A summary of EU and Irish case law releating to the status of Coillte Teo.
Competition Directive C-353/96
Coillte Teo.'s claim to be a 'private law entity' was clearly rejected in a Judgment under the Competitions Directive in Case C-353/96 Commission v Ireland and Connemmara Machine Turf on 17 December 1997. Coillte Teoranta as a 'contracting authority' within the meaning of the legislation on public supply contracts (Directive 77/62/EEC).
Afforestation aid C-339/00
‘In the present case, Ireland itself has stated that Coillte Teoranta is and always has been a public undertaking wholly owned by the State. Moreover, the Court has already held in Connemara Machine Turf and Commission v Ireland that that company was controlled by the State and no new evidence has been adduced which might show that this was no longer the case in the financial years 1997 and 1998. Neither the company's obligation to manage its affairs on a commercial basis nor the fact, alleged by Ireland, that the State does not, in practice, intervene in the company's management can prevail over the finding that the company is wholly owned and controlled by the State and that the State could therefore intervene. It follows that Coillte Teoranta is not a private-law legal person for the purposes of Article 2(2)(b) of Regulation No 2080/92.
Irish Law - Access to Information on the Environment
In January 2005 an Order of the High Court was issued in which Coillte Teo voluntarily agreed to be bound by the Directive and its Irish implementing Regulations:
This is the wording of the Court Order:
'That, without prejudice to its contention that the Respondent is not a public authority for the purposes of Statutory Instrument 125 of 1998 European Communities Act 1972 (Access to Information on the Environment) Regulations 1998 ("S.I. 125/98") and without prejudice to its contention that the Respondent is not covered by the provisions of S.I. 125/98, the Respondent undertakes to fully comply with the provisions of S.I. 125/98 on a voluntary basis, and will be bound entirely by the provisions of S.I. 125/98 in such voluntary compliance and will be correspondingly entitled to avail of all exceptions to the provisions of SI 125/98 as contained therein.'
From the Irish Information Commissioner
In her Report, the Commissioner is critical of the Department of Communications, Marine & Natural Resources and of Coillte Teoranta in relation to their conduct during the course of a review . The Department is criticised for failing to provide her with copies of relevant records pending the receipt of the Attorney General's advice on the matter. This occurred notwithstanding the provisions of section 37 of the FOI Act which entitles the Commissioner to require the provision, from any person, of relevant information or records.
The Commissioner considers that the Department should have been well aware, without having to seek the advice of the Attorney General, of her powers under the FOI Act and of its obligation to assist her. However, she considered Coillte's conduct to be particularly unacceptable. In a submission purporting to clarify its legal status in order to support its objection to the release of relevant records (held by the Department), Coillte claimed to be a private limited company that was not under the control of any Government department. Coillte's submission made no mention whatsoever of the binding judgment of the European Court of Justice in which Coillte's view of its status as a private company was rejected.
The Commissioner has described Coillte's failure to include in its submission any reference to the Court's ruling on its status as "unfortunate at best"
The lie lives on
The current Coilte website states in ‘Coillte’s History’ that ‘the Government decided to set up Coillte Teoranta as a private limited company to manage State owned forests commercially.’
‘When Coillte was established in 1989 we acquired ownership of the State's forests in return for shares valued at IR£575 million (€730 million). Since then we have developed from a company which only managed forests into a more broadly based company operating in forestry, land based businesses, renewable energy and panel products.’
Who acquired what from whom? And who owns what?
The 1988 Forestry Act states:
'The authorised share capital of the company shall be £1 billion or such other amount as may be approved from time to time by the Minister for Finance, after consultation with the Minister, divided into shares of one pound each.'
17.—(1) The company shall issue shares to the Minister for Finance to the value of the property transferred to it on the vesting day in accordance with sections 39 and 40, and each share shall carry one vote. [GA]
(2) The Minister, with the consent of the Minister for Finance and following consultation with the company, shall issue as soon as possible after the vesting day a certificate certifying the sum which in his opinion represents the value of the property transferred to the company.
[GA] (3) The company, after receipt of the certificate, shall issue to the Minister for Finance, without payment by him, fully paid-up shares of the company equal in nominal value to the sum so certified.
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