High Court: Dispute over Cabinet confidentiality of emissions discussions referred to CJEU

High Court: Dispute over Cabinet confidentiality of emissions discussions referred to CJEU

Killian Flood BL

The High Court has decided to refer a point of EU law to the CJEU regarding an access to information claim brought by the information activist group Right To Know CLG (RTK) against the Taoiseach.

Specifically, it was claimed that the applicant was entitled to certain greenhouse emissions information which was discussed in Cabinet meetings under the Directive on Public Access to Environmental Information (Directive 2003/4/EC).

The respondent opposed the judicial review application mainly on the basis that the applicant’s entitlement to the records had already been rejected in previous court proceedings and was therefore subject to the doctrine of res judicata.

However, Mr Justice Garrett Simons ruled that the proper interpretation of the Environmental Information Directive was “not obvious” and, further, that there had been a development in the law since the previous decisions. As such, the matter necessitated a referral to the CJEU.


Right To Know CLG had previously made an access to information request to the Taoiseach seeking all documents which showed Cabinet discussions on Ireland’s greenhouse gas emissions between 2002 and 2016. The request was made pursuant to Article 4(2)(a) of the Environmental Information Directive, which provided that Member States must provide the requested information if that information related to emissions. This was termed “the emissions override.”

However, Article 4(1)(e) provided that a request could be refused if “the request concerns internal communications, taking into account the public interest served by disclosure.” As such, the Taoiseach argued that the Cabinet documents were “internal communications” which were exempt from disclosure, rather than “proceedings of public authorities” under Article 4(2)(a) which had to be disclosed.

The request was refused, which prompted RTK to bring judicial review proceedings. Ultimately, the High Court (Flaherty J.) determined in Right to Know clg v. An Taoiseach (No.1) [2018] IEHC 372 (“Cabinet Confidentiality No.2”) that Cabinet communications were defined as “internal communications,” ruling against the applicant. However, the court also held that the decision had to be remitted for fresh consideration because there was an obligation in each access to information case to weigh the public interest served by disclosure against the interest served by a refusal.

A further decision from the Taoiseach issued in August 2018, which provided access to only some of the requested records. As such, RTK brought further judicial review proceedings challenging the 2018 decision.

Although there were several legal points raised in the proceedings, the parties agreed to deal with RTK’s application for a referral to the CJEU on a preliminary basis. The applicant argued that the domestic courts’ interpretation of the Environmental Information Directive was incorrect and that a referral was necessary to conclusively determine the status of Cabinet confidentiality regarding greenhouse emissions under EU law.

In contrast, the respondent claimed that the applicant’s argument was subject to the doctrine of res judicata. It was said that the Irish court had already determined the issue of Cabinet confidentiality in the Cabinet Confidentiality (No.2) proceedings and in An Taoiseach v. Commissioner for Environmental Information [2010] IEHC 241 (“Cabinet Confidentiality No.1”). It was therefore claimed that the applicant could not raise the issue again in the proceedings.

Further, it was claimed that the proceedings were premature on the basis that RTK had not exhausted its statutory right of appeal to the Commissioner for Environmental Information.

High Court

The court began by outlining the case law governing the status of Cabinet discussions of greenhouse emissions. In Cabinet Confidentiality (No.1), the High Court emphatically ruled that Cabinet discussions were “internal communications” within the meaning of the Directive. This decision was endorsed in the subsequent Cabinet Confidentiality (No.2) case. This decision was described as a “very significant judgment” because it stated that the Government could not “baldly assert Cabinet confidentiality” and every decision had to be individually justified based on the countervailing public interest requirements.

After assessing the case law on res judicata and the arguments made by RTK in the case, the court determined that “the applicant would not normally be entitled to reagitate the question of the proper characterisation of records of meetings of the Government.” However, Mr Justice Simons said that he would exercise his discretion to allow the applicant to advance the characterisation issue.

First, it was held that a strict application of res judicata estoppel would potentially leave an infringement of EU law unremedied. Second, and crucially, the court noted that a significant dispute remained between the parties following the Cabinet Confidentiality (No.2) case. A number of alternative arguments had been advanced in those proceedings and the applicant was largely successful on those points.

Moreover, the question of access to the relevant records was not settled by the earlier proceedings and “the legal position remained uncertain and unstable.” The court also held that the applicant was in an invidious position after the earlier proceedings because it had ostensibly won, even though it had lost on the characterisation issue. An appeal at that point would have had its own difficulties.

In deciding to make a reference to the CJEU rather than follow the precedents in Cabinet Confidentiality (No.1) and (No.2), the court noted that there had been a change in the law since those proceedings. The Court of Justice had recently released the decision in Case C-619/19, Land Baden-Württemberg, while two important Opinions from the Advocates General had not been opened to the court in Cabinet Confidentiality (No. 2).

Mr Justice Simons noted that the other courts did not have the opportunity to consider these cases and that he had a “very real concern” that the previous Irish case law was not correctly decided. After outlining the comments of the Advocates General in their Opinions, the court said “the dividing line between the “internal communications” of a public authority and its subsequent confidential deliberative “proceedings” may not have been properly observed” in the Irish judgments.

Finally, the court turned to whether the applicant had failed to exercise the statutory appeal to the Commissioner for Environmental Information. The court held that there were significant and difficult issues of EU and domestic law raised in the proceedings. Crucially, the issue of domestic constitutional law was also raised regarding Cabinet confidentiality.

The court said that it was “inevitable” that any appeal to the Commissioner would end up in the High Court. Further, at the time that the judicial review proceedings were instituted, it was doubtful that the Commissioner had jurisdiction to determine any conflict between domestic and EU law. Although the law had been clarified since then, it would be unfair to retrospectively apply that law to the present case.


The court determined that it could not make a definitive decision in the case without a preliminary ruling on the proper interpretation of the Environmental Information Directive. The court also proposed to refer a question on the application of res judicata to the Directive. The court will hold a further hearing to consider the exact wording of the reference.

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