High Court rules that a seven-year delay in providing environmental information violates the AIE Directive's timeliness obligation.

[2025] IEHC 593

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000355]

IN THE MATTER OF ORDER 84 OF THE RULES OF THE SUPERIOR COURTS AND IN THE

MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE

ENVIRONMENT) REGULATIONS 2007-2014

BETWEEN

PEOPLE OVER WIND

APPLICANT

AND

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

COILLTE CUIDEACHTA GHNÍOMHAÍOCHTA AINMNITHE, IRELAND AND THE ATTORNEY

GENERAL (BY ORDER)

NOTICE PARTIES

AND

RIGHT TO KNOW CLG (BY ORDER)

AMICUS CURIAE

Date of impugned decision: 19 December 2024

Date proceedings commenced: 14 March 2025

Date of main hearing: 20 October 2025

Date draft judgment circulated: 24 October 2025

JUDGMENT of Humphreys J. delivered on Wednesday 5 November 2025 (amended on

Wednesday 3 December 2025 and on Friday 8 May 2026)

“Environmental information should be made available to applicants as soon as possible

and within a reasonable time and having regard to any timescale specified by the

applicant”

[recital 13 to 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 (the AIE directive), emphasis added]

1. As a result of what the applicant calls “an endless process of request, refusal, appeal,

remittal” (submissions para. 62 – a characterisation naturally disputed by the commissioner), a

request for environmental information made under the AIE directive almost seven years beforehand

on 12 November 2018 remained outstanding as of the main hearing of this case on 20 October 2025.

The primary question in this Jarndyce v. Jarndyce of transparency is whether the procedure adopted

was contrary to that obligation of timeliness. That said, delay, where it occurs, tends to have many

causes, and it would be incorrect to attribute all, or even most, of the delay here to the

commissioner.

Judgment history

2. In Commissioner for Environmental Information v. Coillte Teoranta [2023] IEHC 227

(Unreported, High Court, 28 April 2023), which was a reference to the High Court made during the

course of consideration of the request now under discussion, Hyland J. clarified the scope of

exemptions under the European Communities (Access to Information on the Environment)

Regulations 2007 (S.I. 133 of 2007) (the AIE regulations), as amended by S.I. 662 of 2011, S.I.

615 of 2014 and S.I. 309 of 2018.

Facts

The first decision – 2019

3. On 12 November 2018, People Over Wind submitted a request to the notice party for access

to environmental information:

“regarding Coillte’s proposed windfarm at Cullenagh, County Laois:

• Details of the cost benefit analysis (or other economic analysis as applicable) used to

underpin the Cullenagh Co. Laois wind farm project.

• Details of all objectives/key drivers/reasons upon which the project is based or is designed

to facilitate (including short, medium, and long-term objectives).

• A statement explaining whether there are different versions of the business case. In the

instance that there are differing versions, I am requesting that all versions are supplied.

• All documentation that was submitted to Coillte Board to underpin the project.

• A copy of the decision of the Board to proceed with the project.

• A copy of all Board meeting minutes discussing the project.”

4. On 16 November 2018, Coillte informed the appellant that it considered the request to have

been made in too general a manner and invited the appellant to make a more specific request. In

particular, it invited clarification of the scope of the first four parts. The appellant replied on the

same day, offering the following modified version of the request:

“1. A copy of the cost benefit analysis (or other economic analysis if this exists) used to

underpin the Cullenagh Co. Laois wind farm project.

2. [removed]

3. A copy of the business case for the Cullenagh wind farm project, Co. Laois. (In the

instance that there are differing versions, I am requesting that all versions are supplied.)

4. All documentation that was submitted to Coillte Board regarding the Cullenagh wind farm

project, Co. Laois.

5. A copy of the decision of the Board to proceed with the project.

6. A copy of all Board meeting minutes discussing the project.”

5. On 11 December 2018, the request was refused. The applicant sought internal review on

10 January 2019.

6. On internal review, Coillte failed to make a decision within the time-limit leading to an

implied refusal on 9 February 2019.

7. The applicant appealed this refusal to the Commissioner for Environmental Information on

25 February 2019. On 22 November 2019, the commissioner decided as follows

(https://ocei.ie/en/ombudsman-decision/ee7d9-people-over-wind-and-coillte-teoranta-

coillte/#decision):

“Decision

Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary Coillte’s

decision by making the following findings:

· I find that Coillte was justified in refusing part 1 of the request on the ground that it did

not hold the requested information but it was not justified in maintaining that it did not hold

business cases or any Board decision to proceed with the project.

· I find that all interim decision(s) by Coillte’s Board to proceed with stages of the project

fall within the scope of the request.

· I find that the withheld information in records 1–5 is environmental information.

· I find that records 1-4 include business case and cost benefit analysis information within

the scope of the request.

· I find that the information in record 5 that relates to other projects is out of scope.

· I find that Coillte was not justified in refusing access to the in-scope information in record

5 on the ground of article 9(2)(d) of the AIE Regulations.

I expect Coillte to make a fresh decision on this request which will reflect these findings.”

8. This did not in itself direct the release of any documents but ultimately remitted the matter

requiring a fresh decision in the light of the findings.

The second decision – 2020

9. On 20 February 2020, Coillte again refused access. This was affirmed under internal review

on 26 March 2020.

10. This led to a further appeal to the commissioner on 27 April 2020 (out of time, but the

commissioner accepted it), which in turn led to the commissioner making a reference to the High

Court under reg. 12(9)(a) of the AIE regulations on 15 September 2021, concerning inter alia

whether exemptions under the Freedom of Information Act 2014 provided for legal protection of

confidentiality under reg. 8(a)(iv) of the AIE regulations. The High Court issued its ruling in a

judgment of 28 April 2023, referred to above.

11. The commissioner engaged in certain unilateral communications with Coillte during the

process. In mid-2024, the commissioner was minded to remit and emailed Coillte in the following

terms on 2 July 2024:

“From: OCEI Appeals;

Received: Tue Jul 02 2024 14:04:14 GMT+0100 (Irish Standard Time)

To: …;

Subject: Case Number: OCE-93414-J3Y7T8

Hi …,

In order to progress this appeal and to provide Coillte with additional time to consider the

different factors of the case, may I enquire if Coillte would be agreeable to have this case

remitted back to you for a fresh decision making process to be carried out? I am conscious

of the passage of time and also the outcome of the recent judgment of the High Court in

Commissioner for Information v People over Wind & Coillte [2023] IEHC 227 which may

impact on Coillte`s position on this case. A brief Decision by this Office remitting the case

back for a new decision making process would seem to be of benefit both to the appellant

and Coillte. I would appreciate if you could reply to this email by 09 July 2024 outlining how

you wish to proceed.

Regards, …”

12. In November 2024, the commissioner made a final decision to remit, reflected in a further

email from his deponent Ms O’Leary:

“From: OCEI Appeals;

Received: Thu Nov 07 2024 10:16:34 GMT+0000 (Greenwich Mean Time)

To: …;

Subject: RE: Case Number: OCE-93414-J3Y7T8- Submissions

Hi …, We will go ahead and remit the case for a new decision. Thanks for your reply.

Regards, Julie”

13. The commissioner, on 19 December 2024, again annulled Coillte’s decision and remitted the

matter for a new internal review. The impugned decision (https://www.ocei.ie/en/ombudsman-

decision/a4b98-people-over-wind-and-coillte/#decision) states:

“Decision

34. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul

Coillte’s decision to refuse access to the information at issue. I direct Coillte to carry out a

fresh internal review decision-making process in respect of the information at issue.”

14. By this stage, the underlying planning permission to which the information related had

lapsed.

15. The applicant became aware of communications with Coillte upon receiving extracts from

the commissioner’s file on 24 January 2025, after the impugned decision had already been made.

16. It is this commissioner’s decision that is now challenged (as will have been apparent, the

challenge is by judicial review rather than appeal).

The third decision – 2025

17. Coillte then made a further internal review decision on 18 March 2025. This new decision

relies substantially on the same grounds for refusal of the information as the second decision of 26

March 2020, save that there is no longer reference to the Freedom of Information Act 2014.

18. On 17 April 2025, People Over Wind appealed that decision to the commissioner.

Submissions were received from the parties and the final decision as of the hearing date was due by

31 October 2025.

19. I agree as a factual description with the submission by the commissioner that “this was

ultimately an exercise of the commissioner’s discretion in good faith” – but the issue is essentially

the impact of the obligation of timeliness on the postulated discretion.

20. Separately, the commissioner decided that another appeal, Right to Know & the Department

of Housing, OCE-127779-J9Y4Q0, should be the lead case on commercial confidentiality. The

existence of a separate lead case was not part of the reasoning for the contested decision. That

appeal was lodged on 31 August 2022 (after the first appeal in 2019 following the first decision in

the present matter). The commissioner decided that that appeal should be the lead case on

commercial confidentiality in or about September 2024, prior to the contested remittal (following

the second decision) in December 2024. The lead case was decided on 11 September 2025:

https://ocei.ie/en/ombudsman-decision/5c932-right-to-know-clg-the-department-of-housing-local-

government-and-heritage-the-department/. The commissioner’s evidence was that “that appeal

required extensive submissions from the parties and the consideration of a number of novel legal

issues by the Commissioner. In effect, the Department of Housing appeal was the lead case on the

application of the 2023 judgment insofar as it related to commercial confidentiality. The records in

that case originated from Bord na Mona and that decision sets out how the Commissioner approaches

commercial confidentiality claims by non-FOI bodies. ... Once the Commissioner had decided on his

approach to commercial confidentiality in that case, he was quickly able to apply it in the case the

subject of this judicial review.”

21. The commissioner’s decision on appeal from Coillte’s third decision was delivered on 24

October 2025: https://ocei.ie/en/ombudsman-decision/be0ea-people-over-wind-and-coillte/. The

conclusion was:

“Decision

219. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary

Coillte’s decision. I affirm Coillte’s decision under article 9(1)(c) of the AIE Regulations to

refuse access to certain information, namely: Category B.

220. I annul Coillte’s decision under articles 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE

Regulations to refuse access to the remaining information at issue, namely: Category A. I

direct the release of that information, subject to the redaction of certain information which

does not fall within the scope of this review.”

22. That is a final decision (subject to potential appeal to the court) not involving further remittal.

Procedural history

23. The proceedings were issued on 14 March 2025.

24. Leave was granted on 24 March 2025.

25. The matter was listed for mention on 7 April 2025. I directed that Ireland and the Attorney

General be added as notice parties (although they did not in fact participate in the hearing).

26. The matter was listed for callover on 29 September 2025, and papers were in order as of

that date.

27. As previously in such cases, I considered that it would be helpful for me to prepare an issue

paper. Accordingly on 6 October 2025, I requested the parties, unless they thought that the issues

could not be encompassed within the paper, prepare replies (1 paragraph per question per party) to

each of the issues, and have such document uploaded by 09:30 on Tuesday 7 October 2025.

28. The matter was heard on 20 October 2025. The applicant and commissioner participated in

the hearing. Coillte were there with an essentially watching brief but did not make submissions.

The State did not participate. Judgment was reserved at the end of that hearing. I express thanks

to trial participants insofar as they endeavoured to assist the court.

29. On 24 October 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors, subject to usual ground rules.

30. The mention date to review matters following the foregoing was to be 3 November 2025. In

the meantime the applicant helpfully identified a typo. Coillte had a minor drafting query. The

commissioner also referenced typos and had additional points which I reference elsewhere in this

judgment.

31. On 3 November 2025, I sought to clarify with the parties a couple of matters, particularly:

(i) the fact that I had attempted at the hearing to refer the possibility of a reference –

I deal with that below; and

(ii) issues regarding the existence of a separate lead case on commercial confidentiality.

32. On foot of that discussion the draft judgment was amended and the first published version

of the judgment was issued on 5 November 2025.

33. Subsequent to that, the commissioner’s submissions were suggestive of an amendment, so

this involved a first amendment to the judgment on 3 December 2025.

34. This was followed by a No. 2 judgment [2026] IEHC 68, a No. 3 judgment being a formal

judgment for reference [2026] IEHC 69, and the registration of the reference as Case C-96/26.

Following those further procedural developments it became apparent to me that the question of

what had caused the delay in the matter had not in fact been fully argued because the various

potential confounding aspects had not been fully identified. That required the reference to be put

on hold while the matter was considered further, but holding a reference for more than a brief period

is somewhat inconvenient from the CJEU’s point of view so on foot of correspondence from that

court, the reference was withdrawn by letter of 30 April 2026. The foregoing necessitates this

second amended version, which may in due course be followed by amended versions of subsequent

judgments and a final order for reference, subject to such further consideration as the matter may

warrant.

35. On 30 April 2026, 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.

36. Any comments must be emailed to the court and uploaded to ShareFile in writing by the

notified deadline, and should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

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

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

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

(d) any redaction of personal information that the party wishes to request;

(e) 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; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(h) any other 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.

37. 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 specified period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are required 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. Health Service Executive [2023] IESC 11 (Unreported, Supreme

Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps “serious

error, to which lawyers are prone, to approach any such case on the tacit assumption that only

procedures which approximate to a criminal trial are fair, and anything which departs from that is

somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

38. Draft judgments are not public domain materials and, while they can be shared between the

lawyers concerned and their clients, subject to the following, it is inappropriate for any person to

refer to them for any purpose other than to assist the court in relation to the finalisation of the

formal judgment. Therefore anyone with information as to the text, content or proposed outcome

of any draft is required not to publish or transmit such information to others save solely by way of

private transmission for the legitimate purposes of assisting in the finalisation of the judgment and

subject to a similar restriction on any recipient. Trial participants should take reasonable steps to

keep drafts confidential. On this topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58,

[2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication of draft

judgments is in the interests of the administration of justice; see also Baigent v. Random House

Group Ltd [2006] EWHC 1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R.

(Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy

[2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey Vos MR; Davies

and Dingemans LJJ. concurring); Public Institution for Social Security v. Banque Pictet & Cie SA and

others [2022] EWCA Civ 368, [2022] 3 WLUK 291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler

LJJ. concurring); Itkin v. Wood [2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).

The contents of this paragraph constitute an immediately effective direction of the court to the

parties and anyone having notice of the draft judgment with effect from the date of circulation of

the draft.

39. The deadline for such comments from the parties was to be 16:00 on 5 May 2026.

Comments were as follows:

(i) applicant – email of 1 May 2026 proposing addition of a mention date (which has

been added below);

(ii) commissioner – email of 5 May 2026 – no changes;

(iii) Coillte – no comments, not getting involved in the potential reference;

(iv) State – no response; and

(v) RTK – no response.

Relief sought

40. The reliefs sought are as follows:

“1. A Declaration that the Respondent is obliged to make a decision on the merits of the

Applicant’s appeal, on the basis of the material before it, under Article 12 of the AIE

Regulations.

2. An Order of Certiorari quashing the decision dated 19 December 2024 annulling the

decision of the Notice Party and directing it to carry out a new internal review decision

making process in respect of the information (‘the Information’) at issue under the Access

to Information on the Environment request dated 12 November 2018 (‘the 2018 AIE

Request’) (‘the Decision’).

3. If necessary, an Order extending the time for the making of an appeal against the

Decision pursuant to Order 84 Rule 21(3) or Order 84C Rule 2(5)(b) of the Rules of the

Superior Courts.

4. Such Declaration(s) of the legal rights and/or legal position of the Applicant and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the Respondent as this Honourable Court considers

appropriate.

5. An Order 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(3) and (4) of the Aarhus Convention, apply to these

proceedings.

6. Such further or other relief as to this Honourable Court doth seem fit and meet.

7. An Order providing for the costs of and ancillary to these proceedings.”

Grounds of challenge

41. The core grounds of challenge are as follows:

“DOMESTIC LAW GROUNDS

1. The Decision is unlawful and ultra vires the Respondent where the Respondent

annulled the decision of the Notice Party and directed it to carry out a fresh internal review

of the decision, without reviewing the decision of the Notice Party, as it is required to do,

under Regulation 12(5)(a) of the AIE Regulations.

2. The Decision is unlawful in the circumstances where the respondent failed to adhere

to basic levels of fair procedures, in particular by engaging directly with the Notice Party as

to their preferred decision, without informing the Applicant that such communications were

occurring and without allowing the Applicant an opportunity to address the submissions of

the Notice Party.

3. The Decision is unlawful where the Respondent remitted the Appeal to the Notice

Party, where the Notice Party had failed to demonstrate that there was sufficient basis to

refuse the release of the environmental information sought and, therefore, failed to disturb

the presumption that the environmental information should be released to the Applicant.

4. The Decision is unlawful where the Respondent failed to provide any, or any

adequate, reasons for remitting the 2018 AIE Request to the Notice Party, in particular where

the Notice Party had failed to demonstrate that there was sufficient basis to refuse the

release of the environmental information sought and where the request had been previously

remitted to the Notice Party in 2019.

5. The Decision is unlawful and ultra vires the Respondent where Respondent erred in

law by repeatedly remitting the 2018 AIE Request to the Respondent thereby failing to

provide the Applicant with a remedy or a timely remedy for the vindications of its rights to

the environmental information under Irish Law.

EUROPEAN LAW GROUNDS

6. The Decision is invalid where the Respondent failed to provide adequate and effective

remedies for the Applicant, by repeatedly remitting the 2018 AIE Request to the Notice Party

and failing to direct the Notice Party to provide the information to the Applicant.

7. The Decision is invalid where the Respondent failed to provide for timely procedures,

as required by Article 9(4) of the Aarhus Convention, whether it is applied indirectly to

interpret the AIE Regulations, or whether it is applied directly, when read in conjunction with

Article 47 of the Charter of Fundamental Rights of the European Union (‘CFR’).

8. The Decision is invalid where the Respondent failed to provide fair procedures, as

required by Article 9(4) of the Aarhus Convention and Article 47 CFR, during the course of

the appeal, in particular by excluding the Applicant from the decision making process through

phone calls and emails made directly to the Notice Party, without reference or regard to the

substantial and procedural rights of the Applicant.”

The impugned decision

42. The impugned decision provides as follows (emphasis added):

“Analysis and Findings

29. Coillte is refusing access to the information at issue contained in all 17 records identified

under articles 8(a)(iv) and 9(1)(c), and, in all the records apart from record 5, under 9(2)(d)

of the AIE Regulations. These provisions must all be read alongside article 10 of the AIE

Regulations.

30. Following the judgment of the High Court on 28 April 2023 referred to above and

the reactivation of the appeal with this Office, Coillte was invited to make updated

submissions to this Office. It took some time for this Office to receive any response

from Coillte, which contributed to the regrettable delay in progressing this appeal. I wish

to note that in future, where there are repeated delays in responding to requests for

submissions, this Office will consider simply proceeding to a final decision where appropriate.

31. In light of subsequent discussion between Coillte and this Office and given the findings

of the High Court, I have decided that the most appropriate course of action to take in this

case is to annul Coillte’s decision and direct it to carry out a fresh internal review decision

making processing respect of the information at issue. I understand that this will be

frustrating for the appellant as it causes further delay in resolving this appeal and I wish to

apologise for this. This delay was caused in part by the large backlog of cases that

this Office is dealing with, and we are taking steps to ensure that this backlog is dealt

with in the coming months. However, on the whole, I consider that the most efficient

way of progressing this appeal at this point is to now require Coillte to carry out this new

internal review process within a defined time period, and that the AIE regime as a whole is

best served by this outcome. It will be open to the appellant to appeal again to this Office

should it remain unsatisfied with the outcome of this new internal review.

32. As indicated, I am directing Coillte to provide the appellant with a new internal review

decision under article 11 of the AIE Regulations. For the sake of completeness, I wish to

note that Coillte asked this Office if the matter could be remitted to original decision stage,

rather than internal review decision stage, which Coillte referred to as a ‘carrying out [of]

an analysis of the February 2020 decision making process.’ I wish to emphasise that in

carrying out its fresh internal review decision making process, Coillte can decide to affirm,

annul, or vary its decision dated 20 February 2020.

33. Furthermore, I note that in my decision in case OCE-143997-R9Q9V8 dated 29 February

2024, I explained this Office’s current approach to the remittal of cases. Article 12(3) of the

AIE Regulations allows for a decision made by a public authority under article 11 of the AIE

Regulations (i.e. an internal review decision) to be appealed to my Office. Article 12(5) of

the AIE Regulations provides that I may review the decision of the public authority and

affirm, vary or annul the decision concerned, specifying the reasons for my decision. I

therefore consider that where I annul a decision of a public authority, this only has the effect

of annulling the internal review decision, not the original decision. Accordingly, I can only

remit this matter to internal review decision stage and the next step is for Coillte to carry

out a fresh internal review decision making process. In doing so, should Coillte wish to rely

on any exemption provision provided for in article 8/9 of the AIE Regulations, it must fully

set out its reasons for reaching its conclusions as well as, where relevant, its considerations

of article 10 of the AIE Regulations, including paragraphs (3), (4), and (5). The appellant

will have a right of appeal to this Office if it is not satisfied with Coillte’s new internal review

decision.

34. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul

Coillte’s decision to refuse access to the information at issue. I direct Coillte to carry out a

fresh internal review decision-making process in respect of the information at issue.”

The issues

43. It seems to be in the nature of AIE cases that the issues as described in the pleadings and

as overlain by submissions take on a life of their own leading to a spiral of every-increasing

complexity. This case might not be an exception. In an attempt to avoid that, I proposed an issue

paper whereby we could try to distil the issues into the following:

(i) what precise provisions of Aarhus and the AIE directive were engaged in terms of

the performance of the commissioner’s functions when considering the appeal giving

rise to the remittal decision;

(ii) are the proceedings moot/futile;

(iii) was there a breach of fairness in communicating with Coillte without copying such

communications to the applicant;

(iv) did the commissioner have jurisdiction to remit the appeal to Coillte (in the absence

of justification from Coillte for non-release and/or a merits review by the

commissioner);

(v) if the commissioner did have such jurisdiction in principle, was there a lack of

reasons for the remittal;

(vi) if the commissioner did have such jurisdiction in principle, was the remittal here a

breach of the right to a timely/ expeditious/ effective remedy; and

(vii) what relief would be appropriate if the matter is not moot/futile and the applicant

succeeds on one or more of (iii)-(vi)?

Architecture of the legislation and provisions of Aarhus/AIE directive engaged

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

“(i) What precise provisions of the Aarhus Convention and the AIE Directive were

engaged in terms of the performance of the commissioner’s functions when considering the

appeal giving rise to the remittal decision?

Applicant

Aarhus Convention: Article 9, in particular Article 9(1) and 9(4);

AIE Directive, in particular Articles 6(2) and (3).

The Commissioner ought to, but did not consider the following provisions in the performance

of his functions:

Aarhus Convention, Articles 4(3)(c), 4(4)(a) and (d), 4 last indent

AIE Directive: Recital 16, Articles 3(5)(c), 4(2)(a), (d) and (f), and the last indent of Article

4(2).

Commissioner

The right of access to justice in relation to environmental information is contained in Article

9(1) of the Aarhus Convention. It is submitted that the Commissioner is ‘another

independent and impartial body established by law’ for the purpose of the last sentence of

Article 9(1). This is reflected in, and given effect in EU law through, Article 6(2) of the AIE

Directive. This obliges the Commissioner to review the decision of Coillte. However, in line

with the principle of national procedural autonomy, the specific powers granted to the

Commissioner are those set out in the AIE Regulations, being a matter of domestic law.”

45. I am inclined to agree with the commissioner that in considering an appeal as here, he is

acting under art. 9(1) (emphasis added):

“1. Each Party shall, within the framework of its national legislation, ensure that any person

who considers that his or her request for information under article 4 has been ignored,

wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt

with in accordance with the provisions of that article, has access to a review procedure

before a court of law or another independent and impartial body established by law.

In the circumstances where a Party provides for such a review by a court of law, it shall

ensure that such a person also has access to an expeditious procedure established by law

that is free of charge or inexpensive for reconsideration by a public authority or review by

an independent and impartial body other than a court of law.

Final decisions under this paragraph 1 shall be binding on the public authority holding the

information. Reasons shall be stated in writing, at least where access to information is

refused under this paragraph.”

46. The concept of an “expeditious” procedure in its terms applies either to the reconsideration

stage (internal appeal) or review by an independent body, and overall only where the domestic law

provides for review by a court (rather than by an independent body). So it is a possibly limited

obligation at least in the way it is phrased.

47. That said, there is an obligation of timeliness deriving from art. 9(4) (emphasis added):

“4. In addition and without prejudice to paragraph 1 above, the procedures referred to in

paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including

injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively

expensive. Decisions under this article shall be given or recorded in writing. Decisions of

courts, and whenever possible of other bodies, shall be publicly accessible.”

48. The commissioner didn’t dispute that there was an obligation of timeliness (although he

noted the issue about whether art. 9(4) was directly effective or just subject to an interpretative-

compliance-where-possible obligation).

49. I am also inclined to agree with the commissioner that his role in dealing with an appeal is

the function reflected in art. 6(2) of the directive (emphasis added):

“Article 6

Access to justice

1. Member States shall ensure that any applicant who considers that his request for

information has been ignored, wrongfully refused (whether in full or in part), inadequately

answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5,

has access to a procedure in which the acts or omissions of the public authority concerned

can be reconsidered by that or another public authority or reviewed administratively by an

independent and impartial body established by law. Any such procedure shall be expeditious

and either free of charge or inexpensive.

2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure

that an applicant has access to a review procedure before a court of law or another

independent and impartial body established by law, in which the acts or omissions of

the public authority concerned can be reviewed and whose decisions may become final.

Member States may furthermore provide that third parties incriminated by the disclosure of

information may also have access to legal recourse.

3. Final decisions under paragraph 2 shall be binding on the public authority holding the

information. Reasons shall be stated in writing, at least where access to information is

refused under this Article.”

50. Article 6(1) as transposed in Ireland relates to the internal review procedure (“by that …

public authority”). Article 6(2) most logically therefore relates to the review of that decision. That

is primarily conducted by the commissioner (it may include appeal to the court and a reference of a

point of law to the court, and possibly may include judicial review, but I don’t need to decide that).

51. The timeliness requirement under art. 9(4) is not apparently transposed by reference to a

specific operative provision of the directive, but as noted above recital 13 provides that:

“(13) Environmental information should be made available to applicants as soon as possible

and within a reasonable time and having regard to any timescale specified by the applicant.”

52. The requirement of timeliness does not however need a specific legislative anchor because

it derives in any event from art. 6(1) European Convention on Human Rights and/or art. 47 of the

Charter of Fundamental Rights of the European Union as well as the obligation to interpret domestic

law in line with Aarhus. Ultimately the commissioner didn’t dispute the principle of the duty of

timeliness but rather the issue was its implications in terms of the decision whether to remit or

decide.

Mootness/ futility and remedies

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

“(ii) Are the proceedings moot/futile?

Applicant

The proceedings are neither moot, nor futile in the sense of the authorities. There are two

live controversies still in existence, being (i) the right of the Applicant to access the

environmental information requested, and (2) the question as to whether the Commissioner

had jurisdiction to remit the appeal to the notice party. Insofar as the current appeal process

is underway, this is an alternative remedy. However, if the Applicant is correct, and there

was no jurisdiction to remit, then the current appeal process is ultra vires, and there is in

fact no alternative remedy.

Commissioner

The Commissioner’s position is that the proceedings are moot for the reasons set out in the

legal submissions. Since the institution of the proceedings, there has been an internal review

decision in respect of the matter remitted and that decision has itself been appealed to the

Commissioner. At this stage, the investigator in the OCEI has issued a draft decision to the

parties in respect of the appeal, has received submissions on the draft decision, and expects

to issue a final decision in early course. While the question of mootness is ultimately a

matter for the Court, in these circumstances, it is submitted that the proceedings – and, in

particular, the reliefs sought by the Applicant – are moot in the sense that they serve no

useful purpose.”

54. This is related to the question of remedies. The parties’ positions on that are as follows:

“(vii) What relief would be appropriate if the matter is not moot/futile and the applicant

succeeds on one or more of (iii)-(vi)?

Applicant

If the Applicant establishes that there was no jurisdiction to remit, the decision to remit

ought be quashed. If, however, the Commissioner was to establish that there was a

jurisdiction to remit, but the Applicant succeeded on any or all of issues (iii) to (vi), the

appropriate remedy would be a declaration by the Court as to manner in which the

Applicant’s rights were infringed.

Commissioner

This question highlights in simple terms why the Commissioner contends that the substance

of this appeal is moot. As noted above, at the time of answering these questions, the

investigator in the OCEI has issued a draft decision to the parties in respect of the appeal,

has received submissions on the draft decision, and expects to issue a final decision in early

course. In the circumstances, any relief that the Court might order would be limited to

declarations as to the law. For the reasons set out more fully in the legal submissions, the

Commissioner’s position is that there is no basis for any such relief.”

55. In fairness to the applicant, the objection that the case is moot can’t be correct insofar as

the complaint is that there was no jurisdiction to remit. If that is correct, then anything that

happened thereafter is a nullity so can’t be taken into account for the purposes of rendering the case

moot.

56. The applicant itself says (as set out further below) that if (which is denied) there was

jurisdiction to remit, the appropriate remedy is declaratory. That knocks out the bogeyman scenario

raised by the commissioner that existing otherwise lawful steps would be set aside or interfered

with. And in a situation such as we have here, declaratory relief is the only sensible relief – if the

complaint is undue delay which has already occurred (as opposed to delay which is likely to occur),

the obvious way to mark that is by declaration.

57. The fact that the impugned decision was not stayed, so matters have moved on, is certainly

a factor against certiorari but it is not logically a complete bar to declaratory relief.

58. A public body cannot force an applicant to abandon a point by stealth merely by making a

fresh decision which then has to be addressed, even by place-holding appeal. The court has to

exercise any discretion in a manner that preserves the right to an effective remedy. When the whole

purpose of the case is to complain about an endless pass-the-parcel approach by the commissioner,

it would sabotage the inquiry into that to regard the remittal, and inevitable appeal without prejudice

to the decision on remittal, as terminal to the attempt to challenge the matter having been remitted

in the first place.

59. A reason why the request for at least declaratory relief should be regarded as not being

moot is that it comes squarely within the category of cases that evade review yet are capable of

repetition. Given that an administrative decision following remittal can be made within weeks, yet

pursuing a judicial review is going to take months, there are no realistic circumstances whereby

(without perhaps a stay, which on the face of it would be counter-productive to the ultimate aim of

actually getting some environmental information), an applicant can get ahead of a remittal decision

to which she objects. That is a process that “evades review” if the term has any meaning at all (see

Southern Pacific Terminal Co. v. Interstate Commerce Co. (1911) 219 U.S. 498 at p. 501 per

McKenna J. cited in Condon v. Minister for Labour [1981] I.R. 62, [1979] 12 JIC 1102 at p. 72 per

Kenny J.; Grant v. Governor of Cloverhill Prison [2015] IEHC 768, [2015] 11 JIC 2709 (Unreported,

High Court, 27 November 2015); J.A. (Cameroon) v. Governor of Cloverhill Prison (No. 3) [2017]

IEHC 611, [2017] 10 JIC 2012 (Unreported, High Court, 20 October 2017); An Taisce v. Minister for

Housing (No. 4) [2024] IEHC 472 (Unreported, High Court, 30 July 2024) at 42). Saying that the

applicant can’t have a judicial review because it isn’t coming on quickly enough to get decided in

advance of the administrative decision on remittal is like Senator Crown’s Swiftian suggestion

(Seanad Debates, 6 June 2012) that demand for termination of pregnancy could be reduced by

having a ten-month waiting list.

60. In the environmental context, a similar notion to that propagated by the commissioner here

was forcefully demolished by Fordham J. in the recent decision of R. (Badger Trust) v. Natural

England [2025] EWHC 2761 (Admin), [2025] 10 WLUK 453, [2025] Costs L.R. 1751, [2026] A.C.D.

4, [2026] 4 C.L. 5, emphasis added:

3. Judicial review is supposed to be “a speedy audit of the legality of public decisionmaking”:

see R (TPL1) v SSD [2025] EWHC 1729 (Admin) at §86. There are protections within the

judicial review process for public authorities. Sometimes, the invocation of those protections

ends up slowing down the speedy audit and increasing the costs. That is illustrated by the

present case. Natural England is the defendant public authority. It argued that it could

administer a clean knock-out blow warranting the refusal of permission for judicial review,

either because the modest threshold of arguability was not crossed, or because the case

lacked utility by reason of its backward looking focus and plans for less badger culling in

future. That invocation ultimately failed. With the benefit of oral submissions at a renewal

hearing on 15 May 2025, I granted permission for judicial review. The substantive hearing

is scheduled for 2 days in December 2025.

4. The target for challenge is a decision taken on 3 May 2024, to issue or renew 26

supplementary badger cull licences authorising farmers to kill badgers in the period from 1

June 2024 to 30 November 2024. Judicial review is available for a decision of that nature.

But it is always unlikely that the speedy legal audit will be achieved prior to

implementation. And it is inherently unlikely that a Court would deal with the case by way

of interim relief, because that would mean blocking the implementation without resolving

the substantive legal issues. So it is always on the cards that judicial review will be

backward looking in this kind of case. That does not undermine the value of the legal

audit. Nor is that value necessarily a function of the outcomes of cases. The public interest

enterprise of judicial review accountability secures lawfulness. It promotes

discipline. It exposes unlawfulness. It promotes public confidence in public authority

decision-making.

61. Turning to the specific claims here, relief 1 seeks a declaration that the commissioner was

obliged to make a fresh decision on the material before him, but it doesn’t seem to be disputed that

Coillte was properly allowed to make further inputs in one form or another. In such circumstances

this relief can’t arise.

62. Relief 2 is also misconceived because the jurisdiction argument is unfounded (see below).

What that leaves is general declaratory relief (relief 4), which one cannot say is entirely pointless, if

nothing else because of the capable-of-repetition-but-evading-review doctrine.

63. As regards the process being ongoing as a reason for not granting any relief, that is often

(indeed normally) a valid objection but it has limited relevance if the complaint is delay. Further

procedures won’t improve the position insofar as delay is concerned.

64. Overall despite the factors canvassed, and somewhat anticipating the substantive discussion

below, there is nonetheless an element of the matter that should not be regarded as moot, namely

the correct approach to remittal versus decision.

Fairness

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

“(iii) Was there a breach of fairness in communicating with Coillte without copying such

communications to the applicant?

Applicant

Where the Commissioner proposed making a final decision on the appeal to it, and to remit

it to Notice Party, there was a breach of fairness in failing to seek the views of the Appellant

on the proposed course of action.

Commissioner

No. There was no breach of fair procedures. The communications with Coillte were

administrative in nature. In the exercise of his functions, the Commissioner must regularly

communicate with public authorities, applicants and third parties on administrative matters

arising in the course of appeals. If the Commissioner was obliged in every such instance to

consult and communicate with all parties, it would not be possible to discharge the

Commissioner’s functions in a timely and efficient manner. In this particular case, as is

apparent from the correspondence, the Commissioner was mindful of the need to afford

Coillte an opportunity to make submissions in light of the High Court judgment in OCEI v

Coillte. The only question was the appropriate mechanism for doing so. There was no

prejudice to the Applicant in the approach taken and the Applicant’s right to fair procedures

in the process as a whole have been fully guaranteed, as the subsequent developments in

the case confirm.”

66. In the circumstances here and given the stated reasons for the remittal, and the position of

the commissioner at that time, it is unlikely to vanishing point that the decision to remit would have

been different had the applicant been copied on the correspondence with Coillte.

67. Furthermore the nature of the communications was, as the commissioner puts it, fairly “non-

consequential”:

“98. However, the correspondence described in 515-19 of Ms. O'Leary's affidavit is

merely administrative, consisting primarily of requests for extensions of time. On 2 July

2024, the Commissioner formed the view that remittal would be the best way to progress

the appeal, and communicated this to Coillte. This was not a request for permission. In this

regard, it is confirmed at 56 of Carol Daly's affidavit, sworn on behalf of Coillte, that Coillte

did not request or express a preference for remittal.”

68. So I don’t think there is a demonstrated breach of fairness in entertaining unilateral

communications of this sort with the public body. On the one hand, the process of debate and

comment cannot go on forever – in the EIA context there is no right to comment on a public body’s

comments – see judgment of 1 August 2025, Asociación Autonómica Ambiental e Cultural Petón do

Lobo v Dirección Xeral de Planificación Enerxética e Recursos Naturais, Eurus Desarrollos Renovables

SLU, C-461/24, ECLI:EU:C:2025:620. On the other hand, best practice certainly suggests that it

would be prudent to maximise a sharing of comments between process participants to the extent

practicable. The outer reaches of the extent to which this is a legal requirement can be left to

another case because I am of the view that the inconsequential and administrative nature of the

exchanges did not engage the most exacting strictures of fair procedures and in any event a further

round of commentary would not have made any difference here.

69. On the point that fair procedures depend on context, to repeat points cited in a slightly

different context above, O'Donnell J. put the overall proposition in a characteristically penetrating

way, if I can respectfully say so, in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, p. 780:

“the requirement of fair procedures can differ depending on the issue to be determined, and

it is a mistake to assume that a single one size fits all procedure must be applied, and

perhaps a serious error, to which lawyers are prone, to approach any such case on the tacit

assumption that only procedures which approximate to a criminal trial are fair, and anything

which departs from that is somehow dubious. "

70. That is the fallacy of the “entitlement to elaborate procedures at every point” (O’Donnell C.J.

(Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC

11 (Unreported, Supreme Court, 10 May 2023) at para. 39).

71. Insofar as the applicant tries to resuscitate this as a European law point, the commissioner

answers that fairly devastatingly at para. 106 of submissions:

“Furthermore, the Applicant has not produced any authority for the proposition that the fair

procedures requirements of this Article or of Article 47 of the Charter are more onerous than

those existing under Irish law.”

72. Ultimately the communications were essentially administrative. There was no identified

prejudice or unfairness to the applicant in any contacts with Coillte. There isn’t anything to this

point, although the commissioner won’t mind me encouraging a process of copying both sides where

appropriate and possible and subject to avoiding unnecessary delay. An important qualification on

the need for everyone to be copied with everything is that there are no absolutes – there is a trade-

off between excessive application of the criminal standard at each step along the way with the

obligation of timeliness. Every cc to an email may invite a response, and every response creates

administrative friction and delay depending on how relentless one’s correspondent may be. Such

delays add up.

Jurisdiction

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

“(iv) Did the commissioner have jurisdiction to remit the appeal to Coillte (in the absence

of justification from Coillte for non-release and/or a merits review by the commissioner)?

Applicant

The Commissioner had no jurisdiction to remit the appeal to Coillte. There is no express

statutory power to remit, and there is no implied power to remit. Even if there had been

justification from Coillte for the non-release of the material, or a merits based review, the

Commissioner ought have made a decision on the appeal as opposed to remitting the matter.

Commissioner

Yes. For the reasons set out in the Commissioner’s legal submissions, the jurisdiction of the

Commissioner under Article 12(5) of the AIE Regulations must be understood to encompass

a jurisdiction to remit. If it were otherwise, this would significantly limit the powers of the

Commissioner under Article 12(5), particularly in cases of annulment or variation of a

decision under appeal, and would undermine the effective discharge of the Commissioner’s

statutory functions. It is not clear from the Applicant’s submissions whether it is contended

that the Commissioner did not have jurisdiction to remit in the circumstances of this case or

at all. Insofar as the circumstances of this case are concerned, the effect of the

Commissioner’s annulment of Coillte’s internal review decision was to create a void. While

the Applicant contends that, in annulling such a decision, the Commissioner must order the

release of all of the underlying environmental information, as explained at §44 of the

Commissioner’s legal submissions, there are circumstances where such a course of action is

neither possible nor appropriate. In such circumstances, it is appropriate – and in line with

the scheme and purpose of the AIE Regulations – for the Commissioner to remit the matter.”

74. An important point to note here is that the applicant did not challenge the AIE regulations

as being inconsistent with the directive or the Aarhus convention. So if the regulations provide wide

powers that encompass the possibility of remittal, we have to work with that for the purposes of the

present case. Any argument that such powers are contrary to EU law at the level of principle so as

to render the regulations invalid does not arise on these pleadings. An argument that the Aarhus

convention and/or the directive preclude remittal as an absolute can’t get the applicant very far in

the absence of challenge to widely-phrased regulations.

75. The complaint that the commissioner lacked jurisdiction in terms of domestic law is based

on a misreading of reg. 12(5) of the AIE regulations, which provides:

“(5) Following receipt of an appeal under this article, the Commissioner shall—

(a) review the decision of the public authority,

(b) affirm, vary or annul the decision concerned, specifying the reasons for his or her

decision, and

(c) where appropriate, require the public authority to make available environmental

information to the applicant, in accordance with these Regulations.”

76. On its face, this provides a power to annul the decision, and a power (not an obligation) to

require the making available of information.

77. The commissioner therefore may simply annul a decision. Where there is no power to remit

expressly provided, it follows by necessary implication that the public body is required to pick

matters up from where the process went wrong. The fact that the commissioner uses the term

remittal is on one view semantic and declaratory – that is simply a description of the statutory

consequence of the exercise of the power to quash without more rather than a separate and stand-

alone power. To put it another way, the commissioner can’t simply quash an internal review

decision leaving nothing in its place with no procedure for reconsideration. The procedure follows

as a matter of law – the commissioner calls it remittal but it would be the same even without that

label.

78. The commissioner can make a final decision by affirming the public body, or can vary a

decision so as to come up with a different final outcome but if he simply quashes it (in whole or in

part) the necessary legal implication is that the decision-maker is to that extent required to pick up

the pieces and make a fresh decision. The use of the term is essentially a corollary of and

consequence of the powers expressly conferred rather than some kind of separate free-standing

power in itself.

79. This is different from certiorari, where there is no obligation on the court to ensure that there

is a substantive decision on the merits (quashing a decision without remittal, leaving simply nothing

in its place, is a valid outcome), and where there is a recognised power to remit, so non-exercise of

that power means that the matter is at an end. There is no implicit right to keep going with the

administrative process even where the court has failed or refused to exercise its supervisory power

to remit. (People who occasionally argue that certiorari merely “leaves a vacuum” miss the point

that the court stands in a supervisory role – bodies that become subject to that process are no

longer entirely at large to act independently of the court – and that declining to exercise a power

has consequences just as exercising it does.) Here, the AIE regulations do not provide an express

remittal power so it is implicit that reconsideration is mandatory on the part of the public body if

(and to the extent that) its decision is annulled (unless the decision is varied so as to finalise the

matter).

80. The applicant complains that the commissioner did not carry out a “review”, but if the

commissioner is not obligated by the AIE regulations to make a fresh substantive decision then the

review can be carried out on the papers without coming to conclusions on the merits, or indeed

without requiring fresh merits-based justifications from the public body. So those arguments are

based on a false premise. The commissioner clearly did review the papers with a view to seeing

what order under para. (c) was required – that is the “review” contemplated. It does not

automatically mean a review coming to a merits conclusion. If the commissioner doesn’t need to

come to a merits conclusion in exercising the jurisdiction to annul without a fresh decision, then the

presumption in favour of release just doesn’t arise. As the commissioner submits:

“60. In the present case, the Commissioner was not engaged in any detailed

consideration of the exemptions applied by Coillte. Instead, the Commissioner decided it

was necessary for Coillte to issue a fresh decision following its consideration of the findings

contained in the 2023 High Court reference case. The presumption in favour of disclosure

can never apply in the abstract to mandate release.”

81. Such a jurisdiction makes sense in a context where the public body dismissed the application

on a threshold issue without getting into merits. The commissioner gives four examples of such

threshold dismissals:

“(i) The Commissioner may annul the decision of a body which considers that it is not a

public authority. In circumstances where it is likely that the body has not considered any

other issue under the Regulations including the nature of the request, the Commissioner can

direct the body to carry out a fresh decision-making process in relation to the appellant's

request in accordance with the Regulations (see e.g. Right to Know CLG and Celtic Roads

Group (Dundalk) DAC (CRG), OCE-93421-T8F8W7, 21 September 2020)

[https://ocei.ie/en/ombudsman-decision/342dc-right-to-know-clg-and-celtic-roads-group-

dundalk-dac-crg/].

(ii) The Commissioner may annul the decision of a public authority which finds that

information sought from it is not environmental information within the meaning of the

definition in Article 3(1) of the AIE Regulations. The Commissioner may direct the public

authority to carry out a fresh internal review decision, and the public authority will then have

to decide whether exemptions apply: see e.g. Mr X and The Irish Aviation Authority,

OCE146456-H7Z7K5, 16 April 2025 [https://ocei.ie/ga/cinneadh-ombudsman/b491f-mr-x-

and-the-irish-aviation-authority/].

(iii) The Commissioner may annul the decision of a public authority which refuses a

request as manifestly unreasonable in accordance with Article 9(2)(a). In such

circumstances, the public authority may not have assessed the information in detail to

consider whether exceptions apply, as to do so would defeat the purpose of the exception.

An appropriate course of action for the Commissioner may be to annul the decision and

direct that the public authority give fresh consideration to the request: see e.g. Right to

Know CLG and Transport Infrastructure Ireland, OCE-108782-X6NOD1, 28 October 2021

[https://ocei.ie/en/ombudsman-decision/3b24b-right-to-know-clg-and-transport-

infrastructure-ireland/].

(iv) The Commissioner may annul the decision of a public authority to the effect that it

does not hold information in accordance with Article 7(5) of the AIE Regulations if the

Commissioner is of the view that reasonable steps have not been taken to identify all

information relevant to the request. In such circumstances, the Commissioner may direct

that a new internal review decision should issue which sets out in detail all of the searches

undertaken: see Mr X and Irish Rail, OCE-156354-Z3K4X2, 11 July 2025

[https://ocei.ie/en/ombudsman-decision/b8c12-mr-x-and-irish-rail/].”

82. It is interesting to note that in the Right to Know CLG and Transport Infrastructure Ireland,

OCE-108782-X6NOD1 decision, the commissioner rejected this argument on the same basis I am

doing so and using the same language of “consequence” (emphasis added):

“58. ... In my view, remission of decisions to a public authority for fresh consideration is not

the exercise of a power as such and therefore does not require express statutory

provision. Rather, it is the natural result of my decision to annul or vary a public

authority’s decision, in circumstances where I have not required the public authority to

provide the information under article 12(5)(c) of the AIE Regulations. In other words, the

annulment or variance of the public authority’s decision leaves a void, which must (in the

absence of any requirement as to specific action) necessarily be filled through a fresh

decision by the public authority, in order to vindicate the rights of the appellant under the

AIE Regulations.

59. As set out above, I consider that it is not appropriate in this case to exercise the power

in article 12(5)(c) of the AIE Regulations. The natural consequence of this conclusion is

that TII must give fresh consideration to the request, in accordance with the AIE

Regulations.”

83. The only contextual caveat I would add is that the notion that the process must continue to

avoid leaving a void only applies where there is an obligation for a substantive decision to be made,

no express provision for remittal, and an appellate decision that leaves that obligation unsatisfied.

That’s the void. The void theory has no relevance to judicial review, where generally quashing

something with no substantive decision is a lawful option, and where the court has a general

supervisory role and an express power to remit, so failure to exercise that power means that the

administrative process is at an end.

84. Having regard to all of the foregoing, the applicant’s argument under this heading must fail

as pleaded.

Reasons

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

“(v) If the commissioner did have such jurisdiction in principle, was there a lack of

reasons for the remittal?

Applicant

Whereas the Applicant does not accept that there was jurisdiction to remit, the only reason

given was ‘on the whole, I consider that the most efficient way of progressing this appeal at

this point is to now require Coillte to carry out this new internal review process within a

defined time period, and that the AIE regime as a whole is best served by this outcome.’

The Applicant does not accept that this could be a proper reason for remittal.

Commissioner

No. The Commissioner issued an 8 page decision and §§30-33 of that decision contained

the reasons for remittal. These are summarised in §27 of the Commissioner’s legal

submissions.”

86. There is nothing in the reasons complaint, once we correctly understand the process at issue

under the AIE regulations as stated above. The reasons comply with Connelly v. An Bord Pleanála

[2018] IESC 31, [2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 (Clarke C.J.). Nobody could be in any

doubt as to the commissioner’s rationale – matters had moved on significantly since the previous

decision, and remittal was in the interests of efficiency bearing in mind backlogs generally and delays

with Coillte’s replies in particular.

87. The real issue is not whether the reasons were lacking, but whether they were valid. We

now turn to that question.

Timeliness

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

“(vi) If the commissioner did have such jurisdiction in principle, was the remittal here a

breach of the right to a timely/ expeditious/ effective remedy?

Applicant

In the circumstances of this case, the remittal was clearly a breach of the right to a timely,

expeditious and effective remedy. Whereas the Applicant accepts that each case must be

considered on its own facts, what happened in this case was not timely and in addition, did

not give the Applicant an effective remedy.

Commissioner

No. In the particular circumstances of this case, the Commissioner’s decision to remit was

consistent with bringing the process to a conclusion in as timely, efficient and effective a

manner as possible.

While pleaded as both a domestic and EU law issue, the question of timeliness is going to be

heavily influenced by how the directive and convention are to be interpreted, particularly

where there is no apparent basis to suggest a more stringent test arising from Irish

constitutional or administrative law.”

89. The issue of the exact relationship between remittal and delay is going to need to be teased

out further with the parties which I intend to do following the delivery of the second amended version

of this judgment.

90. The compatibility of what the applicant argues to be potentially unnecessary recourse to the

remittal procedure (at least as operated here) with the obligation of timeliness is the central problem

of this case, and overlaps with the question already referred to the CJEU in Case C-330/25, RTÉ.

Accordingly it makes sense for this case to join that discussion in Luxembourg. As the commissioner

expressed a query about this – very mildly it has to be said – it may be helpful if I set out some

general legal principles in relation to reference to the CJEU and then turn to the questions here.

Reference to the CJEU – general principles

91. Some relevant legal principles which have been rehearsed in previous caselaw concerning

references to the CJEU that arise here include the following:

(i) The primary criteria for the admissibility of a reference are those set out in art. 267

TFEU, namely that the reference relates to interpretation or validity of EU law (i.e.,

not its application), and that the answer to the question is “necessary” for a decision

by the domestic court.

(ii) The mere fact that a party contends that the dispute gives rise to a question

concerning the interpretation of EU law does not mean that the court or tribunal

concerned is compelled to consider that such a question has been raised within the

meaning of art. 267 TFEU (judgment of 6 October 1982, Srl CILFIT and Lanificio di

Gavardo SpA v Ministry of Health, 283/81, EU:C:1982:335, para. 9; judgment of 6

October 2021, Consorzio Italian Management and Catania Multiservizi SpA v Rete

Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand Chamber) at para.

54).

(iii) As to the first condition for admissibility, a reference (even by an apex court) is only

admissible on an issue of interpretation or validity of EU law, not its application in

a particular case: art. 267 TFEU. Thus a reference doesn’t arise if “no acute point

of interpretation is really presented by [the matter]: it really shades into issues of

fact and the application of established principles of EU law”: An Taisce v. an Bord

Pleanála & Ors. (No. 3) [2022] IESC 8, [2022] 2 I.R. 173, [2022] 1 I.L.R.M. 281 per

Hogan J. at para. 156 (O’Donnell C.J., Dunne, Charleton and Woulfe JJ. concurring).

(iv) As to the second condition, a reference (even by an apex court) is not admissible

if it is not “necessary” as specified in art. 267 TFEU, and thus “would not affect in

any way the outcome of the case actually before the Court (Consorzoio Italian

Management e Catania Multiservizi and Catatani Multiservizi Case C-561/19 at para.

34)”: Friends of the Irish Environment v. Legal Aid Board [2023] IECA 63

(Unreported, Court of Appeal, Murray J., 22 March 2023) (Barniville P. and Noonan

J. concurring) at 12.

(v) In particular therefore, a reference does not arise if the point falls outside the

pleaded case as such an issue is not capable of affecting the result. Similarly it

does not arise if premised on incorrect factual assertions: “the questions proposed

by the applicant does not arise for determination on the facts here and is premised

on a characterisation of the facts that is wholly at odds with the findings made by

the High Court and/or is based upon a submission with regard to access to justice

which is made without evidence and contrary to that which was submitted to the

High Court. No issue of European Union law therefore arises which is necessary to

resolve in order to determine this application for leave”: Eco Advocacy v. An Bord

Pleanála [2025] IESCDET 74 (Dunne, Hogan and Donnelly JJ., 4 June 2025), para.

27. Thus, a court (including an apex court) is not required to refer a point that is

subject to a rule of “of inadmissibility specific to the procedure before that court or

tribunal, subject to compliance with the principles of equivalence and effectiveness

(see, to that effect, judgments of 14 December 1995, Jeroen van Schijndel and

Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor

Fysiotherapeuten, C‑430/93 and C‑431/93, EU:C:1995:441, para. 17, and of 15

March 2017, Lucio Cesare Aquino v Belgische Staat, C‑3/16, EU:C:2017:209, para.

56).”

(vi) Likewise, there is no jurisdiction to refer a question if the procedure before the

referring court or tribunal has already been concluded (judgment of 13 April 2000,

Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge

des sociétés de basket-ball ASBL, C‑176/96, EU:C:2000:201, para. 19).

(vii) The obligation to refer (even for an apex court) does not apply if a point is acte

clair/ acte éclairé: judgment of 6 October 2021, Consorzio Italian Management

and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19,

ECLI:EU:C:2021:799 (Grand Chamber) at para. 33.

(viii) The court (particularly an apex court: judgment of 6 October 2021, Consorzio Italian

Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19,

ECLI:EU:C:2021:799 (Grand Chamber) at para. 51) should give reasons for

declining to refer a question: Ullens de Schooten and Rezabek v. Belgium App.

nos. 3989/07 and 38353/07 (ECHR, 20 September 2011).

(ix) Subject to the foregoing, national courts, in their capacity as courts responsible for

the application of EU law (see, to that effect, judgment of 6 October 1982, Srl CILFIT

and Lanificio di Gavardo SpA v Ministry of Health, 283/81, EU:C:1982:335, para. 7),

have the most extensive power, or even the obligation, to make a reference to

the Court if they consider that a case pending before them raises issues involving

an interpretation or assessment of the validity of the provisions of European Union

law and requiring a decision by them (see, to that effect, judgment of 16 January

1974, Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und

Futtermittel, 166-73, ECLI:EU:C:1974:3, [1974] ECR 33, paras. 2 and 3; judgment

of 12 June 2008, Skatteverket v Gourmet Classic Ltd., C‑458/06,

ECLI:EU:C:2008:338, [2008] ECR I‑4207, para. 20; Opinion 1/09 (Agreement

creating a Unified Patent Litigation System) of 8 March 2011, ECLI:EU:C:2011:123,

para. 83; and judgment of 6 October 2021, Consorzio Italian Management and

Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19,

ECLI:EU:C:2021:799 (Grand Chamber), para. 28).

(x) It is solely for the national court or tribunal before which the dispute has been

brought, and which must assume responsibility for the subsequent judicial decision,

to determine, in the light of the particular circumstances of the case, both the need

for and the relevance of the questions which it submits to the Court (judgments

of 26 May 2011, Stichting Natuur en Milieu and Others v College van Gedeputeerde

Staten van Groningen and College van Gedeputeerde Staten van Zuid-Holland,

C‑165/09 to C‑167/09, ECLI:EU:C:2011:348, para. 47 and the caselaw cited; of 9

September 2015, X v Inspecteur van Rijksbelastingdienst and T.A. van Dijk v

Staatssecretaris van Financiën, C‑72/14 and C‑197/14, ECLI:EU:C:2015:564, para.

57; and of 12 May 2021, YL v Altenrhein Luftfahrt GmbH, C‑70/20,

ECLI:EU:C:2021:379, para. 25).

(xi) The system of direct cooperation between the Court of Justice and the national

courts, established by art. 267 TFEU, is completely independent of any initiative

by the parties (see, to that effect, judgments of 18 July 2013, Consiglio nazionale

dei geologi v Autorità garante della concorrenza e del mercato and Autorità garante

della concorrenza e del mercato v Consiglio nazionale dei geologi, C‑136/12,

ECLI:EU:C:2013:489, para. 28 and the caselaw cited; of 3 June 2021, Bankia SA v

Unión Mutua Asistencial de Seguros (UMAS), C‑910/19, EU:C:2021:433, para. 22;

and of 6 October 2021, Consorzio Italian Management and Catania Multiservizi SpA

v Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand Chamber)

at para. 53).

(xii) The determination and formulation of the questions to be put to the Court

devolve upon the national court or tribunal alone and that the parties to the main

proceedings may not change their tenor (see, to that effect, judgment of 18 July

2013, Consiglio nazionale dei geologi v Autorità garante della concorrenza e del

mercato and Autorità garante della concorrenza e del mercato v Consiglio nazionale

dei geologi, C‑136/12, ECLI:EU:C:2013:489, para. 29 and the caselaw cited).

(xiii) While in general a non-apex court is permitted rather than required to refer a

question to the CJEU, such a requirement arises in special situations, specifically

where the court is of the view that an EU act is unlawful (judgment of 11 November

1997, Eurotunnel SA and Others v SeaFrance, C-408/95, ECLI:EU:C:1997:532 at

19; judgment of 14 December 2000, Masterfoods Ltd v HB Ice Cream Ltd., C-

344/98, ECLI:EU:C:2000:689; judgment of 11 January 2024, Friends of the Irish

Environment, C-330/22, ECLI:EU:C:2024:19 at 43). A similar approach would

appear to apply where a non-apex domestic court is of the view that following an

otherwise binding domestic decision would be contrary to EU law: “... it should be

added that it is apparent from settled case-law that a national court which has

exercised the discretion conferred on it by the second paragraph of Article 267 TFEU

must, where appropriate, disregard the rulings of a higher national court if it

considers, having regard to the interpretation given by the Court [i.e., the

CJEU], that they are not consistent with EU law, if necessary refusing to apply

the national rule requiring it to comply with the decisions of that higher court. That

solution also applies where an ordinary court is bound, under national procedural

rule, by a decision of a national constitutional court which it considers to be contrary

to EU law (see, to that effect, judgment of 22 February 2022, RS (Effect of the

decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraphs 75 and

76)”: judgment of 4 September 2025, „R” S.A. v AW „T” sp. z o.o., C-225/22,

ECLI:EU:C:2025:649 at 61 (emphasis added).

Reference to the CJEU in the present case

92. On foot of the draft judgment the commissioner commented as follows:

“3. The Commissioner notes the Court’s decision in principle to refer the question set

out at paragraph 81 [of the draft judgment] to the Court of Justice and fully respects the

discretion of the Court to make a reference under Article 267 TFEU if it considers that a

decision on the question is necessary to enable it to give judgment.

As the issue of a possible reference did not arise at the hearing and was not the subject of

any submissions, the Commissioner would, however, make the following observations in

case of any assistance to the Court.”

93. The words “did not arise” are just a slight bit of an exaggeration, I’m afraid. At the hearing

I raised a question about joining the discussion in the RTÉ case (where a related issue had been

argued). That obviously implicitly meant in Luxembourg – that’s where that discussion is to be had

and where it would be joined. On 3 November 2025, when the matter (post the draft judgment)

was listed for mention, there wasn’t any dispute about that. The commissioner then changed tack

to say that there was no “detailed” discussion of a reference – that’s certainly correct but it doesn’t

matter. If something is put on the table, even briefly, and if parties understand that it’s on the

table, as they did here, then it’s then up to them to say whether that is problematic or not and if so

why. One can give an opportunity to comment – but one is not obliged to provide spoon-feeding:

Y.Y. v. Minister for Justice and Equality (No. 1) [2017] IEHC 176 (Unreported, High Court, 13 March

2017), para. 95 (this point wasn’t affected by the judgment in Y.Y. v. Minister for Justice and Equality

[2017] IESC 61, [2018] 1 I.L.R.M. 109 (O’Donnell J.)); Friends of Killymooney Lough v. An Coimisiún

Pleanála (No. 1) [2025] IEHC 407 (Unreported, High Court, 16 July 2025). However that’s just for

clarification – nothing turns on it especially (a) because the draft judgment procedure gives plenty

of opportunity for comment before any decision is made, an opportunity that has now been availed

of, (b) in view of the fact that I have now considered the further points the commissioner wanted to

make (which I will come to proximately and which are not reasons meaningfully weighing against a

reference) and (c) more significantly given the foregoing principles in view of the fact that the court

can and to a degree must act independently of the parties when it comes to a CJEU reference.

94. The commissioner went on:

“First, as neither Article 6 of Directive 2003/4, Article 9 of the Aarhus Convention nor Article

47 of the Charter specifically addresses the modalities to be adopted at the national level to

comply with the obligations under those provisions (including in particular obligations to act

in a timely manner), it appears to the Commissioner that these are in principle matters that

lie within the national procedural autonomy of Member States and furthermore are highly

fact- and context-specific.”

95. I am not sure that this is as obvious as the commissioner believes. There must be a

respectable argument that the EU law requirement of timeliness has some implications for whether

matters can be remitted just because domestic law permits that or whether there has to be a

rigorous interrogation of which would be the timeliest (not just the most administratively

convenient, resource-economical or subsidiarity-focused) way to finalise matters. Or in

simpler terms – the issue is the legal test for remittal. Should it be reasonably wide and discretionary

or should the bar be set higher in terms of avoiding delay being the primary if not sole metric. That’s

the whole point of the proposed reference and the related reference in RTÉ in the analogous context

of appeals to the court. If the commissioner thinks that is not a valid point he can say that in the

proposed answer to the questions. As far as being fact-specific is concerned, that’s the

commissioner’s analysis of the problem, but the rephrased questions to the CJEU below will identify

to what extent the alleged critical specific facts are properly legally material to the correct approach.

96. The next point is:

“Second, having regard to the history of the matter and the Court’s draft findings on the

question of timeliness, the Commissioner is mindful of the further delay that may follow

upon the making of a reference, particularly where, as noted in the draft judgment, the

underlying process is ongoing and there may be an appeal in due course against the third

decision of the Commissioner.”

97. That sounds very impressive in isolation but it is detached from the analysis of remedies in

the judgment. I am rejecting the claim for certiorari. So the only relief on the table is a declaration

in relation to delay that has already occurred. “[F]urther delay” is not going to be an obstacle to

deciding on that proposed declaration. Nor is any potential appeal against the commissioner’s third

decision. That can proceed independently of the examination (by the CJEU) of the legal questions

of interpretation relevant to whether there was undue delay in remitting the second decision to

Coillte.

98. The astute reader will have noticed something confounding about the fact that the

commissioner argued both that the matter is already wholly moot and that a reference would cause

further delay in an ongoing live process. Those inconsistent postures do have something in common

however – they are both wrong. What’s more, they are wrong for the same reason – the issue of

delay at the stage of the second decision is properly addressed by declaratory relief, if relief arises,

and not certiorari, which could indeed be rendered moot, or could be something that might give rise

to delay. Neither of those scenarios arise here.

99. All that said, I am grateful for the commissioner’s further comments because on further

reflection they point to the desirability of separating the questions to draw a distinction between the

general postulated duty and the allegedly countervailing considerations as identified explicitly or

implicitly in the reasoning of the impugned decision here.

100. The matter was therefore to proceed for the time being on the basis of the following

referrable questions, subject to further consideration subsequent to the issue of the second amended

version of this judgment:

First question

Does Article 6(1) and/or (2) of Directive 2003/4 and/or Article 9(1) and/or (4) of

the UNECE Convention on Access to Information, Public Participation in Decision-

making and Access to Justice in Environmental Matters done at Aarhus on 25 June

1998 (the Aarhus Convention) and/or Article 47 of the Charter of Fundamental

Rights of the EU insofar as the foregoing relate to the requirement that remedies

be timely and/or expeditious and/or effective have the effect that a competent

authority designated by domestic law acting under Article 6(2) of Directive 2003/4

and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the

Charter of Fundamental Rights of the EU is required to exercise its functions under

national law to the maximum extent possible so as to enable it to make a final

decision on the request to which the review procedure or judicial procedure

relates, including by coming to findings of fact and evaluative judgements after

making a full and ex nunc examination of all the relevant elements of fact and law

submitted by the parties, in a context where:

- remittal of the matter to the public body for further fact-finding or evaluative

judgements or a fresh decision would be more likely than not to occasion

further delay which could jeopardise the timely and/or expeditious finalisation

of the outcome of the request for information (including by exacerbating a

delay that had already occurred) as compared with a counterfactual scenario

whereby the competent authority required the public body to set forth its

position within the context of the appeal to the competent authority itself

without remittal to the public body, or

- in particular, in addition to the foregoing, the decision has already been set

aside and remitted to the public body at a previous stage of the procedure?

Second question

If the answer to the first question is Yes, do those provisions have that effect

independently of:

(a) the existence or extent of backlogs of other decisions pending before the

competent authority;

(b) the administrative convenience and/or saving of resources for the competent

authority in directing remittal, and/or the desirability of having the public body

make a fresh decision in the light of an intervening domestic court decision,

prior to substantive review by the competent authority; and/or

(c) delay by the public body in responding to requests by the domestic competent

authority for submissions in the context of an appeal as a reason for favouring

a decision to remit the matter to the public body for a fresh decision rather than

for finalising the issue in the context of the appeal?

101. The identified questions are ones of interpretation of EU law rather than merely application

of such law, and the answers are not acte clair/ acte éclairé. The answers appeared necessary to

enable the court to give judgment on declaratory relief which is the only form of relief appropriate

in the circumstances. Therefore the questions appeared to meet the criteria for a potential reference.

As a matter of discretion I considered it appropriate to refer the questions in all of the circumstances

subject to the further consideration referred to above.

102. Certain procedural directions were appropriate having regard inter alia to the standard terms

in Eco Advocacy CLG v. An Bord Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High

Court, 27 May 2021) format with some modifications set out in the order below.

103. The final decision on the reference will be progressed in the following manner. Following

the present second amended judgment, the matter will be listed for mention (see below). I will then

give attention to whether the No. 2 judgment requires amendment. Issues regarding whether the

remittal caused delay have generally been removed from this judgment for the purpose of being

addressed in a more holistic manner in any amended No. 2 judgment. Depending on the outcome

of that (and the intention will be that if the No. 2 judgment is to be amended, the parties will be

able to comment on a draft first), a final decision can be made on whether to proceed with the

reference as drafted or in some other manner. The parties will not be compelled to take any

particular further steps unless invited to do so.

Order

104. For the foregoing reasons, the order made on 5 November 2025 was 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) joinder: the CJEU be invited to join the case with Case C-330/25, RTÉ;

(iii) notice to the State: the State not having participated in the hearing, the applicant

be directed to inform the CSSO of the opportunity to contribute to the order for

reference;

(iv) 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;

(v) 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;

(vi) 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;

(vii) submissions by parties to facilitate reference: the parties (including the State)

who wish to participate in the reference 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;

(viii) 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;

(ix) 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;

(x) papers for CJEU: the applicant 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;

(xi) 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;

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

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

(xiv) review of arrangements for reference: the matter be listed for mention on 1

December 2025.

105. By way of postscript, the matter will be listed for mention on 11 May 2026 to progress the

next steps as set out in para. 103 above.