Litigating with the fishes

Environmental law charity ClientEarth sued in Ireland to stop overfishing in the European Union, hoping to end up in the bloc’s highest court. Along the way, a second path opened to challenge the EU over such decisions
Fishing boats in East Sussex, England | Photo: Alamy

By Sean Craig

Sean Craig is a business and investigative journalist who has contributed to The Daily Beast, the Financial Post, BuzzFeed News and Vice

01 Dec 2022

In 2013, European Union Member States signed a law promising to end overfishing by 2020 at the latest. Spoiler alert: they did not.

A series of legal dominoes has now opened a path to changing that. It involves a lawsuit in Ireland, a decade-plus fight to make the EU compliant with a unique international treaty, and a new legal challenge that targets all the bloc’s fishing ministers.

At the centre of it all is ClientEarth, the London-based law NGO that spent years working to make the EU honour the Aarhus Convention, which guarantees access to justice in environmental matters, and is now using rights granted under the treaty to spearhead legal action against EU fishing ministers for failing to meet their own deadline to stop overfishing.

There is no debate around the fact that the EU is overfishing its waters. The bloc’s own official monitoring data shows roughly 40 per cent of commercial stocks were fished at unsustainable levels in 2021.

There is no debate around the fact that the EU is overfishing its waters

Each year, the European Commission proposes fishing quotas based on scientific advice from the International Council for the Exploration of the Sea (ICES). The bloc’s fishing ministers hold talks every December through the Agriculture and Fisheries Council and set so-called total annual catch (TACs) volumes for particular fisheries.

Under the Common Fisheries Policy (CFP), Member States agreed to end overfishing by 2020, but ministers have continued to negotiate TACs that exceed the amounts suggested by scientific experts. About a third of the TACs set last December for 2022 exceeded advice, for example.

That is not to say progress has not been made – TACs for fish stocks in the Baltic Sea are set in October, and this year the Fishing Council followed recommendations by the European Commission to set some TACs precautionary levels below the recommended scientific maximum. “It is encouraging that every year we see a little more progress towards sustainability and taking some ecosystem elements into account when setting fishing quotas,” says Johanna Fox, the World Wide Fund for Nature’s Baltic Ecoregion Programme Director.

The Fisheries Council is set to meet on 12 December to determine TACs outside the Baltic for 2023. Its decision will be the focus of environmental watchdogs and the industry – the EU fishing sector employed 130,000 people and caught seafood worth €6.3bn in 2019, according to official data. It will also play out against historic legal action.

When ClientEarth moved to challenge continued overfishing under the Common Fisheries Policy, the options seemed limited.

“Often the issue when we are launching a case is arguing on the admissibility,” says Arthur Meeus, a lawyer in the charity’s Brussels office. “You need to show there is an interest and, normally if someone is suing, you have a direct impact: this person is suing that person because they broke something, that’s a direct impact.”

Instead of bringing a direct legal challenge against the EU for missing the 2020 target, ClientEarth banked on the luck of the Irish, so to speak. The firm threw its weight behind Friends of the Irish Environment, an environmental group that brought a High Court challenge on the Emerald Isle, accusing the Irish state of failing to meet its legally defined deadline of ending overfishing.

Meeus says the rationale was to argue that an Irish judge was not competent to rule on the case, on the grounds that it related to “pure implementation of EU law.”

Doing so could have seen the case referred to the Court of Justice of the European Union (CJEU), essentially forcing a bloc-wide ruling on Member States’ obligations under the CFP. It worked.

In February, Ireland’s High Court referred judgement in the Friends of the Irish Environment case to the CJEU, which will now be asked to rule on the missed deadline for sustainable fish quotas.

The choice of Ireland to bring the case was a practical one. “We know, for instance, that France is a bit more reluctant to refer a case to the EU level because there is a more national judicial culture,” says Meeus. “It’s in the judicial culture of Ireland, I think, where they are more keen to refer a question if it’s shown to concern European law.”

“It’s in the judicial culture of Ireland, I think, where they are more keen to refer a question if it’s shown to concern European law”

A lot was riding on the High Court’s decision: had the case not been referred and won at the Irish level, then only that country’s national fishing permit would have been affected.

Since the Friends of the Irish Environment case was filed, a significant roadblock to NGOs and advocacy groups challenging the EU on environmental grounds has been removed.

In 2008, ClientEarth filed a complaint with the United Nations against the EU alleging it had failed to comply with an international environmental treaty, in this case the Aarhus Convention.

Signed in 1998 by the EU, the Member States and other European and central Asian countries, Aarhus grants the public the right to access information, public participation and seek justice on environmental matters.

Most treaties tend to deal with bilateral or multilateral relations between states; the obligations of countries to one another. Aarhus is unique in that it provides members of the public, including individuals and NGOs, with mechanisms to enforce their rights against governments.

Following ClientEarth’s challenge, the UN governing body that oversees the Convention ruled in 2017 that the EU was not in compliance. And so, last year, EU lawmakers voted in favour of amending the EU’s Aarhus Regulation to explicitly allow individuals and NGOs to challenge EU decisions that could violate environmental law.

As a result, ClientEarth is now directly challenging the EU. Earlier this year, the organisation submitted “internal review requests” for EU-UK and EU-only fishing quotas, which are required before taking legal action. The European Council declined to review the decisions, and ClientEarth filed cases before the CJEU last month (legally one can’t challenge the EU-UK and UK-only quotas in a single case, but Meeus expects they will be joined by the Court, possibly alongside the Irish case).

“If we have this ruling, likely in 2023, where we have a judge who says that in 2020 the fishing regulation was not valid with regard to the objective of the Common Fisheries Policy, it would be a really good precedent,” says Meeus. “Judicial power has a big impact on the decision-making process and we would assume that, at the next December counsel, the EU decision-makers would say ’OK, we have to respect judicial precedent and fix fishing limits at a sustainable level’.”

If so, pescatarians in the bloc will be able to rest assured their appetite has a more stable future.

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