Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-93407-R2J5K0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether NBII is a “public authority” within the meaning of the AIE Regulations.
26 March 2026
1. The National Broadband Plan is the government's policy initiative to deliver high speed broadband services to all premises in Ireland. This is being delivered through investment by commercial enterprises coupled with intervention by the State in those parts of the country where private companies have no plans to invest. National Broadband Ireland (“NBI”) is a privately owned group of Irish incorporated companies, which is contracted to roll out a high speed and future proofed broadband network within the State Intervention Area and will operate and manage this network over a 25-year period. NBI Infrastructure DAC (“NBII”) is the operating company which is party to the relevant Project Agreement.
2. This review is concerned with whether NBII comes within the definition of “public authority” contained at article 3(1) of the AIE Regulations. The Aarhus Convention and the AIE Directive, as well as the case law interpreting them, are not wholly prescriptive and leave some matters to be determined on a case-by-case basis by the national authorities in each Member State. In Ireland, the AIE Regulations confer the function of determining appeals on this Office, which has been established to carry out investigations into such matters, bringing together all of the considerations and the facts, working with the assistance and guidance of the Courts. The principal judgment in this area is that of the CJEU in Case C-279/12 ,Fish Legal and Shirley v. Information Commissioner (Fish Legal) .
3. Category (a) of the definition covers “government, or other public administration, including public advisory bodies, at national, regional or local level”. InFish Legal , the CJEU found that category (a) covers "Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, [and] includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve ." This decision finds that NBII is not a public authority within category (a) of the definition.
4. Category (b) of the definition covers “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”. InFish Legal , the CJEU found that category (b) “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. ” In summary, this decision finds that:
(a) The services at issue here are those resulting from State intervention to ensure the provision of broadband services in rural areas which are not otherwise serviced by private markets. The delivery of the National Broadband Plan Intervention Project (“NBP”) is a service ‘of public interest’ and NBII is contracted to perform that service.
(b) The concept of entrustment denotes giving responsibility to a person or body to perform a function with an expectation (or ‘trust’) that the person or body will carry out that function. It is possible, in principle, for entrustment to arise in the absence of any obligation under statute to perform the service. However, there is a need for a greater level of entrustment than a bare contractual obligation, notwithstanding the specific context in this case (i.e. the Project Agreement’s duration, scope, and integration with public policy objective).
(c) NBII, as a "network operator", obtains certain benefits, under Section 58, Section 57 & 57A, and Section 53 of the Communications Regulation Act 2002 (as amended). Section 58 provides a power to impose one’s will on private persons, however, this power is vested in all network operators for the purpose of providing or operating an electronic communications network. On the facts of this case, NBII has not been vested, by Irish law, with ‘special powers’ for the purpose of delivery of the NBP.
5. Regarding category (b) of the definition, NBII is not “performing public administrative functions under national law”. This conclusion has been reached considering the above Fish Legal test when viewed as a whole, rather than reduced to its individual parts.
6. Category (c) of the definition covers: “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)”. InFish Legal , the CJEU set out a test for “control” which is satisfied where an entity “does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it since a public authority…is in a position to exert decisive influence on it ”. In summary, this decision finds that:
(a) NBII is a private entity established by shareholders. The Minister holds one “special share” which does not count as equity share capital and is a non-voting share. This share conveys the right to receive notice of and attend and speak at all general meetings and a veto right for certain actions; however, decisions in respect of any strategic and tactical decisions and matters that relate to the NBP are reserved for the Board of Directors. The Minister does not exert ‘decisive influence’, over NBII to such an extent that the company has no genuine autonomy of action, based on the facts of this case.
(b) State Aid refers to forms of State-controlled financial resources. In this case, NBII is in receipt of significant subsidy if it delivers project milestones as defined by the Project Agreement. However, this is not equivalent to the State exercising ‘decisive influence’ over NBII’s functions. Control over financial resources is not the same as control over the entity.
(c) The Project Agreement for the NBP has been designed to include extensive protections, quality checks, reporting and monitoring obligations, in order to protect the State’s investment and are consistent with normal practice in major infrastructure projects. There is clearly heavy scrutiny from the Minister and Department officials in ensuring delivery of the terms of same. However, this is not the same as removing genuine autonomy of action by the company – either strategically or operationally, and thus, is not the exercise of ‘decisive influence’ within the meaning of Fish Legal.
7. Regarding category (c) of the definition, NBII, does “[have] public responsibilities or functions, or [provide] public services”. However, the delivery of broadband services is not a service “relating to the environment”. In addition, NBII is not “under the control of a body or person falling within paragraph (a) or (b)”.
Sectoral Context
8. The telecommunications market in Ireland was opened to competition in 1998. Previously, it was a state-run monopoly operated by the Department of Posts & Telegraphs until 1983, and subsequently by state-owned Telecom Éireann, until privatisation in the 1990s. Today’s market is governed primarily by the Communications Regulation Act 2002 (as amended) . It features a mix of historically dominant telecommunications providers, including eir (formerly Eircom), international operators and smaller, region-specific operators. Ireland has implemented the EU regulatory framework governing telecommunications services, known as ‘electronic communications networks and services’ by way of primary and secondary legislation.
9. The Minister for Culture, Communications and Sport currently has overall responsibility for national policy in this area. The Commission for Communications Regulation (“ComReg”) is the statutory body responsible for the regulation of the electronic communications sector (telecommunications, radio communications, broadcasting transmission and premium rate services) and the postal sector in Ireland.
10. The provision of telecommunications services is subject to general authorisation. This means that no individual authorisation or licence is required – rather, the provider concerned must simply declare its intention to provide electronic communications networks and services to ComReg and comply with the conditions set out in the general authorisation (ComReg 03/81R6) . General Authorisations are unlimited in duration.
11. The term 'broadband' refers to internet access. Delivery of high-speed broadband to all parts of Ireland is government policy . The National Broadband Plan is a framework for the delivery of high-speed broadband services through a combination of commercial investment by the telecommunications sector, and a State intervention in those areas where commercial providers acting alone will not provide this service.
12. State Aid is a term that refers to forms of State-controlled financial resources, given to Undertakings on a discretionary basis. The European Commission approved, under EU State aid rules, €2.6bn of public support for the Irish National Broadband Plan. The Commission issued the decision on 15 November 2019. This decision (SA.54472 (2019/N)) states: “The notified State aid scheme is based on section 2 of the Ministers and Secretaries Acts 1924 as amended by section 3 of the Ministers and Secretaries Act 1983, and Section 184 of the Broadcasting Act 2009. The Irish authorities have also confirmed that the present State aid decision is an integral part of the legal basis .”
13. On 19 November 2019, the government signed a contract with National Broadband Ireland (“NBI”) which sets out specific terms in respect of the rollout of the high-speed broadband network under the State intervention. The Department of Culture, Communications and Sport manages contract governance, as the contracting authority. In line with State Aid Transparency Rules, evaluation reports and yearly State Aid updates are published ( here ). The latest published State Aid Update (2024/2025), anticipates that some 600,000 premises, including new builds, will be connected over the project’s lifetime.
AIE Request and Appeal Chronology
14. On 20 November 2019, the appellant wrote to National Broadband Ireland seeking “the most up to date financial and technical analysis of options for State intervention in the roll out of next generation broadband”. The ‘NBI Team’ responded to the request on 2 December 2019. It advised the appellant to contact the Department of Communications, Climate Action and Environment “as they are the agency responsible for analysis of options for State intervention in the roll-out of broadband, and not NBI”. It also advised the appellant that “NBI is not a public authority and not subject to FOI legislation”.
15. The appellant sought an internal review of the decision on 2 December 2019. It noted its view that National Broadband Ireland was a public authority “because NBI is controlled by the Irish State through the award of the contract to build and operate the [National Broadband Plan]” and therefore “must provide access to the information”.
16. A response does not appear to have been provided to the appellant’s request for an internal review, and an appeal was made to my Office on 6 January 2020.
17. This Office was close to making a decision on the appeal in September 2022. On 21 September 2022, the Court of Appeal issued a judgment inRight to Know CLG v Commissioner for Environmental Information & Raheenleagh Power DAC [2022 IECA 210 ]. My investigator wrote to the parties to this appeal in November 2022 noting that this Office sought leave to appeal the Court of Appeal judgment to the Supreme Court and this appeal would have to be paused pending that litigation. The Supreme Court issued judgment in March 2024 (Right to Know CLG v Commissioner for Environmental Information & Raheenleagh Power DAC 2024 IESC 7 ).
The entity at issue in this decision
18. It became apparent during the course of the investigation by this Office that it would be necessary to determine the entity to which the decision relates. The appellant made its original request to ‘National Broadband Ireland’, to the contact email address on the NBI website , ‘contactus@nbi.ie’. In the request, the appellant set out its view that National Broadband Ireland is a public authority on the basis that “it is de facto controlled by the Irish State given that its primary purpose is the roll out of the national broadband plan .”
19. Although not readily apparent from its website, ‘National Broadband Ireland’ is the trading name used to refer to two companies, namely National Broadband Ireland Infrastructure DAC (NBII) and National Broadband Ireland Deployment DAC (NBID). Asterion Industrial Partners acquired an 80% stake in both companies in 2022 with the remaining shares owned by Granahan McCourt (the investment vehicle of Granahan McCourt Capital and Tetrad Corporation) and by Yakida Ltd.
20. NBII has entered into a contract (the “Project Agreement”) with, what was then, the Minister of Climate, Energy and the Environment (the “Minister”) for the delivery of the National Broadband Plan Intervention Project (“NBP”). A description of that contract, together with a redacted copy of the contract, has been published on the website of the Department of Culture, Communications and Sport (“the Department”). NBII is referred to in the body of that contract as NBPCo and the obligations under that contract fall on that body. In accordance with the Project Agreement, NBII has overall responsibility for the design, build, operation and maintenance of the NBP network.
21. NBID is a separate legal entity with a separate management structure, albeit in practice the same individuals currently sit on both Boards of Directors. NBID is a subcontractor under the Project Agreement, taking on design and build obligations in respect of the NBP. NBID’s position is somewhat distinct from that of a normal subcontractor as it is specifically referred to in the Project Agreement, not only as a ‘Key Subcontractor’, but also as the ‘Buildco’, and its obligations as Buildco are included in the Project Agreement.
22. I have considered the terms of the request, the address to which the request was directed and the submissions of the appellant regarding the definition of a public authority. I have also considered the detailed submissions made on behalf of ‘National Broadband Ireland’, noting in particular that those submissions were principally directed at the position of NBII, given that it is the counterparty to the Project Agreement and has overall responsibility for delivery of the NBP network. Taking all of this into account, I am satisfied that the appellant’s request was directed to NBII, as the counterparty to the Project Agreement, and not to NBID, its subcontractor. Accordingly, this decision addresses whether NBII is a public authority under the AIE regime and does not make any finding in respect of NBID.
Content of the Project Agreement
23. During the course of the investigation, NBII provided my Office with an unredacted copy of the Project Agreement in its entirety as I considered this to be necessary for my review. NBII’s position is that certain information contained within the Project Agreement is confidential and commercially sensitive and this view would appear to be shared by the Minister, given that certain portions of the Project Agreement have been redacted from the version made available on the Department’s website. While I am required by article 12(5)(b) of the Regulations to specify reasons for my decision, I am also mindful of NBII’s position and I must be careful not to disclose withheld information in my decisions, as that is not the function of my Office. This means that the details I can give about the content of the Project Agreement are limited. I will refer to portions of that Agreement and of the NBII Constitution, to the extent to which they are publicly available, as necessary to explain the basis for my decision.
24. It should be noted that I have not carried out an assessment of whether any of the exceptions in the AIE Regulations in respect of confidentiality (e.g. article 9(1)(c)) in fact apply to the redacted information. Such an analysis falls outside the scope of this decision, which solely addresses whether NBII is a public authority under the AIE regime.
25. This review is concerned with whether NBII comes within the definition of “public authority” contained at article 3(1) of the AIE Regulations.
26. In light of the particular circumstances of this case, I decided that it would be appropriate to issue a draft decision to the parties and to invite their submissions on any additional point of law, error of fact or error of law with reference to same. In my draft decision, I stated: “For the avoidance of doubt, I do not consider that NBII comes within category (a) of the definition. Neither party has argued otherwise. As such, this review will deal only with whether the criteria applying to categories (b) and (c) of the definition are satisfied in this case.” In responding submissions, the appellant put forward a short argument that NBII is also a category (a) body. Therefore, in the interest of completeness, I consider it appropriate to also examine the applicability of category (a) of the definition in this case.
27. Where I find that a respondent body is not a public authority, I have no further remit to consider whether the requested information is environmental information or to consider directing its release.
28. The appellant submits that NBII is a public authority under category (c) of the definition contained at article 3(1) of the Regulations:
(i) It submits in the first instance that NBII exists exclusively for the public purpose of delivering the NBP. It argues that the NBP is clearly a public service since it aims to give effect to a public policy of providing broadband services in areas where it is not economical or where there are market barriers to the development and provision of those services. The appellant points to the decision of the Court of Appeal in Minch v Commissioner for Environmental Information 2017 IECA 223 which found that NBP “constituted a plan (and, hence, a measure) for the purposes of article 3(1)(c) of the [definition of “environmental information” contained in the] 2007 Regulations which was likely to affect the environment” . It submits therefore that delivery of the NBP is a public responsibility related to the environment such that NBII must be considered as “having public responsibilities or functions, or providing public services, relating to the environment”.
(ii) It argues that NBII is “under the control” of the State, in particular the Minister. It cites the test for control referred to by the Court of Justice of the European Union in C-279/12 Fish Legal v Information Commissioner and submits that NBII cannot determine “in a genuinely autonomous manner” how it provides services relating to the NBP.
(iii) It notes that NBII is constrained by the terms of the Project Agreement which provides the Minister and his Department with significant oversight of the performance by NBII of its public functions. This includes an entitlement to monitor costs and progress provided for through a comprehensive set of protections and legally binding obligations contained in the Project Agreement including:
(i) a suite of key performance indicators;
(ii) significant penalties to address underperformance;
(iii) substantial oversight arrangements to monitor progress, costs and take up of services,
(iv) significant checkpoint reviews along with extensive, monthly, quarterly and annual reporting requirements to the Minister;
(v) the presence of a Ministerial appointee on a Board responsible for ring-fenced operations and the day to day management of NBII;
(vi) a charge over the assets of NBII for the duration of the Project Agreement;
(vii) “step-in” rights allowing the Minister to manage and direct operations in the event of material compliance issues.
(iv) It notes that the Constitution of NBII provides that the Minister shall have a “special share” in the Company which provides him with certain defined rights as set out in that Constitution and that the Constitution also provides for a limitation on offers of securities to the public.
(v) It submits that the Department has a central role in the arrangement for provision of broadband by NBII where an individual cannot or has not been provided with high speed broadband by a current retail service provider.
(vi) Finally, it notes that the provision of public funding to NBII for the rollout of the NBP is subject to a State Aid decision by the European Commission which sets out the conditions under which the NBP has been approved by the Commission in accordance with State Aid rules. These conditions include minimum download and upload speeds, network characteristics requirements, requirements in relation to the corporate form of NBII, requirements relating to the structure and content of the Project Agreement and special provisions regarding network operation at wholesale or retail level. The appellant submits that these conditions also prevent the exercise of NBII’s functions with regard to the rollout of the NBP “in a genuinely autonomous manner”.
(vii) On 24 November 2025, a draft decision was provided to the parties. On 2 January 2026, the appellant provided a final submission to this Office, containing a number of observations regarding my draft findings, with key points as follows:
• The appellant notes that “under the European System of Accounts (ESA 2010), CSO classifies NBII as a central government body under the aegis of a government department” and it submits: “Given how it is classified by the CSO under the applicable EU-law framework it is clear that NBII is a category (a) public authority since it forms part of central government.” It argues that while Fish Legal addresses the definition of category (a) public authority as one which “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 judgment does not exclude the possibility of other entities being category (a) public authorities. It submits that “the CJEU left open the possibility that there would be other bodies within category (a) which may not meet these criteria” and it submits that NBII is one-such body.
• Regarding the concept of ‘entrustment’ under category (b), the appellant submits that it is incorrect to say that “all that exists is a contract”. It argues that “… this contract has been entered into pursuant to section 184 of the Broadcasting Act whereby the State may provide telecommunications services. It is also the case that NBII’s activities are derived from the Commission’s State Aid Decision which recognises that NBII is performing a public service that would not otherwise be provided due to market failure and it was awarded a contract following a procurement process specifically to provide this service, without this State Aid decision the NBP would be unlawful. Furthermore, the State has a special share in NBII. Finally, NBII is also licensed under the Communications Regulations Act 2002 from which it derives its powers as set out in the draft decision… Taken together all of these indicate entrustment.”
• The appellant submits that the contract only provides for termination by NBII for cause such as non-payment, force majeure or illegality/impossibility. It also submits that the obligation inherent in entrustment is not required to be irrevocable or permanent, and there is no basis to find that an act of entrustment cannot be revoked by the body entrusted.
• In the context of ‘special powers’ under category (b), the appellant makes submissions regarding Section 58, Section 57 & 57A, and Section 53 of the Communications Regulation Act 2002 (as amended), respectively. The appellant submits that NBII has a special power vesting in it for the purpose of building, maintaining and operating the NBP network under Section 58. It submits that “it is immaterial that other persons (i.e. other operators) have the same powers, [and that] the correct comparison is with the ‘normal rules’ applicable to persons governed by private law, not persons governed by public law.” It also submits that it is “immaterial that NBII could use this power for other commercial activities as a network operator, [as] category (b) public authorities are public authorities in relation to all of their activities.” The appellant submits that the power to access third party physical infrastructure without the consent of its owner under Section 57 & 57A is also a special power. It points to Section 57(3) and (4) regarding discretion open to ComReg when it is not possible to agree the terms of access. In relation to Section 53 the appellant submits: “The point here is that NBII can carry out roadworks without the consent of the landowner. In Ireland ownership of property generally goes to the centre of the road. The roadway itself is merely a public right of way over privately owned land. NBII does not need the consent of the landowner to carry out these works and therefore it has a further special power.”
• In relation to category (c), the appellant submits that NBII performs public functions pursuant to Section 184 of the Broadcasting Act and therefore has public functions and responsibilities and also provides public services. The appellant submits that there is nothing in Fish Legal to support a narrow interpretation of the concept of “relating to the environment”, commenting, “the fact that it is a residual category is neither here nor there”. It submits that the correct approach to interpreting “relating to the environment” is to apply a purposive interpretation of the concept and to choose the interpretation which most closely aligns with the purpose of the legislation, which in this case is to ensure that environmental information is made available and disseminated to the general public to the widest extent possible.
• The appellant outlines that NBII is financed with state aid in the amount is €2.6bn, “representing 95% of the required investment” and further, that there are restrictions on how NBII may raise finance, without the consent of the Minister for Finance. It submits that the Minister for Finance controls the encumbrance of NBII’s assets or revenues under Section 67 of the Credit Institutions (Stabilisation) Act 2010 and thus exercises decisive control over its funding and its liabilities.
• The appellant submits: “The whole basis for the existence of NBII is that there was a market failure in the intervention area. There is simply no analogy between the State Aid funding and the way commercial operators fund themselves. Recital 98 of the State Aid decision makes it clear that the State controls the funding of NBII through the allocation of grants. Without this State funding NBII wouldn’t exist and its public service wouldn’t exist.”
• The appellant submits: “The essence of an outsourcing contract is control, in other words, the contracting entity, rather than carrying out services itself hires someone to do it, and has control over the project.” The appellant refers to the CJEU’s definition of control in Fish Legal and also paragraphs 105 – 110 of the Advocate General’s opinion which it submits denotes “that under EU law outsourcing may involve control”.
• The appellant submits that “the Minister for Culture, Communications and Sport, as well as being a party to the contract, also controls NBII via his special share in the company as set out in the Company’s Constitution.”
• The appellant lists a wide range of what it describes as the “Minister’s primary powers” under the Project Agreement and the Constitution of NBII, all of which it submits are “indicia of control”, including governance and corporate control; financial and oversight powers; operational and intervention powers; termination and security enforcement; governance and board representation; veto rights (Minister special shareholder consent); ownership and share transfer controls; operational oversight; and financial and security rights.
29. NBII makes the following submissions:
(i) NBII submits that it is a private limited company and not a branch of government or part of the public administration such that it cannot be considered to be a “public authority” within the meaning of category (a) of the definition.
(ii) With regard to category (b), NBII submits that it does not perform a public administrative function but rather provides services, specifically building, operating and maintaining an ultrafast broadband network pursuant to a contract with the Minister.
(iii) NBII also notes that the decision of the CJEU in Fish Lega_ provides that in order to determine whether an entity falls within category (b) of the definition, it is necessary to examine whether that entity is “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”. It submits that the entities under consideration in the NAMA and Fish Legal cases had powers over individual persons or their property such as: the power of compulsory purchase; the right to make bye-laws; the power to discharge water into private watercourses; the right to impose temporary hosepipe bans; the power to decide to cut off the supply of water. It argues that it does not have “special powers” over individuals or property nor does it have the power to create legally binding relations. Its position therefore is that it does not have “special powers” akin to those discussed in Fish Legal which were powers vested by statute. It submits that its services are provided under contract pursuant to the Project Agreement and not pursuant to statute.
(iv) It also submits that NBII can be decisively distinguished from the wind farm operator considered in Raheenleagh as well as the entity at issue in the decision of the Commissioner in [external-link https://ocei.ie/en/ombudsman-decision/342dc-right-to-know-clg-and-celtic-roads-group-dundalk-dac-crg/ | OCE-93421-T8F8W7 ]Right to Know and Celtic Roads Group (Dundalk) DAC (CRG) as both of these entities were found to have been vested with “special powers”. It again submits that it does not possess any special powers, such as compulsory purchase powers or the ability to demand, charge, collect and recover tolls on a public road from members of the public, but is a private entity subject to universally applicable regulation relevant to all broadband providers.
(v) With regard to category (c), NBII argues that it does not have public responsibilities or functions or perform public services. It submits that any of its responsibilities or functions are contractual and derive from the Project Agreement and that none of its responsibilities or functions are granted pursuant to statute.
(vi) It argues that it is not analogous to the water companies in Fish Legal which were the sole supplier of mainline water, previously a public service only delivered by the government. It submits that the services it has been contracted to provide are not services which have been exclusively delivered by the government in the past and that internet connectivity has been provided by a patchwork of public entities and private companies. It notes that private companies such as EUnet and Dublin Cablesystems originally created infrastructure for internet connectivity in Ireland and that much of the global infrastructure for internet connectivity is built and owned by private companies.
(vii) It rejects the assertion that it is under the control of a public authority within the meaning of category (a) or (b) of the definition. It submits that NBII is a private company which operates in an autonomous manner, albeit subject to certain contractual obligations set out in the Project Agreement. It argues that the contractual structure at issue in this case is normal in the context of a private entity contracting with an arm of the State but that such contractual obligations do not amount to “decisive influence”, particularly in the environmental field and that the Minister has little influence in the area of environmental matters beyond the receipt of information in environmental reports.
(viii) It argues that the provisions of the Project Agreement highlighted by the appellant, such as step-in rights and key performance indicators, are common in outsourcing contracts in regulated fields and that these provisions are an example of market standard contractual terms rather than demonstrative of “decisive influence”.
(ix) It submits that while the Project Agreement provides the Minister and the Department with certain oversight in respect of delivery of the NBP that does not constitute control. It notes that whether NBII discharges its contractual obligations and the manner in which it does so are matters for NBII and its corporate governance arrangements and the Minister cannot fetter the statutory responsibilities of the Board of NBII in accordance with the Companies Acts.
(x) It notes that while the Minister may appoint a member to the Board of NBII, this amounts to a single nominee on a nine-person Board.
(xi) It also notes that while the Minister has a “special share” in NBII this is a non-voting share which conveys the right to receive notice of and attend and speak at all general meetings and a veto right for certain actions and does not convey an entitlement to dividends or a share in the profits of NBII. It submits that any aspects of control or participation in NBII have expressly been “switched off” such that the Minister does not (nor does he wish to) exercise control of NBII on a day-to-day basis. It submits that the principal purpose of the shareholding is to assist the Minister in the event the project is terminated and that NBII has full autonomy in the conduct of its business. It also submits that since the signing of the Project Agreement in November 2019, there has been no circumstance in which the Minister’s consent (in his capacity as shareholder) has had to be sought in relation to any matter.
(xii) It contends that NBII can be distinguished from the entity considered by the Supreme Court in Raheenleagh as it is governed by private law. For example, NBII contends that it is required to obtain licences and planning permission under the Planning and Development Act 2000 (as amended) in the same way any private individual must do where required. It also submits that NBII is a privately owned company (albeit with one “special share” allotted to the Minister). It argues that it operates in an autonomous manner and while it is subject to certain contractual obligations as set out in the Project Agreement, these contractual obligations do not amount to a “decisive influence” and particularly do not amount to decisive influence in the environmental field. It notes, in relation to environmental matters, that it is contractually obliged to comply with environmental laws and regulations and that beyond these general contractual obligations, the Minister has little influence in the area of environmental matters. It also notes that the Minister has no involvement at all in the day to day management or operational activities of NBII.
(xiii) NBII submits that no public interest is served if it is deemed to be a “public authority” under the AIE Regulations and that such a determination would be contrary to the public interest. It argues that the State frequently contracts with private entities to deliver much needed public infrastructure and services and that, while these arrangements are essential to the proper and efficient functioning of the State, they are contractual in nature. It submits that the fact that a private entity has contractual obligations to discharge by virtue of an agreement with the State does not, and should not, mean that the private entity is a public authority and that the State’s ability to attract investment from private entities will be prejudiced if private entities are to be deemed a public authority as a result. It submits that the mere fact of having contracted with the State to deliver a piece of public infrastructure or a public service is not sufficient to bring a private entity within the definition of “public authority” and cannot be a basis for doing so. It submits that in order to quality as a public authority an entity must benefit from “special powers” or satisfy the “control test” and neither of these elements apply to NBII.
(xiv) On 15 December 2025, NBII provided a final submission to this Office following receipt of my draft decision, noting the following points:
• It clarifies that NBII is the sole counterparty to the Minister under the Project Agreement, stating in particular, “While NBID is referenced in the Project Agreement as a ‘Key Subcontractor’ and ‘Buildco’, its role is derivative of NBII’s obligations and does not alter the fact that NBII is the principal contracting entity.”
• Regarding the concept of ‘entrustment’ under category (b), NBII submits, “In particular, it may assist to emphasise that the Project Agreement is a private-law contract, not a statutory authorisation or licence subject to unilateral modification by a regulator; that the funding conditions primarily operate on the State rather than imposing a continuing public-law duty on NBII; and that, while the contract is long- term and subject to performance oversight, these features do not transform NBII’s obligations into public administrative functions within the meaning of [category (b)].”
• In the context of ‘special powers’ under category (b), NBII submits that the logic applied to Section 58 of the Communications Regulation Act 2002 (as amended) should also apply to Section 53, stating: “Section 58 is correctly characterised as a general power available to all network operators and therefore not conferred specifically for the purpose of delivering the [NBP]. Section 53 forms part of the same general statutory framework for electronic communications network operators and is similarly not specific to NBII or the NBP. While NBII may avail of these provisions in delivering the NBP, they are not powers vested in NBII ‘for the purpose’ of performing a public service within the meaning of the Fish Legal test.” It also submits that there is a further distinction that may be relevant in assessing Section 53, stating: “Powers such as compulsory purchase or statutory wayleaves allow an entity to impose obligations on private persons without consent. By contrast, Section 53 merely permits works on public infrastructure subject to public-law oversight and does not enable NBII to impose obligations on private individuals. This distinction reinforces the conclusion that Section 53 does not amount to a ‘special power’ for the purposes of [category (b)].”
30. 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 the appellant and NBII, including all observations on my draft decision. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
• the decisions of the Supreme Court inNational Asset Management Agency v Commissioner for Environmental Information 2015 IESC 51
(NAMA), Right to Know CLG v Commissioner for Environmental Information & Raheenleagh Power DAC 2024 IESC 7
(Raheenleagh) , the Court of Appeal inMinch v Commissioner for Environmental Information 2017 IECA 223
(Minch) and Redmond v Commissioner for Environmental Information 2020 IECA 83 (Redmond).
• the decision of the Court of Justice of the European Union in C-279/12 Fish Legal v Information Commissioner (Fish Legal) and the opinion of the Advocate General in the same case.
31. I have also considered the various Irish and European judgments issued in relation to the AIE Regulations and Directives in recent years. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
Definition of “Public Authority”
32. The AIE regime derives, originally, from the Aarhus Convention, which places duties in relation to environmental information on public authorities. A “public authority” is defined in Article 2(2) of the Convention as meaning:
“(a) Government at national, regional and other level;
(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;
(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;
(d) The institutions of any regional economic integration organization referred to in article 17 which is a Party to this Convention.”
33. The Aarhus Guide (p.46) states that:
“The definition of public authority is important in defining the scope of the Convention. While clearly not meant to apply to legislative or judicial activities, it is nevertheless intended to apply to a whole range of executive or governmental activities, including activities that are linked to legislative processes. The definition is broken into three parts to provide as broad coverage as possible. Recent developments in privatized solutions to the provision of public services have added a layer of complexity to the definition. The Convention tries to make it clear that such innovations cannot take public services or activities out of the realm of public information, participation or justice.”
34. The Preamble to the AIE Directive states in its first recital:
“Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.”
35. In relation to the definition of a public authority, the eleventh recital refers to the principle in Article 6 of the Treaty establishing the European Community that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities. It follows that:
“the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.”
36. This expanded definition is found in Article 2(2) of the AIE Directive:
“'Public authority’ shall mean:
(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 (a) or (b).”
37. Article 3(1) of the AIE Regulations transposes Article 2(2) of the AIE Directive. It provides, in so far as relevant to this appeal, 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), …”
38. In this regard, the words of the Regulations and Directive are identical. For ease of reference, therefore, I will refer below to “category (a) of the definition”, “category (b) of the definition” and “category (c) of the definition”.
39. Article 3(2), which is not relevant to the circumstances arising in this appeal, provides for certain exclusions from the definition of “public authority”.
40. The principal judgment in this area is that of the CJEU inFish Legal , which set out a comprehensive interpretation of the definition of a public authority. The CJEU considered each part of the definition in the context of the definition as a whole (see paragraphs 51-52, and 66-67). The CJEU stated that:
“… 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.” (paragraph 67)
41. The Aarhus Convention and the AIE Directive, as well as the case law interpreting them, are not wholly prescriptive and leave some matters to be determined on a case-by-case basis by the national authorities in each Member State, in light of their specific knowledge and understanding of how public services operate in that Member State. I can see the sense in this approach, as different countries in Europe take very different approaches to the delivery of public services. In Ireland, the AIE Regulations confer the function of determining appeals on my Office, which has been established to carry out investigations into such matters, bringing together all of the considerations and the facts, working with the assistance and guidance of the Courts. In carrying out this role, my Office has developed substantial experience and expertise in how public services are currently delivered, and have historically been delivered, in Ireland. That experience informs my approach to interpreting the terms used in the legislation and in the case law, including what is generally understood to be a ‘public’ service, responsibility or function in Ireland. I apply this approach below.
Category (a) of the definition
42. As set out above, category (a) of the definition covers:
“government, or other public administration, including public advisory bodies, at national, regional or local level”.
43. The CJEU inFish Legal described public authorities under category (a) as:
"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." (paragraph 51)
44. The appellant submits that NBII is a category (a) public authority, due to its inclusion in the Register of Public Sector Bodies in Ireland , a publication compiled annually by the Central Statistics Office (CSO), which provides the basis for the preparation of Government Finance Statistics (GFS) and Excessive Deficit Procedure (EDP) reporting for Ireland. The Register lists all the organisations in the State which are classified as “general government” bodies for the purposes of national and government accounts. The CSO uses the European System of Accounts 2010 (ESA 2010) . NBII features on the latest CSO Register (2024) , as a ‘Non-Commercial Agency under the aegis of Department’ under ‘the Department of the Environment, Climate and Communications’. The appellant also submits that the Minister for Finance controls the encumbrance of NBII’s assets or revenues and thus exercises decisive control over its funding and its liabilities. Specifically, it submits that “there are restrictions on how NBII may raise finance imposed by Section 67 of the Credit Institutions (Stabilisation) Act 2010 and the General Government Secured Borrowings Order 2025 ( SI 334/2025 ) which provides inter alia that NBII shall not mortgage, pledge or otherwise encumber its own assets or revenues to secure any present or future indebtedness or any guarantee or indemnity given in respect of such indebtedness, without the consent of the Minister for Finance.” In this regard, I note Department of Finance Circular No. 1/2018 ‘Control of Secured Borrowings by General Government ’ which explains the purpose of the above provision, noting in particular the following: “4.The inclusion of bodies in the schedule is solely to ensure compliance with the terms and conditions of our loan agreements, and reflects the inclusion, for statistical measurement purposes, of those bodies in the definition of general government used by the Central Statistics Office (CSO). Therefore, updates of this nature to the list of prescribed bodies are required from time to time. The institutional position of the bodies concerned is not altered either by their inclusion in the schedule to the S.l. or in the definition of general government.”
45. I do not think that the above classifications are determinative as to whether NBII is a public authority under the AIE regulations. The AIE Directive and the ESA are separate legal instruments, and there is no suggestion that an entity considered a “public sector body” for the purposes of the ESA should be taken as a “public authority” for the purposes of the AIE Directive.
46. Having considered the above, I conclude that NBII is not a public authority under category (a) of the definition provided for in the AIE Regulations.
Category (b) of the definition
47. As set out above, category (b) of the definition covers:
“any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”.
48. InFish Legal , the CJEU found that the concept of “public administrative functions” should not be interpreted by reference to national law. It is an autonomous European concept which must be interpreted in the same manner in each member state (see paragraphs 45 and 48). The phrase “under national law” is to be interpreted as referring to the legal basis for the performance of such functions (paragraphs 46 and 47), meaning that category (b) covers “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 ” (paragraph 48).
49. The CJEU confirmed that it was apparent that the public authorities covered were ‘administrative authorities’, a concept which involved “a function normally performed by governmental authorities”, but that the function did not necessarily need to relate to the environmental field (paragraphs 49-50).
50. The CJEU found that category (b) “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” (paragraph 52) (emphasis added here and in the rest of this decision).
51. In the specific case before the CJEU, there was no dispute that the water companies had been entrusted, under the applicable national law, with services of public interest. Accordingly, the CJEU answered the referred questions at paragraph 56:
“in order to determine whether entities … can be classified as legal persons which perform ‘public administrative functions’ under national law, within [category (b)], 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.”
52. The Opinion of the Advocate General inFish Legal is helpful in understanding the judgment of the Court. Advocate General Cruz Villalón focused on the ability of a body to impose its will on private individuals:
“81. If ‘public authority’ is characterised by anything, it is the capacity of persons who wield it to impose their will unilaterally. While a public authority may impose its will unilaterally – that is, without the need for the consent of the person under the relevant obligation – an individual, on the other hand, may impose his will only if such consent is forthcoming.”
53. It was for the national court to examine the powers of a body to see if it could impose its will on others, but the Advocate General gave some guidance as to what might be special powers:
“85. ... it should be pointed out that it is important to establish, in particular, whether the companies concerned have, to some extent, powers of expropriation, powers of access to private property, powers to impose penalties and, in general, powers of enforcement vis-à-vis individuals, …”
54. In relation to the vesting of public functions, Advocate General Cruz Villalón said that the focus was on the vesting of public authority in the entity. In other words, the vesting of public functions meant the granting of special powers to achieve a particular end. There must be a formal and express legal act conferring these powers (at paragraph 88). He proposed that the Court find that the test would be whether the body:
“89. … may, by virtue of a formal, express legal act conferring official powers, impose on individuals obligations for which they do not require the consent of those individuals, with the result that they are in a position substantially equivalent to that of the administrative authorities of the State.”
55. The Irish Supreme Court recently examined theFish Legal judgment inRaheenleagh , a case that concerned the question of whether a wind farm is a public authority. First, quoting the test set out at paragraph 52 ofFish Legal , the Court emphasised the inter-related nature of each of the elements of that test:
“135. While I have sympathy with the view of the Commissioner that it should be possible to reduce the test to its elements, and to determine that the test is not satisfied on the basis that one element has not been established, I think that this approach risks missing the relationship between the elements and the overall context of the test. The issue of “special powers” is an example here. The basic requirement is not simply that the entity has powers, but that the powers are vested for the purpose of performing services of public interest. In those circumstances, there seems to me to be little point in examining the disputed powers without regard to the nature of the purpose for which they have been conferred.”
56. In relation to the concept of ‘entrustment’, the Court said:
“136. … In its ordinary meaning, the word “entrustment” carries connotations of responsibility or duty. … I consider, therefore, that it implies some level of obligation in relation to the performance of a service of public interest. However, I would not see it as necessarily implying compulsion to provide a predetermined level or form of service. …
137. … A finding on this issue seems to me to require consideration of the terms of the licence, including its expected duration, the lengthy notice period for termination, the terms on which it can offer electricity to the market and the obligations to adhere to the statutory Codes referred to. Account should also be taken of the surrounding circumstances including the statutory power of the CRU to modify the licence.”
57. In relation to the concept of ‘the performance of services of public interest’, the Court rejected the proposition that such a service must be compulsory. With reference to the Court of Appeal’s judgment, the Court said:
“139. It seems to me that the analysis in the judgment misses what may be a key feature of the Raheenleagh’s operations – it does not simply generate electricity, it generates electricity from a renewable source. That means that there are aspects of the national and EU legal regime under which it is treated quite differently to a producer using non-renewables. It was eligible for a State aid price support regime that was specifically approved by the Commission because its activities furthered the environmental policies of the EU in respect of energy provision and supply. That support was, in all probability, what made many if not all such generators viable. It is, I think, not particularly relevant that the actual payments under the scheme go to the electricity suppliers. The scheme did not simply give the producers a degree of security but ensured that they could achieve a particular level of price which suppliers would not otherwise have paid and without which their business might not have been viable. It seems to me that this State aid feature could be relevant to any determination as to whether the company is engaged in the provision of a public service, and that, therefore, account should be taken of the terms of the applicable REFIT scheme and associated statutory instruments.”
58. In relation to ‘special powers’, the Court indicated that most of the statutory powers available to the wind farm in that case, including a compulsory purchase power, arose under statute, relate to the authorisation to construct a generating station and are vested for that purpose. The Court continued: “It may be, therefore, that these powers, such as they are, lapse once their purpose has been fulfilled and the station has been constructed. Not having seen the terms of the authorisation, the Court does not know whether this is so. ” (paragraph 140) The Court found that the requirement to obtain the consent of the CRU was “undoubtedly a significant feature ” but not necessarily decisive, as the authorised person could invoke a process that may lead to a compulsory order in circumstances where no person governed by private law can access an equivalent process. This is in contrast, for example, to a farmer wishing to acquire additional land who must operate under the normal, voluntary law of contract (paragraph 141). The Court cautioned that “great care is necessary ” on any assessment of special powers based on the fact that the body could access the national grid and sell electricity into it, as a great many activities will be done under a licence by bodies which are not public authorities under the AIE regime (paragraph 142).
59. Taking the above judgments into account, when determining whether a body falls into category (b), I must consider:
(a) Is the body performing a service of public interest?
(b) Is the body ‘entrusted’ with the performance of that service?
(c) Has the body been vested, by national law, with special powers for the purpose of performing that service?
60. I will go on to consider each of these in turn below, while mindful in each respect of the observations of the Court inRaheenleagh to the effect that none can be considered in isolation, outside the overall context of the definition.
61. The first question I must consider is the nature of the service being provided by NBII. The NBII is tasked, in accordance with the Project Agreement, with delivering the National Broadband Plan, specifically designing, building and operating the network. The NBI website describes this task as follows:
“DELIVERING THE NATIONAL BROADBAND PLAN
The National Broadband Plan (NBP) is the Irish government’s initiative to deliver high speed broadband services to all premises in Ireland. It is the largest ever telecommunications project undertaken by the Irish State and recognised as one of the biggest and most ambitious telecoms infrastructure projects of its kind globally. Taking on the challenge of delivering the National Broadband Plan, our team will be deploying fibre on approximately 1.5 million poles, many of them new, over 15,000km of underground ducts. We will use up to 142,000km of new fibre cable, and will run along almost 100,000km of the road network. We said it was big!
The network will be designed, built and operated by us, using a combination of State subsidy and commercial investment. It will make its services available to all of the rollout area, which accounts for 23% of the population in about approximately 564,000 homes, farms, schools and businesses. This project will radically change the broadband landscape across the country to ensure that every farm, business and home has access to high-speed broadband, no matter where they are located.
Once completed, all parts of Ireland will have access to a modern and reliable broadband network, capable of supporting the communications, information, education and entertainment requirements of current and future generations. Your future is in our hands and we aim to empower every individual, community and organisation with equal access to local and global opportunities. We are creating a Limitless Ireland, the rest is up to you.”
62. When considering category (b) bodies, the CJEU inFish Legal referred with approval to the description in the Aarhus Guide of “a function normally performed by governmental authorities”. This accords with the statement of the Commission in the Explanatory Memorandum presented by the European Commission as part of its first proposal for the AIE Directive as follows:
“Increasingly, through privatisation and new methods of service delivery, services of general interest in relation to the environment traditionally performed by public authorities are being carried out by bodies which do not form part of the public sector. These services include those such as gas, electricity, water or transport. The result is that in some Member States such services are still performed by public administrations or utilities while in others they are performed by bodies now in the private sector. Those bodies would not come within the definition of "public authority" in the existing Directive 90/313/EEC or in Article 2(2) of the Aarhus Convention.
Nonetheless the services performed are essentially the same as are the kinds of environmental information which the service providers, public or private, hold. Unless provision going beyond that required for ratification of the Aarhus Convention is made, the public in some Member States will have a right of access to that information while the public in other Member States will be denied such a right. Moreover, even within a single Member State, a service of general interest could be carried out by a public authority in one part of the territory of the State and by a private body in another part. It is undesirable, in terms of environmental protection, for such inconsistencies to arise between, or within, Member States as a consequence only of reorganisations in the carrying out of such services. Provision to ensure that bodies now in the private sector grant access to environmental information on the same basis as public authorities carrying out similar services is justified. Accordingly, the proposal includes in the definition of public authorities, legal persons entrusted by law, or under arrangements with other public authorities, with the operation of services of general economic interest which affect or are likely to affect the environment.” (Part 6, Detailed Explanation of the Proposal)
63. However, I do not consider this to mean that a function must have been historically performed by governmental authorities in order to be a service of public interest. Such an interpretation would set in stone the meaning of a service of public interest, such that new services necessitated by technological or social advances could never be encompassed by the term. Such an outcome would be inconsistent with the objective, apparent from the Explanatory Memorandum extracted above, of ensuring that governmental reliance on private entities to deliver services of public interest does not result in inconsistencies in the right of access to environmental information in respect of such services.
64. I take particular account of the view of the Supreme Court inRaheenleagh , at paragraph 139, that a body’s receipt of State aid funding for the purpose of providing a service “could be relevant to any determination as to whether the company is engaged in the provision of a public service” .
65. According to its website , the current funding model for NBII is comprised of three parts: investor funding (with €145m drawn down to date), revenues generated through the customer use of the NBP network, and publicly funded subsidy payments (with €1,273m received to 31 August 2025). The NBII website states that those payments “are required because it was not commercially viable to deploy and operate the NBP network over the life of the project”. While it is possible that user-generated revenue and/or private investment will in future outweigh the amount of public investment, public funding has so far made up the bulk of the investment in the project.
66. State funding of NBII is only permitted under European law by virtue of the European Commission’s State Aid decision on the NBP ( State Aid SA.54472 (2019/N ) (the ‘State Aid Decision’). That Decision points to the importance of broadband connectivity as a European objective, stating that:
“Broadband connectivity is of strategic importance for European growth and innovation in all sectors of the economy and to social and territorial cohesion. It supports business efficiencies and growth, ensures that economies can remain competitive, and enables citizens to enhance their skills and learning and to benefit from online services and offerings, including key public services.
The Europe 2020 Strategy (‘EU2020’) underlines the importance of broadband deployment as part of the EU's growth strategy and sets ambitious targets for broadband development. One of its flagship initiatives, the Digital Agenda for Europe (‘DAE’) acknowledges the socio-economic benefits of broadband, highlighting its importance for competitiveness, social inclusion and employment.”
67. The Irish Government’s national broadband strategy – the NBP – was aimed at progressing towards achievement of the goals of the Europe 2020 Strategy and the Digital Agenda for Europe. The State Aid Decision notes:
“A key principle of the National Broadband Plan is to first stimulate commercial investment through policy and regulatory measures and, as a second step, to intervene with public support only in those parts of Ireland where the commercial sector has, to date, not invested nor has concrete plans to invest.”
68. That Decision later notes:
“The Irish authorities explain that most of the commercial investments take place in urban areas and that private operators are reluctant to invest in the deployment of infrastructure supporting more advanced broadband connectivity in low population density areas due to the challenging business case they present. According to the Irish authorities, this is exacerbating the existing urban-rural digital divide and it is likely that this situation will continue in the long term, unless there is a public intervention to ensure the provision of these services in rural areas.”
69. The Department’s publication on the National Broadband Plan Contract (available at www.gov.ie ) notes that under the Project Agreement “NBI will roll out a high speed and future proofed broadband network within the State Intervention Area and will operate and manage this network over a 25-year period” . The ‘State Intervention Area’ is not defined in this publication, however, it is evident from the State Aid Decision that the intervention area comprises “areas of the country where there is no commercial infrastructure in place or planned in the next seven years able to reliably deliver at least 30 Mbps download speed to all premises, i.e. in ‘white’ [Next Generation Access] areas within the meaning of the EU Guidelines for the application of State aid rules in relation to the rapid deployment of broadband networks (‘the Broadband Guidelines’) ”.
70. The services at issue here are those resulting from State intervention to ensure the provision of broadband services in rural areas which are not otherwise serviced by private markets. This is clear from the State Aid Decision which sets out that “the Irish authorities consider that without public intervention it does not appear possible to reduce the ‘digital divide’ between the remaining [Next Generation Access] white areas and the rest of Ireland” and “that in the intervention areas there is no alternative to granting public funding in order to incentivise the deployment of NGA infrastructures ”. The Decision also notes the view of the Irish authorities that “public intervention has further potential to support a broad range of other public policy priorities, including in the areas of social inclusion, tourism and public sector reform ”.
71. The scale of the project is clear from NBII’s website:
“The National Broadband Plan (NBP) is the Irish government’s initiative to deliver high speed broadband services to all premises in Ireland. It is the largest ever telecommunications project undertaken by the Irish State and recognised as one of the biggest and most ambitious telecoms infrastructure projects of its kind globally.
Taking on the challenge of delivering the National Broadband Plan, our team will be deploying fibre on approximately 1.5 million poles, many of them new, over 15,000km of underground ducts. We will use up to 142,000km of new fibre cable, and will run along almost 100,000km of the road network. We said it was big!”
72. The Minister, in statements to the Oireachtas, has indicated that the NBP will involve the provision of high-speed broadband services “to 1.1 million people living and working in…nearly 540,000 premises including almost 100,000 businesses and farms, and 695 schools, where commercial operators will not commit to deliver the service” resulting in the provision of such services to “almost 25% of the population of rural Ireland who would not otherwise have access to this vital service ” (see responses to Parliamentary Questions on 7 November 2019 and 26 November 2019 ). In comments made to the Joint Committee on Communications, Climate Action and Environment, the Minister observed that the NBP was “crucial ” and “of such importance to the State” given “the extent to which the digital transformation is altering how business is done, how lives are led, how education is consumed and, in time, how health will be delivered and the capacity for remote working ” (see: National Broadband Plan Discussion, 14 May 2019 ).
73. Taking into account all of the above, it is clear to me that the State places considerable value on the delivery of broadband to remote areas, recognising the impact of such a service on the other services delivered by the State and the necessity of such a service in order to achieve European strategic objectives. This is confirmed in the public statements of Ministers but, moreover, in the significant State investment in the delivery of services by the NBII, permitted only with the endorsement of the European Commission. It is therefore clear that the delivery of the NBP is a service of public interest and that NBII is performing that service.
74. As outlined above, the Supreme Court inRaheenleagh indicated that entrustment implies some level of obligation to perform the service, but not necessarily compulsion to provide a predetermined level of service. It is common case that NBII is not under any statutory obligation to perform the service. Accordingly, the first question is whether it is possible for entrustment to arise in the absence of an obligation arising under statute.
75. It is clear from the judgment inFish Legal that such an obligation must arise “under the legal regime which is applicable to” the body. However, what is not expressly stated inFish Legal is whether the obligation must be specifically provided for in national legislation. Paragraph 48 of the CJEU’s judgment could be argued to suggest the former:
“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”.
76. This contrasts with paragraph 52, where the CJEU states:
“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 …”
77. I do not think that there is any difficulty arising from the different statements in theFish Legal judgment. The syntax in paragraph 48 of the judgment is significant in this regard. The relevant sentence refers to entities which “by virtue of a legal basis specifically defined in the national legislation … are empowered”, which indicates that it is empowerment (i.e. the conferral of special powers) that requires a legislative basis, rather than entrustment with an obligation, which under paragraph 52 may arise from ‘the legal regime which is applicable’. This is also consistent with the analysis of the Advocate General, who referred to “a formal and express legal act conferring official powers” (see paragraphs 88 and 89 of his Opinion), and not the obligation to provide the service itself.
78. I also consider that there is a clear indication by the Supreme Court inRaheenleagh that there is no specific requirement for an obligation to deliver the public service to be expressly set out in legislation. Paragraph 137 of the Supreme Court judgment indicates that, on the facts of that case, I should consider “the terms of the licence, including its expected duration, the lengthy notice period for termination, the terms on which it can offer electricity to the market and the obligations to adhere to the statutory Codes referred to. Account should also be taken of the surrounding circumstances including the statutory power of the CRU to modify the licence .” None of these matters imposed a legislative obligation on the wind farm at issue. Given the comprehensive guidance provided by the Supreme Court in that case, if an obligation under national law was only applicable where set out expressly in legislation, I expect that the Supreme Court would have said so in terms. Accordingly, my understanding of the judgment of the CJEU inFish Legal , and of the Supreme Court inRaheenleagh , is that it is possible, in principle, for entrustment to arise in the absence of any obligation under statute to perform the service.
79. As one might expect of any commercial contract, the Project Agreement describes in detail the service that is to be provided under the contract and imposes contractual obligations on NBII to provide that service. The Project Agreement provides for the contract to run from 9 January 2020 for a period of 25 years, subject to extension for up to five years beyond that expiry date, by agreement between the parties. Specific provision is made for an optional ‘Service Continuity Period’ beyond that expiry date.
80. This contract has some unusual features, as compared with a normal contract between the State and a commercial provider, as follows:
(a) The Recitals to the Project Agreement make specific reference to the overall policy objectives of the Government and include the following paragraph at J:
“NBPco confirms its expectation that the Subsidy Payments to be provided by the Minister under this Agreement make the implementation of the National Broadband Plan viable and deliverable and accordingly it expects to benefit financially and otherwise from the Agreement and specifically from ownership of the Assets and implementation of the National Broadband Plan and accepts that the obligations undertaken by it under this Agreement and, in particular, the provisions in Part 5 (Change in Ownership and Asset Transfer) and Part 6 (General) of Schedule 6.9 (Consequences of Termination) regarding transfer of ownership of the Transferable Assets are fair and reasonable having regard to such Subsidy Payments.”
(b) Clause 30 of the Project Agreement makes various provisions in respect of State Aid, acknowledging that the contract is subject to, and dependent on, compliance with the State Aid legal regime. Such provisions “survive the termination or expiration of” the Project Agreement.
As is common to any commercial contract, the agreement may be terminated early due to a range of defaults on the part of either party, or on the basis of force majeure or certain changes in the law, or (in the Minister’s case) voluntarily on notice. The contract also sets out the consequences of termination by either party.
81. In this case, the NBII is tasked with delivering the NBP in accordance with a contract, the Project Agreement. The appellant highlights that the Project Agreement was entered into pursuant to section 184 of the Broadcasting Act, which I note outlines the Minister’s functions and powers in relation to the provision of telecommunications services. In this context, I also note that the Project Agreement states that, “No provision of this Agreement shall be construed as a delegation by the Minister of any of its statutory authority to [NBII] ” (Clause 83.2). The Supreme Court inRaheenleagh stated that to determine whether the windfarm in that case was a public authority, it would be necessary to examine the authorisation to construct and the licence to operate the windfarm, as well as any surrounding circumstances such as statutory powers of the regulator. In this case, all that exists is a contract. I do not consider that this amounts to entrustment of the obligation to deliver a public service. At its core, the concept of entrustment denotes giving responsibility to a person or body to perform a function with an expectation (or ‘trust’) that the person or body will carry out that function. My reading of the CJEU and Supreme Court judgments is that there is a need for a greater level of entrustment than a bare contractual obligation, notwithstanding the specific context in this case (i.e. the Project Agreement’s duration, scope, and integration with public policy objective). I also acknowledge that NBII is subject to a statutory licencing and regulatory regime; however, this is applicable to all private entities seeking to provide telecommunications services, and, in my view, this factor is not indicative of ‘entrustment’ in this case. As noted in response to a Parliamentary Question in 2017 [ 39309/17 ], “Ireland’s telecommunications market has been liberalised since 1999 and has developed into a well-regulated market, supporting a multiplicity of commercial operators providing services over a telecommunications network. The State is not a service provider and can only intervene, subject to EU competition rules, to ensure access to broadband services in areas where the competitive market has failed to deliver such services ”
82. I have carefully considered the Project Agreement, including the unusual features described above, as well as the circumstances in which the Project Agreement was reached in the context of the Irish Government’s objectives, and the State Aid Decision, which allows for the lawful funding of the project under EU competition law. As noted above, it is open to the Minister to voluntarily terminate the Project Agreement. It is also the case, as pointed to by the appellant, that an equivalent provision is not extended to NBII, who may only seek to terminate under specific, defined circumstances. Public sector bodies are obliged to ensure that public contracts are actively managed in accordance with the Public Spending Code. The Project Agreement with NBII undoubtedly contains strict protections and legally binding obligations in order to protect the State’s investment. While there are certainly restrictions on the NBII’s ability to resile from the provision of the service, it is possible for it to do so. I do not consider that these restrictions or contractual obligations can be interpreted as imposing an obligation, as understood in light of the CJEU and Supreme Court judgments, on NBII to continue to provide the service. Ultimately, there are a number of means by which NBII could withdraw from its contractual obligations. Accordingly, having considered the Project Agreement, and taking into account the overall regulatory context, I am not satisfied that NBII has been entrusted, under Irish law, with the delivery of the NBP.
83. Although I have concluded that NBII has not been entrusted with the delivery of the NBP, for completeness I will go on to consider whether it has been vested with special powers for the purpose of delivery of the NBP.
84. As set out above, I consider that a special power is one that allows an entity to impose its will on private individuals. This is clear from the opinion of the Advocate General. At paragraph 85 he gave some guidance for national courts to answer this question on a case by case basis:
“However, in order to offer the referring tribunal some guidance which may be helpful to it, it should be pointed out that it is important to establish, in particular, whether the companies concerned have, to some extent, powers of expropriation, powers of access to private property, powers to impose penalties and, in general, powers of enforcement vis-à-vis individuals , regardless of the fact that, when exercising those powers, they are also subject to judicial review, as public authorities stricto sensu always are.”
85. As set out above, he also proposed that the Court find that the official powers that must be vested in the body are powers to “impose on individuals obligations for which they do not require the consent of those individuals ” (paragraph 89).
86. This issue is dealt with in a limited manner in the CJEU judgment inFish Legal . At paragraph 52 the court set out the test for whether a body is a public authority under Article 2(2)(b). It must be “vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law .” It then listed certain powers of the companies in that case:
“the water companies concerned have certain powers under the applicable national law, such as the power of compulsory purchase, the power to make byelaws relating to waterways and land in their ownership, the power to discharge water in certain circumstances, including into private watercourses, the right to impose temporary hosepipe bans and the power to decide, in relation to certain customers and subject to strict conditions, to cut off the supply of water.”
It left the determination of whether these were special powers to the national court.
87. I have considered whether NBII is vested with special powers, for the purpose of delivering the NBP, by virtue of being a “network operator” under the European Union (Electronic Communications Code) Regulations 2022 (the ECC Regulations). The ECC Regulations are part of a suite of statutory instruments which transpose the EU regime for Electronic Communications Networks and Services into Irish law. They give effect to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 and to Commission Implementing Regulation (EU) 2019/2243 of 17 December 20192, and Commission Delegated Regulation (EU) 2021/654 of 18 December 2020. The ECC Regulations form part of a legal framework for electronic communications networks and services which includes the Communications Regulation Act 2002. Together, they establish a comprehensive legal framework for electronic communications networks and services, including user rights, market regulation, and public safety measures. The ECC Regulations consolidate, update and replace previous regulations, setting out the roles of the regulator, conditions for market entry, consumer protections, and requirements for public warning systems.
88. Section 52 of the Communications Regulation Act 2002 (the 2002 Act) defines a “network operator” as “any person who provides or operates an electronic communications network”. In order for any person to be permitted to provide or operate an electronic communications network, that person must be authorised in accordance with the provisions of ECC Regulations. NBII is authorised under the ECC
Regulations and it is not in dispute that it is a network operator under the 2002 Act.
89. Article 6(1) of the ECC Regulations provides that “any undertaking that intends to provide an electronic communications network or an electronic communications service other than a number-independent interpersonal communications service shall, before doing so, notify the Regulator [i.e. the Commission for Communications Regulation (ComReg)] of its intention to provide such a network or service.” Article 6(5) requires that a notification must include certain information including “a short description of the network or service which is the subject of the notification, including a statement as to whether the relevant network or service is to be made publicly available”. Article 6(2) states:
“Upon receipt by the Regulator of a notification under paragraph (1), the undertaking concerned is deemed to be authorised to provide an electronic communications network or electronic communications service or, as appropriate, both, subject to such conditions as may be specified by the Regulator . . .”
90. Article 8(7) provides that failure to comply with such conditions is an offence. It is therefore clear that there are restrictions on who can act as a “network operator” and those entities authorised to act as a “network operator” are subject to regulation by ComReg. NBII submits that the “predominant purpose” of the legal regime “is to impose obligations with respect to the provision of networks and services…and ensure that…private entities operate in a compliant manner”.
91. However, “network operators” or “authorised undertakings” do obtain certain benefits under the legal regime applicable to them. In broad terms those benefits stem from the provisions of the 2002 Act and the ECC Regulations. The principal benefits are those arising under the 2002 Act:
(a) The power to lop or cut trees, shrubs or hedges which interfere with its physical infrastructure and to enter onto lands for that purpose (in section 58).
(b) The entitlement to negotiate an agreement to share physical infrastructure with other infrastructure providers (section 57) and to have ComReg intervene, in certain circumstances, to assist in the resolution of any dispute which arises in those negotiations and apply for the High Court under section 57A for a compliance order in relation to any conditions ComReg has imposed under section 57.
(c) The ability to avail of a consent procedure outlined in section 53 where the network provider needs to carry out roadworks in connection with the installation, establishment, maintenance or repair of electronic communications infrastructure.
92. I will now consider whether these are sufficient to be special powers, namely, whether they allow NBII to impose its will on private individuals.
Section 58 – lopping of trees:
93. A network operator may lop or cut any tree, shrub or hedge which obstructs or interferes with any of the physical infrastructure of the network operator and to enter onto a landowner’s land (with or without vehicles) at any reasonable time in order to do so. This is not subject any consent procedure from ComReg. While a network operator is obliged to provide compensation to landowners in certain circumstances under section 58, and while section 58 provides for a power which is considerably less significant than one which permits compulsory acquisition of land, the power to interfere with private lands in this manner involves an interference with the property rights of others. It is important to note that the ability to enter onto land was a factor listed by the Advocate General.
94. Private property rights have a well-established Constitutional dimension and are also protected by the European Charter of Fundamental Rights. NBII have a power to enter onto land against the wishes of the owner. If an ordinary private entity sought to do this, it would be liable to an action for trespass and possible criminal sanction. NBII can clearly impose its will on landowners. Accordingly, I consider that NBII has been vested with a ‘special power’ of the kind envisaged by the Court inFish Legal .
95. However, I am cognisant of emphasis placed by the Supreme Court inRaheenleagh on the purpose for which the special powers have been vested. At paragraph 135 of its judgment, the Court stated:
“The basic requirement is not simply that the entity has powers, but that the powers are vested for the purpose of performing services of public interest. In those circumstances, there seems to me to be little point in examining the disputed powers without regard to the nature of the purpose for which they have been conferred.” (Emphasis original)
96. While section 58 certainly provides a power to impose one’s will on private persons, this power is vested in all network operators for the purpose of providing or operating an electronic communications network. The power is conferred on very many purely commercial operators who have not been entrusted with the delivery of a service of public interest. While this power isavailable to NBII by virtue of its authorisation as a network operator, this power has not been specificallyvested in NBIIfor the purpose of delivery of the NBP. If NBII were to engage in other commercial activities as a network operator, the power would be available to NBII for those purposes too. I accept that it may not be necessary in every case for legislation to specify the purpose for which a power is vested in order to amount to a ‘special power’ within the meaning of the test. Each power needs to be considered on a case-by-case basis, taking into account the manner in which the power is framed and the functions with which a body performs. However, on the facts of this specific case, I am not satisfied that NBII has been conferred with powers as a network operator for the purpose of the delivery of the NBP.
Sections 57 and 57A :
97. Section 57 sets out the legal framework for the sharing of physical infrastructure used to support electronic communications, granting network operators the right to negotiate sharing agreements and empowering ComReg to facilitate, regulate, and, if necessary, resolve disputes regarding such sharing. The section also details the factors that ComReg must consider, the procedures for intervention and dispute resolution, and the types of conditions that may be imposed on infrastructure sharing.
98.A ‘physical infrastructure provider ’ means a network operator or any other person which allows any part of its physical infrastructure to be used by any other network operator for the provision of electronic communications services. This would include any building that another network operator uses for a phone mast, for example, but may also include any building owned by another private person on which some item of electronic communications infrastructure may be located. This might include, for example, a house, apartment, retail business or office block that could support wiring used in the provision of electronic communications.
99. Section 57 enables ComReg to place a time limit on negotiations between the parties and, where it does so and that period has expired, ComReg “shall take such steps as are necessary to resolve the dispute ” in accordance with its procedures. As part of its decision in relation to any dispute, ComReg may impose conditions for the sharing of physical infrastructure. Subsection (9) sets out a series of factors that ComReg shall take into account when reaching a decision where there is a dispute on access between a network operator (NBII for example) and a physical infrastructure provider. These are:
“(a) the interests of consumers of electronic communications services,
(b) any requirements imposed by an enactment or instrument made thereunder,
(c) the public interest, including traffic control and the protection of the environment and of amenities,
(d) the desirability of encouraging the sharing of electronic communications infrastructure,
(e) the provision of electronic communications services that are not available at the time of the making of the conditions,
(f) the availability of alternatives to the physical infrastructure sharing requested,
(g) the need to provide access to the market for electronic communications services to network operators,
(h) the need to maintain the security of electronic communications networks and the ability of providers of electronic communications services to use different types of electronic communications infrastructure and physical infrastructure,
(i) the nature of the request in relation to the resources available to the network operator or physical infrastructure provider concerned to meet that request,
(j) the promotion of competition between electronic communications services providers, and (k) the need to maintain a universal service.”
100. Section 57A empowers ComReg to seek compliance orders from the High Court against network operators or physical infrastructure providers who fail to comply with infrastructure sharing conditions imposed under section 57, following a prescribed notice and representation process. The High Court may grant compliance orders, impose financial penalties, and make ancillary or interim orders as appropriate.
101. The issue of whether a requirement for intervention of a regulator prevents a power from being a ‘special power’ was considered by the Supreme Court inRaheenleagh . At paragraph 141 the Court stated:
“The requirement to obtain the consent of the CRU is undoubtedly a significant feature. However, it does not appear to me to be necessarily decisive. It remains the case that the authorised person can invoke a process that may lead to the making of a compulsory order against a party in circumstances where no person governed by normal private law can access any equivalent process. So, for example, a farmer who wishes to acquire additional land, or a right of way, must operate under the normal, voluntary law of contract. It is in my view wholly misconceived to suggest that the word “normal” in this context refers only to the statutory rules governing other electricity producers – that interpretation ignores the meaning of the words “private law”.”
102. Applying the judgment in this case, it seems to me that the involvement of an external party (here ComReg) operates as an extra protection on the rights of property owners. Unlike the ability of bodies to seek authorisation for a compulsory purchase order over private property, the is a very large and undefined number of bodies who can apply to serve notice on ComReg on the negotiations. It is Comreg that has discretion to exercise its powers to intervene in the negotiations and to seek orders from the High Court. Under s. 57(5) Comreg can decide not to intervene in the negotiations after having carried out a preliminary examination of the matter. There do not seem to be any limitations on its discretion to refuse to intervene, other than the general obligation to exercise its powers reasonably. In this regard, the appellant points to the obligations of ComReg under ss. 57(3) and (4). However, in my view, those obligations relate in the first instance to the imposition of a deadline on negotiations and in the second instance with compliance with procedures that ComReg has adopted and published. In my view, this does not fetter ComReg’s obligation to refuse to intervene after carrying out a preliminary examination.
103. In addition, the High Court is the final authority that can make an order, and will only do so in a manner that respects the Constitutional rights of the parties. As such I do not consider that this is a special power as it does not allow NBII to impose its will on private parties. The legislative vesting of the power is in Comreg and not the network operators.
Section 53 consent – opening of a public road :
104. Section 53, as amended, establishes a clear power for network operators seeking to carry out roadworks for the installation, extension, maintenance, or repair of underground electronic communications infrastructure. The requirement for prior written consent from the relevant authority ensures that road authorities retain oversight and control over works that may affect public roads and associated infrastructure. The section applies to all public roads, with the responsible authority determined by the classification of the road (national, regional, or local).
105. The scope of works covered by Section 53 is broad, encompassing not only the initial establishment of infrastructure but also subsequent extensions, maintenance, repairs, replacements, and the addition or removal of infrastructure. This comprehensive approach ensures that all significant interventions affecting public roads are subject to regulatory oversight.
106. The section was amended in 2016 to allow for deemed consent if the authority fails to make a decision within 4 months. This amendment was made by theEuropean Union (Reduction of Cost of Deploying High-Speed Public Communications Networks) Regulations 2016 and aims to reduce delays and uncertainty in the deployment of high-speed electronic communications networks.
107. In the case of an emergency, subsection (4) also allows for a deemed consent:
“a consent shall be deemed to be granted where the proposed roadworks are emergency roadworks, subject to any conditions the authority concerned may decide while the emergency roadworks are in progress or completed. The network operator shall inform the authority concerned as soon as is practicable in advance of the commencement of those roadworks.”
108. If a network operator carries out works without authorisation, it commits an offence under subsection (2). This mirrors the broad prohibition under Irish law against unauthorised works on public roads. For example, s. 254(9) of the Planning and Development Act 2000 makes it an offence to carry out certain works without a licence. The same is found in s. 13 of the Roads Act 1993.
109. The effect of the above is that: (a) NBII can carry out any works on a public road where a local authority fails to make a decision within four months; and (b) NBII can carry out emergency works on a public road under a deemed consent. Absent this deemed consent, NBII would be committing a criminal offence. Such powers are unavailable to private persons. For example, a person wishing to carry out works on a public road to facilitate upgrades to their private residence could not avail of these provisions. The purpose of conferring the NBII with such powers is to enable it to deliver the NBP, which I have determined above to be a service of public interest, or as a network operator generally.
110. However, I do not think that this is sufficient to meet the test inFish Legal . NBII is empowered to do things that private individuals cannot do, but it does not involve imposing its will on private individuals. It is more akin to a permission to do an act, like planning permission or the authorisation of individuals in a closed group to provide a service. For example, taxi drivers can drive in bus lanes without penalty, but this would not be the imposition of their will on private individuals. A similar case arises with the sale of alcohol in licences premises, or medicines from pharmacies. Even if NBII have the power to impose its will on landowners as argued by the appellant, I consider that the logic applied to Section 58 above also applies to Section 53 in that it is granted automatically under the 2002 Act to all network operators and is not conferred specifically for the purpose of delivering the NBP.
111. I note again that the Supreme Court have commented that it is not possible to reduce theFish Legal test to its elements and to determine that the test is not satisfied on the basis that one element has not been established, as this approach would risk missing the relationship between the elements and the overall context of the test. As set out above, while I have found that the delivery of the NBP is a service of public interest, I am not satisfied that NBII has beenentrusted , under the legal regime applicable to it, with the performance of that service. In addition, while I accept that section 58 of the 2002 Act would be capable of being a special power within the meaning of the test, I am not satisfied in this case that NBII has been vested with that powerfor the purpose of the delivery of a service of public interest. I have come to this conclusion taking into account the test when viewed as a whole, rather than reduced to its individual parts.
112. Having considered all of the above, I conclude that NBII is not a public authority under category (b) of the definition provided for in the AIE Regulations.
Category (c) of the definition
113. As set out above, category (c) of the definition of a public authority covers:
“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)”
114. Certain of the terminology in category (c) is similar, but not identical, to the terminology in category (b). Category (b) refers to “performing public administrative functions”, whereas category (c) refers to “having public responsibilities or functions, or providing public services ”. In this regard, the Aarhus Implementation Guide states, in respect of this terminology, that:
“… this subparagraph uses the term “public responsibilities or functions”, a broader designation than “public administrative functions” used under subparagraph (b) ...”
115. The principal CJEU judgment dealing with category (c) is again that ofFish Legal . In that case it was not disputed that the bodies in question provided public services in relation to the environment. In relation to the question of ‘control’, the CJEU observed as follows in paragraph 67-70:
“67. … in defining three categories of public authorities, [the AIE Directive 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.
68. Those factors lead to the adoption of an interpretation of ‘control’ … under which this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by [category (a) or (b)] is in a position to exert decisive influence on the entity’s action in that field .
69. The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence.
70. The mere fact that the entity in question is, like the water companies concerned, a commercial company subject to a specific system of regulation for the sector in question cannot exclude control within the meaning of [category (c)] in so far as the conditions laid down in paragraph 68 of the present judgment are met in the case of that entity.”
116. The definition in category (c) was also considered briefly by the Supreme Court in Raheenleagh at paragraphs 145 and 146. It noted that my predecessor had not made any findings on the question of control and that I had asked for the matter to be remitted to me for a fresh investigation into issue. The Court agreed with this submission. It stated that:
“As framed by the CJEU, the test for the “control” of a company is a mixed question of fact and law. It cannot in my view be determined by reference simply to the question whether a shareholder owns more than 50% of the issued shares.”
117. Taking the above into account, I consider that I must address three questions:
(a) Whether NBII has public responsibilities or functions, or provides public services;
(b) If so, whether those responsibilities, functions or services are relating to the environment; and
(c) Whether NBII is under the control of a public authority under category (a) or (b).
118. As outlined above, I am satisfied that NBII performs “services of public interest under the legal regime applicable” to them. The Aarhus Guide suggests that the distinction between the “public administrative functions ” referred to in category (b) of the definition and the “public responsibilities or functions ” referred to in category (c) is that the latter is “a broader designation ” than the former. This would appear to suggest that if a function is considered to be a public administrative function, it would also amount to a public responsibility or function within the meaning of category (c) of the definition.
119. This point was not at issue inFish Legal , in either the judgment or the Advocate General’s opinion as all parties agreed that the water companies provided public services.
120. As acknowledged by the Minister in an Oireachtas debate on the NBP, following the sale of Telecom Éireann, the State became “reliant on the private sector to decide the level of telecommunications service that is delivered” (see Joint Committee on Communications, Climate Action and Environment, National Broadband Plan Discussion, 14 May 2019 ). This would appear to tally with remarks contained in the Aarhus Guide which note that “developments in privatized solutions to the provision of public services have added a layer of complexity to the definition” and that “the Convention tries to make it clear that such innovations cannot take public services or activities out of the realm of public information, participation or justice”. A similar sentiment is evident from the remarks of the CJEU inFish Legal to the effect that category (b) of the definition captures entities which provide public administrative functions “in functional terms” and that the control test which applies to category (c) of the definition “is designed to cover manifestations of the concept of ‘State’ in the broad sense best suited to achieving the objectives of the legislation concerned” (see paragraphs 52 and 64). It is also interesting that the Minister, in the 14 May 2019 debate before the Joint Committee, compared spending on telecommunications from 1996 to 2016 with other services which would arguably be considered public responsibilities or functions or services, i.e. roadworks and water supply, noting that:
“Twenty years ago, the State sold Telecom Éireann, the merits of which decision I will not enter into today. It meant we have been reliant on the private sector to decide the level of telecommunications service that is delivered. In the intervening period, the State has stepped back dramatically in terms of provision. In the decade to 1996, nearly €2 billion was spent by the State on telecommunications infrastructure, a very substantial sum for the time. In the 20-plus years since, by contrast, just €400 million was spent. Over the comparable period, we spent €11 billion on the water system and nearly €40 billion on the roads network. In telecommunications, however, we have relied on the private sector. The latter is doing a good job for urban dwellers, who will, in time, receive fibre broadband to their premises, but for many households and businesses in rural areas, that is not happening”.
121. As outlined above, what is at issue here is State intervention to ensure the provision of broadband services in rural areas which are not otherwise serviced by private markets. Based on the same considerations as are outlined in detail in paragraphs 61-73 above, it is clear to me that the State places considerable value on the delivery of broadband to remote areas, recognising the impact of such a service on the other services delivered by the State and the necessity of such a service in order to achieve European strategic objectives. This is confirmed in the public statements of Ministers but, moreover, in the significant State investment in the delivery of services by the NBII, permitted only with the endorsement of the European Commission. It is therefore clear that the delivery of the NBP is both a “service of public interest” and a “public service”.
122. In order to answer that question, it is necessary to explore what is meant by the phrase “relating to the environment” as it appears in category (c) of the definition. That phrase is not defined in the Directive. The Directive implements just one of the three limbs of the Aarhus Convention.
123. The phrases “in relation to the environment” and “relating to the environment” appear on a number of occasions in the Aarhus Convention. For example, Article 7 is titled:
“Public Participation Concerning Plans, Programmes And Policies Relating To The Environment”
124. It puts an obligation on signatory states to allow for public participation in the preparation of such plans. Article 6 deals with the right of public participation on individual projects. Article 6(1)(a) states these include all the projects listed in Annex I to the Aarhus Convention, such as:
• Large scale energy projects;
• Production of metals;
• Mineral industry projects;
• Chemical industry projects;
• Waste management;
• Waste water treatment; and
• Electricity power lines over 15km in length and with a voltage of 220 kV or higher.
125. Article 6(1)(b) states that if a project is not listed in Annex 1 then the public participation rights in Article 6 extend to that project if it “may have a significant effect on the environment .” Telecommunication infrastructure projects are not listed in the Annex. They are only covered by Article 6 if they reach the significant effect threshold.
126. Article 9 of the Aarhus Convention sets out rights in relation to access to justice in environmental matters. Article 9(3) states:
“each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”
127. This last provision was considered by the Supreme Court inConway v Ireland [2017] 1 IR 53. The court considered the discussion on the Aarhus Convention Implementation guide and state:
“63. It follows that the question of whether a national law may be a “law relating to the environment” for the purposes of article 9.3 of the Aarhus Convention must be determined as a matter of substance rather than as a matter of form. It does not matter if the legislation in question deals with other questions or has a title implying that its principal focus may be matters other than environmental provided, importantly, that the measure sought to be enforced can properly be said, in any material and realistic way, to relate to the environment.”
128. This was later considered by the Supreme Court again inHeather Hill Management Company CLG & McGoldrick v an Bord Pleanála [2022] 2 ILRM 313 where the court stated at paragraph 175:
“The concept of ‘national law relating to the environment’ referred to in Article 9(3) is autonomous and intended to be given a broad, not a strict, interpretation as evident – if nothing else – from the use of the wide and general term ‘relating to’.”
129. Taking the above into account, it seems to me that there are two possible interpretations of the phrase “public services relating to the environment”:
(a) Activities aimed at protecting, managing or improving the environment only. These would include waste management services, water services, services for the purpose of climate action and nature conservation services.
(b) Activities aimed at protecting managing or improving the environment and activities that do not have as their purpose the protection, management or improvement of the environment, but may have a significant effect or impact on the environment.
130. I accept that the phrase must be given a wide definition. However, had the drafters of the Aarhus Convention wanted to include all services that may have a significant impact on the environment under category (c), they could have done so by using the express language found in Article 6(1)(b). In my view it is important to look at the definition of public authority in its entirety. Category (b) covers all relevant entities natural or legal persons performing public administrative functions under national law, including specific duties, activities or services relating to the environment. Category (c) is narrower, clearly limited by the fact that the entity must do something “in relation to the environment”.
131. I am supported in this conclusion byFish Legal , where the CJEU described category (c) is a residual category of public authorities. In my view this mitigates strongly against the wider definition of “public services relating to the environment” in option (b) above.
132. I am also supported by the provisions of Article 191 TFEU. This is the treaty article that give the EU competence to develop a policy on the environment. Article 191(1) sets out the objectives of this policy:
“Union policy on the environment shall contribute to pursuit of the following objectives:
• preserving, protecting and improving the quality of the environment,
• protecting human health,
• prudent and rational utilisation of natural resources,
• promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.”
133. Article 192 set out some procedural rules on how the EU should develop this policy. Article 192(2)(b) makes it clear that environmental policy includes planning rules, measures affecting water management, land use and waste management. In my view it is these types of activities that are services in relation to the environment.
134. The appellant relies on the decision of the Court of Appeal inMinch to argue that the NBP is a public service relating to the environment. As the Court of Appeal pointed out inMinch , the provision of broadband infrastructure, regardless of how it takes place “would have significant environmental impacts” (see para 49). I accept that I must interpret the AIE Regulations broadly to allow access to environmental information to the widest extent possible. However, for the reasons set out in the preceding paragraphs, I do not accept that having a significant impact on the environment this brings a service into category (c). In my view category (c) includes the wide, but more limited, set of activities in paragraph (a) above.
135. I have no difficulty in finding that the delivery of broadband services is not aimed at protecting, managing or improving the environment. Accordingly, I am not satisfied that NBII is providing a public service relating to the environment.
136. The decision of the CJEU inFish Legal makes it clear that “the precise meaning of the concept of control…must…be sought by taking account of [the AIE Directive’s] objectives” which are “in particular, to guarantee the right of access to environmental information held by or for public authorities, to set out the basic terms and conditions of, and practical arrangements for, exercise of that right and to achieve the widest possible systematic availability and dissemination to the public of such information ” (paras 65 and 66). This sentiment is reiterated by the Supreme Court in its decision in theNAMA case where it stated that “[the] specific obligation of 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 ” (para 10).
137. As set out above, the CJEU inFish Legal found that category (c) “covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by [category (a) or (b)] is in a position to exert decisive influence on the entity’s action in that field ”. The Court went on to find that “the manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence ” (see paras 68 and 69).
138. The Supreme Court inRaheenleagh stated that:
“As framed by the CJEU, the test for the “control of a company is a mixed question of fact and law. It cannot in my view be determined by reference simply to the question whether a shareholder owns more than 50% of the issued shares.”
139. The key question for me to consider in this case is whether the Minister (with whom the Project Agreement was entered into) exercises ‘decisive influence’ over NBII in the performance of its function to deliver the NBP, such that NBII does not determine in a genuinely autonomous manner the way in which it performs that function.
140. In order to conclude that the Minister exercises decisive influence over NBII, it is not enough to find that the parties have agreed contractual goals, being the delivery of broadband to rural areas. It will be necessary for me to find that the Minister exercises decisive influence in how NBII meets that contractual goal. There can be little dispute that the Minister has set out the aim of the NBP, but I consider that NBII retains autonomy to decide on how that aim is met, for the reasons set out below.
141. NBII is a private entity established by shareholders. According to its Constitution, NBII is a “designated activity company limited by shares, that is to say a private company limited by shares, registered under Part 16 of the Companies Act 2014… [and] ... The principal object for which the Company is established is to design, build, operate and maintain an ultrafast broadband network across the Republic of Ireland in accordance with the terms set out in the Agreement in respect of the National Broadband Intervention Project …” As of late 2022, a majority (80%) stake was acquired by Asterion Industrial Partners. Asterion is an independent investment management firm. The Minister holds one “special share” in NBII; the special share does not count as equity share capital and is a non-voting share. The share conveys the right to receive notice of and attend and speak at all general meetings and a veto right for certain actions (e.g. any changes to the governance protocol, changes to certain provisions of the constitution, allotment and issuance of additional share capital, transfer of any shares and proposed change in the nature or scope of the business). In particular, the following points are noted:
(i) According to part 33 of the NBII Constitution, the business of the company is managed by its directors; and decisions in respect of any strategic and tactical decisions and matters that relate to the Project are reserved for the Board of Directors (part 33.4).
(ii) The Board of Directors is comprised of 9 (nine) non-executive directors, one (1) of whom may be appointed directly by the Minister Special Shareholder.
(iii) The Chairman of the Board is appointed directly by the Shareholders, subject to prior consultation with the Minister Special Shareholder (part 31.2.1 of the Constitution)
(iv) Where there is an equality of votes at meetings, the Chairman shall be entitled to a second or casting vote in addition to any other vote he or she may have (part 55.7 of the Constitution).
142. The CJEU referred, in paragraph 69 of its judgment, to several examples of what could be considered ‘decisive influence’. In my view, the Minister’s special share in the company does not afford the Minister this form of control, e.g. the authority to control voting rights, Board appointments, or major corporate action.
143. One of the other examples given by the CJEU as to how a public authority might exercise decisive influence was a power to wholly or partially deny financing to an extent that this would jeopardise the existence of the entity. As described previously in this decision, State Aid is a term that refers to forms of State-controlled financial resources. In this case, NBII is in receipt of subsidy by the State if it delivers project milestones as defined by the Project Agreement. These contractual terms give the Department oversight over the delivery of the project and allow NBII to receive payment for work properly undertaken. The appellant submits: “State controls the funding of NBII through the allocation of grants. Without this State funding NBII wouldn’t exist and its public service wouldn’t exist.” This statement is undeniable; however, in my view, it also fails to take account of the bigger picture, i.e. the reason why the aid intensity level is so high in relation to the NBP. NBII has three sources of funding:
(a) Investor funding of €175m;
(b) Revenues generated from customers using the network; and
(c) State funding.
144. According to NBII’s website , this state funding is “required because it was not commercially viable to deploy and operate the NBP network over the life of the project.” Again, according to NBII it had received a total subsidy of €1.273bn as of August 2025. The total budget for funding NBII is €2.6bn in State expenditure. By contrast, to date €145m of investor funds have been drawn down. It is clear from this that the State is substantially funding the installation and operation of the NBP. In a statement issued by the Government Press Office on 19 November 2019 following the signing of the Project Agreement, the following context was provided in relation to this State investment:
“The investment being made by the government under the National Broadband Plan will compensate for a historical under investment in broadband in rural Ireland since the sale of Telecom Eireann. Between 2002-2016 €400m was invested in broadband by the State. By comparison, other areas of infrastructure received significantly more capital, including €36.9 Billion in roads and €10.8 Billion in Water in the period 2002-2021, while the private sector has invested €2.75 Billion in broadband in recent years (including €1 Billion in fibre to the home networks).”
145. However, I am not satisfied that State funding results in the State exercising decisive influence over NBII, such that it does not determine in an autonomous manner the way in which it performs its functions. It is a private company that has received significant investor funding. In the absence of state funding, there is nothing to prevent the company from seeking additional investor funding or using its knowledge and experience to exploit further opportunities in the normal way. It is obvious that NBII has significant experience in telecommunications, gained as a result of rolling out one of the largest and ambitious fibre projects in the world. The removal of State funding would likely present NBII with a significant commercial challenge, but so would the loss of a significant customer to any private company. That is not the same as saying that such a customer exercises decisive influence over how that company carries out its functions.
146. As outlined above, the European Commission approved €2.6bn for the Irish National Broadband Plan to ensure 100% high-speed broadband coverage. Indeed, the Commission has approved a large number of State aid decisions regarding broadband, focusing on facilitating the rollout of high-speed networks in areas where private investment is insufficient. Between 2003 and July 2024, the Commission assessed over 200 broadband-related measures, see: https://competition-policy.ec.europa.eu/system/files/2024-01/stateaid_broadband_decisions.pdf
147. The Commission applies the "Guidelines on State aid for broadband networks" (2023/C 36/01) for the assessment of state aid to broadband measures. Annex IV of this Communication summarises the typical interventions for funding mechanisms used by several Member States for supporting broadband deployment, as follows:
a. Gap funding model: Public authorities in Member States support the deployment of fixed or mobile networks by awarding direct monetary grants or subsidies to broadband investors to design, build, manage and commercially exploit a network, taking into account the relevant receipts and a reasonable profit.
b. Support in kind model: Member States support fixed or mobile broadband deployment by putting at the disposal of broadband network operators existing or newly built infrastructures.
c. Direct investment model: Member States build a fixed or mobile network and operate it directly through a branch of the public administration or via an in-house operator.
d. Concessionaire model: Member States finance the roll-out of a fixed or mobile broadband network, that remains in public ownership, whereas its operation is offered through a competitive selection procedure to an electronic communication provider to manage and commercially exploit it.
148. The appellant submits: “The essence of an outsourcing contract is control, in other words, the contracting entity, rather than carrying out services itself hires someone to do it, and has control over the project.” The appellant refers to the Advocate General’s opinion inFish Legal , including:
107. That being so, 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.
108. Naturally, it is for the national court to determine the extent to which factors of that kind are present in each case, and for that purpose it may rely on the rules established in the case-law of the Court relating to companies set up to provide certain services.
109. In my view, it is perfectly possible to apply the criteria used by the Court to establish cases in which a contracting authority exercises over a legally distinct successful tenderer control similar to that exercised over its own departments.
110. 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’.
149. Ireland adopted the gap funding model to support the NBP, as opposed to other models which, as outlined above, could clearly be envisaged in certain circumstances, to allow the contracting authority to influence an entity’s strategic objectives and decisions. In contrast, the funding model which supports the NBP is, in my view, duly reflective of the fact that the telecommunications network in Ireland is not a publicly owned asset; it is privately owned, by a number of commercial network operators – unlike our electricity network where ownership and operation is reserved (by statute) for state-owned enterprises and is not open to competition from private entities.
150. The Project Agreement for the NBP has been designed to include extensive protections, quality checks, reporting and monitoring obligations and there is clearly heavy scrutiny from the Minister and Department officials in ensuring delivery of the terms of same. However, I do not consider that this is the same as removing genuine autonomy of action by the company – either strategically or operationally. For instance, where a dispute arises between the Minister and NBII, the contract parties must engage the dispute resolution procedure as set out in the Project Agreement (Schedule 6.3). If the dispute resolution procedure is not successful, then the Minister may bring a claim against NBII in the Irish courts. This, in my view, is contrary to the concept of “control”, such that the Minister could be said to influence NBII’s actions internally as opposed to relying on external dispute resolution procedures and litigation.
151. I have examined the appellant’s arguments and all examples listed as “indicia of control” arising from the terms of the Project Agreement, the NBII Constitution and the Minister’s special share in the company. In particular, I note that specific protections are provided for the State in relation to a change in ownership, sale, or change in control of shareholders of NBII. However, in my view, these restrictions are consistent with normal practice in major infrastructure projects. I accept NBII’s position that many commercial contracts between State bodies and private entities would contain key performance indicators, audit rights and step-in rights, particularly in regulated fields and I agree that this does not amount to the State controlling those companies. For example, the current estimate is that the National Children’s Hospital will cost €2.24bn, but there is no suggestion that the State exercises decisive influence over BAM, the construction company, as a result.
152. As I have set out above, I do not accept that funding under the State Aid framework, in this case, is the equivalent of the State exercising ‘decisive influence’ over NBII’s functions. Control over financial resources is not the same as control over the entity. The sole method of control by the Minister over NBII is via a contract. In my view this is not sufficient. Category (c) is a residual category of public authorities. Allowing control to be exercised via a contract in this way would radically expand the number of public authorities in what is supposed to be limited and residual category. To this end, I accept the submissions of NBII set out in paragraph 29(v)-(xiii) above.
153. I have found that the delivery of the NBP is both a “service of public interest” and a “public service”. However, I am not satisfied that the delivery of broadband services is aimed at protecting, managing or improving the environment, such that it is a service “relating to the environment”. In addition, I have found that NBII is not “under the control of a public authority under category (a) or (b)”.
154. Having considered all of the above, I conclude that NBII is not a public authority under category (c) of the definition provided for in the AIE Regulations.
155. Having carried out a review under article 12(5) of the AIE Regulations, I find that NBII is not a “public authority” within the meaning of article 3(1) of the AIE Regulations.
156. 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.
Ger Deering
Commissioner for Environmental Information