New Latitude in AIE Statutory Appeals and the “Moldova Effect” on AIE Fees: High Court Refers Post‑MOP Question to the CJEU

Introduction

This commentary examines the High Court of Ireland’s decision in Save Leitrim Environmental and Biodiversity Company Ltd by Guarantee v Commissioner for Environmental Information [2025] IEHC 556 (Humphreys J., 22 October 2025). The case sits at a pivotal junction of EU environmental information law, international treaty interpretation, and domestic procedural fairness. It raises two systemically important issues:

• Whether, following the Meeting of the Parties’ (MOP) endorsement of the Aarhus Convention Compliance Committee’s (ACCC) findings in the Moldova case (Decision VII/8n), charges for “indirect costs” (time spent on search, retrieval and collation) are unlawful under Article 4(8) of the Aarhus Convention and Article 5(2) of Directive 2003/4 (the AIE Directive), thereby calling into question the CJEU’s earlier approach in East Sussex (C‑71/14).
• Whether the EU principle of equivalence precludes small AIE charges (here €15) because comparable fees under Ireland’s Freedom of Information regime would be zero where total costs are below the €101 minimum threshold, and—procedurally—whether an appellant can raise that argument on a statutory appeal without having raised it before the Commissioner.

The appellant, an environmental NGO, sought correspondence between Coillte and Soil Association Certification regarding certification audits. Coillte ultimately granted the request subject to a fee for 1.5 hours’ search and retrieval (€30, later reduced to €15 after recognizing some information was already public). The appellant challenged the lawfulness and reasonableness of the remaining €15 fee, arguing that “indirect” or “non-material” time costs are prohibited under Aarhus Article 4(8) as clarified in ACCC/C/2017/147 (Moldova) and endorsed by the Aarhus Meeting of the Parties in 2021, and alternatively, that the fee violates the principle of equivalence when compared with FOI charging rules.

The judgment is notable for two headline developments:

• It crystallizes a robust “interests of justice” pathway allowing appellants in AIE statutory appeals to raise new legal arguments not made to the Commissioner, where specific factors coalesce (including that the Commissioner’s decision would have been the same and that the issue will imminently recur in many pending cases).
• It refers to the CJEU an important question about whether MOP‑endorsed ACCC findings constitute “subsequent agreement/practice” (Vienna Convention, Article 31(3)) capable of displacing or requiring modification of East Sussex as regards charging “indirect costs” under Article 5(2) of the AIE Directive and Article 4(8) Aarhus.

Summary of the Judgment

The High Court:

• Held that the appellant could rely on the Moldova/MOP endorsement point even though the detailed Vienna Convention argument had not been fully articulated before the Commissioner; objections to reliance on the Vienna Convention were not pressed.
• Determined that, in light of the MOP’s 2021 endorsement of the ACCC’s Moldova findings (which state that any charges must not include “any other indirect cost” and should be limited to reasonable material costs), there is a real question whether East Sussex remains authoritative on the inclusion of staff time overheads. The Court therefore referred a question to the CJEU on whether, post‑MOP Decision VII/8n, Article 5(2) of the AIE Directive and/or Aarhus Article 4(8) preclude charging staff time for search, retrieval and collation.
• Accepted that the appellant could raise the principle of equivalence for the first time on the statutory appeal, due to a constellation of factors (including the Commissioner’s de novo jurisdiction, the absence of new factual disputes, the environmental rights context, and the need to resolve an issue arising in 35 pending appeals). It formulated and referred a further multi‑part question to the CJEU on whether equivalence prohibits small AIE fees when FOI would not permit charging below €101, and how comparability should be assessed.
• Left aside refund issues as academic (Coillte indicated it would repay €15), reserved costs, and directed a structured process for the CJEU reference, including possible amici and the provision of contact sheets and core materials under Practice Direction HC126.

Analysis

Precedents Cited and How They Matter

• Vienna Convention on the Law of Treaties, Article 31(3)(a)-(b). The Court placed this front and center, emphasizing that treaty interpretation must consider any subsequent agreement or subsequent practice establishing agreement among the parties.
• Scuola europea di Varese (C‑431/22) (CJEU, 2023). The CJEU confirms that parties to an international agreement may, through a body they establish, issue binding interpretative acts treated as subsequent agreement/practice under Article 31(3). This underwrote the Court’s openness to MOP‑endorsed ACCC findings as potentially authoritative treaty interpretation.
• East Sussex County Council v Information Commissioner (C‑71/14) (CJEU, 2015). The touchstone EU authority permitting inclusion of staff time overheads in AIE charges (subject to reasonableness). The High Court does not disapply East Sussex but signals that post‑MOP developments could require clarification or recalibration by the CJEU.
• ACCC/C/2017/147 (Moldova) and MOP Decision VII/8n (2021). The ACCC’s paragraph 89 states that charges “must not include … any other indirect cost” and should be limited to material costs like copying/postage. The MOP “endorsed the findings”—in standard form—thus arguably constituting “subsequent agreement/practice.”
• Mellifera eV (T‑12/17), para 86 (General Court). Leaves open whether ACCC recommendations become binding upon MOP endorsement, foreshadowing the importance of MOP action.
• Lesoochranárske zoskupenie VLK (C‑240/09) (CJEU, 2011). Confirms Aarhus forms part of EU law and frames when the CJEU will assess direct effect in fields the EU has legislated in. It anchors the EU‑law dimension of Aarhus interpretation.
• ClientEarth v Commission (C‑612/13 P) (CJEU, 2015). Cited by Coillte; the High Court distinguishes its holding (which concerns testing EU acts against international agreements) from the situation here (competing interpretations of Aarhus: CJEU vs MOP‑endorsed ACCC).
• Commission v Germany (C‑137/14) (CJEU, 2015). The Commission successfully challenged German rules limiting court challenges to objections raised at the administrative phase in environmental cases. The High Court uses this by analogy to justify not barring new legal pleas at the judicial stage in the AIE context.
• Pfeiffer (Joined Cases C‑397/01 to C‑403/01) (CJEU, 2004). Establishes that all national law should, where possible, be read in an EU‑consistent manner, not just legislation that transposes EU directives. This supports looking across FOI and AIE regimes when equivalence issues arise.
• Domestic authorities on scope of statutory appeals and new points:
  • Deely v Information Commissioner [2001] 3 IR 439; Minister for Communications v Information Commissioner [2020] IESC 57. Appeals are on points of law; no deference on legal questions.
  • University College Cork v Information Commissioner [2020] IESC 58; Rotunda Hospital v Information Commissioner [2011] IESC 26. Normally parties should raise points before the decision‑maker; but the High Court identifies exceptions.
  • Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4. Cited on notice parties’ standing to object; the Court did not need to decide this because Coillte made the same objection.
  • Friends of the Irish Environment v An Bord Pleanála [2019] IESC 53; An Taisce v An Bord Pleanála [2021] IESC 79. Illustrate latitude to deploy EU‑law interpretive arguments on appeal.
  • Bord na Móna plc v Commissioner for Environmental Information [2023] IEHC 57; Right to Know CLG v An Taoiseach [2023] IECA 68. Cited to show structural differences between FOI and AIE and practical effects.
• Scholarly commentary: Fasoli & McGlone, “Not So Soft After All!” (2018). Supports the proposition that MOP‑endorsed ACCC findings can carry authoritative interpretative weight.

Legal Reasoning

1) The “Moldova” ground and whether East Sussex must be revisited

The central move is to treat the MOP’s 2021 endorsement of ACCC findings in Moldova as potential “subsequent agreement/practice” in the sense of Article 31(3) of the Vienna Convention. The Court’s steps were:

• Establish that Aarhus forms part of EU law (Lesoochranárske VLK) and that the CJEU recognizes the interpretive role of subsequent agreement/practice by treaty parties (Scuola europea di Varese; Opinion 1/17).
• Demonstrate that MOP decisions in 2021 used a standard formula “Endorses the findings of the Committee” across multiple Parties and matters (31 endorsements across 19 Parties), including Moldova. This is not weak language nor a mere “note.”
• Explain that endorsement of conclusions necessarily implies endorsement of the underlying reasons, otherwise Parties could not understand or implement the decision. The MOP adopts the operative findings; those findings, in context, include the logic leading to them.
• Contrast Moldova (charges limited to reasonable material costs; no “indirect costs”) with East Sussex (overheads for staff time may be included if reasonable) and recognize the clash. Only the CJEU can resolve potential divergence within the EU legal order.

Accordingly, the Court referred the following question:

Whether, after MOP Decision VII/8n (Moldova), Article 5(2) of Directive 2003/4 and/or Aarhus Article 4(8) as part of EU law precludes including staff time overheads (search/retrieval/collation) in charges for supplying environmental information.

2) Raising new legal grounds on a statutory AIE appeal (principle of equivalence)

A key domestic procedural holding is that the appellant could, in this AIE statutory appeal, advance an equivalence argument not made to the Commissioner. The Court accepts the orthodox rule that parties should raise points with the decision‑maker, but articulates eight cumulative, practical exceptions justifying latitude here:

• The Commissioner was not realistically positioned to alter an EU‑law landscape anchored by East Sussex; a domestic submission would not have yielded a different outcome.
• The Commissioner expressly stated the decision would have been the same even if the point had been raised—rendering insistence on procedural purity “pointless formalism” and any omission “harmless error.”
• The Commissioner emphasized 35 live appeals on fees and sought judicial resolution now, avoiding serial relitigation.
• Time, costs, and judicial economy strongly favored deciding the point.
• The Commissioner urged that it was in the interests of justice to address the issue now.
• The AIE regime is designed to facilitate informal, accessible processes; the appellant had self‑represented before the Commissioner, consistent with Aarhus’ spirit.
• In AIE fee appeals, the burden rests on the public authority; there is a presumption against fees—a context which militates against penalizing requesters for not raising every legal nuance at first instance.
• No new factual inquiry was required; the point is purely legal.

The Court also drew support by analogy from Commission v Germany (C‑137/14), which condemns rules limiting pleas on judicial review of environmental decisions to those made administratively. While not directly applicable, it bolsters a broad access‑to‑justice ethos in environmental litigation.

Having allowed the argument to be made, the Court framed a second reference asking whether equivalence forbids the €15 AIE fee because a comparable FOI request would yield no charge under the €101 minimum threshold—along with guidance on how to assess “sufficient similarity” between the FOI and AIE procedures given their structural differences and the fact that Coillte is not an FOI body.

3) Principle of equivalence: Is FOI the benchmark for AIE micro‑fees?

Substantively, the parties disagreed on whether the principle of equivalence is engaged:

• State and Coillte argued that EU law (AIE Article 5(2)) occupies the field and allows reasonable charges; equivalence has no role. And in any event, FOI and AIE are not sufficiently similar—different purposes, scope (records vs information), proactive publication duty, emission‑info rules, and distinct charging architectures—so no like‑to‑like comparison can be made.
• The appellant contended that the two routes often access the same underlying information; as a matter of procedural comparability and EU‑consistent reading of national law (Pfeiffer), it is irrational to permit a €15 AIE fee where FOI’s minimum threshold would make that same quantum unchargeable.

The Court did not choose between these positions. Instead, it recognized that the question is genuinely open at EU law and suitable for a reference addressing:

• Whether equivalence applies at all in this field, and if so,
• How to judge procedural similarity, including:
  • Distinct purposes (transparency vs environmental protection) and the presence/absence of a proactive publication duty;
  • Divergent wording, exceptions, and fee rules; and
  • The specific fact that Coillte is not an FOI body.

Impact

The potential ramifications are significant and EU‑wide:

• If the CJEU answers that MOP‑endorsed ACCC findings are authoritative for EU law and that “indirect” time costs are prohibited under Aarhus Article 4(8) and Directive 2003/4 Article 5(2), then:
  • Authorities across the EU could be precluded from charging for search, retrieval and collation time on AIE requests; charges would be confined to reasonable material costs (e.g., postage, copying), likely necessitating rapid administrative and regulatory change.
  • East Sussex would be overtaken or narrowed, and Member States would need to review fee schedules and practices to comply with the clarified interpretation.
• If the CJEU embraces the appellant’s equivalence thesis (at least as regards micro‑fees), domestic AIE regimes could be obliged to mirror FOI’s no‑charge minimum threshold for low‑effort requests, eliminating small AIE charges even if “indirect costs” remain conceptually allowed.
• Procedurally, within Ireland, the judgment signals a more permissive approach to raising new legal points in AIE statutory appeals where the issue is pure law, the Commissioner indicates the outcome would not change, and environmental access‑to‑justice considerations loom large. This will influence how NGOs and requesters shape appeals and may reduce satellite remittals.
• The structured approach to references (amici, contact sheets, bundling, timelines) models best practice for efficient engagement with the CJEU on systemically important environmental information questions.

Complex Concepts Simplified

• AIE Directive (2003/4/EC): EU law guaranteeing public access to environmental information held by public authorities. Article 5(2) allows charges that do not exceed a “reasonable amount.”
• Aarhus Convention: International treaty integrated into EU law. It sets the framework for access to environmental information, public participation, and access to justice. Article 4(8) allows charges that do not exceed a “reasonable amount.”
• ACCC (Aarhus Convention Compliance Committee): A quasi‑judicial body that assesses compliance by Parties. Its “findings” are persuasive; when endorsed by the MOP, their status may be elevated as a “subsequent agreement/practice.”
• MOP (Meeting of the Parties): The treaty body under Aarhus. When it “endorses” ACCC findings, that action may constitute a collective clarification of the treaty’s meaning under the Vienna Convention on the Law of Treaties (Article 31(3)).
• East Sussex (C‑71/14): CJEU case that permitted inclusion of staff time overheads (e.g., search and retrieval) in charges for supplying environmental information, provided the overall amount is reasonable.
• “Indirect” vs “material” costs: Indirect costs are staff time and overheads in processing the request. Material costs are out‑of‑pocket costs like copying or postage.
• Principle of equivalence: Member States cannot make the enforcement of EU rights less favorable than comparable domestic actions. The controversy here is whether AIE requests are sufficiently similar to FOI requests to trigger equivalence in charging.
• Statutory appeal on a point of law: The High Court reviews legal issues arising from the Commissioner’s decision. There is no fact‑finding; the standard is non‑deferential on legal interpretation.
• Interests‑of‑justice latitude for new points: The Court enumerates practical exceptions allowing new legal arguments on appeal, especially in environmental information cases, where the Commissioner’s position is clear and no factual inquiry is required.

Conclusion

Save Leitrim v Commissioner for Environmental Information is a landmark waypoint in Europe’s environmental transparency landscape. Domestically, it sets a structured, principled approach for when AIE appellants can advance new legal grounds at the High Court stage—anchored in judicial economy, environmental access‑to‑justice values, the Commissioner’s de novo jurisdiction, and the absence of factual controversy.

At EU level, the judgment tees up two consequential questions for the CJEU. First, whether the MOP‑endorsed ACCC position in Moldova—permitting only reasonable material costs and excluding “indirect” time costs—must now shape the meaning of “reasonable amount” under Article 5(2) of the AIE Directive and Article 4(8) Aarhus, thereby revisiting East Sussex. Second, whether the principle of equivalence requires Member States to align AIE micro‑fee practices with comparable FOI rules that preclude charges under a €101 threshold, and how to assess similarity between the two regimes.

The answers will reverberate far beyond a €15 fee. They will determine the true cost of environmental transparency across the EU and clarify the constitutional status within EU law of MOP‑endorsed ACCC interpretations of Aarhus. By recognizing the potential of “subsequent agreement/practice” to reshape treaty meaning, the High Court has created a pathway for the CJEU to harmonize EU environmental information law with the Parties’ most recent authoritative understanding of the Convention.