Introduction

This judgment sits at the intersection of domestic access-to-environmental-information procedure and supranational requirements of timeliness, effectiveness and fairness under the Aarhus Convention, Directive 2003/4/EC (the AIE Directive), and Article 47 of the EU Charter of Fundamental Rights. The dispute concerns a 2018 AIE request by People Over Wind to Coillte about the proposed Cullenagh wind farm. Over nearly seven years the request travelled through refusals, internal reviews, appeals, a High Court reference (Hyland J., 2023) clarifying exemptions, and two remittals by the Commissioner for Environmental Information (OCEI). The applicant challenged the second remittal (December 2024) by judicial review.

The core legal issue is not whether remittal exists in principle, but when it is lawful to remit instead of deciding the appeal on the merits, once the EU-law duty of timeliness is brought to the fore. Humphreys J. affirms that remittal is available by necessary implication under Regulation 12(5) of the AIE Regulations. However, he also indicates that the choice to remit in this case likely prolonged resolution and therefore may be incompatible with the supranational requirement that remedies be “timely” and “effective.” Recognising that this issue raises a question of EU law, he refers targeted questions to the Court of Justice of the European Union (CJEU), inviting joinder with the already-pending Case C‑330/25, RTÉ.

Key issues

• Whether the OCEI had jurisdiction to remit an appeal to the public authority instead of deciding it (domestic law: AIE Reg. 12(5)).
• Whether remitting in the circumstances breached the EU-law requirement of a timely, expeditious and effective remedy (Aarhus Art. 9(1) & (4); AIE Directive Art. 6; Charter Art. 47; Recital 13 of the Directive).
• Whether there was a breach of fair procedures in unilateral OCEI–Coillte communications and whether reasons for remittal were adequate.
• Mootness: whether ongoing steps post-remittal render the judicial review purposeless, or whether the case fits the “capable of repetition yet evading review” category.

Parties

• Applicant: People Over Wind
• Respondent: Commissioner for Environmental Information
• Notice parties: Coillte; Ireland and the Attorney General

At a glance: the timeline

• 12 Nov 2018: AIE request to Coillte.
• Dec 2018–Mar 2020: Refusal; internal review; first OCEI remittal (Nov 2019); second refusal affirmed on internal review (Mar 2020).
• Apr 2023: High Court (Hyland J.) clarifies applicable exemptions in Commissioner v Coillte [2023] IEHC 227.
• Dec 2024: OCEI issues second remittal decision (impugned).
• Mar–Apr 2025: Coillte issues new internal review; applicant appeals again.
• 24 Oct 2025: OCEI issues final merits decision (post-hearing), directing release of “Category A” material and upholding refusal for “Category B”.
• 5 Nov 2025: High Court judgment on judicial review of the Dec 2024 remittal, referring questions to the CJEU.

Summary of the Judgment

• Jurisdiction to remit: The OCEI lawfully possesses an implied power to remit under Regulation 12(5) AIE Regulations. Remittal is the legal consequence of annulling an internal review decision without simultaneously directing release: the “void” must be filled by the public authority making a fresh internal review decision.
• Fair procedures: No breach where the OCEI engaged in administrative, non-consequential communications with Coillte without copying the applicant; no demonstrated prejudice.
• Adequacy of reasons: The OCEI’s reasons for remittal (efficiency, legal developments since 2020, backlog, and Coillte’s delays) met the Connelly standard; however, their validity must be tested against the timeliness duty.
• Mootness: The case is not moot. Even if the administrative process has moved on, declaratory relief remains appropriate to mark undue delay in a process capable of repetition yet evading timely review.
• Timeliness and EU law: The Court indicates that remittal here likely delayed finalisation and thus raises EU-law issues. It refers two questions to the CJEU on whether, and to what extent, the appellate body must prefer an on-the-spot merits decision (ex nunc, full factual and legal examination) over remittal where the latter would probably be slower—especially after an earlier remittal—and whether backlog, administrative convenience, or public-body delay can lawfully justify remittal.
• Relief and order: Certiorari is refused in principle; the Court prepares a reference to the CJEU and sets procedural directions (including a request to join with Case C‑330/25, RTÉ). Costs reserved.

Analytical Commentary

1) Legal architecture engaged: Aarhus, Directive 2003/4/EC, Charter, and the AIE Regulations

The Court frames the OCEI’s appellate role within Aarhus Article 9(1) and Directive 2003/4/EC Article 6. While Article 9(1) Aarhus speaks to access to a review procedure before a court or independent body, Article 9(4) adds that procedures must provide adequate and effective remedies and be fair, equitable, timely, and not prohibitively expensive. Article 6 of the AIE Directive requires an expeditious review, and Recital 13 stresses that environmental information should be made available as soon as possible and within a reasonable time. Even if timeliness is not transposed via an explicit operative provision, the Court grounds it also in Article 47 of the Charter and the interpretative obligation to align domestic law with Aarhus.

Against this EU-law canvas, Regulation 12(5) of the AIE Regulations provides that the OCEI shall review the decision, affirm, vary or annul it, and, where appropriate, require disclosure. The judgment turns on how the structure of these powers interacts with the supranational demand for timeliness.

2) Jurisdiction to remit under Regulation 12(5): “remittal” as the consequence of annulment and the “void” theory

Humphreys J. rejects the applicant’s argument that the OCEI lacks power to remit. Even without an express remittal power, the ability to “annul” an internal review decision necessarily implies that the public authority must “pick up the pieces” and make a fresh internal review decision to vindicate the requester’s rights under the Regulations. The label “remittal” describes this consequence; it is not a standalone head of jurisdiction.

Crucially, the Court distinguishes this administrative-appeal setting from judicial review: a court quashing by certiorari can leave matters at an end absent a separate exercise of a power to remit. By contrast, under AIE Regulation 12(5), annulling an internal review decision without ordering release still presupposes continuation of the internal review process to finality. The Court’s approach aligns with OCEI’s own prior reasoning (e.g., Right to Know CLG v TII, 28 Oct 2021) that annulment leaves a “void” necessitating a fresh internal review decision.

3) Fair procedures: unilateral administrative communications

The applicant argued that OCEI’s communications with Coillte, not copied to the applicant, violated fair procedures. The Court finds no breach. The exchanges were administrative (e.g., extensions, process mechanics) rather than substantive, and no prejudice was shown. In context, fair procedures are flexible, not “one size fits all” (O’Sullivan v SFPA; O’Sullivan v HSE). The judgment nonetheless encourages, as a matter of good practice, maximizing shared communications where practicable, mindful of the trade-off with timeliness: copying everyone on everything can itself introduce delay.

4) Reasons for remittal: adequate in form; validity turns on timeliness

Applying Connelly v An Bord Pleanála, the Court holds that OCEI’s reasons met the adequacy threshold: the decision clearly identified “efficiency” in light of legal developments since 2020, backlog considerations, and Coillte’s response delays. The deeper question is whether those reasons are legally valid in light of EU-law timeliness obligations—an issue the Court routes to the CJEU.

5) Timeliness as the controlling principle in choosing between remittal and deciding on the merits

Humphreys J. articulates a core insight: in an AIE appeal, the appropriate choice is between requiring the public authority to present its position within the appeal (enabling the OCEI to decide once and for all) or remitting for a fresh internal review decision. The only relevant metric, given EU law, is which option likely achieves a timely, expeditious, effective resolution. Administrative convenience, resource conservation, or a “lead case” strategy are not legally determinative if they cause materially greater delay.

On the facts, remittal (the second in this saga) deferred the final decision from mid‑2024 to October 2025. While a merits decision by the OCEI would have taken work and time, the Court finds it more likely than not that it would have concluded earlier if OCEI had kept the appeal and required Coillte to advance its case within that forum. In this sense, the decision reflects a preference for “timeliness over administrative convenience.”

6) Mootness and effective remedies: why declaratory relief remains live

The OCEI argued the judicial review was moot because a new process had moved on. The Court rejects that. First, if remittal lacked jurisdiction (it did not), subsequent steps would be a nullity. Second, even when jurisdiction exists, a declaration can mark an undue delay already suffered—particularly apt for issues “capable of repetition yet evading review,” where administrative steps post-remittal will always outrun a judicial review timetable. The Court cites comparative insight from R (Badger Trust) v Natural England, underscoring the rule-of-law value of adjudicating even backward-looking accountability issues.

7) Reference to the CJEU: the questions and their significance

Recognising that the binding standard for “timely, expeditious and effective” AIE remedies is a matter of EU law, the Court refers two questions to the CJEU and invites joinder with Case C‑330/25, RTÉ. In essence, the questions ask:

• Whether, to deliver a timely/effective remedy, an appellate body (under AIE Directive Art. 6(2)/Aarhus Art. 9(1), (4)/Charter Art. 47) must exercise its powers to the maximum to reach a final merits decision (ex nunc, full factual/legal analysis) when remittal would probably delay finalisation—especially after a prior remittal.
• Whether that duty applies regardless of OCEI’s backlog, the administrative convenience of remittal or desire to let the public body reconsider in light of new case-law, or the public authority’s delays in responding to the appellate body’s requests.

The Court finds these are genuine interpretation questions (not acte clair/éclairé), necessary to determine appropriate declaratory relief. Procedural directions are set, including notice to the State and potential amici, and steps to prepare the reference dossier.

8) Precedents and authorities discussed

• Commissioner v Coillte Teoranta [2023] IEHC 227 (Hyland J.): Clarified the scope of AIE exemptions and their interface with FOI Act 2014. This development partly motivated OCEI’s 2024 remittal, though the Court ultimately emphasises timeliness over further internal reconsideration.
• Connelly v An Bord Pleanála [2018] IESC 31: Reasons sufficiency; used to assess adequacy of OCEI’s remittal reasons.
• O’Sullivan v SFPA [2017] IESC 75 and O’Sullivan v HSE [2023] IESC 11: Fair procedures are context-sensitive; no entitlement to elaborate procedures at every point.
• Asociación Petón do Lobo, C‑461/24 (1 Aug 2025): No general right to comment on a public authority’s comments, reinforcing the contextual nature of participatory rights in administrative processes.
• R (Badger Trust) v Natural England [2025] EWHC 2761 (Admin): Value of judicial review is not negated because relief is backward-looking; relevant to the utility of declaratory relief here.
• Mootness/evading review line: Southern Pacific Terminal; Condon; Grant; J.A. (Cameroon); An Taisce (No. 4), grounding the Court’s refusal to treat the case as moot.
• CJEU reference framework: CILFIT; Consorzio Italian Management; Rheinmühlen; RS; Masterfoods; Bankia, establishing when references are necessary/appropriate and the independence of the referring court’s role.
• OCEI decisions relied upon for structure: Right to Know CLG v TII (2021) endorsing the “void” consequence of annulment; other OCEI decisions illustrating threshold annulments followed by remittal (public authority status; environmental information definition; manifest unreasonableness; adequacy of searches).

Impact and Practical Implications

Immediate doctrinal consequences

• Power to remit affirmed: Litigants should not expect a jurisdictional bar to remittal under AIE Reg. 12(5). Annulment without an immediate release direction necessarily triggers a fresh internal review decision.
• Timeliness as the primary criterion: In choosing between remittal and deciding on the merits, the legally relevant question is which path will resolve the matter faster overall. Administrative convenience, resource conservation, or backlog management are not, by themselves, sufficient to justify a slower route.

Operational guidance for OCEI and public authorities

• Decision calculus must be timeliness-centric: Where a remittal is likely to delay final resolution—particularly after a prior remittal—the OCEI should retain the appeal and deliver a full ex nunc merits decision after inviting focused submissions.
• Backlogs are not a trump card: Systemic constraints cannot displace the EU-law duty of timely and effective remedies.
• Public authority delay does not reward remittal: Slow responses by the authority should not tilt the balance toward remitting; rather, they may support deciding within the appellate forum to avert further slippage.
• “Lead case” strategy is not a legal justification for delay: Designating a separate case as a lead on an exemption (e.g., commercial confidentiality) does not, in itself, validate postponing another appeal if deciding now would be quicker.

For requesters and advocates

• New advocacy hook: Applicants can now argue that OCEI must decide on the merits where remittal would likely take longer, invoking this judgment and, in due course, the CJEU’s answer.
• Declaratory relief remains meaningful: Even when the process has moved on, a declaration may be available to mark undue delay and steer future conduct.

Systemic effects and what to watch

• CJEU’s answer could harden the standard: If Luxembourg holds that appellate bodies must exercise their powers “to the maximum extent” to reach a final decision where that is quicker, this would reshape AIE appellate practice across the EU (not just in Ireland), narrowing the space for remittal driven by administrative efficiency.
• Workload implications: Expect an increased inclination by the OCEI to deliver merits decisions in complex appeals, with corresponding resourcing and case-management adjustments.
• Ripple effects on judicial remittals: Since the Court invites joinder with RTÉ (C‑330/25), a coherent EU-law standard on remittal and timeliness may also influence courts’ own remittal practices in AIE litigation.

Complex Concepts Simplified

• Remittal (in AIE appeals): When the OCEI annuls an internal review decision without ordering release, the matter goes back to the public authority to conduct a fresh internal review decision. This flows from the structure of Regulation 12(5); no separate express power is needed.
• “Void” theory vs certiorari: In AIE appeals, annulment creates a “void” in the internal review stage that must be filled by a new internal review decision. In judicial review, the court can quash and stop there—no automatic remittal.
• Ex nunc examination: A present-tense, up-to-date assessment on the appeal, taking account of all facts and law as they stand at the time of decision—not frozen at the date of the original decision.
• Timely, expeditious, effective remedy: A EU-law requirement (Aarhus Art. 9(4); Charter Art. 47) that procedures not only be fair and affordable but also deliver outcomes without undue delay.
• Acte clair / acte éclairé: Where the meaning of EU law is clear or already settled by the CJEU, a national court need not refer. Here, the Court found no acte clair on the remittal/timeliness standard, warranting a reference.
• Capable of repetition yet evading review: A mootness exception permitting courts to address issues that recur but consistently outpace judicial review timelines.
• National procedural autonomy (limits): Member States can design procedures, but EU law overlays baseline requirements (like timeliness and effectiveness) that constrain how those procedures are exercised.

Conclusion

This judgment crystallises two important points for AIE practice. First, the OCEI’s power to remit exists by necessary implication under Regulation 12(5); remittal is a structural consequence of annulment of an internal review decision where disclosure is not immediately ordered. Second—and more consequentially—the High Court elevates timeliness as the primary legal criterion when choosing between remittal and deciding the appeal on the merits. On the facts, a second remittal likely deferred final resolution; the Court therefore refers targeted questions to the CJEU to set a clear EU-law standard: must the appellate body decide ex nunc where that is faster, and can backlog, administrative convenience, or public authority delay justify a slower remittal route?

Pending the CJEU’s answers, the judgment already signals an important course correction: where remittal adds time, it is suspect. The decision also fortifies the availability of declaratory relief to mark undue delay in processes prone to “evading review.” Overall, this is a disciplined, structured application of EU law’s demand for timely and effective environmental information remedies, poised to reshape both administrative and judicial remittal practices once Luxembourg speaks.