National Asset
Management Agency
17th September 2010
Ms Elizabeth Dbls
Senior Investigator
Office of the Commissioner for Environmental Information
18 Lower Lesson Street

^eceiysfi

Dublin 2
- -

Office
Your ref: CEI/10/G005

•'--^ioner

Appeal of Mr. Gavin Sheridan under the European Communities (Access to
Information on the Environment) Regulations 2007 (the "Regulations")
Dear Ms Dolan
Thank you for your letter of 16 August 2010 enclosing the Appellant's response (undated) to
the Investigator's preliminary view dated 29 June 2010.
We note also that your letter makes reference a particular view of commentators other than
the Appellant in relation to Article 3(1) (iv).
We wish to make the following further submission to the Appellant's response to the
Investigator's preliminary view.
1.

Article 3(1) (iv)

The Appellant expounds the mistaken view that a body will be a "public authority within the
meaning of the Regulations merely as a result of being "a board or other body ... established
by or under statute".

National Asset Management Agency
Treasury Buildir\g, Grand Canal Street, Dublin 2
I 1 v; 1 ' 664 0 8 0 0

Gniorahaireacht NSisiunta urn Bhainlstiocht Socmhainni
Foirgneamh an Chisteain, Sraid na Canalach Moire, Baile Atha Cliath 2
info@nama.ie u-ww n.nri i

 Article 3(1) (vi) of the public authority definition in the Regulations cannot be read in
isolation. The mere fact of being a body established by or under statute does not
automatically bring that body within the definition of public authority in the Regulations. The
tests provided for in Article 3(1) (a), (b) or (c) of the public authority definition must first be
met before applying the secondary test of whether the body in question is one of the classes
of body listed in Article 3(1) (i) - (vii). Article 3(1) (a), (b) or (c) require that there is a either
a government or public administration or public advisory body or a legal entity performing
public administrative functions or providing public services relating to the environment.

The simple fact of being a body established by or under statute as described in Article 3(1)
(vi) of the public authority definition is of no consequence where the body, in this case the
National Asset Management Agency ("NAMA"), is not a body falling within any of the
criteria in Article 3(1):
(a) a government or other public administration, including public advisory bodies, at
national, regional or local level or
(b) any natural or legal person performing public administrative functions under national
law, including specific duties, activities or services in relation to the environment or
(c) any natural or legal person having public responsibilities or functions or providing
services, relating to the environment under the control of a body or person falling within
paragraph (a) or (b).
To read Article 3 in the manner proposed by the Appellant is effectively to look at the cart
but ignore the horse by looking only at an indicative list of bodies. But this indicative list of
bodies is relevant if and only if they qualify under Article 3(1) (a), (b) or (c) as public
authorities. The interpretation argued for by the Appellant totally ignores the qualitative
criteria for determining what is a public authority for the purposes of the Regulations.
If the Draftsman intended every body listed at Article 3(1) (i) - (vii) of the Regulations to be
a public authority regardless of the fimction performed, he would have confined himself to
that list and omitted Article 3(1) (a), (b) and (c) from the Regulations entirely. The
Appellant's interpretation renders those provisions redundant.

 Alternatively, if the Draftsman intended to add to and expand the list of public authorities
there would be no need for the words "and includes" and every body listed at Article 3(1) (i)
- (vii) of the Regulations would instead have been added as items (d) - (j).

The words "and includes" demonstrate that the bodies listed at Article 3(1) (i) - (vii) of the
Regulations are a sub-set of the group listed at Article 3(1) (a), (b) and (c). No other
interpretation is consistent with the law as under the Constitution a Minister by way of
Statutory Instrument only has power to implement the Directive - not to expand its scope.

NAMA does not meet any of the requirements of Article 3 (1) of the Regulations which
requirements must be satisfied in order to be considered a "public authority" for the purpose
of the Regulations. NAMA is not therefore subject to the Regulations.
The Appellant's argument that NAMA is a public authority by reason of Article 3(1) (vi) is
not correct and should be rejected.
In respect of the other arguments made by the Appellant in his response to the Investigator's
preliminary view, we would make the following further submission:
2.

Article 3(l)(b)

To meet this test, NAMA would have to be a legal person performing public administrative
functions. The Appellant's response appears to confiise the public policy purposes of the
National Asset Management Agency Act 2009 (the "Act") (i.e. whether it is a public body)
with the purposes and functions of NAMA. The goal of the Act is to restore confidence to the
banking sector, remove uncertainty in relation to asset valuations, restore the flow of credit
and protect the interests of tax payers and the Appellant has correctly identified these.
However, these are the public policy purposes of the Act not of NAMA. The Appellant
makes no reference to NAMA's purposes, which are to contribute to the achievement of the
purposes of the Act by acquiring eligible bank assets (loans), dealing expeditiously with the
acquired loans and protecting or otherwise enhancing the value of the acquired loans. The
purpose is purely commercial - acquire the loans and manage them to get the best possible
financial return.

 Once acquired, the loans are held, managed and realised by NAMA with the sole objective of
achieving the best achievable financial return for the State. This is not an administrative
function.

NAMA has been assigned statutory purposes, functions and a range of powers and discretions
to achieve its purposes. Our submission of 7 May 2010 set out how NAMA operates in
acquiring loans from the participating institutions, its discretion about how to value and
acquire those assets, the design and execution of the financial and legal due diligence
standards and process, the asset quality standards required, the assessment of security and
marketability of the title of underlying property, the terms and conditions of the acquisition
and the terms under which the participating institutions (and other service providers) will
carry out loan servicing.

Once a loan has been acquired, the Act provides that NAMA assumes the contractual position
of the participating institution that transferred the loan. The fact that NAMA has statutory
powers is not the determinant of whether it performs administrative functions. As NAMA is
established by statute, the only place where its powers can be legally created is the Act. If
NAMA was a company its powers would be created in its Memorandum of Association. In
effect, NAMA's memorandum of association is the Act. NAMA will manage the loans it
acquires in accordance with its contractual rights and obligations; NAMA has purchased a
loan and the management of that loan will be in accordance with the loan agreement and
security documents. NAMA cannot, by reason of its statutory status alone, manage the loan
in a manner contrary to the loan contract.
3.

Article 3(1)(c)

To meet this test, NAMA would have to be a legal person with public responsibilities or
functions or be providing services relating to the environment.
NAMA has no statutory functions or responsibilities that relate to the enviroiunent nor does it
provide services relating to the environment.

4.

Serving a public purpose

NAMA was created to deal with the ongoing financial crisis. Its success will be measured by
the contribution it makes to the achievement of the purposes of the Act. However, the
4

 achievement of a public purpose forms no part of the criteria for the definition of a public
authority under the Regulations. NAMA is a commercial undertaking that does not perform
administrative functions.

NAMA is subject to the normal taxation regime in Ireland. While NAMA itself is exempt
from income tax and capital gains tax, it is subject to VAT and stamp duty. The subsidiary
companies through which NAMA operates are all subject to the same taxation rules as any
other Irish incorporated company. The Appellant's assertion that NAMA is exempt from tax
is not correct.

It is correct that the transfer of the loans is exempt from stamp duty but once the loans have
been transferred to NAMA, stamp duty applies in full to every stampable transaction entered
into by NAMA or any of its group companies.

The Appellant's assertion that NAMA is exempt from the application of Parts 2 and 3 of the
Competition Act 2002 is not correct. NAMA is subject to competition law. The provisions of
Parts 2 and 3 of the Competition Act 2002 do not apply to the transaction whereby the loans
are transferred to NAMA. NAMA and its group companies are subject to competition law in
all of their operations. NAMA is not exercising sovereign or administrative power. NAMA is
engaged in economic activity and competition law applies in full to its activities and
operations.

5.

Private Ownership

NAMA has set up a number of subsidiary companies to carry out its functions. Private sector
investment has been made into National Asset Management Agency Investment Ltd which is
majority-owned by private investors who have invested €51m for a 51% shareholding.
National Asset Management Agency Investment Ltd has established a number of wholly
owned subsidiaries including National Asset Loan Management Ltd (Company Number
480246) referred to by the Appellant. The various roles of the subsidiary companies include
issuing the Government guaranteed debt instruments which are used as consideration for the
purpose of acquiring the loans and issuing debt to finance NAMA's operations and holding
and managing the transferred loans.
5

 As stated above, while NAMA itself is (partially) tax exempt, the subsidiary companies are
fully taxable and have tax equivalence to any other commercial entity operating in the State.
Once loans have been transferred, NAMA legally steps into the shoes of the participating
institutions and is the lender of the loan portfolio. Thereafter it is tasked with holding,
managing and realising the value of the acquired loans. It is only in a situation where NAMA
may enforce on such loans that it may become the owner of land or buildings in the State.

The Appellant also seeks to argue that because the National Asset Loan Management
Limited, a subsidiary of NAMA includes powers in its Memorandum of Association in
relation to development of land that NAMA has an environmental remh. This is manifestly
not the case. The fact that a company has the power to do certain things in relation to land
does not equate to the requirements of the definition of public authority in the Regulations,
namely, having public responsibilities or functions or providing services relating to the
environment. NAMA does not provide services in relation to the environment. Indeed, the
Appellants argument on this aspect of the appeal seems to have strayed far from the original
application. One need only look at the categories of information sought in the original
application to see that he is not seeking information on the environment. On the contrary, he
is seeking private and confidential financial and personal information to which he is not
entitled.

In conclusion, NAMA reiterates the points made in its submission of 7 May 2010, that it is
not a public authority for the purposes of the Regulations and further that the requested
information is not environmental information.
We look forward to hearing fi'om you with the determination of the Commissioner in this
matter in due course.
Yours sincercIy

Aideen O'Reilly
Head of Legal & Tax