1

To the President and Members of the Court of Justice of the European Union

Case C-619/19
D.R.
Appellant
-and-
LAND BADEN WÜRTTEMBURG
Respondent

WRITTEN OBSERVATIONS OF THE GOVERNMENT OF IRELAND

Ireland represented by Ms. Maria Browne, Chief State Solicitor,

acting as Agent, accepting service via e-Curia with an address for service at
, assisted by Patrick McCann SC and Niall
Handy BL of the Bar of Ireland, have the honour of submitting the following written
observations to the Court of Justice of the European Union on the questions referred for
preliminary ruling pursuant to Article 267 TFEU by the Bundesverwaltungsgericht (Federal
Administrative Court), Germany.

Dated this 3rd day of December 2019.

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2.  The Government of Ireland submits that a proper interpretation of the term “internal
communications” in Article 4(1)(e) should allow public authorities scope to determine
how it should be applied in relation to each particular request, taking into account the
public interest in disclosure. The Government of Ireland submits there is no temporal
limit imposed on the protection of “internal communications”. If the Court disagrees
and finds there is a temporal limit,  and thus engaging with Question 3, the Irish
Government submits that no such limit should apply to meetings of the members of
government.

II.
Relevant law
Aarhus Convention and Directive 2003/4
3.  Council Directive 2003/4/EC (the ‘Environmental Information Directive’, hereinafter
“the Directive”) was enacted to implement the provisions of the UN/ECE Convention
on Access  to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters1 (“the Aarhus Convention”).

4.  The Aarhus Convention provides for, inter alia, the right of everyone to receive
environmental information that is held by public authorities ("access to environmental
information"). This can include information on the state of the environment, but also
on policies or measures taken, or on the state of human health and safety where this can
be affected by the state of the environment. Applicants are entitled to obtain this
information within one month of the request and without having to say why they require
it. In addition, public authorities are obliged, under the Convention, to actively
disseminate environmental information in their possession.

5.  The Government of Ireland  acknowledges and supports the principle underlying the
Directive as recorded by its first recital, which provides that: -

“[I]ncreased public access to environmental information and the dissemination of such
information contribute to a greater awareness of environmental matters, a free

1 The Aarhus Convention was signed on 25 June 1998 and approved on behalf of the European Community by
Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).

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exchange of views, more effective participation by the public in environmental
decision-making and, eventually, to a better environment”.

6.  The fifth recital to the Directive underscores its reliance upon the Aarhus Convention.

7.  The Court has acknowledged that the Directive is firmly rooted in the Aarhus
Convention, which the Directive implements (Case C-524/09, Ville de Lyons2; Case C-
279/12 Fish Legal3). Accordingly, when interpreting the Directive, it will be necessary
for the Court to have regard to the underlying principles and provisions of the Aarhus
Convention, so as to achieve an interpretation that is consistent with the objectives and
wording of the Convention.

8.  The  Court may also take into consideration the decisions and commentaries of the
compliance committee established under the Aarhus Convention (“the ACCC”) as an
aid – albeit not a binding one – to interpretation. This was the approach adopted by the
Irish Supreme Court in Conway -v- The Government of Ireland, the Attorney General
& Ors. [2017] IESC 134.


2 Case C-524/09, Ville de Lyons, at §§35, 36:
35    It should be noted as a preliminary point that, in adhering to the Aarhus Convention, the European Union
undertook to ensure, within the scope of EU law, a general principle of access to environmental information
held by the public authorities.
36    In adopting Directive 2003/4, the European Union intended to implement the Aarhus Convention by
providing for a general scheme to ensure that any natural or legal person in a Member State of the European
Union has a right of access to environmental information held by or on behalf of the public authorities, without
that person having to show an interest.
3 C-279/12 Fish Legal at §§36, 37:
36. As recital 5 in the preamble to Directive 2003/4 confirms, in adopting that directive the European Union
legislature intended to ensure the consistency of European Union law with the Aarhus Convention with a view
to its conclusion by the Community, by providing for a general scheme to ensure that any natural or legal person
in a Member State has a right of access to environmental information held by or on behalf of public authorities,
without that person having to state an interest (Flachglas Torgau3, paragraph 31).
37. It follows that, for the purposes of interpreting Directive 2003/4, account is to be taken of the wording and
aim of the Aarhus Convention, which that directive is designed to implement in European Union law (see, to
this effect, Flachglas Torgau, paragraph 40).
4 Clarke J. (as he then was) held at §4.13: “While not providing a definitive legal interpretation of the scope of
the Aarhus Convention it is, in my view, appropriate to have regard to decisions and commentaries of the
compliance committee established under the Aarhus Convention for the purposes of facilitating the compliance
by subscribing states with the terms of the Convention itself. That committee has taken the view that “national
law” relating to the environment includes EU law applicable within EU member states.”

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9.  The Government of Ireland  notes that the Court has recently suggested that the
decisions of the ACCC are of somewhat limited assistance as an aid to the interpretation
of the Directive (T-12/17 Mellifera Ev, §85).

10. Finally, in this regard, The Government of Ireland  notes that the Court has also
considered the application of “The Aarhus Convention: An Implementation Guide (2nd
Ed.) 2014” which the Court described as an explanatory document that can be taken
into account for the purposes of interpreting the Convention. The Government of
Ireland notes, however, that the Court has held that the Implementation Guide is not a
legally binding interpretation or normative instrument (C-279/12  Fish Legal5, §38;
R.(Edwards) v Environment Agency (C-260/11)).

Refusal of requests to access environmental information

11. Whereas  Article  3 of the Directive requires public authorities to make available
environmental information held by or for the public authority to any applicant at
his/her/its request, and without having to state an interest, such access rights are subject
to a number of exceptions, all of which are expressed in discretionary terms. There are
two main categories of exception. The first, specified in Article 4(1), can be referred to
as administrative grounds for refusing access. The questions referred in these
proceedings concern the Article 4(1)(e) administrative ground for refusal. The second
category of exception, under Article 4(2), consists of substantive grounds for refusal.
The latter substantive exceptions all include a harm  test, whereas  Article  4(1)
exceptions do not.

12. The Directive (as with the Aarhus Convention on which it relies) explicitly requires
that both categories of exception be interpreted in a restrictive way, “taking into account
the public interest served by disclosure”. Further, and crucially, the Directive requires
that in every case, the public interest served by disclosure must be weighed against the
interest served by the refusal of access.


5 (C-279/12) [2013] E.C.R. 1-0000 at 68.

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13. The Government of Ireland  relies on the discretion afforded to  Member States to
achieve equivalence and effectiveness.  Ireland  has acted  through  implementing
domestic  Regulations (“the AIE Regulations”, discussed further below). Thus, the
Government of Ireland submits that the Court ought not be excessively restrictive in its
interpretation of Article 4(1)(e) so as to eliminate the exceptions expressly provided by
Article 4(1) generally, and 4(1)(e) in particular.

Transposition of Article 4

14. In the case of Ireland, Article 4 (1)(e) of the Directive is fully and accurately  transposed
into Irish law by Article  9 (2) (d) of the European Communities (Access to Information
on the Environment) Regulations 2007 –  2018 (“the AIE Regulations”) which
provides: -
“9 (2) A public authority may refuse to make available environmental
information available where the request:
…
(d) Concerns internal communications of public authorities, taking into
account the public interest served by the disclosure.

15. As will be seen, Article  9(2) of the AIE Regulations is  in  identical  terms to Article
4(1)(e) of the Directive. Relevantly for the purposes of the first question in this referral,
Article 9(2) of the AIE Regulations has been the subject of judicial consideration in
Ireland.

III.  Observations on the questions referred

Question 1

Is point (e) of the first subparagraph of Article 4(1) of Directive 2003/4/EC
of the European Parliament and of the Council of 28 January 2003 on public
access to environmental information and repealing Council Directive
90/313/EEC (the Environmental Information Directive) to be interpreted as
meaning that the term ‘internal communications’ covers all

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communications which do not leave the internal sphere of an authority
which is required to provide information?

16. Article 4(3) of the Aarhus Convention provides for circumstances where a request may
be refused, including:

(c)  the request concerns  material in the course of completion or concerns internal
communications of public authorities where such an exemption is provided for in
national law or customary practice, taking into account the public interest served
by disclosure.
(emphasis added)

17. In turn, Article 4(1)(e) of the Directive provides for an identical exemption in respect
of “internal communications”, as follows: -

4 (1). Member States may provide for a request for environmental information to be
refused if: …
(e)  the request concerns internal communications, taking into account the public
interest served by disclosure.

18.  In both cases, the exception provides for the public authority to engage in a balancing
exercise, weighing a refusal under this ground against the public interest served by
disclosure. The necessity for such a balancing test, as set out in the Directive and the
AIE Regulations, has been recognised by the CJEU in C-266/09 Stichting Nature en
Milieu v Netherlands (§§56, 596). Indeed, the High Court of Ireland recently came to
the same conclusion upon consideration of, inter alia, Article 4(1)(e) of the Directive in
Right To Know CLG v An Taoiseach [2018] IEHC 372 (§§80-85).


6 56. It is apparent from the very wording of Article 4 of Directive 2003/4 that the European Union legislature
prescribed that the balancing of the interests involved was to be carried out in every particular case.
..
59. It follows from the above considerations that the answer to Question 3 is that Article 4 of Directive 2003/4
must be interpreted as meaning that the balancing exercise it prescribes between the public interest served by
the disclosure of environmental information and the specific interest served by a refusal to disclose must be
carried out in each individual case submitted to the competent authorities, even if the national legislature
were by a general provision to determine criteria to facilitate that comparative assessment of the interests
involved.

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Whether “internal communications” covers all communications

19. The term “internal communications” is not defined in in the Aarhus Convention, nor in
the Directive. The Government of Ireland submits that the term “internal
communications” refers to all written material created within and between government
bodies or agencies, not distributed outside  such  government bodies or agencies, and
including written material reflecting individual opinions of officials.  The analysis in
any written material does not have to have been transferred to another person to enjoy
the quality of a communication.

20. It will be a matter for the public authority, having identified that the request consists in
internal communications, to balance the interest in confidentiality applying to internal
communications as against the public interest served by disclosure.

21. The Government of Ireland submits as a matter of administrative necessity and logic
that an “internal communication” may be shared between different government bodies
or agencies without losing its quality as an internal communication.  Support for this
interpretation is found in Article 4(4) of the Directive which expressly qualifies Article
4(1)(e) in the following terms:

4 (4): Environmental information held by or for public authorities which has been
requested by an applicant shall be made available in part where it is possible to separate
out any information falling within the scope of paragraphs (1)(d) and (e) or 2 from the
rest of the information requested.
22. Accordingly, the public authority maintains the discretion to weigh the public interest
in the balance. A  more restrictive interpretation would undermine the balancing
exercise expressly accorded to the Member  State. Whether or not that discretion is
properly exercised is irrelevant for the purposes of this reference; oversight of decisions
is a matter for the internal procedures of any transposing measures implemented by a
Member State7. In the case of Ireland, that is regulated by the AIE Regulations, which
are subject to judicial review (Court review).

7 See, by analogy, the statement of the court concerning the member state application of Article  2(2) of the
Directive in Case C-204-09 Flachglas Torgau at §32: “It should also be noted that the right of access guaranteed
by Directive 2003/4 only applies to the extent that the information requested satisfies the requirements for
public access laid down by that directive, which requires inter alia that the information is ‘environmental

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23. This approach is supported by the text of the Aarhus Convention itself, where it is
provided at Article (4)6 that:

6.   Each Party shall ensure that, if information exempted from disclosure under
paragraphs 3(c) and 4 above can be separated out without prejudice to the
confidentiality of the information exempted, public authorities make available the
remainder of the environmental information that has been requested.

24. The text of Article  6 of the Aarhus Convention expressly considers and separates
confidential information from other environmental information which may be severed
without breaching confidentiality. Recalling that paragraph 3(c) (as identified in Article
6 of the Convention immediately above) is the exception provided by the Convention
and Article 4(1)(e) the Directive in identical terms, The Government of Ireland submits
that, when interpreting the exception provided in Article 4(1)(e) of the Directive, the
same principle of separating out confidential information in this regard applies within
the context of “internal communications” for the purposes of Article  4(1)(e) of the
Directive.

25. The possibility of ‘separating out’ environmental information from Article  6 of the
Aarhus Convention is mirrored in recital 17 to the Directive:

(17) Public authorities should make environmental information available in part where
it is possible to separate out any information falling within the scope of the exceptions
from the rest of the information requested.

26. Crucially, as already stated, that is mirrored in Article  4(4) of the Directive.
Additionally, in both recital 17 and Article  4(4) cited above, the Directive does not
restrict the separation out of any environmental information merely by reference to
confidential information alone, although it is plainly implicit that that confidentiality
ground is included and it can be harmoniously interpreted in that manner. Confidential
in this sense, connotes sensitive information as understood by the public authority of

information’ within the meaning of Article  2(1) of the directive, which is for the referring court to determine in
the main proceedings.”

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the Member State. The difference remains that the Directive did not implement Article
6 of the Aarhus Convention such as to strictly limit the separation out of information
by reference only to confidential information.

Government and cabinet confidentiality

27. Ireland  makes  specific provision in its  Constitution  for the protection of cabinet
confidentiality:  See Articles 28.4.2 and 28.4.3 of the Constitution of Ireland8.

28. In the case of An Taoiseach v Commissioner for Environmental Information9 the High
Court of Ireland  considered whether the (domestic)  AIE Regulations correctly
transposed the Directive. The central issue to be decided was whether Articles 8(b) and
10(2) of the AIE regulations, described by the Court as ‘‘the only provisions of the
regulations that govern or affect cabinet confidentiality’’10 were inconsistent with the
Directive and thus invalid.

29. The  Irish High Court considered  how meetings of the Government should be
categorised in terms of the Directive and, in particular, whether they constituted
“internal communications of public authorities”  to which Article  4(2)(a) of the
Directive applies. The significance of the distinction is that whilst the application of
Article 4(2)(a) is subject to the exception concerning requests relating to information
on emissions, the application of Article  4(1)(e) is not. Subject to the information
constituting internal communications of public authorities, such information  will
therefore be exempt from disclosure under the Directive, even where it relates to
emissions. This is significant because emission-related material must always be made
public; it may only be refused on grounds of intellectual property rights, international
relations, public security or national defence or course of justice.


8   ARTICLE  28: 2° The Government shall meet and act as a collective authority, and shall be collectively
responsible for the Departments of State administered by the members of the Government.
3° The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save
only where the High Court determines that disclosure should be made in respect of a particular matter –
(i)
in the interests of the administration of justice by a Court, or
(ii)
by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal
appointed by the Government or a Minister of the Government on the authority of the Houses of
the Oireachtas to inquire into a matter stated by them to be of public importance.
9 [2010] IEHC 241
10 Ibid. at §9.3

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30. As can be seen11, the basis of the decision was that meetings of the government
constituted ‘‘the constitutionally mandated means or system of communication between
its members for  the purposes of discharging their collective responsibility.’’12  The
Court also noted that whilst many aspects of the functions of government are essentially
public and external in nature, meetings of Government ‘‘are quintessentially private
and internal to the overall functions of the government’’. This constitutionally
mandated form of communication between members of the government therefore could
only be regarded, in the view of the Court, as internal communications of a public
authority. The decision had the effect of defusing the potential conflict between the
constitutional protection afforded to cabinet discussions and EU law.

31. The Government of Ireland relies on the confidentiality accorded to communications
between members of government provided for by Article  28.3 of the Constitution
Ireland, and upon reasoning of the High Court of Ireland  in its determination on the
issues as set out in the foregoing citation, in particular §9.6, subject to a balancing
exercise, prescribed by Article 4 of the Directive, between the public interest served
by the disclosure of environmental information and the specific interest served by a
refusal to disclose, which must be carried out in each individual case (C-266/09
Stichting Natuur En Milieu, §59).


11 At §9.6 of the judgment of the High Court of The Government of Ireland, the court held: “On the other hand
meetings of the government are the occasions when as provided for in Article 28.4.2° of the Constitution the
members of the government come together to act as a collective authority, collectively responsible for all
departments of State. Meetings of the government are the constitutionally mandated means or system of
communication between its members for the purpose of discharging their collective responsibility. These
meetings and their records are required by the Constitution to be private and confidential unless otherwise
directed by the High Court under Article 28.3 of the Constitution. Whereas many aspects of the functions of the
government are essentially public and external in nature, meetings of the government are quintessentially private
and internal to the overall functions of the government. Thus in my judgment, this constitutionally mandated
form of communication between members of the government can only be regarded as the internal
communications of a public authority. Any other conclusion would lead to absurd results as pointed out by Mr
Collins, in that communications between members of the government in any other context apart from formal
meetings of the government would have to be regarded as internal communications, and protected from
disclosure, but the same communications at a government meeting would as “the proceedings of a public
authority” attract disclosure. Manifestly such a state of affairs, apart from its obvious absurdity, would seriously
undermine the discharge of collective responsibility by the government, as required by Article 28.4.2° of the
Constitution. In this regard, I should further add, that I am quite satisfied that the distinction sought to be drawn
between communications between the members of a public authority and between officials of that authority or
between officials of the authority and the members of the authority is devoid of any rational merit and has no
discernible basis either in the express provisions or by way of necessary implication, in the Directive or the
Regulations.

12 Ibid. at Paragraph 9.6

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Question 2

Is the temporal scope of the protection of ‘internal communications’ under point
(e) of the first subparagraph of Article 4(1) of the Environmental Information
Directive unlimited?

32. The Government of Ireland contends that any interpretation of the application of Article
4(1)(e) which imposes a temporal restriction not specified in the Directive (or the
Aarhus Convention), would undermine the basis for the exclusions expressly provided
by Article 4 of the Directive.

33. On a literal reading of the text of Article 4(1)(e), there is no temporal limit imposed on
the protection of “internal communications”. Similarly, there is no provision in the
Directive providing for a temporal limit on any environmental information. In such
circumstances, there is no literal or teleological basis upon which to impose a temporal
scope. Accordingly, the EU legislature, in choosing to apply the language of the Aarhus
Convention, must be taken to have chosen this formula of words for a reason.
Furthermore, the imposition of any temporal scope is exclusively a matter for the
implementing Member State.  Ireland has not specified any period of limitation.

34. Indeed, to date, there does not appear to be any decision of the court interpreting the
temporal scope of “internal communications” under the Directive. There is, however, a
recent  reference13  from  Ireland  to this Court on a related point under this Directive,
which is discussed further below, in response to the third question referred to the Court.

35. It is a high and explicit value in the Irish Constitutional system that the temporal scope
for the protection of meetings of members of the government is unlimited. The
Government of Ireland contends that it is essential that this position is maintained. It is
submitted that any advice offered by this Court should avoid expansive language that
might inadvertently jeopardise that value protected by the Irish Constitution.  It  is
essential to good government and the maintenance of collective responsibility that
Ministers are free to make honest and candid comments for, and at government
meetings, without concern that their comments, or dissenting views will enter the public

13 As at the time of writing, the Court of Justice has not yet assigned a formal case number to the reference.

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domain or be subject to public scrutiny. The Government of Ireland  submits, as its
Environmental Information Commissioner has found14, that it is clear that if details of
Cabinet discussions are disclosed it would have a negative effect on the quality of
Government decisions and would lead to undesirable outcomes.

36. The Government of Ireland submits that in the absence of a statutory limit and in the
absence also of any judicially determined temporal limit, there is no lawfully mandated
basis to insert such a limit. The Government of Ireland contends that the logical answer
to this question is in the affirmative. This approach preserves the integrity of the process
upon each individual request, which process is set out above in observations upon the
first question.

37. If there was a temporal limitation, applications could be renewed with the passage of
time.  This  would be impractical  and would result in  repeated, periodic identical
requests.

38. The Government of Ireland submits that the procedure for determining a subsequent
request for the same information is a matter for the procedural autonomy of Member
States, subject only to potential review by this  Court of the implementation, for
compliance with the provisions of the Directive.

Question 3

If Question 2 is answered in the negative: Does the protection of ‘internal
communications’ under point (e) of the first subparagraph of Article  4(1) of the
Environmental Information Directive apply only until the authority required to
provide information has taken a decision or completed any other administrative
process?


14 In decision number CEI/17/0042, the Commissioner for Environmental Information of The Government of
Ireland stated that he recognised “the very significant public interest in maintaining the confidentiality of such
oral discussions at meetings of the Cabinet, due to the desirability of Cabinet Members feeling able to exchange
their views in a full, free and frank manner ……. where collective decisions are to be made.”

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39. .  In the event that the answer to the second question is negative, the Government of
Ireland submits that the protection of “internal communications” is dependent on a time
limit to be considered and determined by the relevant public authority on a case by case
basis. This is within the discretionary powers accorded to Member States pursuant to
Article 4(1)(e) and (2) of the Directive, as implemented in Ireland by Articles 9(2)(d)
and 3(2)(e) respectively, of the AIE Regulations.

40. The Government of Ireland is expressly concerned that there should be no interpretation
by this Court on the questions referred  which  gives rise to any potentiality  for
interference with the Constitutionally protected status of meetings of members of its
Government, where the temporal scope for the protection of meetings of members of
the government is unlimited.  As already stated above, The Government of Ireland
contends that it is essential that this position is maintained. It is again submitted that
any advice offered by this Court should avoid expansive language that might
inadvertently jeopardise that value protected by the Irish Constitution.  It is essential to
good government and the maintenance of collective responsibility that Ministers are
free to make honest and candid comments for, and at government meetings, without
concern that their comments, or dissenting views will enter the public domain or be
subject to public scrutiny.

41. In this regard, concerning the specific issue of regard to cabinet  confidentiality, and
recalling (§27 above) that Ireland makes specific provision in its Constitution for the
protection of cabinet confidentiality  (again, see Articles  28.4.2 and 28.4.3 of the
Constitution of Ireland15)  , the Government of Ireland submits the Court has no
mandate, whether pursuant to Article 4(1)(e) of the Directive, or indeed by reference to
Article 5 TFEU, to interfere with this high Constitutional bar.

42. As mentioned above, the Government of Ireland  observes that its High Court has
recently requested a preliminary ruling from this court pursuant to Article 267 TFEU
in respect of a question which, similarly, also raises an issue concerning the extent to
which there is a temporal limitation on to Article 2(2) of the Directive, as transposed
by the AIE Regulations.


15 Ibid.

15

43. In Friends of the Irish Environment  v Commissioner for Environmental Information
and others [2019] IEHC 597, the appellant sought access to the records held by the first
notice party, the Courts Service of The Government of Ireland, in relation to legal
proceedings entitled Balz & Heubach v An Bord Pleanála 2013 450 JR ([2016] IEHC
134) in which judgment had been delivered by the High Court on 25 February 2016 and
which had not been appealed. It was agreed by all parties to the main proceedings that
control over the court file during the pendency of proceedings involved the exercise of
“judicial capacity”. The only issue in dispute therefore was as to whether court records
are held by the first notice party in a “judicial capacity” after the making of final orders
and exhaustion of any appeals in proceedings.

44. It was held by the High Court that, as far as could be established, the question of the
extent of the “judicial capacity” exemption provided for in Article 2(2) of the Directive
had never been considered by this Court or by the Courts in any of the Member States.
The High Court of Ireland held that it was appropriate and necessary for the consistent
interpretation of EU law, and in order to determine the main proceedings, that the input
of the Court of Justice be sought in order to identify the scope of the “judicial capacity”
exemption.

45. The Irish High Court requested this court to consider the following question by way of
preliminary ruling in accordance with Article 267 of the Treaty on the Functioning of
the European Union:
“Is control of access to court records relating to proceedings in which final
judgment has been delivered, the period for an appeal has expired and no
appeal or further application is pending, but further applications in particular
circumstances are possible, an exercise of “judicial capacity” within the
meaning of Article    2(2) of Directive 2003/4/EC of the European Parliament
and of the Council of 28 January 2003 on public access to environmental
information and repealing Council Directive 90/313/EEC?”

46. In those circumstances, the Government of Ireland draws the attention of the Court to
the possibility of similar issues arising upon the referral in the Friends of the Irish
Environment matter.

16

47. In that reference, the issue of temporal scope of a refusal to a request will be central to
the preliminary ruling of the Court in that case. In these proceedings, the third question
gives rise to similar considerations. However, they are unlikely to be dispositive here,
where Ireland has (a)  enacted specific legislation transposing the Directive which
provide for express refusal of requests (as already discussed in Ireland’s observations
on the first question), and (b) has a specific Constitutional bar on the disclosure of
information concerning meetings of members of the Government. For the avoidance of
all doubt: it is the position of Ireland that such protection extends to all communications
received and given by parties to members of the Government which inform or otherwise
concern specific matters for consideration by the meetings of members of the
Government.

48. Finally, If the Court disagrees with the concept of no temporal limitation on “internal
communications”, the Court should be careful to restrict its rules to specific facts of the
case at hand, and be careful to ensure that any advice it offers to the referring court does
not jeopardise the high constitutional value of indefinite confidentiality of discussions
at meetings of members of the government of The Government of Ireland.

Dated the 3rd December 2019

Signed:
Juliana Quaney
On behalf of Maria Browne, Chief State Solicitor
Agent for Ireland

Signed: Tony Joyce
On behalf of Maria Browne, Chief State Solicitor
Agent for Ireland

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