High Court refers preliminary ruling questions on EU environmental information access directives to CJEU.

[2026] IEHC 69

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

(No. 3)

JUDGMENT of Humphreys J. delivered on Tuesday the 10th day of February 2026

Subject-matter of the dispute

1. This request for a preliminary ruling concerns the interpretation of 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 (Aarhus Convention).

2. The request is being made in proceedings concerning a challenge to a decision of the

Commissioner for Environmental Information (as the competent authority under domestic law acting

under Article 6(2) of Directive 2003/4 and/or Article 9(1) of the Aarhus Convention) to remit a

request for access to environmental information to the public body rather than decide on it himself.

3. The proceedings were issued on 14 March 2025, and heard on 20 October 2025. The

referring court gave an initial judgment on 5 November 2025, rejecting the domestic law grounds of

challenge and identifying two European law points arising in the balance of the proceedings. That

judgment was amended on 3 December 2025 to clarify the factual timeline. On 8 December 2025,

the amicus curiae was added to the proceedings.

4. In those circumstances the referring court is staying the proceedings and referring the

questions below to the Court of Justice for a preliminary ruling.

Legal context

Relevant European Union law measures

5. The primarily relevant EU law instruments are:

(i) Article 47 of the Charter of Fundamental Rights of the EU;

(ii) Article 6(1) and/or (2) of Directive 2003/4; and

(iii) Article 9(1) and/or (4) of the Aarhus Convention.

Relevant domestic law measures

6. 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 transpose Directive 2003/4 into Irish law. A consolidated version is at:

https://revisedacts.lawreform.ie/eli/2007/si/133/front/revised/en/html. It was not argued that

there was any material distinction between the wording of domestic law and the wording of the

Directive.

Facts

7. 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.

8. On 16 November 2018, Coillte informed the applicant that it considered the request to have

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

applicant replied on the same day, offering a modified version of the request.

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

10 January 2019.

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

implied refusal on 9 February 2019.

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

25 February 2019.

12. On 22 November 2019, the commissioner decided that Coillte was justified in refusing part

1 of the request on the grounds that it did not hold the requested information but generally remitted

the balance of the request back to Coillte for a fresh decision (see https://ocei.ie/en/ombudsman-

decision/ee7d9-people-over-wind-and-coillte-teoranta-coillte/#decision).

13. On 20 February 2020, Coillte made a fresh decision refusing access. This was affirmed under

internal review on 26 March 2020.

14. 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 regulation 12(9)(a) of the AIE regulations on 15 September 2021, concerning inter alia

whether exemptions under the Freedom of Information Act 2014

(https://revisedacts.lawreform.ie/eli/2014/act/30/revised/en/html) provided for legal protection of

confidentiality under regulation 8(a)(iv) of the AIE regulations.

15. The High Court decided this issue (Commissioner for Environmental Information v. Coillte

Teoranta & People Over Wind [2023] IEHC 227 (Unreported, High Court, Hyland J., 28 April 2023):

https://www2.courts.ie/acc/alfresco/7b8c99cc-e8a1-4190-8489-

200f1b0e3e92/2023_IEHC_227.pdf/pdf) in a judgment of 28 April 2023.

16. By late June 2024, or early July at the latest, the commissioner began to form the view

that the matter should be remitted again. On 2 July 2024, his office wrote to Coillte with the first

indication of this emerging preference as follows (emphasis added):

“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.”

17. In tandem with this, in September 2024, prior to the formal decision to remit this case to

Coillte, the commissioner identified a different case as the lead case on the relevant issues, i.e. the

commissioner identified an entirely different appeal as being the one in which the impact of the

decision referred to in paragraph 15 would be first applied. People Over Wind was not made aware

of the possibility of a different case being selected as the lead case at the time and its views were

not sought on this issue before the decision was made

18. In the view of the referring court, a decision to remit or otherwise delay the present matter

began to take shape from before 2 July 2024, and was in practice inevitable, given the stance

adopted by the commissioner, as soon as another case was selected as the lead case, namely from

September 2024. The formal decision to remit the present case was not taken until 19 December

2024, when the commissioner again annulled Coillte’s decision and remitted the matter for a new

internal review: (https://www.ocei.ie/en/ombudsman-decision/a4b98-people-over-wind-and-

coillte/#decision). This is the decision challenged in the main proceedings. The particularly notable

features of this decision are:

(i) The stated reason for the remittal was “efficiency” (which the referring court

interprets as involving administrative convenience rather than speed as such),

having regard to backlogs before the commissioner and to delays by Coillte in

responding to correspondence within the context of the appeal (delays that the

commissioner in effect permitted or tolerated).

(ii) The commissioner did not apply the test of whether remittal was actually the most

expeditious way to resolve the request for environmental information or whether

avoiding remittal was not reasonably possible.

(iii) The commissioner at paragraph 31 of the decision said (emphasis added): “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

[process] in 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.”

19. 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.

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

21. A final decision on the lead case, Right to Know v. Department of Housing (OCE-127779-

J9Y4Q0), was issued on 11 September 2025 (https://www.ocei.ie/ga/cinneadh-

ombudsman/5c932-right-to-know-clg-the-department-of-housing-local-government-and-heritage-

the-department/).

22. 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 to affirm Coillte’s decision of the AIE regulations to refuse access to certain

information, namely: Category B, and direct the release of information at Category A subject to the

redaction of certain information.

23. For the avoidance of doubt, the fact that there has been a decision on access to information

subsequent to the contested decision does not render the proceedings moot.

24. Irish law permits the grant of merely declaratory relief as an outcome of the judicial review

process (as opposed to coercive or imperative relief such as the quashing of a decision such as a

development consent). The jurisdiction to grant such declaratory relief was recently discussed by

the Supreme Court in B. v. The Child & Family Agency [2025] IESC 2 (Unreported, Supreme Court,

27 January 2025) (https://ww2.courts.ie/acc/alfresco/4a8af7af-4ddd-413c-8e61-

c4e82b0928b7/[2025]_IESC_2.pdf/pdf#view=fitH). At paragraph 46, Hogan J. identified what was

in essence a three-part test:

(i) “[t]here was a good reason to seek a declaration of this kind”;

(ii) “there was a real and substantial issue to be determined”; and

(iii) there was a party that “had a real interest in opposing the grant of any declaration”.

25. Declaratory relief is discussed further in Save The South Leinster Way v. An Coimisiún

Pleanála (No. 2) [2025] IEHC 541 (Unreported, High Court, 15 October 2025)

(https://ww2.courts.ie/acc/alfresco/76e4fb6f-c0a7-4d3f-b3be-

6053e1935d1a/2025_IEHC_541.pdf/pdf#view=fitH) at 119.

26. Among numerous examples where the referring court has granted a declaration as to breach

of law without quashing a decision, see the following recent cases:

(i) Byrne v. Fingal County Council [2025] IEHC 204 (Unreported, High Court, 11 April

2025) (https://ww2.courts.ie/view/Judgments/d0024230-4a89-4bd1-a45b-

21533a8fdf7d/e2a69639-7090-4a5a-95c6-

ed81999ae9cd/2025_IEHC_204.pdf/pdf);

(ii) Eco Advocacy CLG v. An Bord Pleanála [2025] IEHC 15 (Unreported, High Court, 15

January 2025) (https://ww2.courts.ie/view/Judgments/e148fb64-3b18-45b6-a5ad-

ea0f43434eda/b3cace91-ccb9-49d8-a880-eae70a432518/2025_IEHC_15.pdf/pdf);

(iii) Kennedy v. An Bord Pleanála [2024] IEHC 570 (Unreported, High Court, 7 October

2024) (https://ww2.courts.ie/view/Judgments/bf929f54-4a13-4976-86b5-

f4913e742912/66e84471-90f4-4a24-bad7-7427f26cf8f6/2024_IEHC_570.pdf/pdf);

(iv) Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300 (Unreported,

High Court, 20 May 2024) (https://ww2.courts.ie/view/Judgments/ebacb168-da91-

4b30-becd-ef4f279c5955/40a0d01a-94e5-4f12-b611-

b4390518f244/2024_IEHC_300.pdf/pdf); and

(v) Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27 (Unreported, High Court, 24

January 2024) (https://ww2.courts.ie/view/Judgments/8ddfaf53-e3f7-4485-a028-

647afd70dba7/15984f2b-d915-4c1b-87ba-30c2f14fb784/2024_IEHC_27.pdf/pdf).

27. The referring court would also point out that a very similar situation also arose in the

judgment of 6 July 2023, Hellfire Massy v Residents Association v An Bord Pleanála and Others, C-

166/22, ECLI:EU:C:2023:545, where the referring court had, prior to the request for a preliminary

ruling, rejected a challenge to the validity of the development consent (a decision which was upheld

by the Supreme Court in Hellfire Massy v. An Bord Pleanála [2022] IESC 38, [2024] 1 I.R. 386

(https://ww2.courts.ie/view/Judgments/5781f39e-8876-4b18-9cc9-81128b6afff9/cf9fa2a5-2a14-

451c-9469-9a8221967626/2022_IESC_38.pdf/pdf). The CJEU dismissed objections regarding the

inadmissibility of a subsequent reference on the grounds that an element of the case remained live

(see in particular paragraph 27). Here an element remains live, namely declaratory relief.

28. The referring court held in the judgment of 5 November 2025 that 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” (citing inter alia Condon v. Minister for Labour [1981] I.R. 62, [1979]

12 JIC 1102 at p. 72 per Kenny J.(https://justis.vlex.com/vid/793231669); Grant v. Governor of

Cloverhill Prison [2015] IEHC 768, [2015] 11 JIC 2709 (Unreported, High Court, 27 November 2015)

(https://ww2.courts.ie/viewer/pdf/97ec3f41-62f0-4ad0-bb3a-

feed7e048be7/2015_IEHC_768_1.pdf/pdf#view=fitH); J.A. (Cameroon) v. Governor of Cloverhill

Prison (No. 3) [2017] IEHC 611, [2017] 10 JIC 2012 (Unreported, High Court, 20 October 2017)

(https://ww2.courts.ie/viewer/pdf/80934599-4a2b-421d-bfd1-

819bb3c1b0d8/2017_IEHC_611_1.pdf/pdf#view=fitH); An Taisce v. Minister for Housing (No. 4)

[2024] IEHC 472 (Unreported, High Court, 30 July 2024)

(https://ww2.courts.ie/viewer/pdf/d7cb516c-7908-4bbe-9373-

c6a648d76db8/2024_IEHC_472.pdf/pdf#view=fitH) at 42.)

29. The referring court also relied on the judgment of Fordham J. in the recent decision of R.

(Badger Trust) v. Natural England [2025] EWHC 2761 (Admin) (Unreported, High Court of E&W, 28

October 2025) (https://www.bailii.org/ew/cases/EWHC/Admin/2025/2761.html), 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) [https://www.judiciary.uk/judgments/tpl1-

v-secretary-of-state-for-defence/] 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.”

30. The referring court finds that the decision to remit (compared with picking this case as the

lead case) did cause delay, as illustrated most obviously by the delay of about six weeks between

the decision on the lead case and that in this case. The very fact of remittal being an option given

serious consideration itself caused delay of unknown duration prior to September 2024 but probably

at least a couple of weeks given the ongoing nature of the deliberative process over a few months.

The decision to make a second remittal had the effect of postponing the final decision on the merits

from whenever the possibility of remittal hardened into a probability – some unspecified point

between July and September 2024, up to the decision October 2025, less whatever time would have

been taken to decide the issue without remittal. The net delay is uncertain but is likely to have been

more than de minimis and the referring court would estimate it at a minimum of two months on a

conservative calculation.

31. Turning now to the questions referred, it can be noted that Coillte did not participate in the

process of preparing the judgment for reference and did not suggest answers to the questions.

The first question

32. The first question is:

Do Article 6(1) and/or (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 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:

(a) 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

(b) 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?

33. The applicant’s proposed answer is Yes. Read together, Article 6(1)–(2) of Directive 2003/4,

Article 9(1) and (4) of the Aarhus Convention, and Article 47 of the Charter require the designated

authority to exercise its jurisdiction to the maximum extent to reach a final outcome by conducting

a full, ex nunc review of fact and law and, where the refusal is not justified, to make the necessary

evaluative findings and direct disclosure rather than remit. This flows from the principles of

effectiveness and timeliness, which demand a remedy that is practical and effective in securing

access to environmental information. Remittal is exceptional: it is compatible with EU law only

where it is shown to be the quickest lawful route to a final determination, and not where the authority

itself can decide following an ex nunc assessment.

34. The respondent’s proposed answer is that the commissioner agrees that he should exercise

his functions to come to a final decision on the request in a timely manner. This is what the

commissioner endeavours to do in all cases. However, the appropriate procedural steps for the

purpose of expeditiously finalising a particular decision will depend on the circumstances and context

of the individual case and cannot be determined in a general and abstract manner, whether by

reference to Article 6(1) and/or (2) of Directive 2003/4, Article 9(1) and/or 9(4) of the Aarhus

Convention, Article 47 of the Charter or otherwise. In certain cases, remittal of a matter to the

public body for further fact-finding or evaluative judgements or a fresh decision may be the most

appropriate course of action. With respect to the facts of this case, the commissioner has explained

his rationale for the second remittal to Coillte. In light of the important intervening development of

the judgment of the High Court in Commissioner for Environmental Information v. Coillte Teoranta

& People Over Wind [2023] IEHC 227 (Unreported, High Court, Hyland J., 28 April 2023), which on

any view had to be taken into account by the parties, the commissioner considered in good faith

that remittal would be the most efficient way of progressing the matter. In this regard, it is relevant

to note that the commissioner was dealing with numerous cases which raised similar issues.

35. The State’s proposed answer is that the answer to this question is No. The State parties

consider that the provisions referred to above do not have the effect that there is a general obligation

on a competent authority 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.

The State parties consider that having regard to the principle of national procedural autonomy, the

competent authority, when so empowered by national law, must have a discretion to determine its

own procedures and, when appropriate, to remit a matter to the relevant public body; and that this

is so even in circumstances where remittal of the matter for either further fact-finding or a fresh

decision would be more likely than not to occasion further time elapsing before the finalisation of

the outcome of the request for information. For the avoidance of doubt, the State parties do not

accept that additional time being expended consequent on an application pursuant to the Directive

being remitted would or would be likely to contravene EU law whether in the manner suggested in

the question, i.e. by failing to ensure an outcome to the request for information in a manner that is

timely and/or expeditious, or at all.

36. The amicus curiae’s proposed answer is Yes, the requirement for a ‘timely’ and/or

‘expeditious’ and/or ‘effective’ determination as required under Article 6(1) and/or 6(2) of Directive

2003/4 and/or Article 9(1) and/or 9(4) of the Aarhus Convention and/or Article 47 of the Charter of

Fundamental Rights of the EU has 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 the context referred to in the question.

37. The referring court’s proposed answer is Yes. The object and purpose of the Directive is to

provide timely access to environmental information. The practical value of information by definition

is diluted by delay, especially where activities that may have effects on the environment are

concerned. Accordingly the purpose of the Directive may be potentially frustrated if there can be a

process of remittal back to earlier stages of the decision-making process with a potential for further

appeal, unless it is not reasonably possible to do otherwise. This is particularly so where there has

already been a previous remittal in relation to a particular request for information. The context and

purpose of the Directive requires more of the national competent authority than merely to act

reasonably and in good faith; it must act in what it considers is likely to be the most expeditious

manner unless that is not reasonably possible. The fact that there are numerous cases raising a

similar point may justify the selection of one case as a lead case in many legal contexts, but given

the requirement of expedition in the access to information on the environment context, this must

operate in a way that does not cause delay to other cases. Insofar as concerns the State’s denial

that the outcome is not timely or expeditious, the referring court finds that a period for timely or

expeditious determination of the request had already expired by the time of the remittal, and that

the remittal caused at least some further delay above and beyond that which would have arisen had

the competent authority decided the matter itself without remittal. The referring court would also

lay particular stress on the undesirability of a second or subsequent remittal in the same case, which

by its very nature is inherently likely to compound delay. By analogy, the Council of Europe’s

European Commission for the Efficiency of Justice (CEPEJ) backlog reduction tool recommends, in

the judicial context, that one measure to address backlogs would be a requirement that “higher

courts can remand a case to the first instance once, but if the case returns again to the second

instance it will have to be decided upon at that level” (https://rm.coe.int/backlog-reduction-tool-

en/1680b2ca1e at p. 29).

38. The relevance of the question is that if the national competent authority is under an

obligation as envisaged by the question, the commissioner erred in remitting the matter to the public

authority here for the second time without clearly determining that such remittal would have been

the quickest way to determine the underlying request, or without holding that no option other than

remittal was reasonably possible, subject to the second question.

The second question

39. The second question is:

If the answer to the first question is Yes, do the provisions referred to in that

question have the effect so referred to independently of:

(a) the existence or extent of backlogs of other decisions pending before the

competent authority (which inherently gives rise to the possibility that some

other case may be selected as a lead case for any given issue);

(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?

40. The applicant’s proposed answer is Yes. The EU-law obligations of timeliness and

effectiveness (Directive 2003/4, Aarhus Convention, and Article 47 of the Charter) require the

competent authority to secure a final, ex nunc determination and, where appropriate, to decide the

appeal itself rather than remit. This duty is independent of the factors at (a)–(c). Backlogs cannot

dilute binding standards; Member States must organise procedures to ensure prompt, effective

remedies, and remittal that prolongs resolution is incompatible with those principles. Administrative

convenience or an intervening judgment does not justify remittal when the authority can apply the

clarified law and decide without further delay. Nor should public-body delay be rewarded; the

authority should proceed to determine on the record, using targeted measures if necessary. In

short, where remittal is more likely than not to delay resolution compared with a full ex nunc decision

by the authority, EU law requires the latter. Remittal is permissible only if it is objectively the quicker

route to a lawful final outcome and reasons show it satisfies timeliness and effectiveness.

41. The respondent’s proposed answer is that the commissioner is an independent statutory

body and has a wide discretion to determine his own procedures. He endeavours to deal with each

case expeditiously, but is naturally constrained by resources and the need to manage a heavy

caseload. Similar constraints apply to all administrative, quasi-judicial and judicial decision-makers.

Therefore the answer is No. The factors at (a)-(c) are just some of the issues that might arise when

the commissioner is deciding on the facts of an individual case to remit a case to a public authority

for fresh consideration. Other factors are those listed at paragraph 77 in the No. 1 judgment, based

on the commissioner’s legal submissions. Ultimately, these are issues that must be addressed on a

case-by-case basis. (As to this submission see the referring court’s factual findings above.) They

cannot be determined in a general and abstract manner, whether by reference to Article 6(1) and/or

(2) of Directive 2003/4, Article 9(1) and/or 9(4) of the Aarhus Convention, Article 47 of the Charter

or otherwise.

42. The State’s proposed answer is effectively that this does not arise because the answer to

the first question is No. Without prejudice to the foregoing, if the answer to the first question is yes,

the answer to this question is No. The State parties consider that the aforementioned provisions do

not have the effect posited in the first question independently of the existence or otherwise of

backlogs; the existence or otherwise of administrative convenience; or the existence or otherwise

of delay on the part of the relevant public body. The State parties consider that (1) it is for the

competent authority to determine its own procedures; (2) there are numerous factors (including but

not limited to those outlined at (a)-(c) in the second question) which might legitimately arise for

consideration by the competent authority in forming a view about how best to proceed with a

particular request for information; and (3) the requirement that remedies be timely, expeditious,

and effective, whilst important, are not the sole factors that must be borne in mind by a competent

authority.

43. The amicus curiae’s proposed answer is Yes, the requirements of the provisions set out in

the first question are independent 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.

44. The referring court’s proposed answer is Yes. Factors such as backlogs, administrative

convenience and issues caused by resource constraints are matters that Member States must

address and are not a basis to interpret the Directive otherwise than as giving full effect to the right

to timely access to information. On the basis of the orderly processing of the caseload, there is a

role for national decision-makers to select a lead case, which may involve a degree of priority over

other cases, but that does not in itself warrant delay of other cases such as by the remittal of such

other cases back to an earlier stage in the decision-making process. As regards delay by the public

authority concerned in responding to the competent authority, this is not a valid reason why the

matter should be remitted to the public authority for a fresh decision. To take that into account as

a factor favouring remittal is to improperly impose on the requester a burden of delay that arises

from default by the public authority. As regards the commissioner’s view that a range of other

factors could be relevant, this is an abstract and academic argument in the concrete circumstances

of this case. The other factors are simply not relevant to the present case as illustrated by the fact

that they did not feature in the contested decision. The factors that are relevant to the present case

and that are referenced in the contested decision are set out in the second question. The referring

court rejects the relevance of the abstract and academic argument that such a range of

circumstances could arise which warrant remittal, because such circumstances do not arise in the

present case. Where such circumstances arise in a concrete case (for example, where the request

is rejected by a public authority without any substantive examination) it may well be more

expeditious for a competent authority to remit the matter for such substantive examination rather

than make what would be in effect a first instance decision rather than an appellate decision.

45. The relevance of the question is that if the first question is answered in the affirmative, and

if the matters referred to in (a) to (c), which were referenced expressly or implicitly in the contested

decision, do not alter such a conclusion, then the commissioner erred in remitting the matter to the

public authority here for the second time.

Order

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

(i) the questions set out in this judgment be referred to the CJEU pursuant to article

267 TFEU; and

(ii) the substantive determination of the proceedings be adjourned pending the

judgment of the CJEU, without prejudice to the determination of any appropriate

procedural or interlocutory issues in the meantime.