High Court allows appeal, ruling government meeting records are exempt internal communications under EU Directive.

Neutral Citation Number: [2010] IEHC 241

THE HIGH COURT

2008 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 24th 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 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 28th 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.”

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 of public 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), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into

the environment.”

2.2 Article 6 of the directive provides for “access to justice” as follows:-

“1. Member States shall ensure that any applicant who considers that his request for information has been ignored,

wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the

provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority

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

impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.

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

access to a review procedure before a court of law or another independent and impartial body established by law, in

which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final.

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

access to legal recourse.

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

stated in writing, at least where access to information is refused under this Article.”

2.3 The regulations transposed the above directive into Irish law on the 28th 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. (1) 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—

…

(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:-

“…

(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 its second paragraph, it preserves 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.

…”

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 of justice 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

30th 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.

3.2 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.

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 2nd October, 2007, the notice party submitted his

fee, payable under the regulations for an appeal, on a “without prejudice” 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 from 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.

3.5 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 clear to have direct effect [Van Duyn v

Home Office [1974 ECR 1337].

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 10(2) of SI 133 contradict the provisions of the Directive and must be disapplied.

The doctrine of supremacy requires that the Commissioner exercise powers that she would not normally have under

domestic law.”

3.6 On the 29th 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.

3.7 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 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

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 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 confidentiality of the proceedings of public 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 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 provided for 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 derived from directly effective E.C. law, in finding that the requirements of Article 4(2) of the

directive could not properly be set aside by 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

Éireann [1989] I.L.R.M. 53.

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

“I 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

carrying out a review and proceed on the basis that the requirements of paragraph 2 of Article 4 of the Directive cannot

properly be set aside by article 10(2) of the Regulations.”

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 the first 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 The first 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 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.

4.3 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 Sociales pour

Travailleurs Independents (INASTI) [2001] ECR I-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 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 I-2483, Van Scijndel v. Stichting Pensioenfonds

voor Fysioherapeuten [1995] ECR I-4705 and Ministero della Finanze v. IN.CO.GE ’90 Srl. [1998] E.C.R. I-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 [1995] 1 I.R. 418 as an example of where such an action

was brought.

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 Spa v.

Commune di Milano [1990] 3 C.M.L.R. 239, Gervais Larsy v. Institut National d’Assurances Sociales pour Travailleurs Independents

(INASTI) [2001] ECR I-05063, and in Cooperative Agricola Zootecnia S. Antonio v. Amminstrazione delle Finanze dello Stata [1996]

E.C.R. I-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 Éireann [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 Milano [1990] 3 C.M.L.R. 239 and Consorzio Industrie

Fiammiferi v. Autorita Garante della Concorrenza e del Mercato. The Fratelli judgment, he also noted was not cited to the Court in

Minister for Justice, Equality and Law Reform v. Equality Tribunal [2009] I.E.H.C. 72 and for this reason that decision was per

incuriam.

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

5.1 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 South-West 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 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 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 .”

5.2 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.

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 Authority is responsible for ensuring, inter alia , that Article 81 EC

is observed 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.”

5.3 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:-

“… 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 I-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 E.R. (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.

6.2 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 general 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 European Union, proclaimed on the 7th December, 2000 in Nice. The judgment 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 I-6297 (para 29) and Safalero Srl v Prefetto di Genova Case C-13/01

[2003] ECR I-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 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 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 the exercise of rights conferred by Community law (principle of

effectiveness)”

6.5 The Court went on to find as follows:-

“48. A failure to comply with those requirements at Community level is-just 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 complainants-who sought to bring a claim based on an infringement of that legislation

before such a specialised court, 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 and the rules of representation, 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 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.”

6.6 In the joined cases of Van Schijndel v. Stichting Pensionenfonds voor Fysioherapeuten [1995] E.C.R. I-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 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.”

6.7 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. What 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 court’s case law

has shown, it is sufficient that individuals are given , by the national procedural rules an effective 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 difficult for those 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 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 injury……

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 noted first that a proper application of the law does not necessarily mean

that there cannot be any limits on its 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 of proceedings . ……”

6.8 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 Srl. [1998] ECR I-6307 at para. 14:-

“ It should 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 of jurisdiction to which

the classification of particular situations based on Community law may give rise in the national judicial system (Case

179/84 Bozzetti v Invernizzi [1985] ECR 2301, paragraph 17; Case C-446/93 SEIM v Subdirector-Geral das Alfândegas

[1996] ECR I-73, paragraph 32; and Case C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin [1997] ECR I-4961,

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.

7.2 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 its 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.

7.3 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

at first instance. The problem with all this, apart from 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.

7.4 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 equivalence would in effect be stood on its 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.

7.5 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.

7.6 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.

7.7 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 judgments of the ECJ demand such a

response from national legal systems.

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.

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 the findings 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[1][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 of public 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 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.

8.4 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.

8.5 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 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.

8.6 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.

8.7 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 express finding 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(1)

(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 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.

8.8 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.

8.9 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 24th June 2003, it was contended that it involved

“proceedings”, as understood by article 4(2)(a).

8.10 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”.

8.11 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.

8.12 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.

8.13 She further submitted that the proceedings of a public authority classically involved meetings and that internal communications

were distinct. Proceedings at 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(1)(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.

8.14 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.

8.15 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.

9.2 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[1][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.

9.3 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

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 categorisation 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 its 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 mandated means or system of communication between its 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 judgment, 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 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 its 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.

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

11 Conclusion

11.1 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.