the High Court
 
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
 
 
 
Peter Tyndall
Commissioner for Environmental Information