Is RTÉ a public authority for access to environmental information purposes?

The key question is whether the body organically forms part of the State’s public administration or executive. The High Court must now apply that interpretation when determining RTÉ’s appeal.

Our Public, Regulatory & Investigations team examines the judgment and what it may mean for public sector bodies assessing their obligations under the AIE regime.

What you need to know

• For environmental information access purposes, a public-law body falls within Article 2(2)(a) of the AIE Directive as a “public authority” only if it organically forms part of the State’s public administration or executive.
• Within the AIE Directive framework, State ownership, public funding and statutory functions alone do not automatically make a body a “public authority”.
• The Article 2(2)(a) assessment turns on whether the body organically forms part of the State’s public administration or executive; institutional independence is relevant to that analysis.
• A public broadcaster which operates independently and does not organically form part of the State’s public administration or executive falls outside Article 2(2)(a).
• The underlying proceedings will now resume before the High Court, which must apply the CJEU’s interpretation when determining RTÉ’s appeal.

Introduction

The Court of Justice of the European Union (CJEU) has delivered its judgment in Raidió Teilifís Éireann v Commissioner for Environmental Information following a reference from the High Court. The reference comprised three questions concerning the interpretation of Directive 2003/4/EC on public access to environmental information, namely the “AIE Directive” summarised below:

1. Interpretation of Article 2(2)(a) of the AIE Directive: Under that provision, is RTÉ a “public authority” for environmental information access purposes, and if so, to what extent?
2. Interpretation of Article 2(1) of the AIE Directive: Does the definition of “environmental information” require a body to create a record stating the number of records it holds on a topic, where no such record previously existed?
3. Interpretation of Article 6 of the AIE Directive, Article 9 of the Aarhus Convention and Article 47 of the Charter of Fundamental Rights of the European Union: Must courts determine environmental information disputes themselves in circumstances where remittal would cause undue delay?

Background

These questions arose from a dispute between RTÉ and the non-profit organisation, Right to Know CLG (RTK). RTK submitted an information request to RTÉ in 2021 under the European Communities (Access to Information on the Environment) Regulations 2007 (AIE Regulations), which implement the AIE Directive in Ireland. The request concerned information relating to RTÉ’s coverage of climate change.

RTÉ stated that it held no documents falling within two categories of that request, namely:

• Guidance, training or advice provided to journalists on communicating or covering climate change, and
• A record of the number of representations received regarding its climate-change coverage.

RTÉ voluntarily disclosed some documents within the third category, being all correspondence RTÉ received regarding its coverage of climate change in 2021. RTÉ disclosed this without accepting that it was legally required to do so. The broadcaster subsequently maintained that those documents were not “environmental information”, and, an internal review, upheld its decision.

RTK appealed the decision to the Commissioner for Environmental Information. RTÉ submitted to the Commissioner that it was not a “public authority” within the meaning of paragraph (a) of the definition of that expression in Article 3(1) of the AIE Regulations, which is the same as the definition in Article 2(2)(a) of the AIE Directive. The Commissioner rejected that argument and determined that RTÉ was a "public authority" for the purposes of the AIE Regulations. In addition, the Commissioner found that the requested records constituted “environmental information” within the meaning of those Regulations.

RTÉ appealed that decision to the High Court, contending, among other matters, that it was not a ”public authority” within the meaning of the AIE Regulations. The High Court stayed the proceedings and referred three questions to the CJEU.

CJEU preliminary observations

In its judgment of 10 September 2026, available here, the CJEU made a number of preliminary observations.

It noted as follows:

• Because the EU is a party to the Aarhus Convention, EU law recognises a general principle of access to environmental information held by public authorities. This reinforces the importance of the Aarhus Convention in interpreting any EU environmental legislation.
• Recital 5 of the AIE Directive confirms that the EU legislature intended to ensure consistency with the Aarhus Convention by giving any natural or legal person in a Member State a right of access without having to state an interest. The Directive must therefore be interpreted in the light of the Aarhus Convention.
• The right of access under the AIE Directive applies only where the requested material constitutes “environmental information” within Article 2(1), a matter for the referring court to determine in the main proceedings.

These preliminary observations framed the CJEU’s consideration of the first question. The AIE Directive must be interpreted consistently with the Aarhus Convention, and the access regime applies only to material falling within the definition of “environmental information”.

The first question

The CJEU approached the first question by noting the following:

• The concept of a ‘public authority’ in Article 2(2)(a) of the AIE Directive is an autonomous concept of EU law. It must be interpreted uniformly by reference to its wording, context and objectives.
• Article 2(2)(a) does not refer to national law, confirming that its meaning must be uniform across Member States.
• The Directive requires administrative authorities to provide access to environmental information, enabling public scrutiny of their decisions.
• The Aarhus Convention and the AIE Directive use ‘public authorities’ primarily to denote administrative authorities, which ordinarily hold environmental information in performing their functions.
• The three categories of “public authorities” in Article 2(2) encompass the State itself and entities empowered to act on its behalf or subject to its control.

The High Court must decide whether RTÉ organically forms part of the State’s public administration or executive. However, the CJEU issued guidance in that regard, indicating that it does not form part of governmental services or regional or local authorities, and is not a public advisory body. Here, the CJEU noted the following:

1. First, although the classification is for the High Court, the material before the CJEU indicated that RTÉ was not part of the State’s administrative or executive apparatus, governmental services or a public advisory body.
2. Second, RTÉ does not appear to participate in political or administrative decision-making: its broadcasting, journalistic and related activities may be public services, but are not administrative in nature.
3. Third, despite RTÉ’s statutory establishment and government-appointed board, sections 98 and 87(d) of the Broadcasting Act 2009 safeguard its independence from State, political and commercial influence.

These observations were pivotal in the CJEU’s ruling.

CJEU ruling

The CJEU ruled that, within the environmental information regime under the AIE Directive, a public-law body is not a ‘public authority’ under Article 2(2)(a) unless it organically forms part of the State’s public administration or executive. Statutory establishment, public funding and government-appointed board members are insufficient indicators of a body falling within the concept of a “public authority”. The organic formation relates more squarely to whether a body actually forms part of a State’s governmental or administrative functions. In this instance, RTÉ’s independence and non-administrative functions informed the Court’s guidance.

This answer made it unnecessary to address the second and third questions.

The High Court must now determine RTÉ’s appeal in accordance with the CJEU’s interpretation.

Comment

The judgment confirms that the decisive test under Article 2(2)(a) of the AIE Directive, replicated in paragraph (a) of the definition of “public authority” in the Irish AIE Regulations, is whether the body “organically forms part of the State’s public administration or executive”.

As the RTÉ case demonstrates, indicators such as statutory establishment, public funding, being vested with public-service functions and having government-appointed board members are not sufficient in themselves to render a public body a “public authority” within the meaning of Article 2(2)(a). The CJEU held that a body in RTÉ’s position, which does not organically form part of the State’s public administration or executive, falls outside of Article 2(2)(a).

The High Court must now determine RTÉ’s appeal in accordance with that interpretation. The conclusion is specific to the AIE Directive context, and should not be treated as a general determination of RTÉ’s status for other legal purposes.

If you have any questions about this judgment or its implications for your organisation’s obligations under the AIE regime, please contact a member of our Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.