High Court dismisses appeal against EU Regulations 2007-2014 regarding €15 environmental information access charge.

[2025] IEHC 556 THE HIGH COURT PLANNING & ENVIRONMENT [H.MCA.2025.0000151] IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007 TO 2014 BETWEEN SAVE LEITRIM ENVIRONMENTAL AND BIODIVERSITY COMPANY LIMITED BY GUARANTEE APPELLANT AND COMMISSIONER FOR ENVIRONMENTAL INFORMATION RESPONDENT AND COILLTE CUIDEACHTA GHNÍOMHAÍOCHTA AINMNITHE AND IRELAND AND THE ATTORNEY GENERAL NOTICE PARTIES

Date of impugned decision: 10 March 2025 Date proceedings commenced: 27 March 2025 Date of main hearing: 26 September 2025 Date draft judgment circulated: 15 October 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 22nd day of October 2025

1. Even small incentives or disincentives can nudge public behaviour in one direction or another, with significant knock-on effects for society as a whole when multiplied across the population. As the appellant points out, even a €1 or €2 incentive is enough to ensure almost universal return of shopping trolleys, and a €0.15 incentive is enough to ensure a fairly strong take up for recycling of disposable liquid containers. The present case involves a challenge to the EU legality of a relatively modest charge of €15 for the time cost of providing access to environmental information. Facts

2. The appellant made a request to Coillte for access to environmental information on 12 July 2023 in relation to:

“Correspondence from August 2022 (including any attachments) between Coillte and Soil Association Certification in connection with the certification audit undertaken by that body of Coillte in and around May 2022.”

3. A deemed refusal arose on 11 August 2023, because a response was not received within the time limit.

4. The appellant requested an internal review on 13 August 2023.

5. Coillte issued an internal review decision on 11 September 2023, granting the request subject to payment of a €30 fee.

6. On 13 September 2023, Coillte invoiced the appellant for €30 for 1.5 hours spent by Coillte for time spent on search, retrieval and compilation (copying doesn’t seem to arise) in respect of the information requested by the appellant. No material costs were charged since the information was supplied in electronic form. The charge is thus framed in terms of time cost – described by the appellant variously as “indirect” or “non-material” costs.

7. The appellant paid the invoice on or around 9 October 2023.

8. The appellant received the requested information on 18 October 2023.

9. The appellant appealed the fee to the commissioner on 22 October 2023 on the basis that:

(i) the request should not have taken 1.5 hours because it was specific (this wasn’t pursued by way of appeal to the court);

(ii) charges covered information that was already in the public domain (Coillte accepted this ultimately and refunded half of the fee); and

(iii) the charges were for indirect costs which were precluded having regard to the findings and recommendations of the Aarhus Convention Compliance Committee (ACCC) in case ACCC/C/2017/147 §89 – this is the issue now falling for consideration.

10. The commissioner notified Coillte about the appeal on 25 October 2023, and invited a submission within six weeks.

11. Coillte made a submission to the commissioner on 7 December 2023, and admitted that it should not have charged to supply information in the public domain and indicated that it would

reduce the charge to €15 (as noted above, on the basis that some information was already in the public domain).

12. The appellant was notified of new material issues by the commissioner on 26 June 2024, including the reduction in the charge.

13. The appellant replied to the commissioner on 27 June 2024.

14. The commissioner requested Coillte to make targeted submissions on 16 July 2024.

15. Coillte responded to the commissioner on 30 August 2024.

16. The commissioner made his decision on 10 March 2025. Procedural history

17. The proceedings were issued by originating notice of motion and grounding affidavit of Justin Warnock on 27 March 2025.

18. The state parties were joined as the second and third named notice parties by order of the court dated 7 April 2025.

19. The commissioner filed points of opposition and verifying affidavit of Julie O’Leary on 15 May 2025.

20. Ireland and the Attorney General filed points of opposition 23 May 2025.

21. Coillte filed points of opposition and verifying affidavit of Damien Jordan on 28 May 2025.

22. Coillte wrote to the appellant on 28 May 2025, indicating that it would process the refund of €15 notified to the commissioner on 7 December 2023.

23. The appellant filed a replying affidavit on 6 June 2025.

24. The commissioner filed a replying affidavit on 13 June 2025.

25. Coillte filed a replying affidavit on 24 June 2025.

26. The appellant filed its written submissions on 25 June 2025.

27. The commissioner filed its written submissions on 2 July 2025.

28. The State filed its written submissions on 21 July 2025.

29. Coillte filed its written submissions on 29 July 2025.

30. The appellant filed its replying submissions on 1 August 2025.

31. Based on the submissions, I circulated a suggested issue paper which was discussed at the call over date of 15 September 2025, and the appellant prepared a composite document of summary replies to this issue paper.

32. The matter was heard on 26 September 2025.

33. Judgment was reserved at the end of that hearing. I would like to record my thanks to all of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have previously sought to make clear, insofar as any points advanced are not being accepted in this or any other given judgment, that is solely to do with the inherent merits of such points and is no reflection on those instructed to convey such points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to all concerned.

34. On 15 October 2025, a draft of the present judgment was sent to the parties to give an opportunity to identify any errors. The rules of engagement in such a situation are that the draft is without prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever content it considers appropriate. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile in writing within 7 days and should not be to reargue the substance (submissions to that effect will be disregarded) but are confined to matters such as:

(i) informing the court as to whether a formal judgment is required, and if so on what issues;

(ii) informing the court as to whether a judgment might be oral or written or partly in both modes;

(iii) typographical, factual or legal errors in the decision;

(iv) requesting the court to decide a point that, while obiter/ unnecessary to decide, is one the party considers could beneficially be decided;

(v) identifying significant points that the party considers that the court was required to address but has not;

(vi) identifying points that the court proposes to address but that the parties consider it unnecessary to address;

(vii) in the event that the court proposes to place pivotal reliance on any authority or material not previously adverted to, as opposed to where such material merely reinforces a point that the court was making in any event, any comment as to why such material should not lead to the proposed conclusion; and

(viii) any suggestions as to the wording (as opposed to substance) of the decision if the proposed wording causes any significant issue for a party for any identified reason.

35. It is then entirely a matter for the court as to whether to list the matter for mention, or whether to simply give judgment with or without amendment to respond to any such comments or for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the 7 day period, whether comments are made or not. That period will not be extended save in exceptional circumstances. All parties involved are requested to positively confirm to the court the position including if they have no observations on the draft legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a concession which parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39).

36. The mention date to review matters following the foregoing was to be 23 October 2025 but in fact all submissions were duly received by 21 October 2025 so a further mention was unnecessary. The appellant helpfully suggested reformatting of what is now the annex to the judgment. The commissioner suggested an expansion of reference to its arguments which was helpful in terms of setting out the issues and I have included additional material elaborating further on those suggestions. Relief sought

37. The reliefs sought in the appellant’s notice of motion is as follows:

“1. An Order setting aside the decision of the Commissioner for Environmental Information, the Respondent (the ‘Commissioner’) dated 10 March 2025 reference no. OCE- 143263-P9B0N9 (the ‘Decision’).

2. Such declaration(s) of the legal rights and/or legal position of the Appellant and persons similarly situated and/or of the legal duties and/or legal position of the Respondent and/or Notice Party as the Court considers appropriate.

3. A mandatory order requiring the Notice Party (‘Coillte’) to refund €15 to the Appellant

4. A preliminary reference to the Court of Justice of the European Union

5. A Declaration that sections 3 and 4 of the Environment (Miscellaneous Provisions)

Act, 2011, and/or the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála whereby in proceedings where the application of national environmental law is at issue it is for the national Court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(1) and (4) of the Aarhus Convention, apply to these proceedings.

6. Such further order as this honourable court shall deem fit

7. An order for the costs of and incidental to this appeal, including the costs of the Appellant’s appeal to the Respondent.” Grounds of appeal

38. The first ground of appeal is:

“The Commissioner erred in deciding that a fee charged by the Notice Party of €15 for the supply of environmental information was reasonable under Regulation 15(1) of the AIE Regulations and Article 5(2) of directive 2002/4/EC on public access to environmental information (AIE directive).”

39. The parties’ positions as recorded in the statement of case are summarised as follows:

“Principle of Equivalence Appellant It is unlawful for a public authority to charge a fee of less than €101 for the supply of environmental information under the AIE Regulations because (a) such a fee is not chargeable for the supply of environmental information under the Freedom of Information Act 2014 which is a similar national law procedure compared with the AIE Regulations;

and/or (b) under national law an applicant can apply for a review to the Information Commissioner which would be bound to disallow a charge of less than €101 whereas the Commissioner is not so-bound. The Appellant is not precluded from raising this point on appeal and it is immaterial that Coillte is not an FOI Body.

Commissioner The Commissioner disagrees that the principle of equivalence applies in this case. While it is possible to argue that the AIE regime and FOI Act are similar, the fees regime in each is conceptually different such that national procedural rules in relation to fees under the FOI Act and AIE regime do not trigger the principle of equivalent. This arises most obviously in the ability of an FOI body to charge large fees under the FOI Act whereas similar fees for identical information sought under the AIE Regulations might not be allowed.

State Parties – Second and Third Notice Parties The State Parties raised a preliminary objection that High Court, in carrying out its statutory appeal function, can only entertain points of law involved in the decision under appeal.

Where no argument relating to the application of the principle of equivalence or the fee structure under the Freedom of Information Act 2014 was advanced, argued or determined before the Commissioner for Environmental Information the Appellant is not entitled to now raise this ground and arguments in this appeal.

The principle of equivalence is not engaged in this case. The principle of equivalence is only engaged where EU law leaves it to the Member States, as a matter of their procedural autonomy, to provide remedies for the violation of directly effective rights. Article 5(2) of the AIE Directive specifies that a public body is entitled to make a charge for the supply of environmental information, subject only to the requirement that such a charge shall not exceed a reasonable amount. EU law has therefore already substantively addressed the issue of the entitlement Member State to charge a fee. The principle of equivalence is of no application in the circumstances. It is therefore not accepted that it is legally appropriate to compare the fee regime applicable under the AIE Regulations and the fee regime under the FOI Act.

If the principle of equivalence does apply, which is denied, the State Parties adopt and support the points of opposition and submissions filed by the Commissioner and take the position that the rules on fees under both access regimes are not sufficiently similar to trigger the principle of equivalence.

Coillte – First Notice Party Coillte agrees with the State Parties that the principle of equivalence is not engaged in this case, as the EU has legislated in the space and Article 5(2) of the AIE Directive specifies that a public body is entitled to make a charge for the supply of environmental information, subject only to the requirement that such a charge shall not exceed a reasonable amount.

Furthermore, to trigger equivalence, it is necessary for the EU action and the domestic action to pursue the same objective. It is apparent that it cannot be said that the FOI and AIE regimes pursue an equivalent ‘purpose’ or share equivalent ‘essential characteristics’. There are significant conceptual differences between the two regimes, which has been accepted by the High Court. Even if the principle of equivalence is engaged, it is not accepted that charges under the FOI regime are less burdensome than charges under the AIE regime. A holistic view of the fee regimes must be taken. Save Leitrim falls into error by focusing on the single threshold of €101. The FOI Act and the Freedom of Information Act (Fees) (No.

2) Regulations 2014 contain various provisions which are less favourable than those obtaining under the AIE regime.”

40. The second ground of appeal is:

“The Commissioner erred in finding that it was lawful and/or reasonable for Coillte to charge for indirect costs including the time taken by it to search for, retrieve and collate the requested environmental information.”

41. The parties’ positions as recorded in the statement of case are summarised as follows:

“Article 4(8) of the Aarhus Convention – Prohibition on charging indirect costs Appellant Article 4(8) of the Aarhus Convention prohibits the charging of indirect costs for the supply of environmental information. Article 4(8) provides that the information held by public authorities should be provided for free or at no more than the reasonable material costs of supplying the requested information (e.g. postage or copying costs). The scope of charges within Article 4(8) was clarified by the Aarhus Convention Compliance Committee in case ACCC/C/2017/147 concerning Moldova (the Moldova Case) which findings were endorsed by the Meeting of the Parties at the seventh meeting in October 2021. This the interpretation ought to have been applied by the Commissioner having regard to Article 31(3)(a) and/or

(b) of the Vienna Convention on the Law of Treaties. The findings in the Moldova Case directly contradict the earlier judgment of the Court of Justice in East Sussex C-71/14 and ought to have been applied rather than the earlier interpretation in East Sussex.

In so far as indirect costs are prohibited by Article 4(8), that provision is directly effective as a matter of EU law since the nature and broad logic of the Aarhus Convention permit it and the provision is unconditional and sufficiently precise and is not subject to the adoption of any subsequent measure. The Commissioner therefore erred in applying East Sussex and in not directly applying the interpretation of Article 4(8) as interpreted in the Moldova Case which has primacy over East Sussex.

In the alternative the Commissioner ought to have adopted a conforming interpretation of Regulation 15 of the AIE Regulations as prohibiting the indirect costs charged by Coillte.

Such an interpretation is not contra legem.

Commissioner The Commissioner is bound to follow the judgments of the CJEU. It is common case that he applied the rules of fees set out by that Court in East Sussex. The Commissioner does not

accept that the Aarhus Convention can have direct effect in the way outlined by the Applicant. Nor was it possible to give a conforming interpretation to Regulation 15 of the AIE Regulations, where that is based on the Directive that had been conclusively interpreted by the CJEU in East Sussex.

State Parties – Second and Third Notice Parties Article 4(8) of the Aarhus Convention does not expressly prohibit the charging of indirect costs for the supply of environmental information. The Commissioner did not err in concluding that he was bound by the judgment in Case C-71/14 East Sussex. The Commissioner was correct in applying the binding case-law set down by the CJEU rather than the findings of the Aarhus Convention Compliance Committee in Moldova ACCC/C/2017/147, whether as endorsed by the Meeting of the Parties or otherwise. Findings of the ACCC are not binding on the Courts and do not provide a definitive legal interpretation of the scope of the Aarhus Convention. The decisions of the CJEU are binding having regard to the hierarchy of the court system in the EU.

Coillte – First Notice Party Article 4(8) of the Aarhus Convention is not directly effective. Moreover, Article 4(8)

obviously does not contain any prohibition on the charging of so-called indirect costs. That wording is nowhere to be found in Article 4(8). Save Leitrim now relies on Article 31 of the Vienna Convention on the Law of Treaties to argue that the meaning of Article 4(8) of the Aarhus Convention has been changed by the Moldova decision. Coillte objects to reliance on the Vienna Convention in circumstances where this was not pleaded. Without prejudice to that objection

(i) The argument about direct effect ignores established EU law principles which require a focus on the wording of the text of the provision in question;

(ii) Save Leitrim has failed to identify a single CJEU authority where that Court found a provision of the Aarhus Convention to be directly effective;

(iii) Save Leitrim has failed to identify a single CJEU authority where the Court accepted that an interpretation by the Aarhus Convention Compliance Committee of a provision of the Aarhus Convention rendered that provision directly effective or binding;

(iv) Save Leitrim’s arguments run contrary to Case C-612/13 Client Earth v Commission where the CJEU held that Article 4(4)(c) of the Convention had no direct effect;

(v) Save Leitrim does not engage with domestic law clearly pointing away from direct effect.

It is well established that an interpretive obligation rests on the EU and Member States in relation to the Aarhus Convention. However, a limit on the interpretive obligation applies where such an interpretation would be contra legem. Reliance upon the Moldova decision to argue that the Commissioner should have interpreted Article 5(2) of the AIE Directive/Article 15(1) of the AIE Regulations in a manner which would directly contradict East Sussex is clearly not permitted by EU law.”

42. Having thus noted the initial responses to the grounds of appeal, in the light of the subsequent responses to the issue paper it makes more sense to consider the grounds of appeal on an issue-by-issue basis. However given the way the matter evolved at the hearing it is appropriate to consider issues 5 to 7 prior to issues 1 to 4, because the appellant clarified that the latter heading was a fall-back argument.

43. As a general initial point this appeal relates to issues of law and thus a discussion of standard of review in terms of deference to the decision-maker does not arise (Deely v. Information Commissioner [2001] IEHC 91, [2001] 3 I.R. 439 (McKechnie J.), cited with approval in Minister for Communications Energy and Natural Resources v. Information Commissioner [2020] IESC 57, [2022] 1 I.R. 1, [2021] 2 I.L.R.M. 81 (Baker J.), §100). Convention and legislative scheme

44. Article 31 of the Vienna Convention on the Law of Treaties provides:

“Article 31 General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.”

45. The CJEU held in its judgment of 21 December 2023, Scuola europea di Varese, C‑431/22, ECLI:EU:C:2023:1021, as follows:

“75 As regards Article 31(3)(a) and (b) of the Vienna Convention, it follows that, for the purpose of interpreting a treaty, there must be taken into account, together with the context, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions and any subsequent practice in the application of that treaty which establishes the agreement of the parties regarding its interpretation.

76 In that regard, the Court has previously had occasion to emphasise that it was neither illegitimate nor unusual, under international law, for provision to be made that the Parties to an international agreement may clarify, as their joint wishes concerning the effect of that agreement develop, the interpretation of that agreement. Such clarification may be introduced by the Parties themselves or by a body set up by the Parties on which they confer a power to adopt decisions that will be binding on them. Such interpretative acts have, in that case, the legal effects stemming from Article 31(3)(a) of the Vienna Convention (see, to that effect, Opinion 1/17 (EU-Canada CET Agreement), of 30 April 2019, EU:C:2019:341, paragraphs 233 and 234).

77 The Court has, moreover, already held that, in order to determine the scope of the words ‘act … on the part of the board of Governors [or] the Administrative Board of a school’ contained in the first sentence of the first subparagraph of Article 27(2) of the CSEE, it is appropriate, in accordance with Article 31(3)(b) of the Vienna Convention, inter alia, to refer to any subsequent practice in the application of that convention (see, to that effect, judgment in Oberto and O’Leary, paragraphs 60 and 62).

46. The Aarhus Convention provides at art. 4(8):

“8. Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount. Public authorities intending to make such a charge for supplying information shall make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge.”

47. The Aarhus Convention was signed by the Community and subsequently approved by

Decision 2005/370.

48. The CJEU (Grand Chamber) outlined the relationship between the Aarhus Convention and the EU legal order in the judgment of 8 March 2011, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky, C‑240/09, ECLI:EU:C:2011:125:

“30 The Aarhus Convention was signed by the Community and subsequently approved by Decision 2005/370. Therefore, according to settled case-law, the provisions of that convention now form an integral part of the legal order of the European Union (see, by analogy, Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 36, and Case C‑459/03 Commission v Ireland [2006] ECR I‑4635, paragraph 82). Within the framework of that legal order the Court therefore has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (see, inter alia, Case 181/73 Haegeman [1974] ECR 449, paragraphs 4 to 6, and Case 12/86 Demirel [1987] ECR 3719, paragraph 7).

31 Since the Aarhus Convention was concluded by the Community and all the Member States on the basis of joint competence, it follows that where a case is brought before the Court in accordance with the provisions of the EC Treaty, in particular Article 234 EC thereof, the Court has jurisdiction to define the obligations which the Community has assumed and those which remain the sole responsibility of the Member States in order to interpret the Aarhus Convention (see, by analogy, Joined Cases C‑300/98 and C‑392/98 Dior and Others [2000] ECR I‑11307, paragraph 33, and Case C‑431/05 Merck Genéricos – Produtos Farmacêuticos [2007] ECR I‑7001, paragraph 33).

32 Next, it must be determined whether, in the field covered by Article 9(3) of the Aarhus Convention, the European Union has exercised its powers and adopted provisions to implement the obligations which derive from it. If that were not the case, the obligations deriving from Article 9(3) of the Aarhus Convention would continue to be covered by the national law of the Member States. In those circumstances, it would be for the courts of those Member States to determine, on the basis of national law, whether individuals could rely directly on the rules of that international agreement relevant to that field or whether

the courts must apply those rules of their own motion. In that case, EU law does not require or forbid the legal order of a Member State to accord to individuals the right to rely directly on a rule laid down in the Aarhus Convention or to oblige the courts to apply that rule of their own motion (see, by analogy, Dior and Others, paragraph 48 and MerckGenéricos – Produtos Farmacêuticos, paragraph 34).

33 However, if it were to be held that the European Union has exercised its powers and adopted provisions in the field covered by Article 9(3) of the Aarhus Convention, EU law would apply and it would be for the Court of Justice to determine whether the provision of the international agreement in question has direct effect.

34 Therefore, it is appropriate to examine whether, in the particular field into which Article 9(3) of the Aarhus Convention falls, the European Union has exercised its powers and adopted provisions to implement obligations deriving from it (see, by analogy, MerckGenéricos – Produtos Farmacêuticos, paragraph 39).”

49. The AIE directive (directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC) provides at recital 18:

“(18) Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable; an advance payment may be required. A schedule of charges should be published and made available to applicants together with information on the circumstances in which a charge may be levied or waived.”

50. Article 5 provides:

“Article 5 Charges

1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.

2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.

3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”

51. The European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (AIE regulations) as amended provide in art. 15:

“Fees

15. (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.

(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d).

(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.

(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2), for the provision of such copies.

(2) Where a public authority charges a fee pursuant to sub-article (1), it shall make available to the public a list of fees charged, information on how such fees are calculated and the circumstances under which they may be waived.

(3) Subject to sub-article (4), a fee of €50 shall be charged for making an appeal to the Commissioner under article 12.

(4) In respect of an appeal pursuant to article 12 by—

(a) a holder of a medical card,

(b) a dependant of a holder of a medical card, or

(c) a person referred to in article 12(3)(b), the fee charged shall be €15.

(5) The Commissioner may deem an appeal to be withdrawn if the public authority makes the requested information available, in whole or in part, prior to a formal decision of the Commissioner under article 12(5). In such circumstances, the Commissioner may waive or refund all or part of the appeal fee.

(6) In respect of an appeal pursuant to article 12 on a decision pursuant to article 10(7), the Commissioner may waive all or part of the appeal fee.

(7) Where an appeal pursuant to article 12 is withdrawn by an appellant, the Commissioner may waive all or part of the appeal fee.”

52. Section 27 of the Freedom of Information Act 2014 (the FOI Act) provides:

“Fees and charges

27. (1) Such amount as may be appropriate having regard to the provisions of this section shall be charged by the FOI body concerned under this subsection and paid by the requester concerned to the body in respect of the grant of an FOI request. The amount of a charge under this subsection shall be equal to the estimated cost of the search for and retrieval and copying of the record concerned by the FOI body concerned for the requester.

(2) For the purposes of subsection (1) ‘search for and retrieval’ includes time spent by the FOI body in—

(a) determining whether it holds the information requested,

(b) locating the information or documents containing the information,

(c) retrieving such information or documents,

(d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and

(e) preparing a schedule specifying the records for consideration for release.

(3) For the purposes of subsection (1) —

(a) the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently,

(b) the amount of the cost of the copying of a record shall not exceed such amount (if any)

as stands prescribed for the time being, and the determination of that amount shall be in compliance with any provisions standing prescribed for the time being in relation to such determination,

(c) subject to subsection (12) the total amount of a charge under subsection (1) shall not exceed such amount as stands prescribed for the time being as the appropriate maximum amount for search and retrieval and copying,

(d) there shall be no charge under subsection (1) if, in the opinion of the head concerned, the total amount of the charge would be less than such amount (if any) as stands prescribed for the time being as the appropriate minimum amount for search and retrieval and copying, and

(e) different maximum and minimum amounts may be prescribed under this subsection in respect of different public bodies or prescribed bodies and the power to prescribe such a maximum (in relation to any particular body) shall be exercised in a manner to take account of the greater amount that subsection (12) provides for the prescription of (in relation to that body) as concerns the overall ceiling limit.

(4) Where the record or records concerned contains or contain only personal information relating to the requester concerned the charge under subsection (1) shall not be made, unless the grant concerned relates to a significant number of records, and in considering whether or not such a charge shall be made, the means of the requester shall be taken into account.

(5) Subject to subsection (3), where, in the opinion of the head concerned, the estimated cost, as determined by the head, of the search for and retrieval and copying of a record the subject of an FOI request is likely to exceed the appropriate minimum level as prescribed—

(a) a deposit of such amount as may be determined by the head (not being less than 20 per cent of such cost) shall be charged by the FOI body concerned and paid by the requester concerned to the body,

(b) the process of search for and retrieval of the record shall not be commenced by the body until the deposit has been paid, and

(c) the head shall, not later than 2 weeks after the receipt of the request aforesaid, cause a notice in writing for payment of the deposit to be given to the requester and the notice shall include an estimate of the length of time that the process of searching for and retrieving the record will occupy and a statement that the process will not begin until the deposit has been paid and that the date on which a decision will be made in relation to the request will be determined by reference to the date of such payment.

(6) A head may reduce the amount of or waive a search and retrieval and copying charge or deposit under subsection (1) or (5) if, in his or her opinion, some or all of the information contained in the record concerned would be of particular assistance to the understanding of an issue of national importance.

(7) In a case to which subsection (5) applies, the head concerned shall, if so requested by the requester concerned—

(a) assist the requester if the requester wishes to amend or limit the request in order to reduce or eliminate the charges that arise or are likely to arise under subsection (1),

(b) if amendments are specified under paragraph (a), make such of them (if any) to the request as the requester may determine.

(8) Where a deposit under subsection (5) is paid, the amount of the charge under subsection

(1) payable in respect of the grant of the FOI request concerned shall be reduced by the amount of the deposit.

(9) Where a deposit under subsection (5) is paid and, subsequently, the grant of the FOI request concerned is refused or is granted in relation to a part only of the record concerned, the amount of the deposit or, if a charge under this section is payable in respect of the grant, so much (if any) of that amount as exceeds the amount of the charge shall be repaid to the requester concerned.

(10) Where a charge or a deposit under this section is paid, and subsequently, the charge or deposit is annulled or varied under section 21, 22 or 24, the amount of the charge or deposit so annulled or, as the case may be, any amount thereof in excess of the amount thereof as so varied shall be repaid to the requester concerned.

(11) Section 13(1) shall be construed and have effect—

(a) in relation to a case in which a deposit is payable under subsection (5), as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the notice under subsection (5) (c) concerned to the requester concerned to the date of the receipt of the deposit,

(b) in relation to a case in which such a deposit is annulled following a review under section

21 or 22 or an appeal under section 24, as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the notice under subsection (5) (c) to the requester concerned to the date of the decision under section 24 or, as the case may be, of the giving to the requester concerned of notice under section 21 or 22 of the decision, and

(c) in relation to a case in which an amendment pursuant to subsection (7) has the effect of eliminating such a deposit, as if the reference to the receipt of a request under that section were a reference to the making of the amendment.

(12) (a) Where the amount of a search and retrieval and copying charge under subsection

(1) exceeds or is likely to exceed the overall ceiling limit prescribed, under paragraph (b), for the purposes of this subsection—

(i) the body concerned shall so inform the requester,

(ii) the body shall assist the requester if the requester wishes to amend or limit the request in order to reduce the charges that arise or are likely to arise under subsection (1) to an amount less than or equal to the overall ceiling limit so prescribed,

(iii) if the requester does not amend or limit the request such that the charges that arise or are likely to arise under subsection (1) are reduced to an amount less than or equal to the overall ceiling limit so prescribed, the body may refuse the request, and

(iv) where the body decides to process the request, the requester shall be required to pay the full cost of the charges likely to be payable and subsection (5) shall apply.

(b) There shall be prescribed for the purposes of this subsection an amount to be called, and in this section referred to, as the overall ceiling limit; and different such amounts may be prescribed for those purposes in respect of different public bodies or prescribed bodies.

(13) (a) A fee of such amount (if any) as may be prescribed shall be charged by the FOI body concerned under this subsection and paid by the applicant concerned to—

(i) the body in respect of an application under section 21, or

(ii) the Commissioner in respect of an application under section 22.

(b) A fee under this subsection shall be paid at the time of the making of the application concerned and, if it is not so paid, the head concerned or, as the case may be, the Commissioner shall refuse to accept the application, and it shall be deemed, for the purposes of this Act, not to have been made.

(c) Fees of different amounts may be prescribed under paragraph (a) in respect of different classes of applicant.

(14) An FOI body shall endeavour to establish a facility by which payment or refund of any fees due under this Act may be made electronically.”

53. Section 12(7) of the FOI Act provides:

“(7) Where a person makes a request under this section, the FOI body may, having examined the request, advise the requester in writing or such other form as may be determined whether the records concerned may be accessed under—

(a) the European Communities (Re-use of Public Sector Information) Regulations 2005 (S.I.

No. 279 of 2005), or

(b) the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), instead of under this Act.”

54. Regulation 3 of the Freedom of Information Act (Fees) (No. 2) Regulations 2014 (S.I. 531 of 2014) provides:

“(1) Subject to paragraphs (2), (3) and (4) –

(a) an amount of €20.00 per hour is prescribed for the purposes of paragraph (a) of section 27(3), and

(b) the following amounts are prescribed for the purposes of paragraph (b) of section 27(3):

(i) 4 cent per sheet in relation to a photocopy;

(ii) €10.00 in relation to a CD ROM (a compact disk read-only memory);

(iii) €6.00 in relation to an x-ray.

(2) Subject to paragraph (4), the appropriate maximum amount under paragraph (1), for the purposes of paragraph (c) of section 27(3), is prescribed as €500.

(3) The appropriate minimum amount under paragraph (1), for the purposes of paragraph (d) of section 27(3), is prescribed as €101.

(4) The overall ceiling limit under paragraph (1), for the purposes of paragraph (b) of section 27(12), is prescribed as €700.”

55. We can now turn to the specific issues under the broad headings of Moldova (ground of appeal 2), equivalence (ground of appeal 1) and remedies. Issue numbers in the text that follows are references to the number on the circulated issue paper. I – Moldova ground (ground of appeal 2) Issue 5 – entitlement to raise Moldova issue

56. Issue 5 is:

Question 5: If Q1=Yes, as a matter of domestic law, is the appellant entitled to rely on the meeting of the parties (MOP) endorsement of the Moldova case for the purpose of arguing that the charge for indirect costs was not lawful (and consequently not reasonable), not having raised it before the commissioner?

57. The parties’ answers were:

“Appellant The Appellant argued that the Moldova case did preclude the charging of the impugned fee (Tab 6, Exhibits), it did not make the precise argument that the MOP endorsement made the ACCC findings binding as a matter of EU law and international law. Coillte also made submissions in relation to this case. The Commissioner decided not to apply the Moldova case in preference for the East Sussex judgment of the Court of Justice. In any event for the same reasons as set out in Q1 and Q2 above, the Appellant is not precluded in raising new arguments on appeal to the High Court in relation to points of law from the decision.

Commissioner The test is whether this argument arises from the decision under appeal or whether it should be considered by the High Court in the interest of justice. The appellant is alleging that the

decision contains an error of law. It would have been desirable for the appellant to have made this argument before the Commissioner. But had it done so, the Commissioner’s response would be that contained in his Statement of Opposition and legal submissions. It is in the interest of justice for this Court to deal with the issues now rather than remitting it to the Commissioner for a fresh decision that would then be appealed to this court, or having the Commissioner consider this issue in the next decision on the reasonableness of fees.

Either approach would delay the resolution of this issue and add significant legal costs.

Coillte The Appellant is entitled to raise this point. The decision in East Sussex and the Moldova case was raised by the Appellant before the Commissioner and considered at §§46-47 of the Commissioner’s decision. At §29 of its legal submissions, Coillte objects to reliance on the Vienna Convention in circumstances where this was not pleaded. This is a separate point.

State The State Notice Parties did not raise a preliminary objection in respect of Ground 2 and, in particular, have not raised any issue as regards the Appellant’s entitlement to make submissions on the effect of the MOP endorsement in the Moldova case. The issue of East Sussex and the conflicting position of the ACCC Findings and Recommendation was raised

by the Appellant in the email to the OCEI of 27 June 2024 and addressed by Coillte in submissions of 7 December 2023 at §§5.4-5.6 and §§5.8-5.10.”

58. At the hearing, Coillte didn’t press the objection that the applicant should not be permitted to rely on the Vienna Convention – that was a sensible move because there isn’t anything unusual or unorthodox about parties expanding the range of legal material they want to rely on in support of their arguments.

59. So there isn’t anything left to decide under this heading, and the appellant can make this point. Issue 6 – EU law impact on the entitlement to raise the Moldova issue

60. Issue 6 is:

Question 6: If Q5=No does EU law create such a right?

61. The parties’ answers were:

“Appellant Please refer to the answer to Q3 Commissioner As the High Court can answer the question under domestic law, this does not arise.

Coillte There is no need to consider this point, for the reason set out in answer to question 5 State See answer to Q5. This issue does not arise. The State Notice Parties did not raise an objection in respect of the entitlement of the Appellant to raise Ground 2. The State Notice Parties do not take the position that the Appellant is precluded as a matter of law from raising this Ground.”

62. In view of the foregoing there isn’t any specific outstanding objection under this heading that needs to be addressed. Issue 7 – effect of MOP decision

63. Issue 7 is:

Question 7: If QQ5 or 6=Yes does the decision in East Sussex require modification in the light of the MOP endorsement of the Moldova case?

64. The parties’ answers were:

“Appellant At the outset neither Article 5(2) of the AIE Directive nor the decision in East Sussex mandates the charging of any fee, including a fee for indirect costs, it simply held that, as things stood at the time, Article 5(2) of the AIE Directive was interpreted as giving public authorities discretion to charge for the indirect costs for supplying environmental information subject to costs being reasonable and not a deterrent. The subsequent interpretation of Article 4(8) of the Aarhus Convention according to the Moldova case, following its endorsement by the MOP (including Ireland), is binding on the Parties, and via Article 216(2)

TFEU on the institutions of the European Union and on this Court. The Court of Justice itself recognizes that the interpretation of an international agreement can be clarified by the Parties or a body established by them on which they confer power to adopt decisions which are binding on them. In so far as this may supersede earlier case law, the interpretation as-clarified takes precedence over the case law. It is not controversial to say that case law is not set in stone, case law only gives an interpretation at a point in time, it is not the last word on interpretation in any democratic legal system. In light of the above, the East Sussex judgment ought to be revisited because it is no longer good law and in the interest of legal certainty.

Commissioner There is a direct clash between the findings of the CJEU in East Sussex and the Moldova case. It is the Commissioner’s position that only the CJEU can modify East Sussex. The question as to whether a decision of the ACCC endorsed by the Meeting of the Parties is superior to a decision of the CJEU is a question uniquely within the competence of the CJEU to determine.

Coillte N/A because 2 and 3 should be answered No. But for the avoidance of doubt, Coillte maintains that there is no CJEU authority for the proposition that MOP endorsement of a

decision of the Aarhus Convention Compliance Committee can change the meaning of binding CJEU authority.

State The decision in East Sussex is binding on the Commissioner as a matter of domestic law until such time as the CJEU itself decides otherwise. The State Notice Parties take the position that the decision in East Sussex does not and cannot require modification by a domestic court in the light of the MOP endorsement of the Moldova case given that any effect

of the MOP endorsement operates on the international plane and is not biding as a matter of domestic law.”

65. Coillte relied on para. 35 of the CJEU decision in the judgment of 16 July 2015, ClientEarth v European Commission, C‑612/13 P, ECLI:EU:C:2015:486, in attempted support of an argument that the relevant provisions of Aarhus could not have the effect contended for:

“35 As stated by the General Court in paragraph 91 of the judgment under appeal, it is however clear from the Court’s settled case-law that the Courts of the European Union can undertake an examination of the alleged incompatibility of an act of the European Union with the provisions of an international agreement to which the Union is a party only where (i) the nature and the broad logic of that agreement do not preclude it and (ii) those provisions appear, as regards their content, to be unconditional and sufficiently precise (see the judgments in IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 39; Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 45; and Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 54).”

66. Unfortunately that deals with a different situation – the compatibility of EU law with an agreement. Here we are talking about the CJEU’s interpretation of a convention versus the parties’ interpretation of the same convention. If there is in fact a plausible argument of a divergence of such interpretations, that is in principle an undesirable situation and the CJEU should have the opportunity to consider how to address that.

67. The CJEU held in the judgment of 6 October 2015, East Sussex County Council v Information Commissioner, C-71/14, EU:C:2015:656 inter alia:

“Article 5(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted as meaning that the charge for supplying a particular type of environmental information may not include any part of the cost of maintaining a database, such as that at issue in the main proceedings, used for that purpose by the public authority, but may include the overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount.”

68. In ACCC/C/2017/147 (Republic of Moldova) (https://unece.org/env/pp/cc/accc.c.2017.147_republic-moldova), the ACCC said at para. 89:

“89. Moreover, the Committee underlines that any charges for supplying environmental information must be based on a transparent calculation and, while they may include a contribution towards the material costs for supplying the environmental information, they must not include the cost of the initial production, collection or acquisition of the information itself or any other indirect cost. Thus, information held by public authorities should be provided for free or at no more than the reasonable material costs of supplying the requested information (e.g. postage or copying costs). Lastly, any charge must not have a deterrent effect on persons wishing to obtain information, effectively restricting their right of access to information.”

69. This was then endorsed by the Meeting of the Parties (including Ireland and all other EU states as well as the EU itself) (Economic Commission for Europe Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters Seventh session Geneva, 18–20 October 2021 Excerpt from the addendum to the report of the seventh session of the Meeting of the Parties (ECE/MP.PP/2021/2/Add.1)*

Decision VII/8n concerning compliance by the Republic of Moldova with its obligations under the Convention Adopted by the Meeting of Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters at its seventh session) (emphasis added):

“The Meeting of the Parties, Acting under paragraph 37 of the annex to its decision I/7 on the review of compliance, Taking note of the findings of the Committee on communication ACCC/C/2017/147 concerning compliance by the Republic of Moldova in connection with access to hydrometeorological information upon request, Encouraged by the willingness of the Republic of Moldova to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that:

(a) By establishing and maintaining a schedule of charges that does not meet the requirement to ensure that any charge for supplying information does not exceed a reasonable amount, the Party concerned fails to comply with article 4 (8) of the Convention;

(b) By not establishing and maintaining a clear, transparent and consistent framework to implement article 4 (8) of the Convention, the Party concerned fails to comply with article 3

(1) of the Convention”

70. Caselaw leaves open the argument that MOP decisions render ACCC findings binding once the latter are endorsed: see the decision of the General Court in Case T‑12/17, Mellifera eV, Vereinigung für wesensgemäße Bienenhaltung at para 86:

“The applicant’s argument that that case-law cannot be maintained in the light of the recommendations of the Aarhus Convention Compliance Committee must be rejected. In any event, assuming that those recommendations are binding on the Contracting Parties to the Aarhus Convention, they are, as the Commission rightly observed, only a draft and, as the applicant acknowledged in the reply, that draft was not adopted by that committee until

17 March 2017, which was after the date on which the contested decision was adopted. It is not necessary therefore to answer the question whether, as the Commission maintains, making reference to the Aarhus Convention Implementation Guide, the recommendations of the Aarhus Convention Compliance Committee were to be adopted by the meeting of the Parties, provided for in Article 10 of the Aarhus Convention, or whether that was not necessary, as the applicant maintains.”

71. There is an obvious distinction between endorsing findings and taking note of findings, discussed in Fasoli E. and McGlone A., “The Non-Compliance Mechanism Under the Aarhus Convention as ‘Soft’ Enforcement of International Environmental Law: Not So Soft After All!” Neth. Int. Law Rev. 65, 27–53 (2018), https://doi.org/10.1007/s40802-018-0102-0). The learned authors said at p. 45:

“In short, the findings of the Aarhus Convention Compliance Committee, provided that the above conditions are satisfied and when they are endorsed by the MOP, have legal effect and purport to reflect agreement on an authoritative interpretation of the Convention. So when there is such endorsement, these findings are ‘not so soft after all’ and the Aarhus Mechanism begins to resemble, in this respect, a judicial procedure.”

72. A meaningful assessment of the Moldova MOP decision can only take place by comparing it with other decisions made by the MOP, which allows one to assess whether the decision is in standard form or is in weaker-than-usual language.

73. At the October 2021 MOP meeting, there were 19 contracting states the subject of decisions on reports of the ACCC: https://unece.org/env/pp/cc/implementation-decisions-meeting-partiescompliance-individual-parties

74. The relevant ACCC reports are at https://unece.org/env/pp/cc/communications-from-thepublic

75. A comparison between the ACCC reports and the MOP decisions (helpfully prepared by the appellant) is set out in the Annex to this judgment.

76. Review of the text of those decisions indicates a couple of conclusions:

(i) MOP decisions take a standard form in which the operative findings of the ACCC are expressly endorsed – there are 31 instances of this across the 19 contracting parties involved, some of which are the subject of multiple communications;

(ii) the wording of what is endorsed follows closely the operative findings of the ACCC, and thus the level of detail in the MOP decision depends on those findings rather than on selectivity by the MOP as tentatively suggested by the State;

(iii) in 8 cases (including Moldova, Ukraine and Ireland) the formula used is to take note of the ACCC findings and then to endorse the operative findings; and

(iv) the Moldova decision is in a standard form in these and any other relevant respects.

77. Indeed, the Aarhus Convention Implementation Guide (2nd Ed., 2014) at p. 224 states (emphasis added):

“To date, all findings of non-compliance by the Compliance Committee have been endorsed by the Meeting of the Parties.”

78. Hence, contrary to what the State seemed to be suggesting initially, there was nothing unusually weak or limited about the wording used in the Moldova decision. The opposing objection that the wording did not amount to an endorsement of the ACCC somewhat disintegrates in such a context. While it’s true that the MOP (in this case and in cases generally) endorses the operative conclusions of the ACCC rather than setting out the full text, on any reasonable and workable interpretation of that would have to come to the conclusion that in order to determine what those conclusions mean and why they have been reached, the only method available is to have recourse to the reasoning and text. Otherwise the conclusions are just assertions hanging in thin air that a contracting state would have insuperable difficulty in understanding and complying with. Therefore the endorsement of a conclusion must, in context, involve the endorsement of the reasons for the

conclusion. This isn’t that different from something we are familiar with domestically in planning law – a sparse commission decision the logic of which is found in a more detailed inspector’s report.

79. Ultimately there is a referrable EU law question here which meets the necessary criteria, along the following lines:

In the light of Decision VII/8n concerning compliance by the Republic of Moldova with its obligations under the Convention Adopted by the Meeting of Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters at its seventh session held in Geneva, 18–20 October 2021, does Article 5(2) of Directive 2003/4 and/or Article 4(8) of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25 June 1998 as part of EU law, have the effect, in its application after the date of that Decision, that a charge for supplying a particular type of environmental information may not include any part of the cost of overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, in particular the costs attributable to the time involved in search, retrieval and collation of the information? II – Equivalence ground (ground of appeal 1) Issue 1 – standing of State to object

80. Issue 1 on the issue paper is:

Question 1: Is it permissible in principle as a matter of domestic law for the court to hold that the appellants cannot advance their arguments to the court (not having done so to the commissioner) on foot of an objection by the State as a notice party?

81. The parties’ answers were:

“Appellant It is not permissible in principle as a matter of domestic law. Regulation 13 of the AIE Regulations provides that a party to an appeal to the Commissioner may appeal to the High Court on a point of law from the decision. There is no qualification in the legislation that limits the arguments on appeal. The jurisdiction of the High Court in a statutory appeal is set out in Deely which provides ‘if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision’. In other words, the appeal concerns the view of the law taken by the Commissioner, not the view argued by a party, and there is no other limitation on arguments in the case law. There is no deference shown to the Commissioner’s interpretation of the law indicating that he has no margin of discretion, and by extension he must correctly interpret the law regardless of the arguments made by the Appellant or any other party.

The case law cited against the Appellant, namely eNet and Rotunda, concern new points raised on appeal by the decision maker i.e. the public authority and the Commissioner (who makes a de novo decision), that is why the Court in those case talks about incremental

decision-making. These authorities do not address the question of whether there is a limitation on the arguments made by an Appellant/requestor concerning a point of law from the decision on appeal to the High Court. In any event these authorities point to flexibility having regard to the informal nature of the Commissioner’s procedure which generally doesn’t require legal representation. This is particularly important for Appellants. Finally on appeal to the Commissioner the burden of proof rests with the public authority to justify the fee charged, there is a presumption against charges, and the Commissioner reviews the public authority decision. Therefore it is not for the Appellant to argue why the fee is charged, it would be contrary to this presumption if an Appellant were, in effect, required to bear the burden of proof before the Commissioner simply to protect its right to appeal to the High Court.

Commissioner The established test is that the appeal points must be on issues that arise from the decision (University College Cork v The Information Commissioner, [2020] IESC 58). Even if points do not arise from the decision, the High Court has a discretion to deal with them in the interests of justice. It would therefore not be permissible for the court to hold that the appellants cannot advance these arguments in general, but the court could find that they do not arise from the decision or that the interest of justice means that they should be dismissed.

In general, it is desirable for all parties to an appeal before the Commissioner to raise all of the relevant legal and factual issue to allow the Commissioner to issue a comprehensive

decision on the appeal. Each party then has a right to appeal that decision on a point of law to the High Court.

In this case, at a practical level, if the appellants had made the argument the subject of this issue paper to the Commissioner, the Commissioner’s response would be the same as set out in the Statement of Opposition and elaborated on in legal submissions. As such a

remittal of this decision to the Commissioner to allow him to consider the arguments would not benefit any party as it would simply delay a judicial consideration of these points and add considerable legal costs to this case. Similarly, upholding the decision would mean that the Commissioner would have to deal with these issues in the next decision on the reasonableness of fees. He has a de novo jurisdiction and must consider all issues of law and fact, even if not raised by one of the parties. The appellant is not raising any new factual point that requires an investigation or assessment of evidence by the Commissioner. The Commissioner has 35 appeals before him on the reasonableness of fees. Accordingly, the Commissioner’s submission is that these issues either arise from the decision and/or it is in the interests of justice to permit the appellants to advance their arguments now Coillte Yes. The ruling of the Supreme Court in Ballyboden Tidy Towns Group v An Board Pleanála [2024] IESC 4 confirms the entitlement of the State as Notice Party to raise this objection.

In any case, Coillte has also raised this objection (Points of Opposition, §4; Legal Submissions, §50), and supports the State’s arguments on this point. Decisions such as The Minister for Communications, Energy and Natural Resources -v- The Information Commissioner & ors [2020] IESC 57; [2022] 1 IR 1, and Rotunda Hospital v Information Commissioner [2011] IESC 26, [2013] 1 IR 1 are authority for the proposition that any point of law advanced on appeal must have been advanced, argued and determined at first instance.

State All parties pleaded an objection to the Appellant raising the issue of the Commissioner’s alleged obligation to disapply the AIE Regulations given the application of the principle of equivalence in circumstances where this issue was not raised before the Commissioner.

[Coillte maintains this point in relation to Core Ground 1 in its submissions at §50.

Accordingly, the State parties are not the only parties it seems to maintain this objection.

As a matter of principle the State parties, as notice parties, are entitled to maintain this objection even if the Respondent does not and it is irrelevant that the party who raised this objection is the State notice party as opposed to any other party to the proceedings. The logic applied in Ballyboden [2024] IESC 4 applies equally to appeals on a point of law. In this context also, as with judicial review, the role of the Court is not to usurp the function of the decision-maker. The objection is also based on well-established principles as to the appropriate approach to appeals on a point of law. The Appellant as a matter of public policy issue is required to bring forward its entire case to avoid incremental decision making.

By way of clarification, the State Notice Parties did not raise this preliminary objection in respect of Ground 2 as the issue of East Sussex and the ACCC Decision of Moldova was raised by the Appellant before the Commissioner and considered at §§46-47 of the Commissioner’s decision.”

82. In the light of the fact that Coillte, whose entitlement to do so is not in question, is making the same objection, this point does not in fact need to be decided. If it had needed to be decided I would have accepted the State’s right to object given that their interests are involved, on the basis of Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 (Unreported, Supreme Court, Donnelly J., 22 February 2024). Issue 2 – whether equivalence can be raised now, not having been raised in the process

83. The second issue is:

Question 2: If Q1=Yes, as a matter of domestic law, is the appellant entitled to rely on the principle of equivalence in the appeal not having raised it before the commissioner?

84. The answers proposed by the parties are:

“Appellant In this case, the Appellant is entitled to rely on the principle of equivalence as a matter of domestic law without raising it before the Commissioner, the principle of equivalence is an interpretative obligation which applies to the point of law in the decision. This is also a general principle of EU law that must be applied by the Commissioner in every instance. The Commissioner has an autonomous obligation to correctly interpret the law. If the answer to Q1 is ‘Yes’ the Appellant remains entitled to make the equivalence argument on appeal.

Commissioner As the Commissioner has answered ‘no’ to the first question, this does not arise. However, the principle of equivalence is an EU law concept and is better suited to an analysis under question 4.

Coillte No. The principle of equivalence or the fee regime under the FOI Act was not considered by the Commissioner and, accordingly, the Appellant is not entitled to raise the point at this stage.

State No, the Appellant is not as a matter of domestic law entitled to rely on the principle of equivalence in the appeal not having raised it before the Commissioner. The State Notice Parties rely on §§7 -16 of the submissions filed and the case law therein. This is a statutory appeal on a point of law and the case law is clear that any point of law advanced on appeal shall have been advanced, argued and determined at first instance. Insofar as any autonomous obligation is contended to arise (per the Appellant’s submissions § 70), this cannot extend to an obligation to disapply legislation on bases that have not been identified.”

85. As a matter of general domestic law, it is well-established that parties to an administrative process should make their points in the process rather than for the first time to a court when challenging the outcome, subject to recognised exceptions (that is a general proposition, but see in this context University College Cork v. The Information Commissioner [2020] IESC 58, [2022] 1 I.R. 54, [2021] 2 I.L.R.M. 124 (Baker J.)).

86. There are however a number of reinforcing factors that come together here to support the

conclusion that the present case should be viewed as legitimately coming within such exceptions:

(i) The point is not one especially suited to having been addressed by the

decision-taker: One of the fairly major exceptions is that the issue is one that the administrative decision-maker is in a position to address effectively. Given that the issue concerns the statutory architecture in which the ongoing status of an existing CJEU decision is central, in the light of a development falling short of legislative change that might displace the centrality of that decision (unless the CJEU itself decides to develop the law), this was not a case where commissioner was ideally placed to bring about a result radically different from the one suggested by that

decision.

(ii) The decision-taker expressly states that the decision would have been the same had the point being made: The commissioner says that the answer would still have been No if the point had been raised. As he states (emphasis added), “In this case, at a practical level, if the appellants had made the argument the subject of this issue paper to the Commissioner, the Commissioner’s response would be the same as set out in the Statement of Opposition and elaborated on in legal submissions. As such a remittal of this decision to the Commissioner to allow him to consider the arguments would not benefit any party as it would simply delay a judicial consideration of these points and add considerable legal costs to this case”.

So what’s the practical benefit, one might ask, in refusing to deal with the point?

The logic of the doctrine that you have to make your case to the decision-taker is to give the latter the opportunity to deal with it. But if the decision-taker says that the failure to make the point didn’t affect anything and the answer would have been the same, then a rigid insistence on the doctrine just becomes pointless formalism. To put it another way, if the appellant erred in not making the point to the commissioner, it was harmless error (demonstrating perhaps that the doctrine of harmless error can work in favour of applying parties and not just opposing parties).

(iii) The decision-taker is legitimately of the view that the point has to be addressed proximately in any event: A further exception is that the court retains a discretion to entertain such an argument in the interests of justice (all opposing parties expressly accepted the existence of such a discretion at least at the level of principle). Here, it would not achieve a whole lot to reject the appeal on this issue leaving it to be raised in the next case, when there are 35 appeals live on this issue and the commissioner is keen to have the matter decided. This is an obvious case where it would be pointless formalism to reject the appeal on such a basis. To do so would only prolong the uncertainly around this issue given that addressing it in the context of one or more of the 35 pending cases is virtually certain. This isn’t a case where an issue can be kicked into the long grass. As the commissioner says (emphasis added): “Similarly, upholding the decision would mean that the Commissioner would have to deal with these issues in the next decision on the reasonableness of fees. He has a de novo jurisdiction and must consider all issues of law and fact, even if not raised by one of the parties”. I accept of course that the mere fact that other cases are affected isn’t sufficient in itself: Rotunda Hospital v. The Information Commissioner [2011] IESC 26, [2013] 1 I.R. 1 per Fennelly J. at pp. 30-31, paras. 88-90 of the Irish Reports version. But it is not just the appellant who is relying on that – the decision-taker is making that point in support of the issue being addressed. Agreed, other opposing parties can oppose anyway, but the desire of the decision-taker to have the point addressed has to be a relevant factor.

(iv) Saving of time and costs: A consequence of the foregoing is that, as the commissioner points out, time, costs and general inconvenience and difficulty will be saved by the point being addressed now. Husbandry of the court’s limited resources frequently militates by default against dealing with points that haven’t been raised before the decision-taker, but here the argument for addressing the point in the interests of efficiency is much stronger having regard to the foregoing context.

(v) The decision taker is expressly of the view that the interests of justice favour the point being addressed: The commissioner has made the express statement that “the Commissioner’s submission is that these issues either arise from the decision and/or it is in the interests of justice to permit the appellants to advance their arguments now” (emphasis added).

(vi) The context is one of wide environmental rights and simple, informal access to remedies: A further factor here is that the context is somewhat different from Rotunda Hospital – the AIE directive is in the context of the wide environmental rights and presumption of access under the Aarhus convention. The procedure is meant to be simple and informal – here the appellant represented itself before the commissioner which is perfectly consistent with the intention of the process. If one is to facilitate and encourage self-representation in the process, one cannot at the same time excessively condemn appellants later for failing to engage with legalities.

Such failure should not be disqualifying in such a statutory context from developing the legal arguments subsequently if litigation proves necessary.

(vii) The burden is not on the applicant in the AIE process: The AIE context is also of relevance because, as the appellant points out, “on appeal to the Commissioner the burden of proof rests with the public authority to justify the fee charged, there is a presumption against charges, and the Commissioner reviews the public authority

decision. Therefore it is not for the Appellant to argue why the fee is charged, it would be contrary to this presumption if an Appellant were, in effect, required to bear the burden of proof before the Commissioner simply to protect its right to appeal to the High Court”.

(viii) The lack of any new issue of fact: Reinforcing this is the fact that, as the commissioner points out, “The appellant is not raising any new factual point that requires an investigation or assessment of evidence by the Commissioner”

(emphasis added). In practical terms no identifiable problem is caused by this point being made to the court.

87. We can leave aside for the moment the fact that all of this is further reinforced by the EU legal context which I will come to.

88. Ultimately, I agree with the opposing parties that:

(i) the default procedure in an administrative process is that points should be raised with the decision-taker prior to being ventilated before the court, subject to recognised exceptions;

(ii) an appeal on a point of law means, subject to limited qualification, an appeal in respect of a point that was made in the process or otherwise arises out of the

decision; and

(iii) generally, and leaving aside the point that in the AIE context the presumption is in favour of disclosure, the onus is on an applicant/appellant to show that a point that doesn’t come within the foregoing should be addressed by the court.

89. But even accepting all of that, this appellant has on balance overcome any such onus, to the extent applicable, in the particular circumstances here, having regard in particular to the factors outlined above. Issue 3 – whether EU law affects whether the equivalence issue should have been raised

90. Question 3: If Q2=No does EU law create such a right?

91. The parties’ answers were:

“Appellant If Q2=No EU law does create such a right, or rather EU law precludes such a requirement.

Article 47 of the Charter guarantees a right to an effective remedy. Article 9(4) of the Aarhus Convention similarly requires that access to justice under Article 9(1) provides adequate and effective remedies and fair and equitable procedures. While Article 9(4) is not directly effective in and of itself, the Court has to adopt a conforming interpretation subject to contra legem limitations. There is no legislative preclusion on an appellant/requestor making new legal arguments in a statutory review. Where the Appellant does not bear the burden of proof before the Commissioner it would be unfair to expect it to make all the arguments that it might hypothetically rely on in a statutory appeal simply to protect its position. When

Article 9(4) is read with Article 47 it becomes directly effective which means that even if it were contra legem (which is denied), the national court must disapply such a law and give direct effect to Article 47. Furthermore a purported limitation on the arguments that an appellant can make on appeal to the Courts constitutes an interference with the right to an effective remedy under Article 47, it must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. Provided by law demands not only that the interference has a legal basis in national law, but also that that legal basis has certain characteristics of accessibility, and foreseeability, in order to avoid all risk of arbitrariness. Even if there was a limitation in national law, that national law doesn’t satisfy the requirements of Article 52 of the Charter and it would be unlawful under EU law.

The prevention of ‘Incremental decision making’ identified in the case law applies only to

decision makers and not to requestors Commissioner This does not arise as the Commissioner has answered No to question 1.

Coillte No. There is some authority that the supremacy of EU law means there is more latitude on an appeal to consider a new point. In Friends of the Irish Environment v An Bord Pleanála [2019] IESC 53, the Supreme Court noted that the proper construction of s. 5 and/or s. 250 of the Planning and Development Act 2000 properly fell within the scope of the appeal, and held that the deployment of Article 2(1) of the Environmental Impact Assessment Directive (85/337/EEC) on the interpretive question could therefore properly be regarded as a refinement of the argument which the appellant sought to advance in favour of what he contended were the obligations of the Board. Irvine J held that the appellant should not be excluded from making an argument as to how the domestic provisions were to be construed in light of Article 2(1) of the Directive even if that resulted in the applicant being afforded some considerable latitude in light of its failure to pursue such an argument in the course of the High Court proceedings. In so deciding, Irvine J. was mindful of the supremacy of EU law and the risk that if the Court was to take an overly restrictive approach to the scope of the appeal, such a restriction could interfere with its obligation to ensure that the relevant statutory provisions are properly construed against the backdrop of EU law (see §29). This case was followed in An Taisce v An Bord Pleanála and others [2021] IESC 79 However, two points are relevant. First, Irvine J. held (§30) that the appellant was not being afforded the liberty of making any stand-alone argument or point based upon EU law. EU law was only to be deployed as part of an argument as to the proper interpretation of the 2000 Act insofar as such an argument might be categorised as a permissible refinement of the argument made in the court below. In this case, the Appellant does seek to make a new standalone argument.

Second, the Court in An Taisce v An Bord Pleanála and others [2021] IESC 79 did not consider The Minister for Communications, Energy and Natural Resources -v- The Information Commissioner & ors [2020] IESC 57; [2022] 1 IR 1, where the Supreme Court emphasised that an appeal on a point of law under the FOI Act should be confined to a point of law arising out of the decision.

State EU law does not create such a right. It is a principle of EU law that the Member States are free to apply their own procedural rules subject to the twin principles of equivalence and effectiveness. The principle of equivalence is not at issue here as a similar rule applies to domestic challenges. The principle of effectiveness is not infringed. It was always open to the Appellant, legally represented before the Commissioner, to make the arguments now advanced.”

92. The CJEU held in its judgment of 15 October 2015, Commission v Germany, C-137/14, ECLI:EU:C:2015:683:

“The third complaint, alleging restriction of the standing to bring proceedings and the scope of the review by the courts to objections made during the administrative procedure Arguments of the parties

68 The Commission is of the opinion that the restriction, in accordance with Paragraph 2(3) of the UmwRG and Paragraph 73(4) and (6) of the VwVfG, of the objections which may be raised in legal proceedings to those which were previously made in the administrative procedure runs counter to Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75.

69 That institution argues that such a restriction constitutes a disproportionate obstacle to the right of the public concerned to challenge the legality of administrative decisions in

the areas covered by those directives. The national legislation providing for that restriction accordingly runs counter to the principle of access to justice and restricts the effective legal protection of that public. The EU legal order does not allow the admissibility of pleas raised during legal proceedings to be made subject to the fact that they were previously raised in the administrative procedure.

70 The Commission points out that judicial proceedings are independent proceedings, in the course of which it must be possible to carry out a full assessment of the legality of a

decision. The admissibility of the pleas in law cannot be limited to pleas which have already been put forward in the short period prescribed for raising objections during the administrative procedure.

71 The Federal Republic of Germany argues that Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 allow Member States to retain the instruments of their judicial systems in the relevant field. The provisions called into question by the Commission seek to ensure legal certainty and efficient administrative procedures. Provisions prohibiting the raising of objections before the courts which were not raised during the administrative procedure form an integral part of such a system.

72 That Member State justifies the restriction on the ground that without it, objections known at the time of the administrative procedure could, for reasons of procedural tactics, be held back and reserved for the proceedings before the courts having jurisdiction. Thus, the administrative procedure would no longer be able to fulfil its particular function of reconciling interests. Such a restriction, moreover, complies with the principles of equivalence and effectiveness.

73 The Federal Republic of Germany also argues that that restriction does not make review by the courts more difficult or even, a fortiori, impossible, but, on the contrary, ensures that only relevant facts, set out in the fullest possible detail and with the greatest possible evidence, are subject to that review. Thus, only facts which the applicant has voluntarily omitted to adduce in the administrative procedure, with a view to hindering its successful outcome, are affected by that restriction.

74 The Republic of Austria submits that the provisions of EU law on which the present action is based not only contain no reference to rules on time-bars but refer, on the contrary, to the national law governing the administrative procedure. Thus, the Member States have a wide discretion to determine the rules applicable to the right to bring legal proceedings and to the organisation of an administrative procedure. In addition, the time-limit referred to in Paragraph 2(3) of the UmwRG and Paragraph 73(4) and (6) of the VwVfG is a means by which to ensure a rapid and efficient decision-making process. Findings of the Court

75 Paragraph 2(3) of the UmwRG and Paragraph 73(4) and (6) of the VwVfG restrict the pleas in law which may be raised by an applicant in support of legal proceedings against an administrative decision falling within the scope of Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 to objections made during the administrative procedure.

76 In that regard, although, indeed, neither Article 11(4) of Directive 2011/92 nor Article 25(4) of Directive 2010/75 excludes an action before an administrative authority preceding the legal proceedings and does not prevent national law from requiring the applicant to exhaust all administrative review procedures before being authorised to bring legal proceedings, those provisions of EU law do not, however, allow restrictions on the pleas in law which may be raised in support of legal proceedings.

77 The Court has previously held that Article 11(1) of Directive 2011/92, pursuant to which the decisions, acts or omissions covered by that article must be subject to a review procedure before a court of law or another independent and impartial body established by law to challenge their substantive or procedural legality, lays down no restriction whatsoever on the pleas which may be relied on in support of such a review (see, to that effect, judgment in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C‑115/09, EU:C:2011:289, paragraph 37). That consideration meets the objective pursued by that provision of ensuring broad access to justice in the area of environmental protection.

78 Paragraph 2(3) of the UmwRG and Paragraph 73(4) of the VwVfG lay down specific conditions restricting the review by the courts which are not provided for in either Article 11 of Directive 2011/92 or Article 25 of Directive 2010/75.

79 Such a restriction laid on the applicant as to the nature of the pleas in law which he is permitted to raise before the court reviewing the legality of the administrative decision which concerns him cannot be justified by considerations of compliance with the principle of legal certainty. It is in no way established that a full review by the courts of the merits of that decision would undermine that principle.

80 As regards the argument concerning the efficiency of administrative procedures, although it is true that the fact of raising a plea in law for the first time in legal proceedings may, in certain cases, hinder the smooth running of that procedure, it is sufficient to recall that the very objective pursued by Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 is not only to ensure that the litigant has the broadest possible access to review by the courts but also to ensure that that review covers both the substantive and procedural legality of the contested decision in its entirety.

81 None the less, the national legislature may lay down specific procedural rules, such as the inadmissibility of an argument submitted abusively or in bad faith, which constitute appropriate mechanisms for ensuring the efficiency of the legal proceedings.

82 It follows that the third complaint raised by the Commission in support of its action is well founded.”

93. The logic of this decision is, in my view, relevant by analogy to the situation here.

94. There is a related EU law problem in terms of the Charter of Fundamental Rights which is the lack of clarity in the precise rules of engagement around the extent to which a party can be precluded from making a point. If I am wrong and if there is doubt about the proposition that the appellant can make this point as a matter of domestic procedure, then I would be minded to conclude that the position itself is not so clear from domestic law as to constitute a Charter-compliant restriction on the appellant’s rights.

95. However given that the domestic law objection fails, I don’t need to decide whether EU law allows the point to be raised. If I did need to decide that, I would be minded to refer that question to the CJEU. Issue 4 – principle of equivalence

96. Issue 4 is:

Question 4: If QQ 2 or 3=Yes does the principle of equivalence preclude the fee here by virtue of a comparison between Regulation 15(1) of the AIE Regulations and Article 5(2) of Directive 2003/4/EC and the FOI Act?

97. The parties’ answers were:

“Appellant The principle of equivalence does preclude a fee of €15 under the AIE Regulations where such a fee for access to environmental information under the FOI Act 2014 is unlawful.

Ireland has implemented the AIE Directive via a transposition of the AIE Directive but it also has a national law regime for accessing environmental information under the FOI Act. It cannot apply a less favourable treatment (in this case charges of less than €101) under the EU law regime for access to environmental information compared to the national law regime which protects the same EU-law rights, i.e. the right of access to environmental information.

Please see the written submissions for a comprehensive discussion.

Commissioner As per the Commissioner’s legal submissions, the fees regimes in the AIE Regulations and the FOI Act are not equivalent as they fulfil different purposes and have different effects.

[Note – the submission referred to reads as follows:

33. As stated above, there are also significant conceptual differences between the two regimes. For example, there is a clear duty of proactive publication in AIE Regulations which means that requests for information should be on points of detail, as much environmental information should be published as a matter of course. There is no such comparable provision in the FOI Act. Similarly, the FOI Act applies to an existing record and there is a very limited obligation on an FOI body to create a new record (see s. 17(4)). The AIE regime on the other hand applies to information and this may put an obligation on a public authority to create new records.

34. The Respondent’s position is that the law of charging fees for AIE requests is that set out in East Sussex. East Sussex sets out rules on fees that national procedural rules cannot contradict. Thus it is not possible for a public authority to charge FOI fees in all cases as the East Sussex rules mean the charges must be reasonable. Thus the Applicant is trying to cherry-pick a set of fees for AIE requests from two different regimes with different aims.

He seeks the minimum charging threshold from FOI and the maximum charging principle (that of reasonableness) from AIE. It is submitted that this is impermissible, and a clear example as to how the fees in each regime are not equivalent.

35. Furthermore, the Respondent notes that there is no right of access to information held by Coillte under the FOI Act as it is not an FOI Body.] Coillte N/A because QQ 2 and 3 should be answered No. In any event, even if the QQ2 or 3=Yes, for reasons already set out in the Coillte’s legal submissions (§§50—62) the principle of equivalence is not even engaged here, and in any event, does not preclude the fee by virtue

of a comparison between Regulation 15(1) of the AIE Regulations and Article 5(2) of Directive 2002/4/EC and the FOI Act.

State Without prejudice to the State Notice Parties’ primary position that the answers in respect of Q2 and Q3 is ‘No’, if the Court takes the view that the Appellant is entitled to raise this argument in this appeal, the State Parties’ position is that the principle of equivalence does not arise and therefore does not preclude the fee at issue in these proceedings. The principle of equivalence is engaged where EU law leaves it to the Member States, as a matter of their procedural autonomy, to provide remedies for the violation of directly effective rights and it only arises in the absence of Community rules on the subject. EU law (Article 5(2) of the AIE Directive) has already substantively addressed the issue of the entitlement of Member States to charge a fee. The Directive envisages the entitlement to levy a fee and the only question is that of the ‘reasonableness’ of the fee. The principle of equivalence is of no application in the circumstances and therefore it is not legally appropriate to compare the fee regimes. Without prejudice to that position, if the principle of equivalence is engaged to consider and compare the two regimes, the State Notice Parties adopt the position taken by the Commissioner and Coillte that it is denied that the fees under both regimes are sufficiently similar so as to trigger the principle of equivalence and therefore the Court should not proceed to carry out a comparison between Regulation 15(1) of the AIE Regulations and Article 5(2) of Directive 2002/4/EC and the FOI Act.”

98. The State and Coillte denied that equivalence applies at all, and framed the issue in terms of EU law having pre-empted national legislation and so having removed any discretion to deal with the matter to which equivalence could apply.

99. Coillte’s submission on equivalence included the following:

“51. The principle of equivalence ‘prohibits a Member State from laying down less favourable procedural rules for actions for safeguarding rights that individuals derive from EU law than those applicable to similar domestic actions.’ (C-234/17, XC and Others v Generalprokuratur [2018] ECLI:EU:C :2018:853, §25).

52. Coillte notes the State’s submissions that the principle of equivalence only arises where there has been an absence of European Union remedial rules (§§27-34 of the State’s legal submissions), and Coillte adopts the same stance. EU law has pre-empted the space and addressed the area in contention. It is clear that the AIE Directive does not impose any threshold and allows a reasonable fee, even if under €101.

53. Furthermore, to demonstrate equivalence, it is necessary for the EU action and the domestic action to pursue the same objective (Case C-261/95 Palmisani v Istituto nazionale della previdenza sociale, §§ 34—38). The national court must also consider whether the ‘purpose and cause of action’ and ‘essential characteristics’ are equivalent, which must be assessed by considering ‘the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts’: Case C-326/96 BS Levez v TH Jennings (Harlow Pools) Ltd, §§ 41, 43 and 44).

54. First, Coillte submits that the FOI regime and the AIE regime are not sufficiently similar to trigger the principle of equivalence. As noted by the Commissioner at §33 of his legal submissions, there are significant conceptual differences between the two regimes.

Bearing in mind that the Commissioner also occupies the Office of the Information Commissioner, he is best placed to identify such differences.

55. Coillte agrees with Commissioner’s analysis; it is apparent that it cannot be said that the two regimes pursue an equivalent ‘purpose’ or share equivalent ‘essential characteristics’.

56. Coillte also observes the following:

56.1. The FOI regime concerns records, whereas the AIE Regime concerns information;

56.2. There are different grounds of refusal in both regimes. Article 10(4) of the AIE Regulations requires grounds of refusal to be interpreted on a restrictive basis;

56.3. All exemptions in AIE are subject to a weighing of the public interest served by disclosure against the interest served by refusal (Article 10(3)). This is not the case with FOI;

56.4. Under AIE, information concerning emissions constitute a special category of information – requests for such information may not be refused, save for ‘discussions on the matter of such emissions at any meeting of the Government’ (Article 10(1) and (2)).

57. In Bord Na Móna Plc v Commissioner for Environmental Information [2023] IEHC 57 rejected the Commissioner’s invocation of the FOI Act concept of control in a case concerning the AIE Regulations, and held at §45:

‘That Act [the FOI Act] is not related to Directive 2003/4 or the AIE Regulations in any way, despite both being concerned with access to information, and is a piece of domestic

legislation that does not derive from, or transpose, any EU law measure. Its value as an interpretative aid to the Regulations is therefore distinctly limited in my view.’

58. Furthermore, in Right to Know CLG v An Taoiseach [2023] IECA 68 (‘An Taoiseach’), it was held that it was permissible to require that the requester specify whether the request was being made under AIE or FOI, with Faherty J. noting the significant differences in the regimes (§§96-97).

59. Second, the FOI Act has no application to Coillte, as it is an exempt agency (see The Commissioner for Environmental Information v Coillte Teoranta [2023] IEHC 227, at §99)

and so no comparison can be drawn between Coillte’s charging under the FOI regime and the AIE regime. It should be noted that in Friends of the Irish Environment, Hyland J. held, at §102, when considering the interpretation of the Civil Legal Aid Act 1995 that cases must be decided on their particular facts:

‘A question arises as to whether I should do that in the abstract or with reference to this particular applicant and the case out of which these proceedings arose. I am urged to approach the matter in the abstract by the applicant. However, even a brief consideration of the law on standing makes it clear that in our legal system, cases must be decided on the particular circumstances of the parties, rather than on an abstract and generalised basis. I will therefore approach the matter by considering whether it is necessary to construe the Act to include the applicant in order to ensure that access to judicial review procedures was or is not prohibitively expensive for it: in other words, would access to judicial review be prohibitively expensive for this applicant were it to be excluded from the legal aid scheme?’

60. Third, even if the principle of equivalence is engaged, it is not accepted that charges under the FOI regime are less burdensome than charges under the AIE regime. A holistic view of the fee regimes must be taken. Save Leitrim falls into error by focusing on the single threshold of €101, whereby no fee will be charged if the cost of processing an FOI request is below that level. Save Leitrim ignores other provisions of the FOI Act, and the Freedom of Information Act (Fees) (No. 2) Regulations 2014 (the ‘2014 Regulations’), such as the following features:

(i) Section 27(1) of the FOI Act permits charges for search and retrieval – which are precisely the ‘indirect costs’ about which Save Leitrim complains in its primary ground of appeal;

(ii) Larger fees (subject to an overall cap of €700) are possible under the FOI regime.

As noted by the Commissioner at paragraph 8 of his Points of Opposition, larger fees for access to large amounts of environmental information may not be allowed;

(iii) There is limited scope to waive or reduce the fee under the FOI regime (see s.27(6)), and there are very clear deposit provisions (see s.27(5))

61. In short, the FOI Act and the 2014 Regulations contain many provisions which are less favourable than those obtaining under the AIE regime.

62. Indeed, it is worth noting that in An Taoiseach, the Court of Appeal noted that Right to Know CLG, recognised by Faherty J. to be ‘an experienced non-governmental organisation (“NGO”) which holds itself out as an expert in both the AIE Regulations and the FOI Act’ submitted that ‘the FOI process is a more expensive process for requestors’ (see §89 and 91-93).”

100. As regards whether the State was implementing EU law by enacting the FOI Act, which was the initially-ambitious-sounding submission from the appellant, the relevant principle is that all national legislation should be construed in an EU law-compliant manner, not just legislation enacted to transpose EU law. This is set out by the CJEU Grand Chamber in the judgment of 5 October 2004, Bernhard Pfeiffer (C-397/01), Wilhelm Roith (C-398/01), Albert Süß (C-399/01), Michael Winter (C- 400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller (C-402/01) and Matthias Döbele (C-403/01) v Deutsches Rotes Kreuz, Kreisverband Waldshut eV, joined cases C-397/01 to C-403/01, European Court Reports 2004 I-08835, ECLI:EU:C:2004:584:

“115 Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive (see, to that effect, Carbonari, paragraphs 49 and 50).

116 In that context, if the application of interpretative methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the directive.

117 In such circumstances, the national court, when hearing cases which, like the present proceedings, fall within the scope of Directive 93/104 and derive from facts postdating expiry of the period for implementing the directive, must, when applying the provisions of national law specifically intended to implement the directive, interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the directive (see, to that effect, the judgment in Case C‑456/98 Centrosteel [2000] ECR I‑6007, paragraphs 16 and 17).

118 In this instance, the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that Directive 93/104 is fully effective, in order to prevent the maximum weekly working time laid down in Article 6(2) of the directive from being exceeded (see, to that effect, Marleasing, paragraphs 7 and 13).

119 Accordingly, it must be concluded that, when hearing a case between individuals, a national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive. In the main proceedings, the national court must thus do whatever lies within its jurisdiction to ensure that the maximum period of weekly working time, which is set at 48 hours by Article 6(2) of Directive 93/104, is not exceeded.”

101. So the fact that the FOI Act was not enacted in pursuit of the transposition of any EU law obligation may not be decisive since it must be construed in an EU law compatible manner and thus it is open to argument that the AIE directive may have to come into the interpretation of the FOI Act in cases where there is an overlap. Maybe I need to say that that is not an invitation for parties to seek to have FOI cases admitted to the Planning & Environment Court, unless perhaps they raise only AIE-related issues.

102. In terms of arguments rendering the procedures comparable, these include the following:

(i) the purpose of the legislation is similar albeit not identical;

(ii) the process is broadly functionally equivalent in the sense that the same information can be sought under either Act depending on the heading put on the request (noting that some bodies such as Coillte are not covered by both);

(iii) arguably, a party applying under FOI is in fact exercising EU law rights under the AIE directive even though they are not expressly stating that; and

(iv) there is no obvious logical reason why the charging regime should be different, and the State has not furnished such a reason.

103. In terms of arguments suggesting that the procedures are not comparable, these include the following:

(i) FOI and AIE are two separate legislative schemes;

(ii) Coillte is not an FOI body;

(iii) FOI is not the transposition of an environmental measure but rather is a general domestic measure that is not expressly giving effect to any directive;

(iv) FOI relates to transparency whereas AIE is ultimately about a better environment with access to information being a means to that end, and hence the schemes are not necessarily comparable;

(v) there is a duty of proactive publication in AIE (not in FOI) which means that requests for information should be on points of detail, as much environmental information should be published as a matter of course, here is no such comparable provision in the FOI Act;

(vi) the FOI Act applies to an existing record and there is a very limited obligation on an FOI body to create a new record (see s. 17(4)) whereas AIE applies to information and this may put an obligation on a public authority to create new records; and

(vii) there are differences in the wording/ structure of the legislation regarding fees, in that small fees are permitted under the AIE regime and larger ones are not, whereas small fees are not permitted under the FOI regime and larger ones are.

104. Ultimately this question comes down to a referrable question of EU law which also meets the necessary criteria, as follows:

If the answer to the first question is No, does Article 5(2) of Directive 2003/4 and/or Article 4(8) of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25 June 1998, as part of EU law have the effect that in implementing such provisions in its domestic law transposing the Directive and/or the Convention (“transposing legislation”), a Member State is precluded by the principle of equivalence from imposing a

charge in respect of the time cost of the effort in dealing with a request under that Directive (an “EU request”) if a charge of that amount for the time cost of similar effort by a public body would not be lawful in respect of a request (a “domestic request”) under national freedom of information legislation (“domestic legislation”), and if so, in the assessment by the referring court of whether the procedure for a domestic request is sufficiently similar to the procedure for an EU request so as to engage the principle of equivalence, do the foregoing provisions have the effect that one or more of the following factors preclude a conclusion of sufficient similarity:

(i) the fact that the purpose of the domestic legislation, which by definition is not expressed in terms of implementing EU law and is not accompanied by a proactive duty of publication, is to promote access to records in the interests of transparency whereas the purpose of the transposing legislation is to promote access to environmental information in the interests of the environment with a proactive duty of publication;

(ii) the fact that the transposing and domestic legislation differ in certain points of detail and procedure, including the wording of tests and exceptions and/or the rules regarding the charging of fees, and/or involve legally separate competent authorities, which are held in practice by the same individual official; and/or

(iii) the fact that the particular body from whom information was requested by way of EU request in the procedure the subject of the main proceedings was not itself liable to be subject to a domestic request.

105. Insofar as the State argued that the principle of equivalence doesn’t apply, a potentially negative answer is encompassed in the question so I think the question as worded can cover both suggested answers that the situation that the principle does apply and that it doesn’t. Insofar as Coillte in particular argued that the FOI Act could involve more costs in other circumstances than AIE, that’s as may be, but we aren’t concerned with other circumstances. We are concerned with comparing a particular demand for modest search efforts with a comparable situation under the FOI Act for similar activity by a public body. III – Remedies Issue 8 – lack of request for refund

106. Issue 8 is:

Question 8: If the appeal is allowed, is the appellant precluded as a matter of domestic law from obtaining a refund, not having demanded a refund prior to the initiation of the proceedings?

107. The parties’ answers were:

“Appellant The Appellant is not precluded from obtaining a refund not having first demanded it. There is no legislation or rule which requires this step. The common law of judicial review/mandamus does not apply to statutory appeals which are governed by legislation.

This plea arises from a technical objection from Coillte based on a misunderstanding of the nature of the Commissioner’s decision and the Court’s jurisdiction. Coillte advances this argument as a bald assertion without reference to legislation or case law. This is not a common law mandamus action where the case law states that a public body must first be called on to act. It is not a debt case. This is a statutory appeal against a decision of the Commissioner that the fee was lawful. Essentially the fee does not become payable by Coillte until after the final decision of a Court upholding the appeal. Therefore the Appellant has no basis to call on Coillte to make a refund until after it has been established that it has a right to receive such a refund. It would be ludicrous to expect the Appellant, having lost before the Commissioner, to have to call on Coillte to, in effect, ignore the Commissioner’s

decision as a precondition to appeal against that decision and seek a remedy involving a refund. The relief seeking a mandatory order was introduced for two reasons but it is only activated following a final decision on the appeal. First, if the Appellant succeeds then Coillte, as a public authority subject to the duty of sincere cooperation and duty of good administration, would be expected to refund the unlawful charge regardless of an order, the relief is there as a safeguard so that the Appellant has an enforceable right in the absence of such cooperation. Second the mandatory order would in effect allow the Court make a final decision and avoid remittal to the Commissioner who would have to make a new

decision and ultimately direct Coillte to refund the fee. This would ensure a timely resolution.

In any event the Appellant would only have to call on Coillte to process the refund after a

final decision/order holding that Coillte unlawfully charged the Appellant and failed to act on that final decision/order.

Commissioner If the appeal is allowed the High Court will have found that there was an error of law in the

decision. As a consequence Coillte acted unlawfully in charging the fee. As the fee was unlawful, it should be refunded to the appellant. The answer is no.

Coillte Yes, for all of the reasons set out in Coillte’s submission. However, in the interests of focusing only on the status of East Sussex, and because the amount of refund would be €15, Coillte is prepared to withdraw this argument at the hearing of this matter.

State This is not a matter for the State Notice Parties as the relief sought is in respect of a refund from Coillte.”

108. As the point was not pressed this no longer arises. Issue 9 – effect of EU law on refund issue

109. Issue 9 is:

Question 9: If Q8=Yes, does EU law have that effect?

110. The parties’ answers were:

“Appellant In addition EU law has this effect. As already pointed out Article 9(4) of the Aarhus Convention requires adequate and effective remedies. Clearly it would not be an adequate or effective remedy if a successful appeal against the Commissioner’s decision on fees did not result in an enforceable order for a refund of those fees. As already pointed out a request to Coillte to, in effect, ignore the Commissioner’s decision would be pointless but in any event if there were to be such a requirement it is also a limitation on the right to an effective remedy and does not meet the requirements of Article 52 of the Charter since it doesn’t serve an objective of general interest and there is no accessible or foreseeable rule that sets down such a pre-condition.

Commissioner This does not arise as the answer above is no.

Coillte Coillte is prepared to withdraw this argument at the hearing of this matter.

State This is not a matter for the State Notice Parties as the relief sought is in respect of a refund from Coillte.”

111. Again, as the point was not pressed this no longer arises. Summary

112. In outline summary, without taking from the more specific terms of this judgment:

(i) issues about the entitlement to raise issues in particular as to the Vienna convention in the context of the Moldova point were withdrawn and fell away (issues 5 and 6)

as did objections to a refund if the appellant wins (issues 8 and 9);

(ii) the substantive Moldova point warrants reference to the CJEU (issue 7);

(iii) it is not necessary to decide whether the State can object to the equivalence ground but if it was necessary I would have held that they can so object (issue 1);

(iv) all parties accepted that the court had a discretion in relation to permitting a ground not raised before the decision-taker, and on balance having regard to a lengthy list of factors favouring such a course, the argument that domestic law precludes the appellant from raising the equivalence ground must be rejected (issue 2);

(v) the EU defence to that objection therefore doesn’t need to be decided, but I would have been minded to refer it to the CJEU if that had been necessary (issue 3); and

(vi) the substantive equivalence argument warrants reference to the CJEU (issue 4). Order

113. For the foregoing reasons, it is ordered that:

(i) referral in principle: the identified questions be in principle referred to the CJEU under art. 267 TFEU in accordance with a judgment for reference to be issued separately;

(ii) provision for notification of potential amici: the parties have liberty to make any enquiries with any suitable entities if and to the extent that they think fit, and for the avoidance of doubt have liberty to convey this judgment in unapproved form and any of the papers to any proposed amicus curiae;

(iii) amici to bear own costs if added: in line with Eco Advocacy CLG v. An Bord Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High Court, 27 May 2021), if any one or more amici curiae is added, such entities bear their own costs

throughout, in the Irish courts and in Luxembourg, and not have any liability for the costs of any other participant in the proceedings, and that such entities be involved on a written-submissions-only basis at domestic level unless otherwise ordered;

(iv) CJEU contact sheet: within seven days from it being determined whether any amici curiae are to be parties to the reference, the parties be required to complete the CJEU contact sheet set out in guidance notes to Practice Direction HC126 specifying whether any natural persons referred to in the proceedings wish their names to be anonymised for the purposes of the CJEU proceedings and judgment, such sheet to provide contact details for all parties whether participating in the reference or not, and be required to submit that sheet to the List Registrar copying the relevant judicial assistant;

(v) submissions by parties to facilitate reference: the parties be required to provide simultaneous submissions within 14 days from the date of this judgment setting out the following:

i. a list of any provisions of domestic legislation they consider particularly relevant to answering the questions with hyperlinks to the text;

ii. a list of any provisions of European law they consider particularly relevant to answering the questions with hyperlinks to the text;

iii. a one-sentence summary of the party’s proposed answer to each question (maximum 200 words per question) (and for clarity, submissions on the wording of the questions are not being particularly invited unless a party considers that the court has overlooked something crucial or considers that additional questions are necessary);

iv. separately and optionally, more detailed reasons for the foregoing if they so wish; and v. whether there should be any amici curiae added to the proceedings prior to the reference being made;

(vi) submissions by amici if added: if any amicus is added such an entity shall furnish such submissions within 14 days from being added to the proceedings;

(vii) judgment for reference to follow: following any such submissions, the court will issue the formal judgment for reference which will set out the final text of any questions together with material drawn from the parties’ submissions;

(viii) papers for CJEU: the appellant as document management party be required to prepare a draft contents page of documents for the CJEU and to agree this with the other parties or apply to the court in default of agreement; this should include:

i. all relevant pleadings/ affidavits/ exhibits/ other documents; and ii. all relevant judgments/ orders in the case including the formal order for reference when perfected and the final judgment for reference when delivered;

iii. this should not include written legal submissions or cases/ other authorities, especially where these are already cited in the judgment for reference;

iv. once the contents page is agreed, it is then the function of the document management party to prepare electronic versions for the CJEU as follows.

All files should be in PDF format not exceeding 30 MB per PDF. Four documents are required:

1. the order for reference when perfected should be a single standalone PDF;

2. the judgment for reference should be a single standalone PDF clearly identified as such; that PDF should be sent in a form (which should be final but may be unsigned) that preserves the hyperlinks and not as a scanned picture of the signed version;

3. the completed form of the contact details of the parties in the form attached to guidance notes to Practice Direction HC126 should be a separate PDF; and

4. all other documents should be bundled together in a single PDF (or more than one if required to comply with the 30MB file size limit);

v. once prepared, the PDFs should be sent to the List Registrar by email or file sharing link, and for this purpose parties should not use password protected file transfers, this process to be completed within 14 days from the date of the judgment for reference;

(ix) information for the referring court: once the matter is formally referred, the parties should liaise to ensure that the referring court is copied with all submissions including those of member states and EU institutions, and the Advocate General’s opinion, when permitted to do so by the rules of procedure of the CJEU, and to copy the referring court with relevant notifications such as regarding the date of any oral hearing, any opinion of the Advocate General, the date of delivery of the judgment and the judgment itself;

(x) costs: all costs to date be reserved;

(xi) liberty to apply: there be liberty to apply; and

(xii) review of arrangements for reference: the matter be listed for mention on 3 November 2025.

ANNEX

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Decision VII/8a Armenia Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of Compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8a with regard to compliance by Armenia,

Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8a concerning compliance by Armenia with its obligations under the Convention,

Encouraged by the willingness of Armenia to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that the Party concerned has not yet fulfilled the requirements of paragraph 3 (a), (b), (c) and

(d) of decision VI/8a;

Decision VII/8b Austria Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8b with regard to compliance by Austria,

Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8b concerning compliance by Austria with its obligations under the Convention,

Encouraged by the willingness of Austria to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that:

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(a) While welcoming the progress made, the Party concerned has not yet demonstrated that it has fully met the requirements of paragraph

3 (a) of decision VI/8b with respect to standing for environmental non-governmental organizations under article 9 (3) at the federal level;

(b) While welcoming the significant progress made, the Party concerned has not yet demonstrated that it has fully met the requirements of paragraph 3 (a) of decision VI/8b with respect to standing for environmental non-governmental organizations under article 9 (3) at the provincial level;

(c) The Party concerned has not yet met the requirements of paragraph 3

(b) of decision VI/8b;

(d) The Party concerned has not yet fulfilled the requirements of paragraph 3 (c) of decision VI/8b and expresses serious concern that the Party concerned appears to consider that it need not do so;

(e) While welcoming the actions undertaken to date, the Party concerned has not yet fulfilled the requirements of paragraph 3 (d) of decision VI/8b;

Decision VII/8c Belarus Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of compliance, Mindful of the conclusions and recommendations set out in its decision VI/8c with regard to compliance by Belarus,

Taking note of the reports of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8c concerning compliance by Belarus with its obligations under the Convention,3 and the findings of the Committee on submission ACCC/S/2015/2 submitted by Lithuania and concerning compliance by Belarus in connection with the participation of the public in Lithuania in decision-making on Ostrovets nuclear power plant,

Encouraged by the willingness of Belarus to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee with respect to decision VI/8c that

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(a) While welcoming the efforts made in that direction, the Party concerned has not yet met the requirements of paragraph 3 of decision VI/8c;

(b) The Party concerned has not yet met the requirements of paragraph 6 of decision VI/8c, and expresses its grave concern that the situation for persons exercising their rights in conformity with the Convention in the Party concerned is, in fact, rapidly deteriorating; ACCC/C/2016/144 Decision VII/8d Bulgaria Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8d with regard to compliance by Bulgaria,

Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8d concerning compliance by Bulgaria, and the findings of the Committee on communication ACCC/C/2016/144 concerning public participation in decision-making and access to justice regarding the amendment of a General Spatial Plan,

Encouraged by the willingness of Bulgaria to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that:

(a) The Party concerned has not yet met the requirements of paragraph 3 (a) or

(b) of decision VI/8d, nor made any progress in that direction;

(b) While welcoming the steps made in that direction, the Party concerned has not yet met the requirements of paragraph

8 (a), (b) or (c) of decision VI/8d;

....

5. Endorses the findings of the Committee with

145. The Committee finds that: respect to communication ACCC/C/2016/144 that:

(a) By not providing the public with adequate

(a) By not providing the public with adequate and effective remedies with respect to General and effective remedies with respect to GSPs, Spatial Plans, and amendments thereto, and amendments thereto, adopted on the adopted on the basis of unlawful strategic basis of unlawful SEA decisions, the Party environmental assessment decisions, the Party concerned fails to comply with its obligations concerned fails to comply with its obligations under article 9 (4) in conjunction with article 9

ACCC Report MOP Decision under article 9 (4) in conjunction with article (3) of the Convention;

9 (3) of the Convention;

(b) By not ensuring that the public notice for the proposed General Spatial Plan amendment

(b) By not ensuring that the public notice for contained accurate information on “the the proposed GSP amendment contained proposed activity” and “the nature of the accurate information on “the proposed possible decision” or any of the other activity” and “the nature of the possible information required by article 6 (2) (a)–(e)

decision” nor any of the other information except for the location, date and time of the required by article 6 (2) (a)–(e) except for hearing, the Party concerned failed to comply the location, date and time of the hearing, the with article 7 in conjunction with article 6 (2) of Party concerned failed to comply with article 7 the Convention; in conjunction with article 6 (2) of the Convention; (c) By not making the texts of the existing General Spatial Plan and the proposed General

(c) By not making the texts of the existing Spatial Plan amendment effectively available to GSP and the proposed GSP amendment the public, the Party concerned failed to comply effectively available to the public, the Party with the requirement in article 7 to provide the concerned failed to comply with the necessary information to the public; requirement in article 7 to provide the necessary information to the public; (d) By not ensuring a reasonable time frame between the public notice of the hearing on the

(d) By not ensuring a reasonable time frame proposed amendment to the Plovdiv General between the public notice of the hearing on Spatial Plan and the hearing itself, the Party the proposed amendment to the Plovdiv GSP concerned failed to comply with article 7 in and the hearing itself, the Party concerned conjunction with article 6 (3) of the failed to comply with article 7 in conjunction Convention; with article 6 (3) of the Convention;

(e) By:

(e) By: (i) Failing to ensure that due account is taken

(i) Failing to ensure that due account is taken of the outcome of public participation in of the outcome of public participation in decision-making on proposed General Spatial

decision-making on proposed GSPs and GSP Plans and General Spatial Plan amendments; amendments; (ii) Failing to demonstrate, in a transparent and

(ii) Failing to demonstrate, in a transparent traceable way, how due account was taken of and traceable way, how due account was the public participation in the decision-making taken of the public participation in the on the proposed amendment to the Plovdiv

decision-making on the proposed amendment General Spatial Plan, the Party concerned has to the Plovdiv GSP, the Party concerned has failed to comply with article 7 in conjunction failed to comply with article 7 in conjunction with article 6 (8) of the Convention; with article 6 (8) of the Convention. ACCC/C/2016/143 Decision VII/8e Czechia Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8e with regard to compliance by Czechia, Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8e concerning compliance by Czechia, and the findings of the Committee on communication ACCC/C/2016/143 concerning public participation in decisionmaking and access to justice regarding the extension of the lifetime of Dukovany nuclear power plant,

ACCC Report MOP Decision Encouraged by the willingness of Czechia to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that the Party concerned has not yet met the requirements of paragraphs 3 or 6 of decision VI/8e, nor has made any apparent progress in that direction;

...

143. The Committee finds that: 5. Endorses the findings of the Committee with respect to communication ACCC/C/2016/143 that:4

(a) By not providing for public participation (a) By not providing for public participation meeting the requirements of article 6 (2)–(9) meeting the requirements of article 6 (2)–(9) in in the decision-making to grant the first the decision-making to grant the first reactor of reactor of Dukovany NPP an indefinite Dukovany nuclear power plant a indefinite operating permit, the Party concerned failed operating permit, the Party concerned failed to to comply with article 6 (10) of the comply with article 6 (10) of the Convention; Convention;

(b) By establishing a legal framework that does

(b) By establishing a legal framework that not provide for public participation meeting the does not provide for public participation requirements of article 6 (2)–(9) in each of the meeting the requirements of article 6 (2)–(9) 10-year periodic safety reviews for the first in each of the 10-year periodic safety reviews reactor of Dukovany nuclear power plant, the for the first reactor of Dukovany NPP, the Party concerned fails to comply with article 6 Party concerned fails to comply with article 6 (10) of the Convention;

(10) of the Convention;

(c) By failing to provide environmental non-

(c) By failing to provide environmental NGOs governmental organizations with access to a with access to a review procedure to review procedure to challenge the substantive challenge the substantive or procedural or procedural legality of decisions, acts and legality of decisions, acts and omissions under omissions under the 1997 and 2016 Atomic the 1997 and 2016 Atomic Acts subject to Acts subject to article 6 of the Convention, the article 6 of the Convention, the Party Party concerned fails to comply with article 9 concerned fails to comply with article 9 (2) of (2) of the Convention; the Convention.

ACCC/C/2008/32 (part II) Decision VII/8f EU ACCC/C/2013/96 ACCC/C/2014/121 Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Recalling paragraph 63 of its report of its sixth session (Budva, Montenegro, 11–13 September 2017), through which it requested the Compliance Committee under the Convention on Access to Information, Public Participation in

Decision-making and Access to Justice in Environmental Matters to review any developments that had taken place regarding the implementation of decision V/9g concerning compliance by the European Union and the Committee’s findings and recommendations on communication ACCC/C/2008/32 (part II)

concerning access to justice to challenge acts and omissions by institutions and bodies of the

ACCC Report MOP Decision European Union that contravene European Union law relating to the environment, and to report to the Meeting of the Parties accordingly,

Taking note of the report of the Committee on the implementation of the above request by the Meeting of the Parties, under the case reference request ACCC/M/2017/3, concerning the compliance of the European Union, the findings of the Committee on communication ACCC/C/2013/96 concerning the compliance of the European Union in connection with the adoption by the European Commission of a list of “Projects of Common Interest” and the findings of the Committee on communication ACCC/C/2014/121 concerning the compliance of the European Union in connection with the reconsideration or updating of permits under the Industrial Emissions Directive,

Encouraged by the willingness of the European Union to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee in its report on the implementation of request ACCC/M/2017/3 that, with respect to decision V/9g:

(a) The Party concerned has put in place a regulatory framework that meets the requirements of article 6 (3) of the Convention with respect to National Energy and Climate Plans but has not yet demonstrated that it has adopted either a proper regulatory framework or clear instructions to ensure that the other requirements of article 7 are met in the adoption of National Energy and Climate Plans, as required by the first three sentences of paragraph 3 of decision V/9g;

(b) While welcoming the fact that the Party concerned has carried out an assessment of public participation on each member State’s National Energy and Climate Plan, albeit in brief, the Party concerned has not yet met the requirements of the final sentence of paragraph

3 of decision V/9g ...

122. Accordingly, the Committee finds that 3. Endorses the findings of the Committee with the Party concerned fails to comply with regard to communication ACCC/C/2008/32 article 9, paragraphs 3 and 4, of the (part II) that the Party concerned failed to Convention with regard to access to justice by comply with article 9 (3) and (4) of the members of the public because neither the Convention with regard to access to justice by Aarhus Regulation, nor the jurisprudence of members of the public because neither the the CJEU implements or complies with the Aarhus Regulation, nor the jurisprudence of the obligations arising under those paragraphs Court of Justice of the European Union implements or complies with the obligations arising under those paragraphs

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4. Also endorses the findings of the Committee in its report on the implementation of request ACCC/M/2017/3 that, with respect to the Committee’s findings on communication ACCC/C/2008/32 (part II), the co-legislators’ agreement of 12 July 202110 to amend the Aarhus Regulation, if enacted in that form prior to the opening of the seventh session of the Meeting of the Parties, would fulfil the requirements of paragraph 123 of the Committee’s findings on communication ACCC/C/2008/32 (part II);

5. Notes that, following the adoption of the Committee’s report on the implementation of request ACCC/M/2017/3, on 5 and 6 October 2021, respectively, the European Parliament and the Council of the European Union have each approved the legislative amendment to the Aarhus Regulation in the form agreed by the co-legislators on 12 July 2021 and that the legislative amendment will enter into force on

28 October 2021, twenty days following its publication in the Official Journal of the European Union;

therefore, the Meeting of the Parties considers that, in accordance with the Committee’s report on the implementation of request ACCC/M/2017/3, upon its entry into force the Party concerned will have fully met the requirements of paragraph 123 of the Committee's findings on communication ACCC/C/2008/32 (part II);

6. Welcomes the committed action by the Party concerned to fully address the recommendations in paragraph 123 of the findings of communication ACCC/C/2008/32 (part II) and to bring its legislation and practice into compliance with the Convention in this regard;

137. The Committee finds that: 7. Endorses the findings of the Committee with respect to communication ACCC/C/2013/96 that:

(a) By not informing the applicant that longer time frames would be needed to reply to the (a) By not informing the applicant that longer information requests and of the reasons time frames would be needed to reply to the therefor, the Party concerned failed to comply information requests and of the reasons with article 4 (2) of the Convention; therefor, the Party concerned failed to comply with article 4 (2) of the Convention;

(b) By failing to ensure at least one review procedure that was expeditious, the Party (b) By failing to ensure at least one review concerned failed to comply with the procedure that was expeditious, the Party requirement in article 9 (1), second sentence, concerned failed to comply with the of the Convention to ensure an “expeditious” requirement in article 9 (1), second sentence, procedure for the reconsideration of of the Convention to ensure an “expeditious” information requests; procedure for the reconsideration of

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(c) By failing to demonstrate, in a transparent information requests; and traceable way, how due account was taken of the public participation on the first (c) By failing to demonstrate, in a transparent PCI list, the Party concerned failed to comply and traceable way, how due account was taken with article 7 in conjunction with article 6 (8) of the public participation on the first list of of the Convention; “Projects of Common Interest”, the Party concerned failed to comply with article 7 in

(d) By not making the main consultation conjunction with article 6 (8) of the documents, including the notification to the Convention; public, available to the public in its official languages other than English, the Party (d) By not making the main consultation concerned discriminated against non-Englishdocuments, including the notification to the speaking members of the public in the public, available to the public in its official European Union and thus failed to comply languages other than English, the Party with article 3 (9) of the Convention concerned discriminated against non-Englishspeaking members of the public in the European Union and thus failed to comply with article 3 (9) of the Convention;

120. The Committee finds that, by putting in place a legal framework that does not ... envisage any possibility for public participation in relation to reconsiderations 9. Endorses the findings of the Committee with and updates under article 21 (3), (4) and (5) respect to communication

(b) and (c) of the Industrial Emissions ACCC/C/2014/121 that, by putting in place a Directive, the Party concerned fails to comply legal framework that does not envisage any with article 6 (10) of the Convention. possibility for public participation in relation to reconsiderations and updates under article 21 (3), (4) and (5) (b) and (c) of the Industrial Emissions Directive, the Party concerned fails to comply with article 6 (10) of the Convention;

ACCC/C/2016/137 Decision VII/8g Germany Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance, Taking note of the findings of the Committee on communication ACCC/C/2016/137 concerning compliance by Germany with respect to the criteria for standing of environmental nongovernmental organizations to have access to justice in environmental matters, Encouraged by the willingness of Germany to discuss in a constructive manner with the Committee the compliance issues in question,

120. The Committee finds that, by applying a 1. Endorses the findings of the Committee that, criterion that effectively bars NGOs promoting by applying a criterion that effectively bars environmental protection that do not have non-governmental organizations promoting open membership with full voting rights for environmental protection that do not have open members from access to a review procedure membership with full voting rights for members of decisions under article 6, the Party from access to a review procedure of decisions concerned fails to comply with article 9 (2) in under article 6, the Party concerned fails to conjunction with article 2 (5) of the comply with article 9 (2) in conjunction with Convention. article 2 (5) of the Convention

ACCC/C/2014/105 Decision VII/8h Hungary Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

ACCC Report MOP Decision Taking note of the findings of the Committee on communication ACCC/C/2014/105 concerning compliance by Hungary in connection with access to information and public participation in the decision-making on plans to build new units at Paks nuclear power plant,

Encouraged by the willingness of Hungary to discuss in a constructive manner with the Committee the compliance issues in question,

64. The Committee finds that, by not publishing the “assessment analysis” of the 1. Endorses the findings of the Committee that, draft 2007–2020 energy policy prepared by not publishing the “assessment analysis” of under articles 43 (1) and 44 (2) of the the draft 2007–2020 energy policy prepared Environmental Code, the Party concerned under articles 43 (1) and 44 (2) of the failed to comply with article 7, final sentence, Environmental Code, the Party concerned failed in conjunction with article 5 (7) (a) of the to comply with article 7, final sentence, in Convention conjunction with article 5 (7) (a) of the Convention;

ACCC/C/2013/107 Decision VII/8i Ireland ACCC/C/2014/121 ACCC/C/2016/141 Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Taking note of the findings of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on communication ACCC/C/2013/107 concerning compliance by Ireland with respect to public participation in the decision-making to extend the duration of a quarry, the Committee’s report on the progress made by Ireland in implementing the recommendations contained in its findings on communication ACCC/C/2013/107,3 the findings of the Committee on communication ACCC/C/2016/141 concerning compliance by Ireland with respect to access to environmental information and review mechanisms thereof;

the Committee’s report on the progress made by Ireland in implementing the recommendations contained in its findings on communication ACCC/C/2016/141,5 and also the findings of the Committee on communication ACCC/C/2014/112 concerning compliance by Ireland with respect to the implementation of its national plan for renewable energy,

Encouraged by the willingness of Ireland to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee with respect to communication ACCC/C/2013/107 that:

ACCC Report MOP Decision

94. The Committee finds that, by failing to (a) By failing to provide opportunities for the provide opportunities for the public to public to participate in the decision-making on participate in the decision-making on the the 2013 permits to extend the duration of 2013 permits to extend the duration of Trammon quarry, the Party concerned failed to Trammon quarry, the Party concerned has comply with article 6 (10) of the Convention; failed to comply with article 6 (10) of the Convention. (b) By providing mechanisms through which permits for activities subject to article 6 of the Moreover, the Committee finds that, by Convention may be extended for a period of up providing mechanisms through which permits to five years without any opportunity for the for activities subject to article 6 of the public to participate in the decision to grant the Convention may be extended for a period of extension, section 42 (1)(a) (i) and (ii) of the up to five years without any opportunity for Planning and Development Act 2000 do not the public to participate in the decision to meet the requirements of article 6 (10) and grant the extension, section 42 (1) (a) (i) and thus the Party concerned fails to comply with

(ii) of the Planning and Development Act 2000 article 6 (10) of the Convention; do not meet the requirements of article 6 (10) and thus the Party concerned fails to comply with article 6 (10) of the Convention.

2. Endorses the findings of the Committee with respect to communication ACCC/C/2016/141 that:

33. The Committee finds that:

(a) By failing to put in place measures to

(a) By failing to put in place measures to ensure that the Office of the Commissioner for ensure that the OCEI and the courts decide Environmental Information and the courts appeals regarding environmental information decide appeals regarding environmental requests in a timely manner, the Party information requests in a timely manner, the concerned fails to comply with the Party concerned fails to comply with the requirement in article 9 (4) of the Convention requirement in article 9 (4) of the Convention to ensure timely procedures for the review of to ensure timely procedures for the review of environmental information requests; environmental information requests;

(b) By maintaining a system whereby courts

(b) By maintaining a system whereby courts may rule that information requests fall within may rule that information requests fall within the scope of the European Communities the scope of the AIE Regulations without (Access to Information on the Environment) issuing any directions for their adequate and Regulations without issuing any directions for effective resolution thereafter, the Party their adequate and effective resolution concerned fails to comply with the thereafter, the Party concerned fails to comply requirement in article 9 (4) of the Convention with the requirement in article 9 (4) of the to ensure adequate and effective remedies for Convention to ensure adequate and effective the review of remedies for the review of environmental environmental information requests. information requests;

166. The Committee finds that: 3. Endorses the findings of the Committee with respect to communication ACCC/C/2014/112 that:

(a) By refusing the disclosure of the cost- (a) By refusing the disclosure of the costbenefit study prepared for the renewable benefit study prepared for the renewable energy export programme on the basis that energy export programme on the basis that the the study was not “environmental study was not “environmental information”, the information”, the Party concerned failed to Party concerned failed to comply with article 4 comply with article 4 (1) in conjunction with (1) in conjunction with article 2 (3) (b) of the article 2 (3) (b) of the Convention; Convention;

(b) By not putting in place measures to (b) By not putting in place measures to ensure ensure that OCEI decides appeals regarding that the Office of the Commissioner for environmental information requests in a Environmental Information decides appeals timely manner, the Party concerned fails to regarding environmental information requests comply with the requirement of article 9 (4) in a timely manner, the Party concerned fails to

ACCC Report MOP Decision of the Convention to ensure timely comply with the requirement of article 9 (4) of procedures for the review of environmental the Convention to ensure timely procedures for information requests. the review of environmental information requests; ACCC/C/2015/130 Decision VII/8j Italy Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Taking note of the findings of the Committee on communication ACCC/C/2015/130 concerning compliance by Italy in connection with the cost of access to justice,

Encouraged by the willingness of Italy to discuss in a constructive manner with the Committee the compliance issues in question,

1 27. The Committee finds that: 1. Endorses the findings of the Committee that:

(a) By charging a filing fee of €650 at first (a) By charging a filing fee of €650 at first instance and €950 at second instance for instance and €950 at second instance for review procedures within the scope of article review procedures within the scope of article 9

9 (2) and (3), the Party concerned has failed (2) and (3), the Party concerned has failed to to comply with the requirement of article 9 comply with the requirement of article 9 (4) of

(4) of the Convention that such procedures the Convention that such procedures not be not be prohibitively expensive; prohibitively expensive;

(b) By charging a fee of €650 at first instance (b) By charging a fee of €650 at first instance and €950 at second instance to amend a and €950 at second instance to amend a claim claim within the scope of article 9 (2) and (3), within the scope of article 9 (2) and (3), the the Party concerned has failed to comply with Party concerned has failed to comply with the the requirement of article 9 (4) of the requirement of article 9 (4) of the Convention Convention that such procedures be fair and that such procedures be fair and not not prohibitively expensive; prohibitively expensive;

(c) By failing to ensure that costs orders (c) By failing to ensure that costs orders against unsuccessful claimants in review against unsuccessful claimants in review procedures under article 9 (2) and (3) of the procedures under article 9 (2) and (3) of the Convention are fair and not prohibitively Convention are fair and not prohibitively expensive, the Party concerned has failed to expensive, the Party concerned has failed to comply with article 9 (4) of the Convention; comply with article 9 (4) of the Convention;

(d) By maintaining a legal framework that (d) By maintaining a legal framework that permits the courts to award punitive costs of permits the courts to award punitive costs of up up to two times the litigation fee and up to to two times the litigation fee and up to five five times the court filing fee, the Party times the court filing fee, the Party concerned concerned fails to comply with the fails to comply with the requirement in article 9 requirement in article 9 (4) that review (4) that review procedures under article 9 (2) procedures under article 9 (2) and (3) of the and (3) of the Convention are fair and not Convention are fair and not prohibitively prohibitively expensive; expensive;

(e) By failing to consider the establishment of

(e) By failing to consider the establishment of appropriate assistance mechanisms to remove appropriate assistance mechanisms to remove or reduce financial barriers to access to justice, or reduce financial barriers to access to the Party concerned has failed to comply with justice, the Party concerned has failed to article 9 (5) of the Convention; comply with article 9 (5) of the Convention;

(f) By not having in place a clear and

(f) By not having in place a clear and transparent framework for determining costs transparent framework for determining costs orders against unsuccessful claimants in review orders against unsuccessful claimants in procedures under article 9 (2) and (3) of the

ACCC Report MOP Decision review procedures under article 9 (2) and (3) Convention, the Party concerned fails to comply of the Convention, the Party concerned fails with article 3 (1) of the Convention; to comply with article 3 (1) of the Convention; (g) By failing to ensure that, in review procedures subject to article 9 (2) and (3) of

(g) By failing to ensure that, in review the Convention, the courts adopt a consistent procedures subject to article 9 (2) and (3) of interpretation of the legislation exempting the Convention, the courts adopt a consistent environmental non-governmental organizations interpretation of the legislation exempting from the payment of court filing fees, the Party environmental NGOs from the payment of concerned fails to comply with the obligation in court filing fees, the Party concerned fails to article 3 (1) of the Convention to establish and comply with the obligation in article 3 (1) of maintain a clear, transparent and consistent the Convention to establish and maintain a framework to implement the clear, transparent and consistent framework Convention; to implement the Convention

Decision VII/8k Kazakhstan Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8g with regard to compliance by Kazakhstan,

Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8g concerning compliance by Kazakhstan with its obligations under the Convention,

Encouraged by the willingness of Kazakhstan to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that, while welcoming the progress made, the Party concerned has not yet demonstrated that it has met the requirements of paragraphs 2 and 5 of

decision VI/8g; ACCC/C/2013/98 Decision VII/8l Lithuania Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Taking note of the findings of the Committee on communication ACCC/C/2013/98 concerning compliance by Lithuania in connection with public participation in decisionmaking regarding the construction of an overhead power line,

Encouraged by the willingness of Lithuania to discuss in a constructive manner with the Committee the compliance issues in question,

160. The Committee finds that: 1. Endorses the findings of the Committee that:

(a) By not correctly notifying the public (a) By not correctly notifying the public concerned about the time frames during concerned about the time frames during which which relevant documentation would be relevant documentation would be available and available and in which comments could be in which comments could be submitted, the

ACCC Report MOP Decision submitted, the Party concerned failed to Party concerned failed to comply with the comply with the requirements in article requirements in article 6 (2) (d) (ii) to 6(2)(d)(ii) to adequately inform the public adequately inform the public concerned about concerned about the envisaged procedure, the envisaged procedure, including the including the opportunities for the public to opportunities for the public to participate; participate;

(b) By limiting the options in practice for the

(b) By limiting the options in practice for the location of the border crossing point for the location of the border crossing point for the overhead power line by setting that location overhead power line by setting that location through inter-State consultations before the through inter-State consultations before the public participation procedures had been public participation procedures had been concluded, the Party concerned precluded the concluded, the Party concerned precluded the possibility for the public to participate when all possibility for the public to participate when options on the crossing point were open and all options on the crossing point were open thus failed to comply with article 6 (4) of the and thus failed to comply with article 6(4) of Convention; the Convention;

(c) By failing to ensure that all options

(c) By failing to ensure that all options regarding the choice of technology for the regarding the choice of technology for the power line were not just legally open but also power line were not just legally open but also could clearly be seen to be open by the public could clearly be seen to be open by the public concerned, the Party concerned failed to concerned, the Party concerned failed to comply with article 6 (4) of the Convention; comply with article 6(4) of the Convention;

(d) By establishing a system whereby

(d) By establishing a system whereby comments submitted by the public during the comments submitted by the public during the environmental impact assessment procedure EIA procedure are to be in the first instance are to be in the first instance submitted to an submitted to an entity not required to be entity not required to be independent from the independent from the developer, and not to developer, and not to the competent public the competent public authority itself, the authority itself, the Party concerned is in non- Party concerned is in non-compliance with compliance with article 6 (7) of the Convention; article 6(7) of the Convention;

(e) By not ensuring that the competent public

(e) By not ensuring that the competent public authority is required to take due account of the authority is required to take due account of outcomes of the public participation, the Party the outcomes of the public participation, the concerned fails to comply with article 6 (8) of Party concerned fails to comply with article the Convention; 6(8) of the Convention;

(f) By failing to demonstrate, either in or along

(f) By failing to demonstrate, either in or with the decision, how due account was taken along with the decision, how due account was of the outcome of the public participation, the taken of the outcome of the public Party concerned failed to comply with article 6 participation, the Party concerned failed to (9) of the Convention regarding the decision on comply with article 6(9) of the Convention the overhead power line; regarding the decision on the overhead power line; (g) The telephoning and visiting of persons linked to the communicant, in the context of

(g) The telephoning and visiting of persons the communicant’s opposition to the overhead linked to the communicant, in the context of power line, by the State Security Department the communicant’s opposition to the overhead “to clarify the issues in the Rudamina power line, by the State Security Department community related to the electricity power line” “to clarify the issues in the Rudamina constituted harassment, penalization and community related to the electricity power persecution by the Party concerned in nonline” constituted harassment, penalization and compliance with article 3 (8) of the Convention; persecution by the Party concerned in noncompliance with article 3(8) of the Convention. ACCC/C/2014/104 Decision VII/8m Netherlands ACCC/C/2014/124 Acting under paragraph 37 of the annex to its

decision I/7 on the review of

ACCC Report MOP Decision compliance,

Taking note of the findings of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on communication ACCC/C/2014/104 concerning compliance by the Netherlands with respect to public participation in the decisionmaking on the extension of the design lifetime of Borssele nuclear power plant,2 the Committee’s report on the progress made by the Netherlands in implementing the recommendations contained in those findings and also the findings of the Committee on communication ACCC/C/2014/124 concerning compliance by the Netherlands with respect to access to environmental information in connection with the permitting of two power plants,

Encouraged by the willingness of the Netherlands to discuss in a constructive manner with the Committee the compliance issues in question,

88. The Committee finds that, by not having 1. Endorses the findings of the Committee with at any stage provided for public to setting the respect to communication ACCC/C/2014/104 end date of 31 December 2033 for the that, by not having at any stage provided for operation of Borssele Nuclear Power Plant, the public participation meeting the requirements Party concerned failed to comply with article of article 6, where all options were open, in 6, paragraph 4, in conjunction with article 6, regard to setting the end date of 31 December paragraph 10, of the Convention with respect 2033 for the operation of Borssele nuclear to the licence amendment of 18 March 2013. power plant, the Party concerned failed to participation, meeting the requirements of comply with article 6 (4) in conjunction with article 6, where all options were open, in article 6 (10) of the Convention with respect to regard the licence amendment of 18 March 2013;

111. The Committee finds that: 2. Endorses the findings of the Committee with respect to communication ACCC/C/2014/124 that:

(a) By refusing to disclose documents relating (a) By refusing to disclose documents relating to, or referring to, the imperative reasons of to, or referring to, the imperative reasons of overriding public interest regarding a Natura overriding public interest regarding a Natura 2000 site on the basis that those documents 2000 site on the basis that those documents were not “environmental information”, the were not “environmental information”, the Party concerned failed to comply with article 4 Party concerned failed to comply with article 4

(1) in conjunction with article 2 (3) of the (1) in conjunction with article 2 (3) of the Convention; Convention;

(b) By applying the exception for internal (b) By applying the exception for internal communications contained in article 4 (3) (c) communications contained in article 4 (3) (c) of of the Convention in order to exempt from the Convention in order to exempt from disclosure environmental information disclosure environmental information exchanged between a public authority and the exchanged between a public authority and the permit holders, including the representatives permit holders, including the representatives of of the latter, the Party concerned failed to the latter, the Party concerned failed to comply comply with article 4 (1) in conjunction with with article 4 (1) in conjunction with article 4 article 4 (3) (c) of the Convention. (3) (c) of the Convention; ACCC/C/2017/147 Decision VII/8n Republic of Moldova

ACCC Report MOP Decision Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Taking note of the findings of the Committee on communication ACCC/C/2017/147 concerning compliance by the Republic of Moldova in connection with access to hydrometeorological information upon request,

Encouraged by the willingness of the Republic of Moldova to discuss in a constructive manner with the Committee the compliance issues in question,

107. The Committee finds that: 1. Endorses the findings of the Committee that:

(a) By establishing and maintaining a (a) By establishing and maintaining a schedule schedule of charges that does not meet the of charges that does not -meet the requirement requirement to ensure that any charge for to ensure that any charge for supplying supplying information does not exceed a information does not exceed a reasonable reasonable amount, the Party concerned fails amount, the Party concerned fails to comply to comply with article 4 (8) of the with article 4 (8) of the Convention; Convention;

(b) By not establishing and maintaining a clear,

(b) By not establishing and maintaining a transparent and consistent framework to clear, transparent and consistent framework implement article 4 (8) of the Convention, the to implement article 4 (8) of the Convention, Party concerned fails to comply with article 3 the Party concerned fails to comply with (1) of the Convention; article 3 (1) of the Convention.

Decision VII/8o Romania Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8h with regard to compliance by Romania,

Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8h concerning compliance by Romania with its obligations under the Convention,

Encouraged by the willingness of Romania to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that:

(a) The Party concerned has fully met the requirements of paragraph 2 (c) of decision VI/8h to provide reasonable time frames, commensurate with the nature and complexity of the document, for the public to get acquainted with draft strategic documents subject to the Convention and to submit its comments;

Decision VII/8p Spain

ACCC Report MOP Decision Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8j with regard to compliance by Spain,

Taking note of the report of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8j concerning compliance by Spain with its obligations under the Convention,

Encouraged by the willingness of Spain to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that, while welcoming the positive steps made in that direction, the Party concerned has not yet fully met the requirements of paragraphs 3 or 7 of

decision VI/8j;

Decision VII/8q Turkmenistan Follow up on a previous MOP decision so Acting under paragraph 37 of the annex to its ACCC report not included decision I/7 on the review of compliance,

Recalling paragraph 19 of its decision VI/8 on general issues of compliance adopted at its sixth session (Budva, Montenegro, 11–13 September 2017),2 through which it requested the Compliance Committee to review the compliance of Turkmenistan with article 3 (1),

(4) and (9) of the Convention with respect to the possibilities for foreign citizens and persons without citizenship to found and participate in non-governmental organizations promoting environmental protection,

Taking note of the report of the Committee with respect to paragraph 19 of decision VI/8 on general issues of compliance concerning the compliance of Turkmenistan,

Encouraged by the willingness of Turkmenistan to discuss in a constructive manner with the Committee the compliance issues in question,

1. Endorses the findings of the Committee that:

(a) In the absence of a legal framework that clearly ensures that foreign citizens and persons without citizenship are able to participate in and found public associations in the same way as citizens of Turkmenistan, the Party concerned does not yet comply with article 3 (9) of the Convention;

ACCC Report MOP Decision

(b) Given the ongoing lack of clarity as to how the prohibition of activities of unregistered public associations set out in article 7 (2) of the 2014 Act on Public Associations is to be applied in practice, the Party concerned has not yet demonstrated that it complies with article 3 (4)

of the Convention;

(c) In the light of the Committee’s findings in subparagraphs (a) and (b) above, the Committee finds that the Party concerned has not yet demonstrated that it complies with the obligation contained in article 3 (1) of the Convention to provide a clear, transparent and consistent framework to implement the provisions of article 3 (4) and (9) of the Convention; ACCC/C/2014/118 Decision VII/8r Ukraine Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Taking note of the findings of the Committee on communication ACCC/C/2014/118 concerning compliance by Ukraine with respect to the production-sharing agreements and mineral extraction permits for the Yuzivska and Oleska oil fields,

Encouraged by the willingness of Ukraine to discuss in a constructive manner with the Committee the compliance issues in question,

148. The Committee finds that: 1. Endorses the findings of the Committee that:

(a) By failing to provide access upon request (a) By failing to provide access upon request to to either the full text of the productioneither the full text of the production-sharing sharing agreements for the Yuzivska and agreements for the Yuzivska and Oleska oil Oleska oil fields, or redacted versions thereof, fields, or redacted versions thereof, the Party the Party concerned failed to comply with concerned failed to comply with article 4 (1) of article 4 (1) of the Convention; the Convention;

(b) By failing to carry out a public (b) By failing to carry out a public participation participation procedure meeting the procedure meeting the requirements of article 6 requirements of article 6 regarding the draft regarding the draft production-sharing production-sharing agreements for the agreements for the Yuzivska and Oleska oil Yuzivska and Oleska oil fields, the Party fields, the Party concerned failed to comply concerned failed to comply with article 6 (1) with article 6 (1) (a) of the Convention;

(a) of the Convention;

(c) By establishing a legal framework in which

(c) By establishing a legal framework in which public participation under article 6 of the public participation under article 6 of the Convention will only be carried out once a Convention will only be carried out once a production-sharing agreement is already at the production-sharing agreement is already at implementation stage, the Party concerned the implementation stage, the Party failed to comply with article 6 (4) of the concerned failed to comply with article 6 (4) Convention; of the Convention;

(d) By denying a non-governmental

(d) By denying a non-governmental organization meeting the requirements of organization meeting the requirements of article 2 (5) standing to challenge the legality article 2 (5) standing to challenge the legality of a production-sharing agreement subject to of a production-sharing agreement subject to

ACCC Report MOP Decision article 6, the Party concerned failed to comply article 6, the Party concerned failed to comply with article 9 (2) of the Convention; with article 9 (2) of the Convention;

(e) By maintaining a legal framework in which (e) By maintaining a legal framework in which cassation appeals under article 9 (2) of the cassation appeals under article 9(2) of the Convention must be brought within 20 days of Convention must be brought within 20 days of the date on which the contested judgment the date on which the contested judgment was was drawn up, rather than from the date on drawn up, rather than from the date on which which the claimant received the full text of the claimant received the full text of that that judgment, the Party concerned fails to judgment, the Party concerned fails to comply comply with the requirement that review with the requirement that review procedures procedures under article 9 (2) be fair in under article 9 (2) be fair in accordance with accordance with article 9 (4) of the article 9 (4) of the Convention; Convention;

(f) By failing to ensure that the requested

(f) By failing to ensure that the requested environmental information was disclosed environmental information was promptly after the court had ordered it to be disclosed promptly after the court had disclosed, the Party concerned failed to comply ordered it to be disclosed, the Party with the requirement in article 9 (4) of the concerned failed to comply with the Convention to provide an adequate and requirement in article 9 (4) of the Convention effective remedy for the review of to provide an adequate and effective remedy environmental information requests; for the review of environmental information requests.

ACCC/C/2013/90 Decision VII/8s United Kingdom ACCC/C/2015/131 ACCC/C/2016/142 Acting under paragraph 37 of the annex to its

decision I/7 on the review of compliance,

Mindful of the conclusions and recommendations set out in its decision VI/8k with regard to compliance by the United Kingdom of Great Britain and Northern Ireland, Taking note of the reports of the Compliance Committee under the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters on the implementation of decision VI/8k concerning compliance by the United Kingdom of Great Britain and Northern Ireland,3 the findings of the Committee on communication ACCC/C/2013/90 in connection with a concrete production plant and associated settlement lagoons at a site adjacent to the River Faughan Special Area of Conservation, the findings of the Committee on communication ACCC/C/2015/131 regarding the redevelopment of a former hospital site, and the findings of the Committee on communication ACCC/C/2016/142 concerning access to justice relating to a public authority’s alleged failure to clear up litter,

Encouraged by the willingness of the United Kingdom of Great Britain and Northern Ireland to discuss in a constructive manner with the Committee the compliance issues in question,

Decision VI/8k

ACCC Report MOP Decision

1. Endorses the findings of the Committee with respect to decision VI/8k that:

(a) While welcoming the progress made in that direction, the Party concerned has not yet met the requirements of paragraphs 2 (a), (b) and

(d) and 4 with respect to England and Wales;

(b) While welcoming the progress made in that direction, the Party concerned has not yet met the requirements of paragraph 2 (a), (b) and

(d) with respect to Scotland;

(c) While welcoming the significant progress made in that direction, the Party concerned has not yet met the requirements of paragraph 2 (a), (b), (c) and (d) with respect to Northern Ireland;

(d) Since the Party concerned is no longer a member State of the European Union, the recommendation in paragraph 2 (e) is no longer applicable;

(e) The Party concerned has not yet met the requirements of paragraph 6, nor demonstrated any progress in that direction;

Communication ACCC/C/2013/90

167. The Committee finds that: 3. Endorses the findings of the Committee with respect to communication ACCC/C/2013/90 that:

(a) By only providing for public participation in the decision-making to permit the lagoons (a) By only providing for public participation in once they had already been constructed, the the decision-making to permit the lagoons once Party concerned failed to meet the they had already been constructed, the Party requirement in article 6(4) to provide for early concerned failed to meet the requirement in public participation when all options are open; article 6 (4) to provide for early public participation when all options are open;

(b) By not providing the communicant with access to the DCO report prior to the decision (b) By not providing the communicant with to grant planning permission, despite the access to the development control-officer’s communicant’s multiple requests, the Party report prior to the decision to grant planning concerned failed to comply with article 6(6) of permission, despite the communicant’s multiple the Convention; requests, the Party concerned failed to comply with article 6 (6) of the Convention;

(c) By having in place a system through the combined operation of articles 67B(3) and (c) By having in place a system through the 83A of the Planning (Northern Ireland) Order combined operation of articles 67B (3) and 83A 1991 whereby activities within the scope of of the Planning (Northern Ireland) Order 1991 article 6 of the Convention that are whereby activities within the scope of article 6 themselves in breach of national law relating of the Convention that are themselves in to the environment are deemed to be lawful breach of national law relating to the and permitted without public participation Convention’s requirements, the Party meeting the Convention’s requirements, the concerned failed to comply with article 6 of the Party concerned failed to comply with article 6 Convention in its entirety; of the Convention in its entirety;

(d) By the court not undertaking its own assessment, based on all the evidence before (d) By the court not undertaking its own assessment, based on all the evidence before

ACCC Report MOP Decision it, of whether: it, of whether:

(i) The development was “likely to have (i) The development was “likely to have significant effects on the environment by significant effects on the environment by virtue virtue of factors such as its nature, size or of factors such as its nature, size or location”; location”;

(ii) The permit conditions could be (ii) The permit conditions could be implemented implemented in practice without adverse in practice without adverse environmental environmental impacts, but instead relying on impacts, but instead relying on the assessment the assessment of the public authority that of the public authority that took the contested took the contested decisions, the Party decisions, the Party concerned failed to provide concerned failed to provide for a review of the for a review of the substantive legality of those substantive legality of those decisions in decisions in accordance with the requirements accordance with the requirements of article of article 9 (2) of the Convention; 9(2) of the Convention;

(e) By maintaining a legal framework under (e) By maintaining a legal framework under which developers of proposed activities which developers of proposed activities subject subject to article 6 of the Convention are to article 6 of the Convention are entitled to a entitled to a full merits review of the decision full merits review of the decision on the on the proposed activity, but other members proposed activity, but other members of the of the public seeking to challenge the same public seeking to challenge the same decision

decision are not, the Party concerned fails to are not, the Party concerned fails to ensure ensure that review procedures under article that review procedures under article 9 (2) are 9(2) are fair as required by article 9(4) of the fair as required by article 9 (4) of the Convention; Convention;

(f) By failing to take effective enforcement action against the operator’s nonpermitted (f) By failing to take effective enforcement activities for so long that those activities were action against the operator’s non-permitted deemed lawful and could no longer be subject activities for so long that those activities were to either public participation in decisiondeemed lawful and could no longer be subject making under article 6 or access to justice to either public participation in decision-making under article 9(3), the Party concerned failed under article 6, or access to justice under to meet the requirements of article 3(2) to article 9 (3), the Party concerned failed to meet endeavour to ensure that its officials and the requirements of article 3 (2) to endeavour authorities facilitate the public’s participation to ensure that its officials and authorities in decision-making and access to justice facilitate the public’s participation in decisionunder the Convention; making and access to justice under the Convention;

(g) By not providing the communicant with access to the DCO report prior to the decision to grant planning permission, despite the (g) By not providing the communicant with communicant’s multiple requests, the Party access to the development control officer’s concerned failed to meet the requirements of report prior to the decision to grant planning article 3(2) to endeavour to ensure that its permission, despite the communicant’s multiple officials and authorities assist the public in requests, the Party concerned failed to meet seeking access to information and facilitate its the requirements of article 3 (2) to endeavour participation in decision-making under the to ensure that its officials and authorities assist Convention. the public in seeking access to information and facilitate its participation in decision-making under the Convention; the environment are deemed to be lawful and permitted without public participation meeting the Convention’s requirements, the Party concerned failed to comply with article 6 of the Convention in its entirety;

Communication ACCC/C/2015/131

174. The Committee finds that:

ACCC Report MOP Decision

5. Endorses the findings of the Committee with

(a) By failing to promptly make accessible respect to communication through its online planning register the ACCC/C/2015/131 that: documents related to a planning application that the Council was required by law to (a) By failing to promptly make accessible possess, the Party concerned failed to comply through its online planning register the with article 5 (3) (d) of the Convention; documents related to a planning application that the Council was required by law to

(b) By failing to make the screening opinion possess, the Party concerned failed to comply and planning permission easily accessible on with article 5 (3) (d) of the Convention; the Council’s online planning register in a time frame that would facilitate the application of (b) By failing to make the screening opinion national law implementing article 9 (2), the and planning permission easily accessible on Party concerned failed to comply with article 5 the Council’s online planning register in a time-

(3) (d) of the Convention; frame that would facilitate the application of national law implementing article 9 (2), the

(c) By maintaining an electronic database that Party concerned failed to comply with article 5 the Council holds out to be a “one-stop shop” (3) (d) of the Convention; to access all documents related to planning applications, when it in fact is not, the Party (c) By maintaining an electronic database that concerned fails to comply with the the Council holds out to be a “one-stop shop” requirement in article 5 (3) of the Convention to access all documents related to planning to ensure that the environmental information applications, when it in fact is not, the Party within the scope of article 5 (3) (d) is “easily concerned fails to comply with the requirement accessible”; in article 5 (3) of the Convention to ensure that the environmental information within the scope

(d) By maintaining a legal framework in which of article 5 (3) (d) is “easily accessible”; the time limit to bring judicial review is calculated from the date when the contested

decision was taken, rather than from when (d) By maintaining a legal framework in which the decision became known to the public, the the time limit to bring judicial review is Party concerned fails to comply with the calculated from the date when the contested requirement that review procedures in article decision was taken, rather than from when the

9 (2) be fair in accordance with article 9 (4) decision became known to the public, the Party of the Convention; concerned fails to comply with the requirement that review procedures in article 9 (2) be fair in

(e) By not ensuring that courts take into accordance with article 9 (4) of the Convention; account the stage of the proceedings when calculating the sum of costs to be awarded against an unsuccessful claimant in a (e) By not ensuring that courts take into procedure subject to article 9 of the account the stage of the proceedings when Convention, the Party concerned fails to calculating the sum of costs to be awarded comply with the requirement in article 9 (4) against an unsuccessful claimant in a procedure for such procedures to be fair, equitable and subject to article 9 of the Convention, the Party not prohibitively expensive; concerned fails to comply with the requirement in article 9 (4) for such procedures to be fair,

(f) Since the communicant was ordered to equitable and not prohibitively expensive; pay a costs order calculated on the basis of an hourly rate that was considerably higher than the actual contracted rate, the Party (f) Since the communicant was ordered to pay concerned failed to comply with the a costs order calculated on the basis of an requirement that cost orders in procedures hourly rate that was considerably higher than within the scope of article 9 (2) be fair and the actual contracted rate, the Party concerned equitable in accordance with article 9 (4) of failed to comply with the requirement that cost the Convention; orders in procedures within the scope of article

9 (2) be fair and equitable in accordance with

(g) By setting a significantly lower hourly rate article 9 (4) of the Convention; (i.e. less than one-tenth of the sum of a legally represented party) at which successful “litigants in person” are entitled to recover (g) By setting a significantly lower hourly rate their costs in procedures subject to article 9, (i.e. less than one-tenth of the sum of a legally the Party concerned fails to ensure that such represented party) at which successful

ACCC Report MOP Decision procedures are fair and equitable as required “litigants in person” are entitled to recover their by article 9 (4) of the Convention; costs in procedures subject to article 9, the Party concerned fails to ensure that such

(h) Since the Council was not aware that it procedures are fair and equitable as required was required to place screening opinions on by article 9 (4) of the Convention; the planning register within 14 days, it failed to abide by the Party concerned’s own pre- (h) Since the Council was not aware that it was action protocol, and it incorrectly and required to place screening opinions on the misleadingly replied to the communicant’s planning register within 14 days, it failed to access to information request, the Party abide by the Party concerned’s own pre-action concerned failed to meet the requirement in protocol, and it incorrectly and misleadingly article 3(2) to endeavour to ensure that its replied to the communicant’s access to public authorities assist the public to seek information request, the Party concerned failed access to justice in environmental matters. to meet the requirement in article 3 (2) to endeavour to ensure that its public authorities assist the public to seek access to justice in environmental matters

123. The Committee finds that:

Communication ACCC/C/2016/142

7. Endorses the findings of the Committee with

(a) By failing to ensure that applications for respect to communication litter abatement orders under section 91 EPA ACCC/C/2016/142 that: are not prohibitively expensive, the Party concerned fails to comply with article 9 (4) of (a) By failing to ensure that applications for the Convention;~ litter abatement orders under section 91 of the Environmental Protection Act 1990 are not prohibitively expensive, the Party concerned fails to comply with article 9 (4) of the Convention;

(b) By awarding significant costs against the communicant under section 64 (1) of the Magistrates’ Courts Act because he refused (b) By awarding significant costs against the the Council’s offer to settle, in circumstances communicant under section 64 (1) of the under which the communicant was entitled by Magistrates’ Courts Act because he refused the section 91 (12) of the Environmental Council’s offer to settle, in circumstances under Protection Act to apply for the recovery of his which the communicant was entitled under costs, the Party concerned failed to provide section 91 (12) of the Environmental Protection for a fair and equitable review procedure Act to apply for the recovery of his costs, the under article 9 (3) as required by article 9 (4) Party concerned failed to provide for a fair and of the Convention; equitable review procedure under article 9 (3)

as required by article 9 (4) of the Convention;

(c) By failing to consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers for members of (c) By failing to consider the establishment of the public to enforce contraventions of its law appropriate assistance mechanisms to remove on litter, the Party concerned has failed to or reduce financial barriers for members of the comply with article 9 (5) of the Convention. public to enforce contraventions of its law on litter, the Party concerned has failed to comply with article 9 (5) of the Convention;