Aarhus Compliance Findings as Binding Interpretations for EU Environmental Information Charges:
Commentary on Save Leitrim Environmental and Biodiversity CLG v Commissioner for Environmental Information [No. 2] [2025] IEHC 663

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1. Introduction

This judgment of Humphreys J. in the High Court of Ireland does not finally resolve a dispute about a €15 information charge. Instead, it uses that modest dispute as a vehicle to raise two questions of considerable constitutional importance for EU environmental law:

• What is the legal weight, within the EU legal order, of findings of the Aarhus Convention Compliance Committee that are endorsed by the Meeting of the Parties (MOP)?
• How far does the EU law principle of equivalence constrain Member States’ freedom to set fees for access to environmental information, compared to domestic freedom of information (FOI) regimes?

The case sits at the intersection of:

• the EU’s implementation of the Aarhus Convention through Directive 2003/4/EC on public access to environmental information,
• the evolving “soft” but increasingly authoritative jurisprudence of the Aarhus Convention Compliance Committee, and
• the EU constitutional principles (notably equivalence) that control national procedural autonomy when giving effect to EU-based rights.

In essence, the High Court:

• stays the Irish proceedings,
• refers two detailed questions to the Court of Justice of the European Union (CJEU) under Article 267 TFEU, and
• sets out its own proposed answers, urging the CJEU to:
  • reconsider its earlier decision in East Sussex County Council in light of subsequent authoritative Aarhus practice, and
  • in the alternative, to apply the principle of equivalence to bar certain staff-time charges for environmental information where comparable FOI requests would not attract such fees.

The judgment therefore establishes, at least within the Irish judicial discourse, an important doctrinal stance: MOP-endorsed findings of the Aarhus Compliance Committee should be treated as a binding “subsequent agreement/practice” for purposes of treaty interpretation under Article 31(3) of the Vienna Convention, and EU law should, so far as possible, be interpreted to align with that understanding.

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2. Background and Procedural History

2.1 Parties

• Appellant: Save Leitrim Environmental and Biodiversity Company Limited by Guarantee – an environmental NGO seeking access to environmental information.
• Respondent: Commissioner for Environmental Information – the statutory appeals body under the Irish AIE Regulations.
• Notice Parties:
  • Coillte Cuideachta Ghníomhaíochta Ainmnithe – the State forestry company, treated as a “public authority” for AIE purposes.
  • Ireland and the Attorney General – representing the State’s interest in defending the transposition of EU and Aarhus rules.
• Amicus curiae: Right to Know CLG – an NGO specialising in access-to-information litigation, joined by order on 10 November 2025.

2.2 The AIE request and the contested fee

On 12 July 2023 the appellant requested, under the Irish Access to Information on the Environment (AIE) Regulations 2007–2018 (transposing Directive 2003/4), correspondence between Coillte and Soil Association Certification concerning a certification audit in or around May 2022.

After an implied refusal, the appellant sought an internal review. On 11 September 2023 Coillte granted access, but:

• imposed a €30 fee for 1.5 hours of “search, retrieval and compilation” time,
• levied no material costs (the information was supplied electronically), and
• therefore effectively charged only for staff time/overheads, not for copying or postage.

On appeal to the Commissioner:

• Coillte voluntarily reduced the fee to €15 (recognising that some information was already public).
• The Commissioner upheld the €15 fee in a decision dated 10 March 2025.

2.3 Appeal to the High Court

The appellant appealed the Commissioner’s decision to the High Court on 27 March 2025 under Article 13 of the AIE Regulations. The case was heard on 26 September 2025.

Humphreys J. delivered an earlier judgment on 22 October 2025 dealing with procedural matters and setting out proposed questions for a reference to the CJEU. Following further written submissions and the admission of Right to Know CLG as amicus, the court now issues this “No. 2” judgment:

• refining the questions to be referred,
• surveying the relevant EU and international legal framework, and
• formally ordering a preliminary reference under Article 267 TFEU.

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3. Summary of the Judgment

3.1 The essence of the dispute

The dispute is not about whether any fee in principle may be charged for access to environmental information. Rather, it is about:

• whether staff-time/overhead costs for searching, retrieving and compiling environmental information may be charged, and
• whether EU law, in its current state, permits or forbids such charges when:
  • the Aarhus Convention Compliance Committee and the Aarhus Meeting of the Parties have taken a restrictive stance (limiting charges to material costs), but
  • the CJEU’s prior judgment in East Sussex County Council allows overhead/time charges, provided they are reasonable.

3.2 The two questions referred

1. Question 1 – Effect of the Moldova (ACCC) and MOP Decision VII/8n on EU law interpretation
   In light of Decision VII/8n of the Aarhus Meeting of the Parties (concerning Moldova and endorsing the Aarhus Compliance Committee’s findings in ACCC/C/2017/147), does Article 5(2) of Directive 2003/4 and/or Article 4(8) of the Aarhus Convention now preclude any charge for environmental information that includes staff-time overheads (search, retrieval, collation)?
2. Question 2 – Principle of equivalence (only if Question 1 is answered “No”)
   If EU law (Directive 2003/4 / Aarhus) still permits staff-time charges in abstract, does the principle of equivalence nonetheless prevent an Irish public authority from charging for such costs under the AIE regime where:
   • comparable requests under the Irish FOI Act 2014 would not attract such charges, and
   • do various differences between the FOI and AIE regimes (purpose, detailed rules, institutional coverage) preclude treating them as “similar” for equivalence purposes?

3.3 The court’s proposed answers

Humphreys J. clearly signals the answers he considers correct as a matter of EU law, while acknowledging that the final word belongs to the CJEU:

• Proposed answer to Question 1: Yes. Following Decision VII/8n and the endorsement of the Moldova findings, the Aarhus Convention should now be interpreted as disallowing charges for staff-time/overheads in search, retrieval and collation. Article 5(2) of Directive 2003/4 must, in turn, be interpreted consistently with this subsequent authoritative interpretation, thereby displacing the broader reading in East Sussex for events after the MOP decision.
• Proposed answer to Question 2 (if needed): Yes. The principle of equivalence applies. The FOI and AIE regimes are sufficiently similar that, where FOI would not permit a staff-time fee in comparable circumstances, an AIE fee of that type would be incompatible with EU law. The technical differences between the regimes, and the fact that Coillte is not an FOI body, are not sufficient to negate this similarity.

3.4 Operative order

On that basis, the High Court:

• refers the two questions to the CJEU under Article 267 TFEU; and
• stays the substantive determination of the appeal (including the question of refunding the €15 fee) until the CJEU has ruled.

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4. Legal and Factual Context

4.1 International law – Vienna Convention and Aarhus

The court begins by locating the dispute within the framework of public international law:

• Vienna Convention on the Law of Treaties 1969 – Article 31 codifies the general rule of treaty interpretation:
  • treaties must be interpreted in good faith, in accordance with the ordinary meaning of the terms, in their context and in the light of their object and purpose;
  • Article 31(3) adds that subsequent agreements between the parties and subsequent practice establishing their agreement on interpretation must be taken into account; and
  • special meaning may be given to a term if the parties so intended.
• Aarhus Convention (1998) – The field-specific treaty, to which both the EU and all its Member States are parties. Article 4 covers access to environmental information; paragraph 8 provides that charges for supplying information:
  • must not exceed a reasonable amount,
  • must not exceed the actual costs, and
  • must not have a deterrent effect on access.

4.2 EU law – Treaty basis and Directive 2003/4

Article 216(1)–(2) TFEU confirms that international agreements concluded by the Union:

• are binding on the EU institutions and the Member States, and
• must therefore inform the interpretation and application of secondary EU law.

The Aarhus Convention was approved for the EU by Decision 2005/370. The key implementing act in this case is:

• Directive 2003/4/EC on public access to environmental information:
  • Recital 18 and Article 5 deal with fees.
  • Article 5(2) allows Member States to charge for supplying environmental information, provided that any such charge “does not exceed a reasonable amount”.

The CJEU’s Grand Chamber has explained the relationship between Aarhus and EU law in Lesoochranárske zoskupenie VLK (C‑240/09), emphasising that:

• the Aarhus Convention is binding on the EU and its Member States,
• EU secondary law should be interpreted, as far as possible, consistently with Aarhus, and
• even where Aarhus provisions lack direct effect, they may influence how EU and national law is construed.

4.3 The key pre-existing EU ruling: East Sussex County Council

In East Sussex County Council v Information Commissioner, C‑71/14, the CJEU held that:

“Article 5(2) of Directive 2003/4 … must be interpreted as meaning that the charge for supplying a particular type of environmental information may not include any part of the cost of maintaining a database … but may include the overheads attributable to the time spent by the staff of the public authority on answering individual requests for information, properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount.”

Thus, as of 2015, EU law was understood to permit:

• charging for staff-time / overheads (search, retrieval, collation),
• but not for prior “production” or “database maintenance” costs,
• subject in all cases to a “reasonable amount” cap and the overarching Aarhus objective of non-deterrence.

The central question now is whether this interpretation must be revisited in light of subsequent Aarhus practice.

4.4 Aarhus Compliance Committee and the Moldova decision

The Aarhus Convention Compliance Committee (ACCC) is a non-judicial body that assesses whether Parties comply with the Convention, usually on the basis of communications from the public.

In Communication ACCC/C/2017/147 (Republic of Moldova), the ACCC found that Moldova’s schedule of charges for hydrometeorological information breached Article 4(8). At paragraph 89, the Committee stressed:

“… any charges for supplying environmental information must be based on a transparent calculation and, while they may include a contribution towards the material costs for supplying the environmental information, they must not include the cost of the initial production, collection or acquisition of the information itself or any other indirect cost. Thus, information held by public authorities should be provided for free or at no more than the reasonable material costs of supplying the requested information (e.g. postage or copying costs). Lastly, any charge must not have a deterrent effect on persons wishing to obtain information, effectively restricting their right of access to information.”

These findings were then endorsed by the Meeting of the Parties at its seventh session in Geneva (Decision VII/8n). The MOP:

• “takes note” of the findings of the Committee on ACCC/C/2017/147, and
• explicitly “endorses the findings of the Committee” that the failure to ensure any charges do not exceed a reasonable amount and the failure to establish a clear, transparent and consistent framework breach Articles 4(8) and 3(1) of Aarhus.

The High Court reviews a broader set of MOP decisions (19 Parties, 31 endorsements) and notes that:

• endorsed ACCC findings follow a standard formula,
• the Moldova decision is not uniquely weak or exceptional in form, and
• the Aarhus Implementation Guide (2014) records that, up to that point, all ACCC findings of non-compliance had been endorsed by the MOP.

This supports the court’s conclusion that MOP-endorsed ACCC findings qualify as a “subsequent agreement” or “subsequent practice establishing the agreement of the parties” under Article 31(3) of the Vienna Convention.

4.5 Domestic law: AIE Regulations and FOI regime

Two domestic regimes are particularly important:

• AIE Regulations 2007–2018 (S.I. 133 of 2007, as amended):
  • transpose Directive 2003/4 into Irish law;
  • section 15 deals with fees for environmental information requests; and
  • no material difference is alleged between the wording of section 15 and Article 5(2) of the Directive.
• Freedom of Information Act 2014 and the FOI (Fees) Regulations 2014:
  • section 27 of the FOI Act 2014 regulates fees; section 12(7) allows an FOI body to point requesters towards the AIE regime when appropriate;
  • S.I. 531 of 2014 sets out specific fee levels:
    • €20/hour for search and retrieval (above certain thresholds),
    • minimum and maximum aggregate amounts (€101–€700),
    • separate charges for photocopying, CDs, X-rays, etc.

The appellant argues that, in comparable scenarios, FOI requests would not attract charges of the sort Coillte imposed under AIE, giving rise to an equivalence issue.

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5. Precedents and Authorities Cited

5.1 Treaty interpretation and the role of Aarhus practice

• Vienna Convention, Article 31
  The court treats Article 31 as the baseline interpretative framework. In particular, Article 31(3)(a)–(b) requires account to be taken of:
  • “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”; and
  • “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.
• CJEU, Scuola europea di Varese, C‑431/22 (2023)
  The CJEU in this case recalled that Article 31 VCLT reflects customary international law and applies to the interpretation of international agreements binding on the EU. The High Court cites this to confirm that EU courts must consider subsequent agreement and practice when interpreting Aarhus.
• General Court, Mellifera eV, T‑12/17 (2018)
  At paragraph 86 (cited by the High Court), the General Court recognised that:
  • Aarhus MOP decisions and the practice of its compliance mechanism have interpretative relevance, and
  • the EU institutions are bound to respect Aarhus as interpreted collectively by its Parties.
  Humphreys J. uses Mellifera to support characterising MOP-endorsed ACCC findings as authoritative interpretations of Aarhus, not mere soft guidance.
• Fasoli & McGlone, “The Non-Compliance Mechanism Under the Aarhus Convention as ‘Soft’ Enforcement … Not So Soft After All!”
  This academic article argues that the Aarhus Compliance Committee’s findings, especially when endorsed by the MOP, have a de facto binding quality. The High Court cites it to bolster the proposition that the Aarhus compliance system creates a robust interpretative framework that the EU should not lightly disregard.

5.2 Aarhus and EU law

• CJEU, Lesoochranárske zoskupenie VLK, C‑240/09 (Grand Chamber)
  This case established:
  • the binding nature of Aarhus on the EU,
  • the duty to interpret EU law consistently with Aarhus, and
  • that, even if certain Aarhus provisions lack direct effect, they can still exert interpretative influence.
  The High Court uses this as foundational authority for reading Article 5(2) of Directive 2003/4 in lockstep with Aarhus Article 4(8).

5.3 Fees for environmental information – East Sussex County Council

• CJEU, East Sussex County Council v Information Commissioner, C‑71/14 (2015)
  The cornerstone precedent on environmental information fees under Directive 2003/4. The High Court recites the key holding (para. 11 of the judgment) that:
  • fees may include overheads attributable to staff time, including search, retrieval and collation;
  • fees may not include database maintenance costs; and
  • charges must be capped at a reasonable amount.
  This is precisely the position that appears to conflict with the Moldova findings and MOP Decision VII/8n, which limit fees essentially to material costs of supplying information.

5.4 Principle of equivalence – Rewe and Bulicke

• CJEU, Rewe‑Zentralfinanz eG and Rewe‑Zentral AG, Case 33/76 (1976)
  Laid down the principle that in the absence of EU procedural rules:
  • it is for the domestic legal order to lay down procedures for safeguarding rights derived from EU law, but
  • those rules must not be less favourable than those governing similar domestic actions (equivalence), and
  • must not render the exercise of EU rights practically impossible or excessively difficult (effectiveness).
• CJEU, Bulicke v Deutsche Büro Service GmbH, C‑246/09 (2010)
  Refined the equivalence principle by stressing:
  • the need to examine whether the domestic and EU-based actions are similar as to purpose, cause of action and essential characteristics,
  • comparability must be assessed in concreto, not abstractly, and
  • Member States retain a margin to differentiate between actions that are not genuinely comparable.
  The High Court will apply this framework to compare the AIE and FOI regimes.

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6. The Court’s Legal Reasoning

6.1 Question 1 – Do MOP-endorsed Aarhus compliance findings change the interpretation of Article 5(2) Directive 2003/4?

6.1.1 Framing the conflict: Aarhus–MOP vs East Sussex

The High Court identifies a direct tension between:

• the CJEU’s 2015 interpretation of Article 5(2) in East Sussex, which allows staff-time/overhead charges, and
• the ACCC’s Moldova findings, endorsed by the MOP in 2021, which effectively:
  • limit charges for supplying environmental information to the material costs of supply (e.g. copying, postage),
  • exclude “indirect” costs such as staff time spent on search, retrieval and collation, and
  • require transparency and prohibit deterrent charges.

The key question is whether, as a matter of EU law, the Aarhus Parties’ subsequent interpretative agreement (MOP Decision VII/8n) requires the CJEU to revisit its understanding of both Aarhus Article 4(8) and Directive 2003/4 Article 5(2).

6.1.2 MOP decisions as “subsequent agreement/practice” under Article 31(3) VCLT

The High Court reasons as follows:

1. MOP decisions systematically endorse ACCC findings (31 endorsements across 19 Parties), often using standardised wording. This pattern shows that:
   • the Convention Parties collectively accept the ACCC’s operative conclusions, and
   • they do so in a formal, treaty-institutional setting (the Meeting of the Parties).
2. The Aarhus Implementation Guide confirms that all ACCC findings of non-compliance have, to date, been endorsed. This suggests a consistent, treaty-wide subsequent practice rather than an isolated political gesture.
3. In this context, a MOP “endorsement” cannot reasonably be understood as endorsing bare conclusions “hanging in thin air” without reasons. To understand what “non-compliance” and “obligations” mean, a Party must look to the detailed reasoning in the ACCC report. Thus, endorsement of the conclusions necessarily involves endorsement of the interpretative reasoning underlying them.
4. Accordingly, MOP-endorsed ACCC findings should be treated as:
   • a “subsequent agreement” between the Parties regarding the interpretation of Aarhus (Article 31(3)(a) VCLT); and/or
   • a “subsequent practice” establishing their agreement on interpretation (Article 31(3)(b) VCLT).

Given the CJEU’s own recognition in Scuola europea di Varese that Article 31 VCLT governs treaty interpretation, the court submits that EU law must now take those interpretative developments fully into account.

6.1.3 Consequences for EU law: revisiting East Sussex

Starting from this premise, Humphreys J. argues:

• At the time of East Sussex (2015), the CJEU’s reading of Article 5(2) (allowing staff-time charges) was “perfectly valid” based on the materials then available.
• However, the Parties to Aarhus (including the EU and all Member States) have since, through MOP Decision VII/8n, provided a more precise and restrictive authoritative interpretation of Article 4(8).
• Under Article 216(2) TFEU, Aarhus (as so interpreted) is binding on the EU and Member States. It would be highly undesirable to have divergent interpretations between the CJEU and the treaty Parties, as this could undermine:
  • the credibility of the Convention, and
  • the EU’s policy objectives in joining Aarhus in the first place.
• The CJEU is therefore entitled, and arguably obliged, to revise its prior interpretation of both:
  • Aarhus Article 4(8); and
  • Directive 2003/4 Article 5(2), whose wording is flexible enough to accommodate a narrower reading that excludes staff-time costs.

The High Court explicitly proposes that the CJEU should align the Directive’s interpretation, for its application after the date of the MOP decision, with the Moldova/Aarhus interpretation:

• charges may reflect reasonable, transparent material costs of supplying information; but
• they may not include staff-time/overhead costs such as search, retrieval and compilation.

On that reading, Ireland’s AIE Regulations would have to be disapplied pro tanto where they permit staff-time charges, and the appellant’s €15 would be refundable.

6.2 Question 2 – The principle of equivalence (if Aarhus/Directive still allow staff-time charges)

6.2.1 When does equivalence apply?

The State argues that:

• Article 5(2) of Directive 2003/4 has “pre-empted the field” regarding fees, leaving no room for national procedural autonomy; hence, the principle of equivalence is not engaged.

The High Court rejects this framing. In its view:

• Article 5(2) lays down a general standard (“not exceed a reasonable amount”), but:
  • leaves significant discretion to Member States on the design and structure of fee regimes (e.g. thresholds, hourly rates, categories of cost); and
  • does not prescribe a single uniform fee model.
• To the extent that Member States retain such discretion, its exercise is subject to:
  • the principle of equivalence, and
  • the principle of effectiveness.

Accordingly, if staff-time charges remain in principle possible under EU law, the question still arises whether a particular national configuration of fees treats EU-based rights less favourably than comparable domestic rights.

6.2.2 Are AIE and FOI procedures “similar” for equivalence purposes?

Under Rewe and Bulicke, equivalence requires comparing the procedure at issue (AIE request) with:

• a purely domestic procedure (FOI request) that is similar in:
  • purpose,
  • cause of action, and
  • essential characteristics.

The State and Coillte emphasise differences:

• Purpose:
  • FOI – to promote access to records and government transparency in general.
  • AIE – to promote access to environmental information in the interests of environmental protection, coupled with a proactive publication duty.
• Detailed rules and bodies involved:
  • different exemptions, procedures, and fee structures,
  • different sets of “public authorities”,
  • Coillte is subject to AIE but not FOI.

The High Court’s proposed view is that these differences, while real, are not significant enough to defeat equivalence in the context of fees:

• The “essence” of both regimes is access to information/records held by public bodies upon request.
• Many public authorities are subject to both AIE and FOI, and the FOI Act itself (s. 12(7)) recognises their interrelationship by allowing FOI bodies to direct requesters to AIE where suitable.
• The fact that Coillte is not an FOI body is a contingency of legislative coverage, not a structural difference in the type of right being exercised. It should not be allowed to undermine equivalence analysis.
• The distinctions in proactive publication duties and the detailed wording of exceptions do not go to the core procedural similarity relevant here: requesting, processing, and charging for access to information.

Therefore, the court considers the AIE and FOI procedures to be sufficiently “similar” to trigger the principle of equivalence.

6.2.3 Does equivalence preclude staff-time charges under AIE where FOI would not allow them?

If the FOI legislation, in comparable circumstances, would not permit a fee of the type levied under AIE (e.g. because of thresholds or limits on what counts as chargeable time), then:

• an AIE fee regime that simultaneously permits such fees would treat EU-based rights less favourably than analogous domestic rights; and
• this would breach the principle of equivalence.

The High Court therefore proposes that:

• if the CJEU answers Question 1 in the negative (i.e. if staff-time fees are still permitted under EU law in principle), it should answer Question 2 in the affirmative:
• Member States are barred, by equivalence, from imposing staff-time charges for AIE requests where comparable FOI requests would not attract such fees.

Again, this would entail disapplication of national AIE fee provisions to the extent of the inconsistency and the refund of the €15 fee in the present case.

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7. Impact and Significance

7.1 Immediate procedural impact

Domestically, the practical effect of this judgment is:

• to pause the Save Leitrim appeal, and
• to place the legality of Ireland’s AIE fee regime squarely before the CJEU.

The underlying amount (€15) is trivial; the potential systemic implications across the EU are substantial.

7.2 Potential outcomes at EU level

Depending on the CJEU’s responses, several scenarios could arise.

7.2.1 Scenario A – The CJEU accepts the High Court’s proposed answer to Question 1

If the CJEU holds that:

• MOP Decision VII/8n and ACCC/C/2017/147 constitute a binding interpretation of Aarhus Article 4(8), and
• Article 5(2) of Directive 2003/4 must be read consistently with that interpretation,

then:

• for all events after the MOP decision, environmental information fees across the EU would:
  • be limited to material costs of supplying information (copying, postage, etc.),
  • exclude staff-time/overhead costs of search, retrieval and collation, and
  • be subject to a non-deterrence requirement.
• Member States would need to amend or disapply any national rules allowing staff-time charges under AIE-type regimes.
• The CJEU would effectively recalibrate its own East Sussex jurisprudence in light of subsequent treaty practice.

7.2.2 Scenario B – The CJEU rejects Question 1 but accepts Question 2

If the CJEU holds that:

• Article 5(2) still allows staff-time charges in principle (i.e. it maintains the essence of East Sussex), but
• the principle of equivalence is engaged and the FOI/AIE procedures are sufficiently similar,

then:

• Member States would retain a theoretical power to charge staff-time fees, but:
• whenever a comparable domestic information-access procedure (e.g. FOI) offers better financial treatment (lower fees or none at all), national law would have to level up the EU-based regime:
  • AIE requesters could not be charged more – in terms of staff-time – than FOI requesters in analogous circumstances.

This would import a powerful horizontal equalisation constraint into national information regimes, making it difficult in practice to maintain higher fees for environmental information than for general FOI access.

7.2.3 Scenario C – The CJEU rejects both questions

If the CJEU:

• declines to treat MOP-endorsed ACCC findings as binding interpretations for EU law, and
• finds either that equivalence is not engaged, or that FOI and AIE are insufficiently similar,

then:

• Member States would retain broad freedom to set staff-time fees, subject only to the “reasonable amount” and non-deterrence limits of East Sussex and Aarhus Article 4(8) (as previously understood),
• the Aarhus compliance mechanism would continue to function as an important but non-binding interpretative influence within the EU legal discourse, and
• the EU and its Member States would face awkward pressure if Aarhus bodies continue to consider such fees incompatible with the Convention.

7.3 Broader constitutional significance

Whatever the CJEU ultimately decides, the High Court’s judgment is significant because it:

• Elevates the normative status of Aarhus compliance findings within national and EU legal orders, treating MOP-endorsed ACCC decisions as:
  • expressions of the collective will of the Parties on treaty interpretation, and
  • instruments that the EU courts should treat as binding interpretative guidance under Article 31(3) VCLT.
• Reinforces the idea that EU secondary law must dynamically track developments in international treaty interpretation, especially where:
  • the EU is a Party to the treaty, and
  • the treaty’s institutional mechanisms (like the ACCC and MOP) produce detailed findings on the meaning of obligations.
• Clarifies that principles of equivalence and effectiveness remain applicable even where EU law has legislated in a field, provided Member States retain some discretion in implementation.
• Highlights the risk that nationally more generous information regimes (such as FOI) may, through equivalence, raise the floor for EU-based access rights, thereby encouraging a general upward ratchet in transparency standards.

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8. Complex Concepts Explained

8.1 Preliminary reference (Article 267 TFEU)

A preliminary reference is a mechanism by which national courts ask the CJEU to interpret EU law. In this case:

• The High Court is uncertain how to interpret Article 5(2) of Directive 2003/4 and Aarhus Article 4(8) in light of later developments.
• It therefore stays the case and asks the CJEU for guidance.
• The CJEU’s answer will be binding on all courts in Ireland (and across the EU) when applying these provisions.

8.2 Aarhus Convention Compliance Committee (ACCC) and Meeting of the Parties (MOP)

• ACCC: A body established under Aarhus to review compliance by Parties, based on complaints from the public or referrals. It issues detailed findings and recommendations but is not itself a court.
• MOP: The gathering of all Parties to Aarhus. It can:
  • consider ACCC reports,
  • formally endorse findings, and
  • adopt decisions addressed to individual Parties.

When the MOP endorses an ACCC finding, that combination can be seen as:

• a collective agreement on how the Convention should be interpreted and applied,
• which, under the Vienna Convention, has interpretative weight for future cases.

8.3 Principle of equivalence

The principle of equivalence in EU law says:

• When national law lays down procedural rules for enforcing rights based on EU law, those rules cannot be less favourable than those governing similar rights based purely on national law.

In practical terms here:

• If a person seeking access to information under the EU-based AIE regime is treated worse (e.g. charged more) than a person seeking comparable information under the domestic FOI regime, this may breach equivalence.

8.4 “Material costs” vs “indirect costs”

• Material costs of supplying information – direct, out-of-pocket costs associated with reproducing and delivering the information in the requested form (e.g. photocopying, printing, postage, storage media).
• Indirect costs / overheads – internal costs of the public authority, such as:
  • staff salaries for time spent searching for, retrieving, and organising the information,
  • general administrative overheads,
  • database creation and maintenance costs.

The Aarhus compliance findings endorsed in the Moldova decision suggest that:

• charges should be limited to material costs of supply, and
• indirect costs, including staff time, should not be charged to requesters.

8.5 Disapplication of national law

If the CJEU interprets EU law in a way that conflicts with a national legislative provision (such as a fee regulation), national courts must:

• disapply the conflicting national rule in the case before them, even without waiting for the national legislature to amend it.

That is what the High Court foreshadows: if EU law forbids staff-time charges in this context, Irish rules allowing such fees must be set aside to that extent, and the appellant’s fee refunded.

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9. Conclusion

This judgment in Save Leitrim Environmental and Biodiversity CLG v Commissioner for Environmental Information [No. 2] is a carefully structured invitation to the CJEU to:

1. Recalibrate EU law on environmental information fees to align with the Aarhus Convention as authoritatively interpreted by its Parties through the ACCC and MOP, and
2. Clarify the role of the principle of equivalence in comparing EU-based environmental information regimes with domestic FOI regimes when assessing the permissibility of staff-time charges.

Doctrinally, the High Court:

• takes a strong view of the binding interpretative force of MOP-endorsed ACCC findings under Article 31(3) VCLT,
• sees no principled reason for the EU legal order to depart from the collective understanding of the Aarhus Parties, and
• emphasises that national freedom to structure fee regimes is constrained both by Aarhus-consistent interpretation and by the principle of equivalence where EU law leaves discretion.

From a policy perspective, the case exemplifies how seemingly minor administrative charges can raise fundamental questions about:

• the enforceability of international environmental obligations within the EU,
• the status of “soft” compliance mechanisms in shaping “hard” law, and
• the degree to which more generous domestic transparency regimes (like FOI) set a de facto minimum standard for EU-based access rights (like AIE).

Whichever way the CJEU answers the referred questions, this judgment will remain a significant contribution to the jurisprudence on:

• the integration of international environmental treaties into EU law, and
• the structural relationship between Aarhus, Directive 2003/4, and national information-access regimes.