1

THE HIGH COURT
[2008 No. 183 MCA]
An Taoiseach
Appellant
And
The Commissioner for Environmental Information
Respondent
And
Gary Fitzgerald
Notice Party
Judgment of O Neill J. delivered the 4th day of June 2010
1.

Background

1.1

These proceedings come before this Court by way of statutory appeal under
Article 13 of the E.C. (Access to Information on the Environment) Regulations
2007 (S.I. No. 133 of 207) ("the regulations") against a decision of the respondent
made on the 10th October, 2008, wherein she directed the appellant to disclose to
the notice party a record, in the form of a hand-written note, of discussions and
the outcome of those discussions at a meeting of the Government on the 24 th June,
2003.

1.2

The appellant seeks an order setting aside the impugned decision. He also seeks a
declaration that the record is exempt from disclosure pursuant to the provisions of
the regulations and, in particular, regulation 8(a) (iv) and/or regulation 8 (b). He

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seeks a further order remitting the notice party's request for access to the record to
the respondent for further consideration or determination by her, should this Court
consider it necessary or appropriate.

2.

Legislative Background

2.1

Directive 2003/4/EC of the European Parliament and of the Council of the 28 th
January 2003 on Public Access to Environmental Information ("the directive")
was adopted to guarantee a right of access by the public to environmental
information held by or for public authorities and to set out "the basic terms and
conditions of, and practical arrangements for" the exercise of this right, as

stated in Article 1. In addition, it is designed to ensure that "as a matter of
course, environmental information is progressively made available and
disseminated to the public in order to achieve the widest possible systematic
availability and dissemination to the public of environmental information ".

Article 3 imposes an obligation on Member States to ensure that public
authorities provide environmental information held by or for Member States
once a request is made. It states:-

"Member States shall ensure that public authorities are required\ in
accordance with the provisions of this Directive, to make available
environmental information held by or for them to any applicant at his
request and without his having to state an interest. "

 3
This obligation is subject to Article 4 of the Directive which sets out
discretionary exceptions to it. However, when a request for environmental
information relates to information on emissions into the environment a Member
State may not rely on certain of the exceptions set out to refuse access to such
information. Article 4 states:-

"1. Member States may provide for a request for environmental
information to be refused if:

(e) the request concerns internal communications, taking into account the
public interest served by disclosure.
2. Member States may provide for a request for environmental
information to be refused if disclosure of the information would adversely
affect:
(a) the confidentiality of the proceedings ofpublic authorities, where such
confidentiality is provided for by law;

The grounds for refusal mentioned in paragraphs 1 and 2 shall be
interpreted in a restrictive way, taking into account for the particular case
the public interest served by disclosure. In every particular case, the
public interest served by disclosure shall be weighed against the interest
served by the refusal. Member States may not, by virtue of paragraph 2(a),

 (d), (J% (g) and (h), provide for a request to be refused where the request
relates to information on emissions into the environment. "

Article 6 of the directive provides for "access to justice" as follows:-

"7. 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.

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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. "

2.3

The regulations transposed the above directive into Irish law on the 28 t h March,
2007. Article 7(1) purports to replicate Article 3, in that, it sets out the general
obligation under the regulations, on public authorities to make available to
applicants, access to environmental information. It states:-

"7. (I) A public authority shall, notwithstanding

any other statutory

provision and subject only to these Regulations, make available to the
applicant any environmental information, the subject of the request, held
by, or for, the public authority. "

2.4

Mandatory exceptions to the provision of environmental information, which are
subject to the provisions of Article 10, are set out in Article 8 which provides:-

"8. A public authority shall not make available environmental information
in accordance with article 7 where disclosure of the information—

(a) would adversely affect—

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(iv) without prejudice

to paragraph

(b), the confidentiality

of the

proceedings of public authorities, where such confidentiality is otherwise
protected by law (including the Freedom of Information

Acts 1997 and

2003 with respect to exempt records within the meaning of those Acts);

or

(b) to the extent that it would involve the disclosure of discussions at one
or more meetings of the Government, is prohibited by Article 28 of the
Constitution."

2.5

Article 9 of the regulations outlines discretionary grounds for refusal as follows:-

a

(2) A public authority may refuse to make environmental information
available where the request—

(d) concerns internal communications of public authorities, taking into
account the public interest served by the disclosure."

2.6

Article 10 has the effect of creating an exception to the exceptions, in that, it
provides for information to be released when it relates to information on
emissions into the environment. However in it's second paragraph, it preserves

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the confidentiality of Government discussions, even where the information sought
relates to emissions into the environment. It states:-

"10. (1) Notwithstanding

articles

8 and 9 (1) (c), a request for

environmental information shall not be refused where the request relates
to information on emissions into the environment.

(2) The reference in sub-article (1) to information on emissions into the
environment does not include a reference to any discussions on the matter
of such emissions at any meeting of the Government.

(3) The public authority shall consider each request on an individual basis
and weigh the public interest served by disclosure against the interest
served by refusal.

(4) The grounds for refusal of a request for environmental information
shall be interpreted on a restrictive basis having regard to the public
interest served by disclosure.

(5) Nothing in article 8 or 9 shall authorise a public authority not to make
available

environmental

information

which,

although

held

with

information to which articles 8 or 9 relates, may be separated from such
information.

»

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2.7

Article 13 of the regulations provides for an appeal "on a point of law" to this
Court from a decision of the respondent. The respondent is empowered under
article 12(9) to refer "any question of law " arising in an appeal before her to this
Court for determination. That did not happen in this case.

2.8

As this case concerns a record of government discussions, the guarantee of
confidentiality under Article 28.4.3 of the Constitution is relevant. That provision
states as follows:-

"3° The confidentiality of discussions at meetings of the
Government shall be respected in all circumstances save only
where the High Court determines that disclosure should be made
in respect of a particular matter -

i in the interests of the administration ofjustice by a Court, or

ii by virtue of an overriding public interest, pursuant to an application in
that behalf by a tribunal appointed by the Government or a Minister of the
Government on the authority of the Houses of the Oireachtas to inquire
into a matter stated by them to be of public importance. "

3.

The Facts

3.1

The Department of An Taoiseach ("the Department") received a series of requests
from the notice party in letter[s] dated the 30 th March, 2007, seeking access to (i)

 any documents showing Cabinet decisions or conclusions on Ireland's greenhouse
gas emissions for the years 2002-2007 and (ii) any documents, including, but not
limited to, minutes of meetings, that reported any Cabinet discussions on Ireland's
greenhouse gas emissions for the years 2002-2007. The notice party indicated in
his letters to the Department that he was making the request pursuant to the
provisions of the directive. Having not received a reply to his requests, the notice
party wrote a further letter to the Department advising it, that due to its failure to
respond that he assumed that his requests were refused and that, accordingly, he
wished to appeal that refusal under article 11 of the regulations, which had come
into force since he first made his request.

On the 17th May, 2007, the matter was referred for internal review in the
Department. By letter dated the 13th June, 2007, the Department informed him
that no records were held by it within the scope of the first request and that twenty
six records were held within the scope of the second. It further stated that eight of
the records were being released to him and were enclosed but that the remaining
eighteen records, descriptions of which were set out, were not being released on
the basis that the documents were records of the government and were specifically
excluded from public disclosure, as mandated by article 8 of the regulations and
s.19 of the Freedom of Information Act 1997. The letter then went on to outline
the notice party's right to appeal the decision to the respondent.

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3.3

The notice party wrote to the respondent, by letter dated the 10th July, 2007,
informing her of his intention to appeal. An official of the respondent wrote back
to the notice party expressing concern in respect of the respondent's jurisdiction
to accept the appeal, since the original requests had been made prior to the
coming into force of the regulations. The regulations expressly provide that
requests which can be appealed must be made pursuant to the regulations. On the
2 n d October, 2007, the notice party submitted his fee, payable under the
regulations for an appeal, on a "withoutprejudice" basis and indicated that whilst
the requests were made before the regulations came into being that the directive
was directly effective and he urged the respondent to accept the appeal as valid.
Some days later the notice party sent an email to the respondent pointing out that
the letter he received from the Department dated the 13th June, 2007, made no
reference to any jurisdictional issue. Another official of the respondent, by email
dated the 16th October, 2007, confirmed to the notice party that the respondent
had decided to accept the appeal, notwithstanding jurisdictional concerns.

3.4

A copy of the appeal was forwarded to the Department the following day and
submissions were sought by the respondent from it. The Department on the 14th
November 2007 furnished the eighteen unreleased documents to the respondent
together with its submissions. It submitted that the confidentiality of the withheld
records was protected by s. 19(1) (a) of the Freedom of Information Act 1997
("the Act of 1997"), that the records were specifically excluded from public
disclosure in accordance with "section 8(a) (iv) " of the regulations and that "to

 the extent that such records may 'contain the whole or part of a statement made
at a meeting of the Government or information that reveals, or fi'om which may be
inferred,

the substance of the whole or part of such a statement'" that Article

28.4.3 of the Constitution and s. 19(a) of the Act of 1997 protected their
confidentiality. The case of Irish Press Publications v. Minister for Enterprise

[2002] 4 I.R. 110 was cited in support of the contention that the doctrine of
Cabinet confidentiality protects not only discussions at Cabinet but also
documents upon which discussions were based or from which such discussions
could be inferred.

In an email of the following day an official of the respondent set out the central
submissions made by the notice party and invited the Department's comments.
The notice party's arguments were summarised in that email as follows:-

"Even though article 8(b) of SI 133 makes reference to Article 28 of the
Constitution in relation to cabinet confidentiality,

it is a fundamental

principle of EU law that the EU measure is supreme and cannot be
overridden by domestic legal provisions even where this is a constitutional
provision [see Costa v ENEL [1964] ECR 585; Handelgsellschaft

[1970]

ECR 1125].
The relevant sections (articles 3(1) and 4(2) of the Directive are
sufficiently
ECR 1337].

clear to have direct effect

[Van Duyn v Home Office

[1974

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Cabinet confidentiality cannot be considered if it conflicts with rights
under the Directive - given that information on emissions is being sought,
the Directive states that there are no grounds for refusal,
article 8 (b) and article J 0(2) of SI 133 contradict the provisions of the
Directive and must be disapplied.
Hie doctrine of supremacy requires that the Commissioner exercise
powers that she would not normally have under domestic law."

On the 29 th January, 2008, the Department replied to the respondent indicating
that it had consulted with the Attorney General's Office and the Department of
the Environment, Heritage and Local Government (the Department that
introduced the regulations). Their advice was to the effect that the regulations
were fully compatible with the directive and that there was no conflict between
them. The directive, it was pointed out, gave Member States discretion as to
whether to exempt disclosure of certain information and those exemptions were
set out in article 10 of the regulations.

In her decision, the respondent took the view that only one of the eighteen
documents could be regarded as constituting a "report" of discussion at Cabinet
on Ireland's greenhouse gas emissions, thereby confining the appeal to the notice
party's right of access to this document alone. The notice party does not take issue
with this. The respondent, in her decision, then set out the Department's decision
and the respective positions of the notice party and of the Department. She

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identified the relevant parts of the legal provisions at issue, that is, the directive,
the regulations and Article 28.4.3 of the Constitution. She observed that the
Freedom of Information Act 1997 applied only to decisions made under that Act
and did not enshrine a legal protection for confidentiality generally.

3.8

The respondent acknowledged that the document at issue, as a record of
discussions of a meeting of the government, enjoyed protection under Article
28.4.3 of the Constitution and, as such, fell within the ambit of article 8(b) of the
regulations, subject to article 10 of the regulations. She found that it was of little
consequence whether the record also came within article 8(a)(iv), as if the notice
party was correct in his argument, neither of the two article 8 grounds for refusal
would apply and if he was wrong, then either of the two grounds relied on by the
Department would suffice to protect the document from release. On its face, she
noted that the document at issue contained a small amount of factual information.

3.9

The respondent then considered whether the notice party's requests related to
information on emissions into the environment. If they did, she noted that the
grounds for the refusal of a request, as contained in Article 8 were subject to
Article 10. She stated that the Department did not take any issue with her office
proceeding on the basis that the request related to emissions into the environment.
The wording of the notice party's request indicated that it was a request relating to
emissions into the environment. She found the nature of the document in issue
was such, that part of it disclosed factual information on emissions into the

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environment and the remaining portion related to, in a general sense, information
on emissions into the environment. She concluded that "the record portion which
discloses factual information on emissions into the environment also relates to
emissions into the environment".

3.10

The respondent then went on to consider whether the regulations were in conflict
with the directive. She noted the provisions of Article 3 and 4 of the directive. In
respect of Article 4 she stated:-

"While all the grounds for refusal are subject to a public interest test,
article 4 of the Directive provides that, 'where the request relates to
information on emissions into the environment '.five of the eight 'harm
based grounds for refusal may not be invoked. The five 'harm based'
grounds for refusal are those at paragraph 2(a), (d) (f),

(g) and (h) of

article 4. Of particular relevance here is paragraph 2(a) which provides
the potential to refuse environmental information where disclosure would
adversely affect

'the confidentiality of proceedings of public authorities,

where such confidentiality is protected by law.'

3.11

To the extent that Article 10(1) of the regulations restricts the operation of the
exception provisions of Article 8 of the regulations in the case of requests that
relate to information on emissions into the environment, she found that it did

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conflict with Article 4 of the directive. As to whether Article 10(2) of the
regulations accorded with the directive she stated as follows:-

"Article 10(2) of the Regulations qualifies article 10(1) by providing that
the latter 'does not include a reference to any discussions on the matter of
such emissions at any meeting of the Government'. The effect

of article

10(2) is to disapply article 10(1) in the case of a record which refers to
discussions, at any meeting of the Government, on emissions into the
environment. The Department argues that, taken in conjunction with
article 10(5) of the Regulations, this approach is perfectly compatible with
the Directive. It says that the application of article 10(2) simply serves to
confine release of environmental information which pertains to emissions
to factual information'. I do not accept that the Department is correct in
this. I cannot find anything explicit or implicit in the Directive or in its
objectives to support the making of exceptions for certain classes of
information within the category described in paragraph 2(a) of Article 4
of the Directive. Neither can I find anything in the Directive which would
allow a Member State to confine the exception to factual information as
argued by the Department. While elements of paragraph 2 of article 4 of
the Directive as transposed by article 9(1) of the Regulations
(international relations, public security, national defence, the course of
justice, intellectual property rights) do not attract the prohibition on
refusal, I consider that the exception in paragraph 2(a) - the

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confidentiality of the proceedings ofpublic authorities, where such
confidentiality is provided for by law — is definitely subject to it.

The Department has not brought to my attention any provision in the
Directive or any case law which would support its approach to the
application of paragraph 2(a) and the transposing of the provision so as
to provide for the omission of certain categories of information from its
prohibition. It appears to be suggesting that it is open to me to confine my
consideration to the wording of the provisions of the Regulations. My view
is that the option of applying the Regulations in isolation from the
Directive is not one which is open to me. "

3.12

The respondent stated that she was adopting the teleological approach in her
analysis of the transposition of the directive. She did not think that there was any
alternative remedy open to the notice party in order to seek the information he
was seeking. The purpose of the existence of exceptions or grounds for refusal
was, in her view, because some information, if disclosed, would adversely affect
the confidential proceedings of public bodies. She noted that Member States are
expressly prohibited from invoking Article 4 (2) (a), (d), (f), (g) and (h) in order
to refuse a request where the request relates to information on emissions into the
environment, but that where a request for information related to information on
emissions into the environment it could be refused under Article 4(2) (b), (c) and
(e) (i.e. international relations, public security, national defence, the course of

 17

justice and intellectual property rights). The blanket prohibition in Article 4(2)
(b), (c) and (e) did not apply, she found, in respect of confidentiality which was
provided for in Article 4(2) (a). She stated:-

"Clearly, the Directive was framed to specifically exclude the refusal of a
request on confidentiality - based grounds where the request relates to
information on emissions to the environment. It seems to me that this is
indicative of a conscious decision that confidentiality — even
confidentiality providedfor

by law - was not sufficient

to displace the

presumption that environmental information relating to emissions will be
released. Thus, environmental information in cabinet discussions relating
to such matters as security, defence or the course of justice may be
withheld even where such information relates to emissions whereas a
blanket prohibition on matters 'confidential'

is not envisaged by the

directive."

3.13

For the above reasons she concluded that article 10(2) of the regulations was not
in conformity with article 4(2) of the directive. She found that the directive was
directly effective but that it was incorrectly transposed into Irish law. She relied
on a line of jurisprudence from the European Court of Justice [E.C.J.] to the
effect that a public body must disapply national procedural rules in order to
protect individual rights derivedfrom directly effective E.C. law, infinding that
the requirements of Article 4(2) of the directive could not properly be set aside by

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Article 10(2) of the regulation; (Gervais Larsy v. Institut national d'assurances
socials pour travaillerurs independents) (INASTI) ECR-I-05063; Colson and
Kamann v. Land Nordrgein -Westfalen

[1984] Case C-14/83 ECR 1891 and

Henkel KGaA case [2004] ECR 1-1725). She also referred to the decision of this
Court (Keane J.) in Murphy v. Telecom Eireann [1989] l.L.R.M. 53.

3.14

As to her jurisdiction to determine the above matters, the following passage from
her decision is significant:-

"1 am conscious of the fact that while my Office

is a creature of the

Regulations, its creation arose from the 'Access to justice 'provisions set
out at Article 6 of the Directive. Specifically Article 6(2) of the Directive
provides that 'Member States shall ensure that an applicant has access to
a review procedure before a court of law or other independent and
impartial body established by law, in which the acts or omissions of the
public authority concerned can be reviewed and whose decision may
become final." Having considered the matter, including the objectives of
the Directive, I find that where a provision of the Directive is as clear and
precise as the provision at issue here, I must exercise my functions in
cariying out a review and proceed on the basis that the requirements of
paragraph 2 ofArticle 4 of the Directive cannot properly be set aside by
article 10(2) of the Regulations."

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3.15

The appellant instituted judicial review proceedings around the time of this appeal
in order to challenge the vires of the respondent to reach such a decision. The
parties agreed that this issue could be dealt with within the confines of this appeal.

3.16

It is also to be noted that no specific reliance was placed by, the appellant in the
proceedings before the respondent on article 9(2) (d) of the regulations and that it
was invoked by him for thefirst time in these proceedings.

3.17

During the hearing of these proceedings the respondent applied for a reference by
this Court to the E.C.J, under Article 234 of the E.C. Treaty. The appellant
opposed this and the notice party took a neutral position.

4.

Jurisdiction

4.1

Thefirst matter that must be examined is the jurisdiction of the respondent. The
parameters of that jurisdiction must be identified to assess whether she was
entitled to look to the directive to interpret the true meaning of the regulations and
whether her jurisdiction properly encompasses the disapplication of national law.

The appellant's submissions
4.2

Counsel for the appellant, Mr. Anthony Collins S.C. and Mr. Maurice Collins
S.C., submitted that the respondent did not have jurisdiction to embark upon an
analysis of whether the provisions of the regulations, allowing for exceptions to
disclosure, were in conformity with those in the directive. Mr. Maurice Collins

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argued that the respondent's conclusion that the regulations were to be disapplied
by virtue of their incompatibility with Community law was ultra vires. Her
powers, he submitted, emanated from the regulations themselves and did not
include analysing whether the regulations conformed with Community law. A
recent decision of this Court (Charleton J.) in the Minister for Justice, Equality
and Law Reform v. Equality Tribunal [2009] I.E.H.C. 72 (Unreported, High
Court, 17th February, 2009) was relied upon in this regard. This jurisdictional
point, it was submitted, was sufficient to conclude the matter and it was neither
necessary nor appropriate for this Court to engage in any consideration of further
issues.

Allegations of a failure to properly transpose a directive into domestic law could
only be lawfully agitated in this Court, it was argued, and not elsewhere and this
position did not breach the principles of equivalence and effectiveness. It was
submitted that Community law provided for Member States to retain national
procedural autonomy, subject only to the requirements of the principles of
equivalence and effectiveness, as held in Amministazione delle Finanze v.
Simmenthal [1978] E.C.R. 629. It was argued that Fratelli Costanzo Spa v.
Commune di Milano [1990] 3 C.M.L.R. 239 and Gervais Larsy v. Institut
National d'Assurances Socialespour Travailleurs Independents (INASTI) [2001]

ECR 1-05063, upon which the respondent and the notice party relied, did not
extend this principle. Although it was acknowledged the respondent had an
obligation to interpret the regulations in conformity with E.C. law (the Marleasing

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principle), it was submitted that she must take national law as she finds it and it is
not for her to assume a jurisdiction which she does not have, to set aside or to
disapply a provision of national law.. The cases of Unibet (London) Ltd v.
Justitiekanslern [2008] All E.R. 453, Impact v. Minister for Agriculture and Food
& Others [2008] ECR 1-2483, Van Scijndel v. Stichting Pensioenfonds voor
Fysioherapeuten [1995] ECR 1-4705 and Ministero della Finanze v. IN.CO.GE

'90 Sri. [1998] E.C.R. 1-6307 were cited in support of this contention.

4.4

The practical effect of the respondent's decision, if correct, it was submitted,
would be that every public authority would be conferred with an extraordinary
jurisdiction, to become "courts" and to determine far-reaching measures of
European law. A Member State, in the appellant's contention, was entitled to say,
that those issues must be addressed in a particular forum, that is, in this Court and
that this jurisdiction, it was argued, was a fundamental part of the judicial
architecture of the State.

4.5

Mr. Anthony Collins submitted that the directive at issue in this case was not
directly effective. He highlighted Article 4 and 6 of the directive, in particular,
which he submitted were incapable of having direct effect as there was a choice of
procedure open to the Member State. The appropriate proceedings to bring in
respect of a failure to transpose a directive correctly, he submitted, was an action
against the State. He pointed to Tate v. Minister for Social Welfare
418 as an example of where such an action was brought.

[1995] 1 I.R.

 22

The respondent's submissions
4.6

Ms. Butler S.C., for the respondent, submitted that her client had not acted in
excess of jurisdiction in considering whether the regulations were in conformity
with the directive. The respondent was, she submitted, an emanation of the State
and under an obligation to comply with any directly effective provision of the
directive and by implication she was required to consider whether the regulations
were in conformity with the directive. In addition, as the body reviewing
compliance with the directive, she argued that the respondent was obliged not to
apply any provision of national law which was incompatible with E.U. law and
this required her to inquire into whether the regulations were in conformity with
the directive.

4.7

Ms. Butler submitted that Article 4 of the directive was directly effective,
notwithstanding the discretion set out in it; as a result, the respondent, in
reviewing the decision of the appellant, was bound to apply it where the
application of the regulations did not give to it, full effect. She further submitted
that national procedural and jurisdictional rules cannot impede the effectiveness
of Community rights. She contended that the obligation to apply E.U. law even
where a national court or tribunal does not have jurisdiction under national law to
declare national legislation void was recognised by the European Court of Justice
("the E.C.J.") in Amministazione delle Finanze v. Simmenthal [1978] E.C.R. 629.

This principle, she stated, was further extended by the E.C.J, in Fratelli Costanzo

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Spa v. Commune di Milano [1990] 3 C.M.L.R. 239, Gervais Larsy v. Institut
National d'Assurances Socialespour Travailleurs Independents (INASTI) [2001]
ECR 1-05063, and in Cooperative Agricola Zootecnia S. Antonio v.
Amminstrazione delle Finanze dello Stata [1996] E.C.R. 1-4373.

4.8

A national administrative authority could not, in Ms. Butler's submission,
disapply provisions of national law which are inconsistent with a directive if it
does not firstly enter into a consideration of the national measure's consistency
with the directive. In this regard she submitted that the existence of the
respondent's jurisdiction in this regard was a necessary precondition to the
administrative authority being able to comply with the obligations of a directly
effective directive. She added that the effect of "disapplication" was not the same
as a declaration of invalidity or striking a provision down. It was, in her
submission, a discrete decision within the respondent's jurisdiction based on a
correct application of the law including the directive upon which the regulations
are based.

4.9

The decision of this Court (Charleton J.), she submitted, in Minister for Justice,
Equality and Law Reform [2009] I.E.H.C. 72 was per incuriam, in that the
learned judge only made reference to Impact v. Minister for Agriculture and Food
& Others [2009] All E.R. 306. She stated that it did not appear that the Fratelli
Constanza line of authority was opened to that Court. In addition it was submitted
that the decision was not consistent with that of Keane J. in Murphy v. Telecom

 24

Eireann [1989] I.L.R.M. 53 where a case was remitted to the Labour Court, which
was, it was observed, as much bound to apply Community law as this Court is.

4.10

Ms. Butler contended that the principle of the supremacy of Community law
dictated that if there is a conflict between a provision of E.U. law and a provision
of national law, including Article 28.4.3 of the Constitution, Community law must
take precedence. In the instant case she submitted that Article 4 of the directive
must take precedence over both Article 10(2) of the Regulations and Article
28.4.3 of the Constitution.

The notice party's submissions
4.11

Mr. Simons S.C., for the notice party, adopted the submissions of the respondent.
He submitted that the appellant's jurisdictional argument was an artificial one and
was inconsistent with the conduct of the government in establishing the office of
the respondent for the purposes of the directive. He further submitted that the
argument that a competent national authority and/or an emanation of the State
cannot disapply provisions of national law which conflict with E.U. law is
contrary to the principle of supremacy and, in particular, the judgment of the
E.C,J. in Fratelli Constanzo SpA v. Comune di Milam [1990] 3 C.M.L.R. 239
and Consorzio Industrie Fiammiferi v. Autorita Gar ante della Concorrenza e del

Mercato. The Fratelli judgment, he also noted was not cited to the Court in
Minister for Justice, Equality and Lcrw Reform v. Equality Tribunal [2009]

I.E.H.C. 72 and for this reason that decision was per incuriam.

 25

4.12

Mr. Simons noted that whilst this Court has full original jurisdiction and can
therefore deal with the issue of consistency between the directive and the
regulations, if the notice party were required to initiate declaratory proceedings in
this court, a significant obstacle would have been put in the path of his client,
inconsistent with the "access to justice " provisions of the directive (article 6).
The legal issue of whether Cabinet confidentiality comes within the exceptions to
disclosure under Article 4 of the directive was now properly before this Court, he
submitted, irrespective of any issue as to the jurisdiction or competence of the
respondent.

4.13

Mr. Simons argued that the reliance on the part of the appellant on the
jurisprudence of the E.C.J, concerning procedural autonomy of Member States
was misplaced as what was at issue in the instant case was a conflict between the
provisions of the directive and a substantive provision of national law, that is
Article 28.4.3 of the Constitution. Those cases concerned, in his submission,
procedural rules such as time limits, locus standi and res judicata.

5.

A review of the jurisprudence of the E.C.J, on the disapplication of
provisions of domestic law by administrative authorities which conflict with
directly effective provisions of E.U. law

 26
In Fratelli Costanzo Spa v. Commune di Milano [1990] 3 C.M.L.R. 239 in the

course of a preliminary reference the E.C.J, found that administrative authorities,
including municipal authorities, are under the same obligation as a national court
to apply the provisions of Article 29(5) of Council Directive 71/305/EEC (which
was found to have direct effect) and to refrain from applying provisions of
national law which are inconsistent with them. In that case an unsuccessful
tenderer challenged a national law which allowed for the exclusion of tenders that
were so low so as to be unrealistic. In contrast, the E.U. law did not have the same
automatic exclusion. The Court held as follows:-

"28 In the fourth question the national court asks whether administrative
authorities, including municipal authorities, are under the same obligation
as a national court to apply the provisions of Article 29(5 ) of Council
Directive 71/305 and to refrain from applying provisions of national law
which conflict with them .

29 In its judgments of 19 January 1982 in Case 8/81 Becker v
Finanzamt Muenster-Innenstadt ((1982 )) ECR 53, at p. 71 and 26
February 1986 in Case 152/84 Marshall v Southampton and SouthWest Hampshire Area Health Authority ((1986) ECR 723, at p .
748) the Court held that wherever the provisions of a directive
appear, as far as their subject-matter is concerned, to be
unconditional and sufficiently precise, those provisions may be
relied upon by an individual against the State where that State has

 27
failed to implement the directive in national law by the end of the
period prescribed or where it has failed to implement the Directive
correctly.
30 It is important to note that the reason for which an individual
may, in the circumstances described above, rely on the provisions of
a directive in proceedings before the national courts is that the
obligations arising under those provisions are binding upon all the
authorities of the Member States .
31 It would, moreover, be contradictory to rule that an individual
may rely upon the provisions of a directive which fulfil

the

conditions defined above in proceedings before the national courts
seeking an order against the administrative authorities, and yet to
hold that those authorities are under no obligation to apply the
provisions of the directive and refrain from applying provisions of
national law which conflict with them . It follows that when the
conditions under which the Court has held that individuals may rely
on the provisions of a directive before the national courts are met,
all organs of the administration, including decentralized authorities
such as municipalities, are obliged to apply those provisions.
32 With specific regard to Article 29(5) of Directive 71/305, it is
apparent from the discussion of the first question that it is
unconditional and sufficiently

precise to be relied upon by an

individual against the State . An individual may therefore plead that

 28
provision before the national courts and, as is clear from the
foregoing, all organs of the administration, including decentralized
authorities such as municipalities, are obliged to apply it.
33 The answer to the fourth question must therefore be that
administrative authorities, including municipal authorities, are
under the same obligation as a national court to apply the provisions
of Article 29(5 ) of Council Directive 71/305/EEC and to refrain
from applying provisions of national law which conflict with them . "

In Consorzio Industrie Fiammiferi v. Autorita Garante della Concorrenza e del
Mercato an Italian consortium of match manufacturers challenged a decision of
the Italian national competition authority which declared legislation establishing
and governing that consortium contrary to Articles 10 and 81 of the EC treaty and
that the members of it had infringed Article 81 of the EC Treaty by the allocation
of production quotas. It ordered them to terminate the infringements found.
Following the line of authority in Fratelli Constanzo the E.C.J, held that the
national competition authority was entitled to apply provisions of the Treaty :-

"48. It is appropriate to bear in mind, second, that in accordance with
settled case-law the primacy of Community law requires any provision of
national law which contravenes a Community rule to be disapplied,
regardless of whether it was adopted before or after that rule.

 29
49. The duty to disapply national legislation which contravenes
Community law applies not only to national courts but also to all
organs of the State, including administrative authorities (see, to that
effect,

Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph

31), which entails, if the circumstances so require, the obligation to
take all appropriate measures to enable Community law to be fully
applied (see Case 48/71 Commission v Italy [1972] ECR 527,
paragraph 7).
50. Since a national competition authority such as the A uthority is
responsible for ensuring, inter alia, that Article 81 EC is obsei-ved
and that provision, in conjunction with Article 10 EC, imposes a duty
on Member States to refrain from introducing measures contrary to
the Community competition rules, those rules would be rendered less
effective

if in the course of an investigation under Article 81 EC into

the conduct of undertakings, the authority were not able to declare a
national measure contrary to the combined provisions of Articles 10
EC and 81 EC and if consequently, it failed to disapply it. "

In Gervais Larsy v. Institut National d Assurances Socials pour Travaillerurs

Independents) (INASTI) ECR-I-05063 the E.C.J. determined that a national social
insurance agency should disapply conflicting laws in order to give effect to the
supremacy of Community law. The Court noted as follows at para. 51:-

 30
"... any provision of a national legal system and any legislative,
administrative or judicial practice which might impair the effectiveness

of

Community law by withholding from the national court having jurisdiction
to apply such law the power to do everything necessary at the moment of
its application to set aside national legislative provisions which might
prevent, even temporarily, Community rules from having full force and
effect

are incompatible with those requirements, which are the very

essence of Community law (Cases 106/77 Simmenthal [1978] ECR 629,
paragraph 22, and C-213/89 Factortame and Others [1990] ECR 1-2433,
paragraph 20)."

The Court held that the relevant administrative agency had breached community
law and it found that it should have disapplied national provisions of law to the
extent that the national procedural rules precluded the effective protection of Mr.
Larsy's rights under the direct effect of Community Law.

6.

A review of the jurisprudence of the E.C.J. on national procedural
autonomy

6.1

The case of Unibet (London) Ltd. v. Justitiekanslern [2008] All ER (EC) 423

involved a claim against the Swedish State by two United Kingdom companies
who purchased advertising space in a number of Swedish media outlets with a
view to promoting their online gaming services although it was illegal to promote
participating in a lottery or games of chance in that country. Criminal proceedings

 had been instituted against the companies in Sweden and injunctions had been
obtained against the media who agreed to supply the claimants with advertising
space. The claimants, in the Swedish courts, sought a declaration that they had a
right under article 49 of the E.C. Treaty to promote their gaming and betting
services in Sweden and were not prevented from doing so by the prohibition
under national law. They also sought compensation for the damage suffered
arising from that prohibition and a declaration that the prohibition and measures
and sanctions for breach of it did not apply to them. Swedish law does not provide
for declaratory relief.

In a preliminary ruling under Article 234 of the E.C. Treaty the E.C.J, considered
the question of whether "the principle of effective judicial protection of an
individual's rights under Community law should be interpreted as requiring it to
be possible in the legal order of a member state to bring a free-standing action
for an examination as to whether national provisions were compatible with art 49
EC if other legal remedies permitted the question of compatibility to be

determined as a preliminary issue". The E.C.J, noted that the principle of
effective judicial protection is a genera! principle of Community law which
emanates from the constitutional traditions of the member states which is
encapsulated in articles 6 to 13 of the European Convention on Human Rights and
Fundamental Freedoms, as was recognised in a series of cases before the E.C.J,
and has been reaffirmed by article 47 of the Charter of Fundamental Rights of the

 32

European Union, proclaimed on the 7 t h December, 2000 in Nice. The judgement
stated :-

"39. It is also to be noted that, in the absence of Community rules
governing the matter, it is for the domestic legal system of each member
state to designate the courts and tribunals having jurisdiction and to lay
down the detailed procedural rules governing actions for safeguarding
rights which individuals derive from Community law (see, inter alia, the
Rewe-Zentralfinanz case (para 5), the Comet case (para 13), the
Peterbroeck case (para 12), Courage Ltd v Crehan Case C-453/99 [2001]
All ER (EC) 886, [2001] ECR 1-6297 (para 29) and Safalero Sri v Prefetto
di Genova Case C-13/01 [2003] ECR 1-8679 (para 49)).

40. Although the EC Treaty has made it possible in a number of instances
for private persons to bring a direct action, where appropriate, before the
Community court, it was not intended to create new remedies in the
national courts to ensure the observance of Community law other than
those already laid down by national law (see Rewe-Handelsgesellschaft
Nord GmbH v Hauptzollamt Kiel Case 158/80 [1981] ECR 1805 (para
44)).

41. It would be otherwise only if it were apparent from the overall scheme
of the national legal system in question that no legal remedy existed which

 33
made it possible to ensure, even indirectly, respect for an individual's
rights under Community law (see, to that effect,

the Rewe-Zentralfinanz

case (para 5), the Comet case (para 16) and the Factortame case (paras
19-23))."

6.3

The Court concluded that the above question should be answered in the negative,
provided other effective legal remedies, which were no less favourable than those
governing similar domestic actions, made it possible for such a question of
compatibility to be determined as a preliminary issue, which was a task that fell to
the national court. It held that it was a matter for the member state to ensure
judicial protection of an individual's rights under Community law and to establish
a system of legal remedies and procedures which ensured respect for the right to
effective judicial protection. The fact that an alternative remedy was available in
the Swedish court for challenging the compatibility of Swedish law with
Community law influenced the Court in reaching its decision on this point.

6.4

In the subsequent case of Impact v. Minister for Agriculture and Food and others

[2009] All E.R. (EC) 306 a question arose in the context of a preliminary ruling
under Article 234 of the E.C. Treaty as to whether, national courts are required to
apply directly effective provisions of Community law even if they have not been
given express jurisdiction to do so under domestic law? There had been a delay in
transposing the directive at issue in those proceedings. The domestic
implementing measure did not give any express jurisdiction to the Rights

 34

Commissioner to determine a claim based on a directly effective provision of
Community law. In essence, it was sought to establish whether the Labour Court
or a Rights Commissioner, when called on to decide a case concerning an
infringement of the legislation transposing that directive, is required by
Community law to hold that it also has jurisdiction to hear and determine claims
based directly on that directive itself in circumstances where such claims related
to a period after the deadline for transposing the directive concerned but before
the date of the entry into force of the transposing legislation conferring
jurisdiction on it to hear and to determine claims based on that legislation. The
Court noted that in the absence of Community rules governing the matter, it is for
the domestic legal system of each Member State to lay down detailed procedural
rules governing actions for safeguarding the rights of individuals under
Community law, subject to the principles of equivalence and effectiveness. Those
principles were described by the E.C.J, at para. 46 of its judgment as follows:-

"46. ... the detailed procedural rules governing actions for safeguarding
an individual's rights under Community law must be no less favourable
than those governing similar domestic actions (principle of equivalence)
and must not render practically impossible or excessively difficult
exercise of rights conferred by Community law (principle of
effectiveness)

"

The Court, went on to find as follows:-

the

 35
"48. A failure to comply with those requirements at Community level isjust like a failure to comply with them as regards the definition of detailed
procedural rules-liable to undermine the principle of effective judicial
protection.

49. It is in the light of those considerations that the referring court's first
question must be answered.

51. In those circumstances, where the national legislature has chosen to
confer on specialised courts jurisdiction to hear and determine actions
based on the legislation transposing Directive 1999/70, the obligation
which would be placed on individuals in the situation of the complainantswho sought to bring a claim based on an infringement of that legislation
before such a specialised cour, to bring at the same time a separate action
before an ordinary court to assert the rights which they can derive directly
from that directive in respect of the period between the deadline for
transposing it and the date on which the transposing legislation entered
into force, would be contrary to the principle of effectiveness

if-which is

for the referring court to ascertain-it would result in procedural
disadvantages for those individuals, in terms, inter alia, of cost, duration

 36
and the rules ofrepresentation, such as to render excessively difficult

the

exercise of rights deriving from that directive.

54. If the referring court were to find such an infringement of the principle
of effectiveness,

it would be for that court to interpret the domestic

jurisdictional rules in such a way that, wherever possible, they contribute
to the attainment of the objective of ensuring effective judicial protection
of an individual's rights under Community law (see, to that effect,

the

Unibet case (para 44)).

55. Having regard to the foregoing considerations, the answer to the first
question must be that Community law, in particular the principle of
effectiveness,

requires that a specialised court which is called upon, under

the, albeit optional, jurisdiction conferred on it by the legislation
transposing Directive 1999/70, to hear and determine a claim based on an
infringement of that legislation, must also have jurisdiction to hear and
determine an applicant's claims arising directly from the directive itself in
respect of the period between the deadline for transposing the directive
and the date on which the transposing legislation entered into force, if it is
established that the obligation on that applicant to bring, at the same time,
a separate claim based directly on the directive before an ordinary court

 37
would involve procedural disadvantages liable to render excessively
difficult

the exercise of the rights conferred on him by Community law. It

is for the national court to undertake the necessary checks in that regard. "

In the joined cases of Van Schijndel v. Stichting Pensionenfonds voor

Fysioherapeuten [1995] E.C.R. 1-4705 the E.C.J, considered whether Community
law imposes an obligation on a Court to raise issues of Community law of its own
motion not raised by the parties. The Court again recognised the national
procedural autonomy of Member States to designate the courts and tribunals
having jurisdiction and to lay down procedural rules in respect of actions for the
safeguarding of rights emanating from directly effective Community law, in the
absence of Community rules, subject to the principles of effectiveness and
equivalence. It held as follows:" 20 In the present case, the domestic law principle that in civil
proceedings a court must or may raise points of its own motion is limited
by its obligation to keep to the subject-matter of the dispute and to base its
decision on the facts put before it.

21 That limitation is justified by the principle that, in a civil suit, it is for
the parties to take the initiative, the court being able to act of its own
motion only in exceptional cases where the public interest requires its
intervention. That principle reflects conceptions prevailing in most of

 38
the Member States as to the relations between the State and the
individual; it safeguards the rights of the defence; and it ensures proper
conduct of proceedings by, in particular, protecting them from the
delays inherent in examination of new pleas. "

In his opinion in the above case Advocate General Jacobs explored the issue of
national procedural autonomy in detail. In his view the primacy of Community
law did not require that national procedural rules should be overriden in all
circumstances so as to pemit Community law to enter the arena at any stage in
the proceedings. The Court's caselaw, he concluded required only that
individuals are given, by the national procedural rules, an effective opportunity
to enforce their rights.;
24. In my view, it does not follow from the primacy of Community Law that a
national court must in all circumstances set aside procedural rules which
prevent a question of Community law from being raised at a particular stage in
the proceedings. Wliat the primacy of Community law requires in the first
place is a general rule that, when a national court is confronted with a conflict
between a substantive provision of national law and a substantive provision of
Community law, the Community provision shall prevail. It is easy to see that, in
the absence of such a general rule, Community law would be a dead letter.
25. But as regards procedural rules, the primacy of Community law does not
require that they should be overriden in all circumstancesso as to allow
Community law to enter the arena at any stage in the proceedings. As the

 39
court's case law has shown, it is sufficient
national procedural rules an effective

that individuals are given, by the

opportunity of enforcing their rights.

26. It is true that the public interest in the proper application of Communuity
law must be taken into account, as well as the interests of of the parties
.However, the approach consistently taken over the years by the court
suggests that what is sufficient

to satisfy the public interest in this respect

corresponds precisely to the well established principles already referred to
namely the principles that national courts must ensure the enforecement of
Community rights where there are invoked in in national proceedings in
accordance with national procedural rules; and the national rules need only be
set aside where they make it impossible or unduly difficidtfor

thiose rights to

be enforced
27. Moreover if the view were taken that national procedural rules must
always yield to Community law, that would, as will appear below, unduly
subvert established principles underlying the legal systems of the member
states. It would go further than is necessary for effective judicial protection. It
could be regarded as infringing the principle of proportionality and, in a broad
sense, the principle of subsidiarity, which reflects precisely the balance which
the Court has sought to to attain in this area for many years .It would also give
rise to widespread anomalies, since the effect

would be to afford

greated

protection to rights which are not, by virtue of being Community rights,
inherently of greater importance that rights recognised by national law. It can,
for example, scarcely be argued that Mr Van Schiijndel's and Mr van Veens

 40
putative right under Community law to choose their own insurance scheme is
more important than and merits greater protection that, for example, the right
of a plaintiff to recover damages for personal injwy
31. This brings me to the second argument put forward by the Spanish government
based on the need to ensure the effectiveness

of Community law. It should be

notedfirst that a proper application of the law does not necessarily mean that
there cannot be any limits on it's application. The interest in full application
may need to be balanced against other considerations such as legal certainty,
sound anministration and the orderly and proper conduct ofproceedings .
ft

8

The E.C.J, made the following similar statement of principle with regard to
national procedural rules in Ministero della Finanze v. In.Co.GE '90 Sri. [1998]

ECR 1-6307 at para. 14:" It shoidd be noted ... that, according to a consistent line of cases
decided by the Court, it is for each Member State to determine which
court or tribunal has jurisdiction to hear disputes involving individual
rights derived from Community law. However, it is the Member States'
responsibility to ensure that those rights are effectively protected in
each case. Subject to that reservation, it is not. for the Court to involve
itself in the resolution of questions ofjurisdiction to which the
classification of particular situations based on Community law may give

 41
rise in the national judicial system (Case 179/84 Bozzetti v Invernizzi
[1985] ECR 2301, paragraph 17; Case C-446/93 SEJMv SubdirectorGeral das Alfandegas [1996] ECR 1-73, paragraph 32; and Case C54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I4961, paragraph 40)."

7.

Decision

7.1

The problem in this case is not securing supremacy or primacy of Community law
over domestic law, but discerning the correct procedural means for doing this.
The notice party has rights under Art 3 of the Directive and Art 7 of the
Regulations to the disclosure to him of the material in issue in this case which it
is accepted concerns emissions into the environment unless that material can be
withheld on the grounds of cabinet confidentiality. As it is clear that the
regulations [Art 10[2]] do unequivocally provide for the exclusion from
disclosure of this material, because the documents sought record cabinet
discussion, the core issue is whether the respondent is entitled to disapply that
provision in the Regulations and Art 28.4.3 of the Constitution and to give direct
effect to the directive, which does not contain a similar express exclusion in
respect of cabinet confidentiality.

8.2

Disapplication it was submitted by Ms Butler, in this sense does not mean that the
regulation in question is deemed to be or becomes invalid, merely that in the
discrete circumstances of this case it is not applied. This outcome could be seen as
the worst of all worlds, in that a law or rule which is said to be inconsistent with a

 superior EU law is not declared invalid by a court of competent jurisdiction, but
remains in force where it's validity and enforceability is in doubt, there being
circumstances in which it cannot apply and perhaps others where it can. It is to be
envisaged that over time and with the expanding role of the EU in so many areas
of life and commerce, the national legal landscape would become littered with the
moribund remains of hitherto valid national laws. Such a state of affaires would
greatly undermine the clarity and certainty that are necessary and fundamental to
the integrity of legal systems in societies and communities based on the rule of
law. In effect the vast array administrative bodies across the entire spectrum of
public administration could claim or have imposed on them, a jurisdiction to hear
and determine all questions of law and fact relating to the application or
enforcement of EU rights, in preference to national laws, once EU rights were
asserted by a party to a dispute.

Manifestly under our domestic law this could not occur as disputes of this nature
are reserved exclusively to the Courts and issues such as arose in this case, i.e the
consistency of the regulations with the Directive, could only be litigated in the
High Court atfirst instance. The problem with all this, apartfrom the violence
done to the judicial architecture of the State, is that the party who may wish to
rely on domestic law, either as a protection of his rights or as establishing a
binding duty, will be denied a hearing of his case in a forum, i.e, the Courts,
established by law for that purpose and which by virtue of such, over time have
acquired the professional expertise, experience and competence to deal with these

 matters with the constitutional guarantee of independence and impartiality. As the
focus of the concern of many of these public bodies, many of whom are purely
administrative in character, would be the enforcement of the EU rights relying on
the supremacy of EU law, attaining that supremacy might too easily be achieved
by the suppression of rights and duties based on national laws, without adequate
or appropriate consideration of correct constitutional and legal tests and balances.

The approach advocated in the respondent's submission puts to the hazard a
variety of EU legal principles some of which are also well established in our
domestic constitutional law, The principle of legal certainty and clarity of laws in
force would be undermined if national laws could not be enforced because of
conflict with EU laws but were not lawfully repealed or declared invalid by a
Court of competent jurisdiction. The principle of judicial protection would
manifestly be breached if the rights and duties of parties to disputes concerning
the application of EU laws could not be considered and determined by Courts
established by law with competence to deal with these matters. The principle of
proportionality would be at risk where the procedural route chosen to enforce EU
law inflicted disproportionate damage on the national system of law and the rights
and duties of the parties affected.. The principle of subsidiarity would be ignored
as the forum chosen might bear no resemblance to the appropriate forum for
consideration and determination of the issue involved. The principle of
equivelance would in effect be stood on it's head. This principle requires that EU
rights can be applied and enforced in national courts on no less favourable terms

 and conditions than similar actions arising under national law. The respondent's
submission would result in EU rights enjoying a degree of procedural supremacy
which not only far exceeds that available to similar actions based on national law,
but virtually eliminates national procedural safeguards for rights and duties
based on national law.

It was argued by the respondent and the notice party that if the notice party were
required to litigate his right to the disclosure sought in the High Court, this would
breach the principle of effectiveness, in that the cost and delay involved in taking
his case to the High Court would amount to a very serious obstacle if not a an
actual impediment to the exercise of his rights under the Directive. This
submission seems to overlook the Access to Justice provision in Art 6[2] of the
Directive. As quoted above this provides for a review procedure to a court of law
or an independent impartial body established by law. Art 13 of the Regulations
transposes this aspect of the Directive and creates the right of appeal to this Court
which is the proceeding now before me. Although the appeal is limited to an
appeal on a point of law, as all of the issues which have arisen and are in issue
between the parties are questions of law, the appeal procedure contains ample
jurisdiction so as to fulfill the requirement in Art 6[2] of providing a review
procedure in this case. I would construe the term "review" in a wide general
sense rather than the more familiar judicial review concept in Irish law or the
review type appeal such as the appeal from the High Court to the Supreme Court.
I would treat this appeal as full rehearing of the appeal or review before the

 respondent on all legal issues arising, including the jurisdictional issue now under
discussion and all issues of interpretation of the Directive and the Regulations. To
that extent, the jurisdiction of this Court on this appeal may be greater than that of
the respondent on the review now under appeal, that seems to me to be necessary
to ensure that the full original jurisdiction of this Court, is made available to
determine the issues that necessarily arise in the consideration of the notice
party's rights under the Directive and Regulations, thereby achieving full
compliance with Art 6 of the Directive.

In my view it cannot be said that recourse to the High Court by the notice party
would breach the principle of effectiveness when the Directive itself provides for
a review before a court of law. That review is there for the benefit of all parties to
a disputed application for disclosure and is not merely an instrument to enforce
the notice party's rights under the Directive and Regulations.

Whilst there can be no doubt but that where there is a conflict between an EU law
and a national law the EU law must prevail, the question must be asked whether
it is necessary to ensure the supremacy of EU law, to undermine, national systems
of law, which would be the inevitable outcome if the respondent's submission is
correct, or do the relevant judgements of the ECJ demand such a response from
national legal systems.

 46

7.8

As set out above there is a clear line of authority from the ECJ to the effect that
member states enjoy procedural autonomy subject to the principle of equivalence
and effectiveness. It is submitted on behalf of the respondent and the notice party
that the line of authority stemming from the Fratelli Constanzo Spa case to the
effect that where a national law conflicts with a an EU law the doctrine of
supremacy requires that the national law be disapplied in favour of the EU law,
and that it was the function and duty of all public bodies confronted with such
conflict in the discharge of their functions to disapply the national law at that
point. On the face of it, there would appear to be a conflict between these two
lines of authority emanating from the ECJ. That of course would be very
surprising if it were the case. I am not at all satisfied that it is. Whilst there are
statements in these cases apparently requiring national law to be disapplied,
which taken in isolation seem to require as was submitted by the respondent and
notice party, that conflicting national laws be disapplied at the point of application
by whatever public body is dealing with them, these statements taken in the
overall context of the cases in which they arise but more particularly in the
context of the general jurisprudence of the ECJ and the well established principles
of EU law as mentioned above, would not seem to have the kind of meaning
contended for by the respondent and the notice party, as this would create a very
clear conflict in the jurisprudence of the ECJ, with the well established line of
authority on national procedural autonomy, and the variety of EU legal principles
mentioned above, which could be either ignored or breached in the process.

 47

7.9

The opinion of Advocate General Jacobs in the Van Schijndel, quoted above, in
my opinion, correctly elucidates the problem, namely, that the primacy of EU law
is secured by a general rule to that effect, which of course must be universally
applied across all the member states. It is then left to the member states within the
architecture of their own legal systems to determine procedures for the
enforcement of EU law subject to the principles of equivalence and effectiveness.

7.10

I am satisfied therefore that in transposing the Directive in the Regulations this
state was entitled to and did establish a procedure for dealing with claims for
disclosure of environmental material and for refusals of same, when such might
occur, as in this case. Clearly those regulations did not purport to confer on the
respondent the kind of jurisdiction she asserted in her ruling, namely to consider
the validity of the regulations in light of the Directive, a jurisdiction
unquestionably reserved under the Constitution to a Court of law. Thus
notwithstanding the patient and full hearing she afforded the parties and the
careful consideration she gave to the difficult issues in the case, I must conclude
that she exceeded her jurisdiction and was not entitled to embark on a
consideration of whether the regulations correctly transposed the Directive and
she had no jurisdiction to disapply the Regulations and in particular Art 10[2] or
Art 28.4.3 of the Constitution. The jurisdiction given to her under the laws of this
state was confined to the Regulations and no more. In this respect, it should be
noted that Art 12[9][a] of the Regulations permits the respondent to refer any
question of law to the High Court for determination and can postpone her

 decision until after such determination. This procedure is there inter alia to assist
the respondent when confronted with the kind of problems that arose in this case.

7.11

As mentioned earlier this appeal is a full rehearing on all legal issues which arose
in the case. Thus notwithstanding the foregoing conclusion, it remains necessary
for this Court to consider thefindings of the respondents on other aspects of the
case which could affect the ultimate determination of the issue of whether the
notice party is entitled to the disclosure of the document in issue. Although the
respondent did not have jurisdiction to consider whether the Regulations
incorrectly transposed the Directive, this Court does.

Other issues arising in the Appeal
8.1

Apart from the jurisdictional issue a further issue arises in this appeal and that is
whether a meeting of the government was to be considered as "internal
communication of public authorities" and governed by Art 9[2][d] of the
Regulations and Art 4[l][e] of the Directive or are meetings of the government to
be treated as the "proceedings of public authorities" and governed by Art 8[a][iv]
or are meetings of the government dealt with in the Regulations on a stand alone
basis, being governed explicitly and solely by Art 8[b]. Each of these alternatives
leads to different outcomes when considered in the context of the Directive.

8.2

If the government meetings are "internal communications ofpublic authorities"
the consequence is that the exemption from disclosure is not lost, by virtue of Art

 10][1] of the Regulations and Art 4.2 of the Directive, if the information relates
to emissions into the environment On the other hand if government meetings are
considered to be "the proceedings of public authorities" the exemption from
disclosure given under 8[a][iv] of the Regulations and 4.2[a]of the Directive is
lost under Art 10[1] of the Regulations and Art 4.2 of the Directive. If
government meetings are only affected by Art 8 [b] of the Regulations, the
exemption from disclosure is not lost under Art 10[1] because of the operation of
Art 10[2] which excludes discussions at a meeting of the government of
emissions into the environment from the loss of exemption. If discussions at a
meeting of the government are governed exclusively by Art 8[b] an issue arise as
to whether Art 10[2] of the Regulations is inconsistent with the Directive and
therefore invalid.

Submissions
8.3

Mr. Collins described the appeal as being one in respect of a decision made by
the Commissioner directing the Taoiseach to disclose a single document which, it
was accepted, recorded discussion at cabinet. He submitted that if the matter fell
to be determined by Irish law alone that it would amount to a breach of Article
28.4.3. He further submitted that the regulations enshrine an exception, in express
terms, to the disclosure of meetings of government to the extent that that is
prohibited by Article 28.4.3. As such, he submitted that the document is one
which, under the Constitution and the regulations, An Taoiseach could not be

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properly be directed to disclose, save where the balance of the public interest
required it. He contended that there was a perfectly lawful accommodation of the
confidentiality of cabinet discussion in the regulations.

8.5

Mr. Collins submitted that it was the appellant's case that discussions in
cabinet constitute internal communications of a public authority. He noted that
article 9(2)(d) of the regulations reflected the exception set out in article 4(1 )(e)
of the directive. The government, he contended, was a public authority. He
submitted that the exception that relates to internal communications in article
4(1 )(e) of the directive is not subject to the same qualification as article 4(2)(a)
i.e. the exception applies irrespective of whether the information relates to
environmental emissions. If the Court agreed with him and found that the
request concerned internal communications then, he submitted, this would
dispose of the case and the issue of whether the document concerned emissions
into the environment would not arise.

8.6

Mr. Collins denied that he was raising a new ground. The argument rested on
the proposition, he stated, that the record at issue was protected from disclosure
by virtue of its nature and that it fell under articles 9(2)(d) of the regulations.
Therefore, it was not a different characterisation of the document, he submitted.
Also, he argued that the respondent had not been prejudiced as the argument he
was making featured in the legal submissions. If the Court was of the view that
article 9(2)(d) applied it would obviate a conflict between EU law and the

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Constitution, he stated. In his submission the matter was too important to take
the view that argument should not be made or allowed in because it was not
made earlier.

8.7

He submitted that the respondent acted in disregard of inter alia article 9(2)(d)
of the regulations. He contended that the refusal of the record was clearly justified
on the basis of inter alia article 9(2)(d) of the regulations and that this provision is
wholly compatible with the provisions of the directive.

8.8

It was submitted that the definition of "public authority" in article 3 of the
regulations is similar to the definition contained in article 2(2) of the directive.
The discussions of the government at cabinet, it is further submitted, clearly
constitute "internal communications" of the government for the purposes of
regulation 9(2)(d) and article 4(1 )(e) of the directive. Reference was then made to
an expressfinding on the part of the respondent in her decision of the 10th
October, 2008, that the record is not an internal communication between officials
as contemplated by article 9(2)(d) of the regulations, as interpreted in accordance
with article 4(l)(e) of the directive by reason of the fact that "the contributors of
the discussion recorded on the record are members of Cabinet and are not the

staff of a public authority". It was submitted that it was not a requirement of the
regulations or the directive that a communication, to be considered internal,
should be between officials of a public authority nor was it relevant that
members of government were not staff of a public authority. To suggest that the

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regulations were to be construed as permitting disclosure to be refused in respect
of communications between officials of a public authority but not in respect of
the members of that authority was untenable, it was submitted.

8.9

Ms. Butler acknowledged that the provisions of the Constitution were being
relied on by An Taoiseach. She submitted, however, that European law was
supreme, even in respect of the Constitution and that this was clear from Article
29 of the Constitution. Ms. Butler S.C. pointed out that these proceedings
involved an appeal on a point of law and that it was not a de novo appeal. The
issue concerning article 9(2)(d) should not properly be raised at this point, she
contended. Mr. Simons adopted a neutral position in this regard.

The

respondent submitted that the appellant did not raise the issue of article 4(1 )(e) of
the directive before the respondent. It was submitted that he is estopped from
raising it now.

8.10

It was not accepted by the respondent that the record concerned internal
communications. A distinction should be drawn, it was submitted between the
proceedings of such authorities, as expressly referred to in article 4(2)(a) of the
directive and internal administrative communications within such a body or
between the administrators and the body itself. As the record at issue in this case
was a note of actual comments made at the meeting of the government of 24 th
June 2003, it was contended that it involved "proceedings", as understood by
article 4(2)(a).

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8.11

Reference was made to the Aarhus Convention Implementation Guide which
states that although there was no definition of "proceedings" in the Convention
that "one interpretation is that these may be proceedings concerning the internal
operations of a public authority and not substantive proceedings conducted by the
public authority in its area of competence".

8.12

It was highlighted that it was a requirement under article 4(2) to give a restrictive
interpretation to the grounds for refusal in both article 4(1) and (2). This
indicated, it was submitted, that where disclosure was mandatory in relation to
emissions into the environment, in the context of a particular type of proceedings,
that the decision maker should not strain to characterise that type of proceeding so
as to fall within another ground of exemption which would not be subject to the
mandatory disclosure requirement.

8.13

Ms. Butler rejected any suggestion that the discussions of cabinet could be
classified as internal communications. She submitted that there was no dispute,
however, that such discussions were confidential, as provided for under article
4(2)(a) of the directive.

8.14

She further submitted that the proceedings of a public authority classically
involved meetings and that internal communications were distinct. Proceedings at

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cabinet must fall under article 4(2)(a) of the directive, in her submission. She
noted that that article did not distinguish between cabinet level and lower levels.
She argued that cabinet communications could not be shoehorned into article
4(l)(e). The distinction seemed, in her view, to be based on s.19 of the Freedom
of Information Acts, which had no application in the present case.

8.15

Mr. Simons S.C. adopted the submissions of the respondent. He submitted that the
appellant had said that cabinet confidentiality fell within article 4(2)(a) of the
directive at first instance and was now attempting to shoehorn it into article
4(1 )(e). He argued that cabinet confidentiality could not be relied upon in a case
relating to emissions into the environment.

8.16

Mr. Collins, in reply, noted that if the interpretation of the respondent and notice
party was correct, that if a member of the cabinet passed a note to another that
would be an internal communication but that if he or she said it orally it would not
be "proceedings of a public authority"

Decision
9.1

In her decision the respondent acknowledged that the document at issue, as a
record of discussions of a meeting of the government, enjoyed protection under
Article 28.4.3 of the Constitution and, as such, fell within the ambit of article 8(b)
of the regulations, subject to article 10 of the regulations. Therefore, the

 regulations, properly construed, preclude the disclosure of the document in issue
on the basis of Article 28.4.3.

As is apparent from the summary of the submissions above, much of the debate in
the case concerned whether a meeting of the government should be catagorised as
"the proceedings of a public authority", or as "internal communications" of a

public authority. The first issue to be confronted is whether the appellant is
entitled to raise in this appeal the issue of whether Art 9[2][d] of the Regulations
and Art 4[l][e] of the Directive apply, given that these were not relied on in the
appeal or review before the respondent. I have already held that this appeal is a
rehearing and therefore new material can be introduced. I am satisfied that the
respondent and notice party had ample notice of the appellant's reliance on Art
9[2][d] of the Regulations and Art 4[1 ][e] of the Directive in advance of the
hearing of this appeal. Therefore, having regard to the importance of the issue I
permitted the appellant to rely on it.
It is clear that the Regulations expressly and unequivocally make provision for
discussions at meeting of the government in regulations 8[b] and 10[2].. Hence in
my view, applying the primary canon of construction, namely ascertaining the
true meaning of the words used and applying same unless absurdity is produced,
I am of opinion that for the purpose of the Regulations, it must be taken that the
only provisions of the Regulations that govern or affect cabinet confidentiality
are Art 8[b] and Art 10[2] and not Art 8[a][iv] or 9[2][d], The opening phrase in
Art 8[2][iv] namely "without prejudice to paragraph [b], tends to reinforce this

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conclusion. Art 10[2] has the effect of protecting from disclosure a record of
discussion at a meeting of the government of emissions into the environment.

9.4

As it is apparent that the provisions in the Regulations which expressly deal with
meetings of the government are not replicated in the Directive, the Court must
consider whether Art. 8[b] and 10[2] are inconsistent with the Directive and hence
invalid. It is in this context that the issue as to the correct catogorisation of
meetings of the government arises and whether Art 4.1 [e] or 4.2[a] applies.

9.5

Meetings of the government are but one aspect of it's constitutional role and its
many and varied functions as described briefly in the Constitution and set out in
great detail in a vast array of legislation. To describe meetings of the government
as "the proceedings" of the government as the public authority in question seems
to me somewhat artificial and strained. Applying the natural and ordinary
meaning of these terms as used in Art 4.2 [a] in the Directive, would in my
opinion result in a conclusion that Art 4.2[a] did not and was not intended to
apply to meetings of the government, such as and in so far as these are provided
for in our Constitution and laws.

9.6

On the other hand meetings of the government are the occasions when as
provided for in Art 28.4.2 of the Constitution the members of the government
come together to act as a collective authority, collectively responsible for all
departments of State. Meetings of the government are the constitutionally

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mandated means or system of communication between it's members for the
purpose of discharging their collective responsibility. These meetings and their
records are required by the Constitution to be private and confidential unless
otherwise directed by the High Court under Art 28.3 of the Constitution. Whereas
many aspects of the functions of the government are essentially public and
external in nature, meetings of the government are quintessentially private and
internal to the overall functions of the government. Thus in my judgement, this
constitutionally mandated form of communication between members of the
government can only be regarded as the internal communications of a public
authority. Any other conclusion would lead to absurd results as pointed out by
Mr Collins, in that communications between members of the government in any
other context apart from formal meetings of the government would have to be
regarded as internal communications, and protected from disclosure, but the same
communications at a government meeting would as "the proceedings of a public
authority" attract disclosure. Manifestly such a state of affaires, apart from it's
obvious absurdity, would seriously undermine the discharge of collective
responsibility by the government, as required by Art 28.4.2 of the Constitution.
In this regard, I should further add, that I am quite satisfied that the distinction
sought to be drawn between communications between the members of a public
authority and between officials of that authority or between officials of the
authority and the members of the authority is devoid of any rational merit and
has no discernible basis either in the express provisions or by way of necessary
implication, in the Directive or the Regulations.

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Hence in my view Art 4.1[e] of the Directive clearly applies to meeting of the

9.7

government and thus there is no conflict between Art 8[b] and 10[2] of the
Regulations and the Directive.

10

Application for a reference to the ECJ under Art 234 of the EU treaty

10. 1

As this Court is not a Court of last resort in this jurisdiction with competence to
deal with the issues of EU law that have arisen in the case, I have decided to
exercise my discretion to refuse the respondents application for such a
reference.
Conclusion

1

For the reasons set out above, I must allow the appeal, set aside the
determination of the respondent and grant declarations to the following effect:
[a] That the respondent did not have the requisite legal power to
consider whether Art 10[2] of the Regulations was inconsistent with
Art 4.2 of the Directive and to disapply Art 28.4.3 of the
Constitution and Art 10[2] of the Regulations.

[b] Art 8[b] alone and not Arts 8[a][iv] or 9[2][d] of the Regulations
apply to discussions at meetings of the government.
[c] For the purposes of the Directive, discussions at meetings of the
government are "internal communications" within the meaning of
Art 4.1 [e] of the Directive.